ADENOSE CLEMENT v. FEDERAL REPUBLIC OF NIGERIA (2019)

ADENOSE CLEMENT v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/12928(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/IB/31C/2018

RATIO

COMMON INTENTION AND CONSPIRACY: DISTINCTION

COMMON INTENTION: THE LAW DOES NOT CONTEMPLATE A FORMAL AGREEMENT
In Ogbali & Anor vs. the State (1983) 14 NSCC 152, it was decided that the Law does not contemplate a formal agreement by participes criminis. It is enough if the common intention can be gathered from the Circumstances of the case as disclosed in evidence.PER NONYEREM OKORONKWO, J.C.A.

CONSPIRACY AND COMMON INTENTION: DIFFERENCES

Though, there may be some overlapping with common intention, conspiracy is different. In R vs. Majekodunmi (1952) 14 WACA 64, the West African Court of Appeal awaited a definition given Mulcahy vs. R (1868) L.R. 3 H.L 306 at 317 where conspiracy was defined as:
A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. So long as a design rest in intention only, it is not indictable when two agree to carry it in to effect; the very plot is an act in itself punishable if for a criminal object or for the use of criminal means.”
Conspiracy as an offence in criminal law necessarily connotes an agreement between the conspirators to do their things conspired. Though it may be difficult to prove express agreement, it may be inferred from Circumstances.PER NONYEREM OKORONKWO, J.C.A.

JUSTICES:

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

ADENOSE CLEMENT – Appellant(s)

AND

FEDERAL REPULBIC OF NIGERIA – Respondent(s)

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The grouse of the appellant in this appeal was that learned trial judge of the Federal High Court in his judgment of 3rd October 2017 found him (appellant) not guilty of the substantive offenses in counts Nos. 2, 3, 4, 6, 7, 9, 11, 12, 13, 15, and 16 bothering on money laundering but held him guilty of conspiracy with the 1st and 2nd accused person when there was no evidence of conspiracy against the appellant with the 1st and 3rd accused persons.

The appellant Adenose Clement was charged as 3rd accused person jointly with one Professor Benjamin Adefemi Ogunbodede and Zaccheaus Tejumola on a sixteen counts charge for offences including conspiracy against the Money Laundering (Prohibition Act 2011) notably Section 18 and 17 of the Act.

The facts gleaned from the judgment was that the appellant as 3rd accused was charged along with the 1st and 2nd accused persons on a 16 count charge as follows:
COUNT 1
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola, Adenose Clement, Jalekun Omitowoju Yisau, Afribiz Viable Ventures, Allied Aquaforte

Ventures, Manifield Mercies Ventures, Agbeloba Agrotech Ventures Ltd. Towsbury International Agency Ltd, Cradle Engineering Services Ltd, Momm Limited, Al-Tora Allied Business and Arieco Trading Ventures on or about the 6th day of June, 2011 within the jurisdiction of this Honourable Court conspired amongst yourselves to commit an offence to wit: conversion of the sum of N115,750,000 (One Hundred and Fifteen Million, Seven Hundred and fifty Thousand Naira) which sum was derived from theft and you thereby committed an offence contrary to Section 18 (a) of the Money Laundering (prohibition) Act 2011 No. 11 and punishable under Section 15 (1) (a) of the same Act.
COUNT 2
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 4th day of July 2011 within the jurisdiction of this Honourable court did procure MOMM LIMITED to retain in its account and on your behalf the sum of N9, 300,000 (Nine Million, Three Hundred Thousand Naira) being proceed of crime in its Account and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No. 11 and punishable under

Section 17 (a) of the Act.
COUNT 4
That you Professor Benjamin Adefemi Ogunbodede, Zacheaus Tejumola and Adenose Clement, on or about the 28th day of June, 2011 within the jurisdiction of this Honourable Court did procure Afribiz Viable Konsult to retain in its account and on your behalf the sum of N4,700,000 (Four Million, Seven Hundred Thousand Naira) being proceed of crime and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No.11 and punishable under Section 17 (a) of the Act.
COUNT 6
That you Professor Benjamin Adefemi Ogunboded, Zaccheaus Tejumola and Adenose Clement on or about the 7th day of July, 2011 within the jurisdiction of this Honourable Court did procure Agbeloba Agrotech Ventures Ltd to retain in its account the sum of N9,950,000 (Nine Million, Nine Hundred and Ninety Fifty Thousand Naira) being proceed of crime on your behalf and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No. 11 and punishable under Section 17 (a) of the Act.
COUNT 7
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus

Tejumola and Adenose Clement, on or about the 6th day of July, 2011 within the jurisdiction of this Honourable Court did procure Cradle Engineering Services Ltd to retain in its account the sum of N9,700,000 (Nine Million, Seven Hundred Thousand Naira) being proceed of crime on your behalf and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (prohibition) Act 2011 No. 11 and punishable under Section 17 (a) of the Act.
COUNT 9
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 6th day of July 2011 within the jurisdiction of this Honourable Court did procure Towsbury International Agencies Ltd to retain in its account the sum of N9,700,000 (Nine Million, Seven Hundred Thousand Naira) being proceed of crime on your behalf and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No. 11 and punishable under Section 17 (a) of the Act.
COUNT 11
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 6th day of July 2011 within the jurisdiction of this

Honourable Court did procure Towsbury International Agencies Ltd to retain in its account on your behalf the sum of N4,500,000 (Four Million, Five Hundred Thousand Naira) being proceed of crime and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (prohibition) Act 2011 No.11 and punishable under Section 17 (a) of the same Act.
COUNT 12
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 19th day of July 2011 within the jurisdiction of this Honourable Court did procure Agbeloba Agrotech Ventures Ltd to retain in its account on your behalf the sum of N9,300,000 (Nine Million, Three hundred Thousand Naira) being proceed of crime and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No.11 and punishable under Section 17 (a) of the same Act.
COUNT 13
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 19th day of July, 2011 within the jurisdiction of this Honourable Court did procure Monifield Mercies Ventures to retain in its account the sum of

N8,400,000 (Eight Million, Four Hundred Thousand Naira) being proceed of crime on your behalf and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No. 11 and punishable under Section 17 (a) of the Act.
COUNT 15
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 19th day of July, 2011 within the jurisdiction of this Honourable Court did procure Afribiz Viables Ventures to retain in its account the sum of N7,700,000 (Seven Million Seven Hundred Thousand Naira) being proceed of crime on your behalf and you thereby committed an offence contrary to Section 18 (c) of the Money Laundering (prohibition) Act 2011 No.11 and punishable under Section 17 (a) of the Act.
COUNT 16
That you Professor Benjamin Adefemi Ogunbodede, Zaccheaus Tejumola and Adenose Clement, on or about the 19th day of July, 2011 within the jurisdiction of this Honourable Court did procure Allied Aqua-forte Ventures to retain in its account the sum of N6,400,000 (Six Million, Four Hundred Thousand Naira) being proceed of crime on your behalf and you thereby committed an

offence contrary to Section 18 (c) of the Money Laundering (Prohibition) Act 2011 No.11 and punishable under Section 17 (a) of the Act.

As indicated by the trial judge at page 876 of the record, the 4^th, 13th defendants were convicted at the offences based on their plea and the plea bargaining agreement entered into by those accused person. The trial relates to the 1st, 2nd and 3rd accused i.e. (appellant).

The trial judge had not much difficulty on the evidence in finding the 1st and 2nd accused persons culpable on the charges. The 1st accused was the head and the Executive Secretary of the Institute of Agricultural Research and Trading of the Obafemi Awolowo University based in Ibadan. The 2nd accused was the Chief accountant of the Institute.

The 3rd i.e. the appellant was an accountant of the Institute. The evidence elicited in the case was that there was money allocated to the Institute which as the trial Court found was to the effect that:
The 1st and 2nd Defendants agreed to warehouse the sum of N177, 571.609.50 being money lawfully allocated to the Institute in order to prevent mop up exercise usually carried out on

the 31st of December of every year. As a prelude to this, an account was generated with Access bank bearing the name Institute of Agricultural Research and Training Staff Club & Co-operative with account No.0101632695. This account to all intent and purposes is fictitious and illegal. Funds were subsequently transferred into this account with a cover up name as Hazard allowance on the instrumentality or instructions of the 1st and 2nd Defendants who were the signatories to the account funds were thereafter withdrawn on the authority of the 1st and 2nd Defendant through the 3rd – 13th Defendants. On some occasions, the 3rd Defendant was used as the errand boy through whom the withdrawn money gets back to the 1st and 2nd Defendants. It is therefore safe to say that the 4th -13th Defendants convict served as the conduit pipe for the warehoused funds while the 3rd Defendant served as the courier who conveyed the funds back to the 2nd – 3rd Defendants.

The trial Court then held on the facts accepted that the prosecution has proved the offence of conspiracy against the 1st, 2nd and 3rd defendants and found them guilty under Section 18 (a) and Section 15 (1) (2) (b) and 3 of the Money Laundering Act 2011.

In his Amended Notice of Appeal dated 9th February, 2018. Supplanting the original notice of appeal 13/12/2017 the appellant who was 3rd accused at the trial raised the following grounds of appeal.

Ground 1
The learned trial judge erred in law and facts when he held as follows:
That the facts and evidence before the Court lead me to an irresistible conclusion that the prosecution has proved beyond reasonable doubt the guilt of the 3rd Defendant in respect of count 1.1 therefore return a verdict of conviction for 3rd Defendant in respect of count one (1) and thereby occasioned a miscarriage of justice.
PARTICULARS
(a) The ingredients of conspiracy were not proved by the prosecution.
(b) Onus of proof in criminal trial does not shift from the prosecution.
(c) Court’s decision must not be based on mere suspicion as there is no evidence of common intention of the 3rd defendant before the Court.
Ground 2
The judgment is against the weight of evidence
PARTICULARS
(a) Exhibit P12 is not a confessional statement but an

explanation by the 3rd Defendant
(b) Criminal liability is strictly personal and the principle of vicarious liability is alien to our criminal jurisprudence.
(c) The sin of an agent is not visited on a known and disclosed principal.
(d) The testimony of PW5 is an admission by the prosecution itself which vindicates the 3rd Defendant.

In his brief of argument filed by his counsel V.Y. Adegboye filed 20/2/18 and deemed 29/10/18, the appellant raised two issues for determination viz:
(1) Whether given the facts and circumstances of this case, the learned trial judge was right to have convicted the appellant of conspiracy?
(2) Whether the judgment of the learned trial judge is against the weight of evidence.

Respondent, though duly served with the appellants brief neglected to file respondents brief.

Argument On Issues
In arguing the two issues together, appellant submit that even in conspiracy, the prosecution has a duty to prove all the element of the offence of conspiracy beyond reasonable doubt citing Oladele vs. Nigerian Army (2004) 6 NWLR pt. 868 page 166 at 178 and Amala vs. the State (2004) 6 SCM 55.

Citing further Adejobi & Anor vs. The State (2011) 7 SCM and State vs. Salawu (2011) 12 (Pt. 2) SC 455 counsel submit that to prove conspiracy there was need for prosecution to prove (1) An agreement to do something unlawful and that each of the conspirators individually participated in the conspiracy. Counsel proceeded to pose the following questions viz:
1. Did the prosecution establish that the criminal design alleged was common to all accused persons?
2. Was there a meeting of minds of the alleged conspirators?
3. Was there an inference from certain criminal acts of the parties concerned in pursuance of an apparent criminal purpose?
and argued for the appellant from the evidence thus:-
We submit that there are abundant evidences pointing out that the appellant herein who was the 3rd Defendant is not a signatory to the institutes account. All the prosecution’s witnesses testified that the Appellant is an ordinary accountant in the institute. The PW1 in her evidence in chief and cross examination did not in any way mention the Appellants name. The learned trial judge failed to aver his mind to the fact that the Appellant

is (a) not a signatory to the institute’s account (b) a career officer-civil servant.
The Appellant as an ordinary accountant does not have the authority to issue out money or spend it without the express consent of the 1st Defendant.
PW2 who was a Deputy Director to the 1st Defendant attested to the fact that the 1st Defendant was the principal signatory to virtually all the institutes account while the Deputy Director and Chief Accountant were the alternate signatories. In fact under cross examination PW2 state further that Appellant is neither a mandatory or alternate signatory to the institutes account.
Furthermore, PW4 who is a cashier in charge of the institute’s baking operations testified that the Appellant never gave him cheques to withdraw rather it was the 2nd Defendant, the chief accountant that gave him cheques to withdraw and he handed over the money to him.
The Prosecutions last witness, PW5s evidence was overwhelming. As the EFCC investigator she testified that cheques were signed by both the 1st and 2nd Defendants and all monies cashed were handed over to the 1st Defendant. Even the cheques written in

the Appellant’s name were also handed over to the 1st Defendant.
Of important note is the fact that the Appellant was never held liable or linked in any way to the misappropriation of the institute’s funds.

Learned appellant’s counsel refers to the findings of the trial Court at page 896 of the record where the judge made a specific finding as to the agreement which did not include appellant 3rd defendant. Learned counsel argues the point of paragraph 4.15 of the appellants brief thus:
The Learned Trial Judge in his judgment at pages 896 of the records stated that the 1st and 2nd Defendants agreed to warehouse the sum of N177, 571,609.20 being money lawfully allocated to the institute in order to prevent mop up exercise usually carried out on the 31st of December of every year but nowhere in the chain of evidence was it stated that the Appellant is in the KNOW of the agreement between the 1st and 2nd defendants. See pages 24, 26 of the judgment where it was stated that cheques were also written in the name of one Kunle Ojo (PW4) totaling N15 million but no charges was preferred against him as against

the Appellant who has only N7.5 million issued in his name is PW4 not also an errand boy as the Appellant was? The Appellant, an ordinary accountant is a public servant who was merely acting out his lawful duties in running errands for the 1st defendant and did not in any way enrich himself or benefit in any way in the performance of his lawful duties. No part of the money was traced to the Appellant.

In dealing with this appeal, it is apposite to draw a distinction between cases of common intention and conspiracy.
In common intention as expressed in Section 8 of the Criminal Code what is essential is the desire of each perpetrator to achieve a purpose common to the other perpetrators which need not be contemporaneous but independent and need not be by express agreement. See R. vs. Ofor and Ofor (1955) 15 WACA 4; R. vs. Mensah & Anor. 7 WACA 212; R. vs. Bada (1944) 10 WACA 249.
In Ogbali & Anor vs. the State (1983) 14 NSCC 152, it was decided that the Law does not contemplate a formal agreement by participes criminis. It is enough if the common intention can be gathered from the Circumstances of the case as disclosed in evidence.

In this case, the learned trial judge in his well considered words at page 896 of the record said the 1st and 2nd defendants agrees to warehouse the sum of N177, 571 609.50 being money lawfully allocated to the institute in order to avoid mop up of the money at the end of the financial

year and thereby fraudulently convert same. The 3rd defendant was clearly omitted in the agreement. The 3rd defendant is the appellant in this appeal.

Elsewhere in the same passage, the trial judge said of the transaction that 3rd defendant i.e. appellant was used as the errand boy through whom the withdrawn money gets back to the 1st and 2nd defendant. In the same passage, the trial Court described 3rd defendant (i.e. appellant) as a courier who conveyed the fund back to the 1st and 2nd defendants.

There is evidence of the appellant that as employee in the accounts department, his duties included paying in cheques and drawing cheques on the orders of 1st and 2nd defendant. This does not without more make him a Participe criminis or a conspirator.

The trial judge in the passage formulated by the Court had excluded 3rd defendant (appellant) and described him (appellant) as an errand boy or a courier. These terms describe mere ministerial services without more.

I am of the view that the learned trial judge was wrong in convicting the appellant jointly with the 2nd and 3rd defendant after absolving or excluding him of

participation in the plot. The conviction of appellant for conspiracy is not founded on law or on fact and cannot stand.

The appeal therefore succeeds. The judgment/decision convicting the appellant is set aside in so far as it concerns the Appellant (3rd defendant is set aside). In its place, the 3rd defendant/appellant is not guilty and is discharged and acquitted.

ABUBAKAR MAHMUD TALBA, J.C.A.: Having read in draft the just delivered lead Judgment of my learned brother Nonyerem Okoronkwo JCA. and being in complete agreement with the reasoning and conclusion, I adopt same and I hold that the appeal succeeds.

Before a person could be convicted of an offence there must be proof beyond reasonable doubt. And proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability.

Where a person could not be found guilty of committing the principal offence he can hardly be convicted of the offence of conspiracy alone to commit the principal offence.

There must be evidence to prove the offence with certainty required in a criminal trial. That the offence was committed and that the person charged committed the offence. Therefore if the Appellant was absolved or excluded from participation in the crime. Then the conviction of the Appellant for conspiracy cannot be supported by any iota of evidence.

The appeal succeeds and I abide by the consequential orders made in the lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA, and I agree that this appeal is meritorious and should be allowed.

The Appellant as the 3 defendant alongside with two other persons were arraigned before the lower Court on a 16 count charge. He pleaded not guilty to all the counts of the charge. At the end of the trial, the trial judge returned a verdict of conviction on count one of the charge against him and discharged and acquitted him on the other counts. COUNT ONE of the charge allege the offence of conspiracy.

A charge bordering on Conspiracy connotes an agreement between two or more persons to carry out an

illegal act. The prosecution must prove the meeting of minds of persons so accused as having a common intention and purpose to commit a particular offence. Agreement which constitutes conspiracy is more often than not proved by drawing inference from surrounding circumstances of each case. See Akwuobi v. State (2017) 2 NWLR (Pt 1550)421 444 Paras. G-H; Aminu V. State (2005) 2 NWLR (Pt 909)185; Oyakhere V. State (2005) 15 NWLR (Pt 947)164; Iko V. State (2001)14 NWLR (Pt 732) 221 @ 263, Para. E; Odu V. State (2001)10 NWLR (Pt. 722)668 0) 675, Para. A; and Oduneye V. State (2001) 2 NWLR (Pt 697) 311 @ 332-333, Paras. H-C, where the Supreme Court held, per Ejiwunmi, JSC that:
“In Njovens & Ors V. The State (1973) NSC 257 at P. 280, Coker, JSC stated the principles as: –
The overt act or omission which evidences conspiracy Is the actus reus and the actus reus 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 Caeser, were seen together coming out of the someplace at the

same time and indeed conspirators need not know each other. See R. v. Meyrick & RIbuff (1929) 21 C.A.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 omissions (and or commissions) 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.
It is therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with that offence.
I have gone through the evidence adduced by the prosecution and the defence of the

Appellant before the trial Court. I have also gone through the judgment. The Appellant denied any agreement with any person to carry out any unlawful purpose. The trial Court was also very clear in its findings as regards the role of the Appellant. There was no meeting of mind between him and other Defendants to conspire to convert sums of money derived from theft. His conviction for the offence of conspiracy cannot therefore stand.

I agree with my learned brother Noyenrem Okoronkwo JCA that there is no substance in this appeal and I also allow it. I abide by the consequential orders in the lead Judgment.

Appearances:

V. Y. Adegboye For Appellant(s)

For Respondent(s)

Appearances

V. Y. Adegboye For Appellant

AND

For Respondent