ADENIJI v. FRN (2021)

ADENIJI v. FRN

(2021)LCN/14979(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 13, 2021

CA/A/51C/2019

RATIO

JURISDICTION: MEANING OF JURISDICTION

Jurisdiction is the authority which a Court has to decide a matter before it, the overall or entire reason for entertaining a matter presented to it for adjudication. See the cases of MILITARY ADMINISTRATOR BORNO STATE V. ABAYILO 2001 FWLR 604, NDAEYO V. OGUNNAYA 1977 1 SC 11, NATIONAL BANK V. SHOYOYE 1977 5 SC PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

JURISDICTION: WHAT DETERMINES THE JURISDICTION OF A COURT

It is trite and settled that, in determining the jurisdiction of a Court to entertain a matter, the processes put before it by the Claimant or Applicant, the writ of summons and statement of claim or the originating summons and the affidavit in support (for civil matters) in commencing the action are to be considered. See the cases of INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025, ELABANJO V. DAWODU 2006 15 WLR PT. 1001 76, ADEYEMI V. OPEYORI 1976 9-10 SC 31 and TUKUR V. GOV. GONGOLA STATE 1989 4 NWLR PT. 117 517. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
COURT: JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

Section 255 of the 1999 Constitution of the Federal Republic of Nigeria, the grundnorm, created the High Court for the Federal Capital Territory in Nigeria and in Section 257 (1) thereof provides thus:
Section 257 (1)
Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
Simply put and as clearly stated without any ambiguity, from the foregoing provision, the Court below is equally clothed with jurisdiction in criminal matters. Consequently, the answer to the question posed is that where the law or the Constitution as herein so provides the Court can properly assume criminal jurisdiction. As it is the position that in determining the jurisdiction of a Court to entertain a matter, the processes put before it by the Claimant or Applicant are the relevant processes to be considered, in the instant, the Court properly exercised and assumed jurisdiction given the Charge placed before it. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
EVIDENCE: DUTY OF A TRIAL COURT IN RELATION TO EVIDENCE BEFORE IT

It is pre-eminently the duty of a trial Court to evaluate evidence and ascribe probative value to same. An appellate Court cannot determine issues of facts, the credibility of witnesses and questions on their demeanor as it does not have the privilege of watching and hearing the witnesses testify. See the cases of CYPIACUS NNADOZIE & ORS V. NZE MBAGWU2008 LPELR-SC 249/2002, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR 1992 LPELR SC 178/1990, WILLIAMS V. JOHNSON 1937 2 WACA 253 and OGBERO EGRI V. EDEBO UKPERI 1974 NMLR 22. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

EVIDENCE: BURDEN OF PROOF IN A CRIMINAL CASE

In a criminal case, the burden of proof is on the prosecution and must be established beyond reasonable doubt as provided in Section 135 (1) of the Evidence Act. The subsection provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. What the term beyond reasonable doubt entails was clearly and simply put by the apex Court per Aloma Mariam Mukhtar JSC in the case of JUA V. STATE 2010 LPELR-1637 SC thus:
“Although the law requires that a crime must be proved beyond reasonable doubt, it does not envisage that such proof be beyond the shadow of doubt. This proposition of the law is well echoed by Lord Denning in the case of Miller v. Minister of Pensions 1947 2 All E. R. Page 372 which is encapsulated thus:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. 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 against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
See also the cases of JOSHUA ALONGE V. IGP 1959 IV FSC 203, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1988 ACLR 426, OBIAKOR V. THE STATE 2002 6 SCNJ 193, ONYEKA MBERI V. THE STATE 2016 LPELR-CA/OW/351M/2012 and MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

CRIMINAL LAW: NATURE OF THE OFFENCE OF CONSPIRACY

The offence of conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. The essential ingredients of the offence of conspiracy lie in the agreement to do an unlawful act which is contrary to or forbidden by law and it does not matter whether or not the accused persons had knowledge of its unlawfulness. See the cases of NDOZIE v. STATE 2016 LPELR-26067SC and CLARK V. THE STATE 1986 4 NWLR PT.35 381. The apex Court in a lucid manner and instructively explained all that entails in the determination of whether or not there is criminal conspiracy or what is referred simply to as conspiracy in the case of NDOZIE V. STATE supra and I shall quote extensively thus there from, as it is self explanatory and comprehensive:
“In the old case of Njovens V. State 1973 5 SC 12, also reported in 1975 LPELR 2042 SC P.5 this Court held as follows:
“The overt act or omission which evidence conspiracy is the actus reus and the actus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar, were seen to ether coming out of the same place at the same time and indeed conspirators need not know each other. See the case of R. v. Mayrick and Ribuffi (1929) 21 C App. R.94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omission of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators “ … The crime of conspiracy is usually hatched with utmost secrecy and the law recognizes the fact that in such a situation, it might not always be easy to lead direct and distinct evidence to prove it. Thus, it is always open to the trial judge to infer conspiracy from the facts of the case. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof, it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See the case of DR. SEGUN ODUNEYE V. THE STATE 2001 2 NWLR PT.697 311.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

KAYODE GABRIEL ADENIJI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Hon. Justice Y. Halilu on October 8th, 2018, wherein the Appellant who was the 1st Accused person at the Court below, was sentenced along with two other Accused persons, Global Concept Limited and Mide Landmark Ventures Ltd (2nd and 3rd Accused persons at the Court below and the Appellant’s Companies) to a term of six (6) months in prison in respect of criminal conspiracy, seven (7) years for criminal breach of trust and another 7 (seven) years for receiving monies by false pretence. The terms were to run concurrently.

The Appellant dissatisfied, has come before this Court with his Notice of Appeal dated November 15th, 2018 and filed November 21st, 2018 with Eleven (11) Grounds of appeal and seeks the following reliefs:
i. An order allowing the Appeals (sic) and setting aside the judgment of the High Court of FCT, Abuja delivered Hon. Justice Y. Halilu on the 8th of October, 2018.
ii. An Order quashing the conviction and sentencing of the

Appellant by the High Court of FCT, Abuja.
iii. An order of this Honourable Court discharging and acquitting the Appellant of the offence of Conspiracy, Criminal Breach of Trust and Obtaining Money by False Pretence for failure of the Respondent to prove the charge against the Appellant beyond reasonable doubts (sic).
iv. Any other order (s) that this Court may deem fit to make in the circumstances of this appeal.
See page 413 of the printed Record.

At the Court below, the Appellant along with two other persons as afore said, Global Concept Limited; Mide Landmark Ventures Ltd (the Appellant’s companies) as afore said were charged as follows:
CHARGE
That you, Kayode Gabriel Adeniji; Global Concept Limited; Mide Landmark Ventures Ltd on or about January 2013, within the jurisdiction of this Honourable Court did conspire amongst yourselves to dishonestly convert to your own use proceeds from the sale of fractions of plot number 19 Gwarimpa 1, Cadastral Zone C02, Abuja belonging to Mrs. Christiana Adetola Makanjuola thereby committed an offence contrary to Section 96 of the Penal Code and punishable under Section 97 of the same code.

COUNT 2
That you, Kayode Gabriel Adeniji, Kabriel; Global Concept Limited; Mide Landmark Ventures Ltd on or about January 2013, within the jurisdiction of this Honourable Court, Mrs. Christiana Adetola Makanjuola entrusted you with plot number 19 Gwarimpa 1, Cadastral Zone C02, Abuja as her agent did, in the process, dishonestly misappropriate the aggregate sum of N55 Million being some proceeds from the sale of portions of the said plot and thereby committed an offence contrary to Section 311 of the Penal Code and punishable under Section 312 of the same Code.
COUNT 3
That you, Kayode Gabriel Adeniji, Kabriel Global Concept Limited; Mide Landmark Ventures Ltd on or about January 2013, within the jurisdiction of this Honourable Court did with intent to defraud obtain an aggregate sum of N14 million naira from Professor and Mrs. Gboyega Kolawole under false representation that you have the consent of the owner to sale (sic) and deliver a fraction of parcel of land within plot number 19 Gwarimpa 1, Cadastral Zone C02, Abuja which you knew to be false and thereby committed an offence contrary to Section 1 (1) (a) of the Advance Fee Fraud Act, 2006

and punishable under Section 1 (3) of the same Act.
COUNT 4
That you, Kayode Gabriel Adeniji, Kabriel Global Concept Limited; Mide Landmark Ventures Ltd on or about January 2013, within the jurisdiction of this Honourable Court did with intent to defraud obtain an aggregate sum of NIO million naira from Uche Okeke under false representation that you have the consent of the owner to sale (sic) and deliver a fraction of parcel of land within plot number 19 Gwarimpa 1, Cadastral Zone C02, Abuja which you knew to be false and thereby committed an offence contrary to Section 1 (1) (a) of the Advance Fee Fraud Act, 2006 and punishable under Section 1 (3) of the same Act.
COUNT 5
That you, Kayode Gabriel Adeniji, Kabriel Global Concept Limited; Mide Landmark Ventures Ltd on or about January 2013, within the jurisdiction of this Honourable Court did with intent to defraud obtain an aggregate sum of N15 million naira from Brig. General Silver Ogbogu through Engr. Emma Ineamah under false representation that you have the consent of the owner to sale (sic) and deliver a fraction of parcel of land within plot number 19 Gwarimpa 1,

Cadastral Zone C02, Abuja which you knew to be false and thereby committed an offence contrary to Section 1 (1) (a) of the Advance Fee Fraud Act, 2006 and punishable under Section 1 (3) of the same Act.
See pages 2 and 3 of the Record.

The brief gist as garnered from the Record is that the Appellant, a developer of land, the Chief Executive and Managing Director of Kabriel Global Concept Limited and Mide Landmark Ventures Ltd. was assigned by Mrs. Makanjuola, the Complainant/Petitioner, who was introduced to the Appellant by her husband, Hon. Makanjuola, to help develop her land plot 19 Gwarimpa 1, Cadastral Zone C02, Abuja, after which together they would sell the developed properties and share the profit. The idea not to sell the land as it was but to develop it was that of the Appellant who advised that the plot be developed before sale and he was put in possession upon an oral agreement that he would get funds for the construction. A Memorandum of Understanding, MOU, Exhibit F, was entered into between the parties but before the MOU, the Appellant, having plotted the land into 15 (fifteen) plots, sold three (3) in 2008 without the approval of Hon. and Mrs. Makanjuola.

The Appellant’s story is that he expended the proceeds on the project. That the Makanjuolas became unnecessarily suspicious when the project was developing and because Hon. Makanjuola needed money to prepare for the 2015 elections, he was offered outright sale of the property for N235,000,000.00k.

The story of the Respondent from the nominal complainant is that the Appellant became evasive, sold some of the plots through his companies without the consent of and recourse to the Makanjuolas and failed to remit any part of the purchase money to them. Mrs. Makanjuola sometime after, therefore, on May 12th 2014, wrote a petition against him to the ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC), for criminal breach of trust, cheating, fraudulent conversion and other offences. The Appellant and the two others afore stated were charged at the Court below.

In compliance with the Rules of this Court, the Appellant filed on April 23rd, 2019, his brief of argument dated April 18th, 2019, which was deemed as properly filed and served on October 14th, 2020 and was settled by Dr. A. S. Ishola Esq. The Respondent’s, dated March 9th,

2020, filed March 12th, 2020 was deemed as properly filed and served on October 14th, 2020, and was settled by Aso Larry Peters Esq.

Mr. Abdulkareem Amin Esq., argued the appeal on behalf of the Appellant, adopted the brief and urged that the appeal be allowed. For the Respondent, Mr. J. Saidi Esq., adopted the Respondent’s brief and urged that the appeal be dismissed.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
APPELLANT’S ISSUES
1. Whether the trial Court was right in assuming criminal jurisdiction in the case and in relying on the Memorandum of Understanding (MOU) of 9th February, 2012, forming part of EXHIBIT F, in view of the contractual and civil nature of the relationship between the Appellant and the nominal complainant and in view of the expired relevance and lack of probative value of the MOU to the conflicts between the Appellant and the nominal complainant (Grounds 4 and 10).
2. Whether this honourable (sic) ought not to set aside the conviction and sentence of the Appellant by the trial Court which were premised on issues raised suo motu and facts not supported by the Record and by which right of the Appellant to

fair hearing was violated (Grounds 6 and 9).
3. Whether the evidence before the lower Court truly supports the facts that the Prosecution proved its case beyond reasonable doubts (sic) against the Appellant as held by the trial Court to have justified the conviction and sentencing of the Appellant for the offences charged (Grounds 1, 2, 3, 7, 8 and 11).
RESPONDENT’S ISSUES
1. Whether having regard to the Prosecution Charge and taking into cognizance the quantum of both oral and documentary evidence adduced at the trial, the trial Court had jurisdiction to try and convict the Accused/Appellant in view of the facts of this case, and whether the Appellant act is criminal and fall within the Respondent (sic) statutory powers.
2. Whether the learned trial judge was/is correct in finding the Accused/Appellant guilty of the Charge against him in counts 1, 2, 3, 4 and 5, the Prosecution/Respondent having proved beyond reasonable doubt based on both oral and documentary evidence adduced at the trial to warrant his conviction.

It is apparent from the issues submitted by the Appellant that Ground 5 of the Notice of Appeal was abandoned as no

issue was distilled therefrom. In consequence, Ground 5 is hereby stuck out. See the cases of ANPP V. INEC 2004 7 NWLR PT. 871 16 and BHOJSONS PLC V. DANIEL KALIO 2006 5 NWLR PT. 973 330.

I shall adopt the issues submitted by the Appellant as they will justly and fairly determine this appeal.

APPELLANT’S SUBMISSION
The learned Appellant’s Counsel contended that the Court below lacked criminal jurisdiction in the matter in view of the facts and evidence before it. That it was a civil and contractual relationship between the Appellant and the complainants as evidenced by the MOU of January 9th, 2012 and Exhibit F. That the Appellant executed the contractual terms through his two companies, which were made the co-Defendants. He argued further that, the contractual conflict between the parties was the failure of the Appellant to fulfill his obligations under Exhibit F, the Agreement of sale of the property, that is, for him to buy the property. He submitted that the Appellant’s failure to pay the contract sum even as stated unequivocally by the PW1, could not have amounted to a criminal offence and cited the case of OKAFOR V. AIG & ORS 2019

LPELR; 46505 CA. Therefore, there was an abuse of the process of the Court, the trial was wrong and illegal and cited the case of OKAFOR V. AIG & ORS supra and the Respondent had no legal power to interfere in the contractual relationship between the parties and cited the case of ABAH V. UBN PLC. & ORS 2015 LPELR- 24758 CA. He submitted further that, the Court should have declined jurisdiction as soon as it found that the bone of contention was non- compliance with the terms of the MOU which had no probative value and in support cited the case of ISIDAEHOMLU V. GOVERNOR OF BENDEL STATE 1986 5 NWLR PT. 39 58, AFRIBANK NIG. PLC. V. SILVESTER ONYIMA & ANOR. 2004 2 NWLR PT. 654 680 and OKAFOR & ANOR. V. AIG & 4 ORS. supra, MADUKOLU V. NKEMDILIM 1962 2 SCNLR 24 and SKEN CONSULT V. UKEY 1981 1 SC 6.

The learned Counsel contended that, the Court based its decision on some issues raised suo motu and some facts not supported by the Record of proceedings and thereby violated the rights of the Appellant, therefore, the conviction be set aside. That the Court was bound by the Record of proceedings and cited in support the case of

AKINPELU V. ADEGBORE 2008 4 SCNJ 220. Further that, the errors by the Court in terms of the actual facts before it were serious ones and sufficient to cause a reversal of the Appellant’s conviction and sentence. He submitted that the Court was wrong when it failed to allow the parties to address it after it raised some issues suo motu and cited in support the cases of SHASI & ANOR. V. SMITH & 2 ORS 2009 12 SC PT. III 1, UDENGWU V. UZUEGBU 2003 11 SCM 135, THE STATE V. OLADIMEJI 2003 11 SCM 121 and CHAMI V. UBA 2010 2-3 SC PT II 92.

He submitted that the Respondent failed to prove its case beyond reasonable doubt on the three (3) offences of criminal conspiracy, criminal breach of trust and obtaining money by pretence. He contended that the Appellant, the owner of the two companies being their alter ego, could not have conspired with them as doing so would have amounted to conspiring with himself and cited in support the cases of NJOVENS & ORS V. THE STATE 1973 NNLR 76 and OSHO V. THE STATE 2011 LPELR 4804 CA. Further that, there was no clear agreement between the parties for the Court to have found conspiracy, therefore the Court was wrong to have

convicted on speculations and not even inferences as all the steps taken by the Appellant on behalf of the two Companies, 2nd and 3rd Convicts, could not be interpreted to mean conspiracy and in support cited the cases of IBRAHIM & ANOR. V. STATE 1986 1 NSCC 230, ANI & ANOR. V. THE STATE 2009 6-7 SC PT. III and AIGUOREGHIAN & ANOR. V. THE STATE 2004 2 SCM 39. That it was lawful relationship between the Appellant and the 2nd and 3rd Convicts and cited the case of LADEJOBI & 2 ORS V. OGUNTAYO & 9 ORS 2004 9-12 SCM PT. 1105.

The learned Counsel submitted further that there was no issue of trust between the Appellant and the complainants. That the MOU relied upon heavily by the Court was of no moment as it did not establish such in respect of the land, rather, it showed contractual relationship. He argued that there was no evidence to support the conviction on obtaining money by false pretence as the Appellant did not induce PW2, PW4 and PW5 to pay money to him under false pretence of ownership of the plots he sold to them. That all the sales done before the Sales Agreement between the parties should be overlooked and ratified by

implication and the allegations of false pretence and criminal breach of trust should not arise as they were afterthought.

In conclusion, he urged that the appeal be allowed as the Respondent failed to prove its case beyond reasonable doubt and the judgment upturned and conviction quashed.

RESPONDENT’S SUBMISSION
Mr. Aso Peters, learned Counsel for the Respondent, submitted that the trial Court had jurisdiction and properly exercised same according to the said laws under which the Appellant was charged and tried and cited in support the case of NWEKE V. FRN 2019 LPELR-46946 SC. He argued that the Appellant dealt with the land fraudulently in 2011 even before the MOU in 2012 as Exhibit C issued to PW2, PW4 and PW5 were all dated July 25th, 2011 with the name of the 2nd Convict on the letter headed paper used, payment receipts were issued in the names of both the 2nd and 3rd Convicts and Exhibits C, the offer letters were signed by the Appellant. Therefore, the Court was right in accordance with the enabling law to sentence and convict the Appellant as it did and in support cited the case of ONWUDIWE V. FRN 2006 10 NWLR PT. P. 386. That, the

argument that the relationship between the parties was civil and contractual by the Appellant’s Counsel is of no moment. He submitted that, the Respondent properly charged the Appellant to Court as it is empowered as the coordinating agency for the enforcement of economic and financial- crimes even under the Criminal and Penal codes.

He submitted that, the Appellant was caught by Section 98 of the Penal Code and that the Respondent successfully proved the essential elements of conspiracy as charged. That, the Court was right to have so found by inferences from the circumstances against the Appellant given the testimonies of PW1 to PW6 and Exhibits C and D, the receipts issued by the 2nd Convict, allocation letters signed by the Appellant and the statements of its account and that of the 3rd convict, that there was a common intention. He cited in support the cases of ALARAPE V. STATE 2001 5 NWLR PT. 705 79 and NJOVENS V. THE STATE supra. That, the argument that the Appellant could not conspire with the 2nd and 3rd Convicts is absurd in the face of Section 484 of the Administration of Criminal Justice Act 2015 and the case of ADENIJI V. STATE 1991 4 NWLR PT. 234.

He submitted that from the evidence before the Court, the Appellant failed to honor the clauses of both the MOU and Sale Agreement as he was not authorized to sell land to anybody as Exhibit F is clear and cited the cases of INTERDRILL NIG. LTD. V. UBA PLC. 2017 52 P. 75, AIKI V. IDOWU 2006 9 NWLR PT. 984 47 and EZEMBA V. IBENEME & ANOR. 2004 14 NWLR PT. 894 P. 617. That, the entire conduct of the Appellant was contrary to Section 311 of the Penal Code and the facts found were not challenged by the Appellant, consequently the Court was right to have convicted the Appellant for criminal breach of trust and in support cited the cases of OFORLETE V. STATE 2000 12 NWLR PT. 681 12 NWLR P. 415 and SHEHU V. STATE 2010 ALL FWLR PT. 523 P. 184B.

The learned Counsel submitted that the Appellant actually obtained money under false pretence as evidenced in Exhibit C, offer letters of allocation, receipts of payment to the PW2, PW4 and PW5 on the letter headed paper of the 2nd and 3rd Convicts which were signed by the Appellant as the Chief Executive Officer of the 2nd and 3rd Convicts without the knowledge of the Complainant. That, from the

testimonies of PW1, PW3 and PW6 and Exhibits C and D, the Appellant failed to remit any sum out of the N37 Million he was paid for the plots to the PW3 and PW6 and cited the case of ENUKORA V. FRN 2018 6 NWLR PT. 16115 355.

He submitted further that, the Appellant had a fair trial throughout the proceedings and there was no issue raised suo motu in the course of trial by the Court. That, the trial was according to the relevant laws and rules of Court and in support cited the cases of SALU V. EGEIBON 1994 6 NWLR PT. 348 23, MOHAMMED V. OLAWUNMI 1990 2 NWLR PT. 133 458 and UGURU V. THE STATE 2002 9 NWLR PT. 771 90. Further that, the findings of fact are supported by the evidence before the Court, therefore there will be no interference by the appellate Court and cited the case of OGUNSANYA V. STATE 46.2 NSCQR 1083 109. That, contradictions to be material, must go to the root of the charge and cited the case of DIBIE V. THE STATE 2007 9.

In conclusion, he urged that the appeal be dismissed and the decision of the Court below be affirmed.

THE POSITION OF THE COURT
I have very carefully considered all the submissions on behalf of the parties,

the printed Record before this Court and having so carefully done, I shall proceed to determine the Issues by the Appellant one after the other as already adopted and reproduced hereunder for ease of reference.

ISSUE 1
1. Whether the trial Court was right in assuming criminal jurisdiction in the case and in relying on the Memorandum of Understanding (MOU) of 9th February 2012, forming part of EXHIBIT F, in view of the contractual and civil nature of the relationship between the Appellant and the nominal complainant and in view of the expired relevance and lack of probative value of the MOU to the conflicts between the Appellant and the nominal complainant.

One would firstly ask the question, when would a Court assume criminal jurisdiction over a matter and in particular in respect of the case of the Respondent at the Court below.

It is trite and settled that, in determining the jurisdiction of a Court to entertain a matter, the processes put before it by the Claimant or Applicant, the writ of summons and statement of claim or the originating summons and the affidavit in support (for civil matters) in commencing the action are to be considered. See the cases of INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025, ELABANJO V. DAWODU 2006 15 WLR PT. 1001 76, ADEYEMI V. OPEYORI 1976 9-10 SC 31 and TUKUR V. GOV. GONGOLA STATE 1989 4 NWLR PT. 117 517.
Section 255 of the 1999 Constitution of the Federal Republic of Nigeria, the grundnorm, created the High Court for the Federal Capital Territory in Nigeria and in Section 257 (1) thereof provides thus:
Section 257 (1)
Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in

issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
Simply put and as clearly stated without any ambiguity, from the foregoing provision, the Court below is equally clothed with jurisdiction in criminal matters. Consequently, the answer to the question posed is that where the law or the Constitution as herein so provides the Court can properly assume criminal jurisdiction. As it is the position that in determining the jurisdiction of a Court to entertain a matter, the processes put before it by the Claimant or Applicant are the relevant processes to be considered, in the instant, the Court properly exercised and assumed jurisdiction given the Charge placed before it.
In my considered view and humbly, the issue being raised that the relationship between the Appellant and the complainant was contractual and civil in nature is of no moment. A Charge of five (5) counts was placed before the Court against the Appellant and two others to answer, duly and properly instituted according to the relevant laws, the business of

the Court in that circumstance was to determine whether or not the Charge for which leave as required was sought, could stand. In other words, whether or not the Respondent as expected by law would prove its case beyond reasonable doubt. See pages 1-3 of the Record. The Court has constitutionally conferred on it jurisdiction to entertain both criminal and civil matters and which jurisdiction it rightly exercised herein in respect of the criminal charge against the Appellant. With respect, the contention of the Appellant in the face of clear provisions of the law is to create confusion where there is none. From the Constitutional provision, the jurisdiction in my view and humbly, is whole, solid and clear to be exercised where the conditions are met, whether in a civil or criminal matter.

As regards the MOU, the Appellant is not allowed to approbate and reprobate, cannot blow hot and cold at the same time, as he seeks to do. That, the relevance of the MOU has expired and no probative value, in another breadth keeps referring to the MOU to support his position that the relationship between him and the Complainant is civil. The Appellant cannot eat his cake

and have it. In fact, throughout the brief are references to Exhibit F. A pertinent question is, when did the relevance of the MOU expire, was it after he made all the sales of the plot in issue, or before, which question in my view, the learned Counsel ought to have addressed. From the Record which the Appellant did not challenge, the MOU was one document if not the only one that, he used to assure the probing and not too sure intending buyers at the time that, he had authority to sell. One finds from the proceedings as contained in the Record that none of the buyers actually read or took careful note of the content of the MOU. On page 294 of the Record, the MOU and the property Sale Agreement, were both tendered by the PW1 and admitted in evidence as Exhibit F. It is pertinent to state that, the PW2 on page 301 of the Record admitted during cross-examination that the Appellant showed the MOU to him as the authority for the sale when he enquired about the ownership of the property in question and that, he read the document. The PW4 equally stated on page 308 of the Record that, the Appellant showed the MOU, Exhibit F, to him as his authority for the sale and

repeated the same thing during cross-examination on page 310 of the Record that, the Appellant showed Exhibit F, both the MOU and Sales agreement to him. It is obvious from the Record that, the Appellant made use of the MOU, Exhibit F and in return wanted the Court to shut its eyes to the same in its evaluation of the evidence before it. According to the learned Appellant’s Counsel, it should not be given any probative value after it assisted him to gain the confidence of the buyers of the plots, the PW2 and PW4 in particular to buy and commence development of the property. The Court rightly evaluated evidence based on the MOU, Exhibit F and to have done otherwise as being argued by the Appellant would have occasioned injustice in the matter at the Court below. In consequence, this Issue is hereby resolved against the Appellant.

ISSUES 2 AND 3
1. Whether this honourable (sic) ought not to set aside the conviction and sentence of the Appellant by the trial Court which were premised on issues raised suo motu and facts not supported by the record and by which right of the Appellant to fair hearing was violated.
2. Whether the evidence before the

lower Court truly supports the facts that the Prosecution proved its case beyond reasonable doubt against the Appellant as held by the trial Court to have justified the conviction and sentencing of the Appellant for the offences charged.

I shall consider the foregoing issues together and through the findings of the Court.

criminal, it must be proved beyond reasonable doubt. What the term beyond reasonable doubt entails was clearly and simply put by the apex Court per Aloma Mariam Mukhtar JSC in the case of JUA V. STATE 2010 LPELR-1637 SC thus:
“Although the law requires that a crime must be proved beyond reasonable doubt, it does not envisage that such proof be beyond the shadow of doubt. This proposition of the law is well echoed by Lord Denning in the case of Miller v. Minister of Pensions 1947 2 All E. R. Page 372 which is encapsulated thus:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. 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 against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
See also the cases of JOSHUA ALONGE V. IGP 1959 IV FSC 203, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1988 ACLR 426, OBIAKOR V. THE STATE 2002 6 SCNJ

193, ONYEKA MBERI V. THE STATE 2016 LPELR-CA/OW/351M/2012 and MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC.

The Appellant was tried on a five (5) Count Charge as afore stated. Count 1 was that of conspiracy to dishonestly convert to his use proceeds from the sale of fractions of Plot 19 Gwarimpa 1, the property in issue.

reported in 1975 LPELR 2042 SC P.5 this Court held as follows:
“The overt act or omission which evidence conspiracy is the actus reus and the actus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar, were seen to ether coming out of the same place at the same time and indeed conspirators need not know each other. See the case of R. v. Mayrick and Ribuffi (1929) 21 C App. R.94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omission of

any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators “ … The crime of conspiracy is usually hatched with utmost secrecy and the law recognizes the fact that in such a situation, it might not always be easy to lead direct and distinct evidence to prove it. Thus, it is always open to the trial judge to infer conspiracy from the facts of the case. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof, it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See the case of DR. SEGUN ODUNEYE V. THE STATE 2001 2 NWLR PT.697 311.”

The Prosecution in the trial of the case called Six (6) Prosecution Witnesses, the PW1 to PW6 and in defence, the Appellant and the 2nd and 3rd Convicts called two (2) Defence Witnesses, the DW1 and DW2.

The Court correctly found that the Appellant, who acted in concert with the 2nd and 3rd Convicts, did not

comply with the agreement between him and the Complainant, Exhibit F, the MOU. Together with the 2nd and 3rd Convicts, the Appellant sold portions of the land without the consent of the Complainant/Petitioner as Exhibit C showed receipts and letters of allocation signed by the Appellant and the receipts of payment with the letter headed paper of the 2nd and 3rd Convicts, issued to the buyers, the PW2, PW4 and PW5.

It can be seen that no individual sale as done by the Appellant was contemplated from the agreement between the Complainant/ Petitioner and the Appellant. From Paragraph X of Exhibit F, the MOU, provides “that the property shall be built and sold by the developer with the cooperation of the client when completed to interested members of the public at it (sic) current market value as will be determined by retained professional valuers of the developer and the client.”

In its evaluation of the evidence before it and particularly Exhibit C, it found and stated thus:
“…the fact that there is no positive evidence of any agreement between the accused persons to commit the offence is not enough to hold that the prosecution

cannot establish the charge of conspiracy…
From the evidence before me, particularly from the testimonies of PW1-PW6 and Exhibits “C” and “D” which are receipts issued by the 2nd Defendant, allocation letters issued by the 2nd Defendant, and the statement of accounts of the 2nd and 3rd Defendants, it is obvious that there was common intention among the accused persons…”
See pages 376-379 of the Record.

On Count 2, Breach of trust punishable under Section 312 of the Penal Code, states thus:
“Whoever, being in any manner entrusted with property or with dominion over property, dishonestly misappropriate or converts to his own use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied which he has made touching the discharge of such trust or willfully suffers any other person so to do, commits criminal breach of trust.”
The ingredients in proof of the offence of breach of trust is to show or establish that the Appellant was entrusted with property or dominion over it, that he misappropriated, converted, used,

disposed of it contrary to any law regarding the trust or the contract expressed or implied between the parties or that he allowed someone to do contrary. The Court found as unchallenged as contained in Exhibit G that, the PW3, the Complainant/Petitioner, Mrs. Makanjuola, is the owner of the property which by Exhibit F, the MOU, the Appellant, the developer, as mutually agreed in paragraph x afore stated is given responsibility and charge of the property but not exclusively and without the consent and agreement of the owner. Again, from Exhibit C, receipts, offer and allocation letters signed and issued by the 2nd Convict, the Court found as follows on page 384 of the Record:
“A cursory look at the receipts and offer letters issued to the PW2, PW4 and PW5, would reveal they were issued by the 2nd Defendant in its name and not on behalf of the nominal complainant.”

The PW2, one Mr. Uche Okeke, testified that he bought his portion of land for N13 Million, paid N10Million by cheque in favor of the 2nd Convict, was issued Exhibit C by the Appellant. The PW4 testified in similar vein that he bought his land from one Engineer Emma for N15 Million and was

assured by the Appellant that the transaction was genuine as he was in charge of the site, was also issued Exhibit C, offer letter by the 2nd Convict. The same thing with the sale to the PW5, one Professor Kolawole who bought for N14Million on behalf of his wife, paid into the account of the 2nd Convict and was issued offer letter, Exhibit C. From the evidence of the PW1, as contained in Exhibit D, the response by Fidelity bank from the Respondent’s investigations, the Appellant withdrew all the afore stated sums received from the PW2, PW4 and PW5 paid into his account. See pages 383-385 of the Record. The Court found as follows on pages 387-388 of the Record:
“A glance at the offer letter given by the 1st Defendant who gave evidence as DW1 to PW2, PW4 and PW5 shows contrary. The offer letter given to PW2, PW4 and PW5 were all given in 2011 contrary to DWI (sic) assertion that they were given in 2008.”

It therefore found breach of trust, held as follows and correctly too on page 388 of the Record:
“From the sum total of the evidence put forward by prosecution, I am convinced that the prosecution was able to establish by evidence that the 1st,

2nd and 3rd Defendants, being entrusted with property belonging to PW3 and same violated both the express and implied terms of Exhibit “F” entered into by selling plots of land from the land in issue and converting the proceeds of the said sell (sic) in violation and abuse of the Trust given to them.”
One is able to agree with the foregoing findings of the Court on Count 2.

Counts 3, 4 and 5 are on the Appellant obtaining money with intent to defraud under false representation contrary to Section 1 (1) (a) of the Advance Fee Fraud Act, 2006, that he had power and authority to sell portions of the land in issue.
Section 1 (1) “Notwithstanding anything to the contrary in any other enactment or law, any person who by any false pretence, and with intent to defraud:-
a. Obtain from any person in Nigeria or in any country, for himself or any other person
b. Induces any other person, in Nigeria or in any country, to deliver to any person, or
c. Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induce by false pretence, is guilty of an offence under the Act.”

The ingredients necessary to be established here are; (i) that there is a pretence, (ii), the pretence was by the Appellant, (iii), it was false, (iv), the Appellant was aware that it was false, (v), there was intention to defraud, (vi), the subject matter can be stolen and (vii), the Appellant induced the owner to transfer his interest in the property.

From the evidence of the PW2, upon his enquiry on the land, the Appellant assured him that he had full authority to sell some of the plots and he paid N10 Million to the 2nd Convict. The PW2 testified to that effect on pages 299 and 301 of the Record. The PW4 testified that he bought for N15 Million as already stated from Engineer Emma, upon the assurance of the Appellant that he owned the land by showing bundle of documents to him and the offer letter by the 2nd Convict, on pages 308 of the Record. And the PW5 paid N14 Million for a plot, as afore said issued offer letter by the 2nd Convict as contained on pages 311 and 312 of the Record.
The Court found thus on page 394 of the Record:
“There is truly no part of the evidence before me suggesting compliance with the agreement

between Defendant and the nominal complaint (sic) in this case.
There is however abundant evidence before (sic) suggesting that 1st Defendant in collaboration with other Defendants sold part of the plots in question to people and was paid various sums of monies being consideration…”
It continued on page 395 of the Record as follows:
“By Exhibit “C”, 1st Defendant who is the owner of 2nd Defendant gave receipt of payment in the name of the 2nd Defendant and not in the name of PW4 who is the owner of land … it is obvious that the 1st Defendant never informed PW3 and PW6 that he had issued letters of allocation and payment receipt in the name of 2nd and 3rd Defendants in respect of the land.”
Further, thus, on page 396 of the Record:
“It is also clear that the 1st Defendant knew that the land does not belong to him and that Exhibit “F” never empowered him to divide the land into plots and sell same … is not very clear that 1st and 2nd Defendants merely collected monies from unsuspecting members of the public on the pretext that they were selling what was theirs when they knew full well that the land wasn’t theirs?”

And concluded thus on page 396 of the Record and one agrees with it:
“Without much ado, I am very convinced.
From the testimonies of PW1, PW2, PW3, PW4, PW5 and PW6 that 1st Defendant induced PW2, PW4 and PW5 to transfer monies to him under false pretence. He is guilty as charged.”

At this juncture, it is pertinent to state that one is unable to find in the entire record as argued by the learned Appellant’s Counsel that the Appellant was denied fair hearing or any miscarriage of justice by the Court. Having painstakingly read through the gamut of the Record, the contention that the Court raised issues suo motu cannot stand. In the light of the foregoing, Issues 2 and 3 are hereby resolved against the Appellant.

In the result, this appeal hereby fails, it cannot be allowed and is accordingly dismissed. The judgment of the Court below is hereby affirmed. In consequence, the Appellant’s conviction and sentence by the Court below, stand.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; E. O. WILLIAMS-DAWUDU, JCA. I agree with the

reasoning, conclusion and orders therein.

Appearances:

ABDULKAREEM AMIN, with him, M. A. OJILE For Appellant(s)

J. SAID A. D. EFCC, with him, J. OBOZUWA ACHI For Respondent(s)