AHMED v. F.R.N (2020)

AHMED v. F.R.N

(2020)LCN/14517(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/43C/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALH. ISA AHMED APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE OFFENCE OF OBTAINING MONEY BY FALSE PRETENCE

I shall now proceed to deal with the conviction for the offence of obtaining money by false pretence under Section 1(1) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act. Obtaining property by false pretence with intent to defraud is defined in Section 1 of the Advance Fee and Other Fraud Related offences Act, 2006. Section 1(1) which is relevant in this appeal provides: “1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud (a) obtains from any other person, in Nigeria or in any other country, for himself, or (b) induces any other person, in Nigeria or in any other country, to deliver to any person, any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.”
To sustain a conviction for the offence of obtaining by false pretence, the following ingredients must be established by the Prosecution (a) That there was a pretence (b) That the pretence emanated from the accused person (c) That it was false (d) That there was the intention to defraud (e) That the accused person knew of its falsity (f) That the thing is capable of being stolen, (g) That the accused person induced the owner to transfer his whole interest in the property. See Segun Adelodun vs. The FRN (2017) LPELR-42356 (CA). Per Barka, JCA (P. 2) paras B – E. See also the case of Rosulu Idowu Ronke vs. FRN (2017) LPELR-43584 (CA), Per Abubakar, JCA (Pp. 73 – 74 paras (C- A). PER ABUNDAGA, J.C.A.

WHEN A MISREPRESENTATION IS SAID TO BE FRAUDULENT

A misrepresentation is said to be fraudulent if the maker intends the assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies the truth of his assertion or (c) knows that he does not have the basis for what he states or implies for the assertion. See The State vs. Bolanle Susan Osasona (2019) LPELR – 48492 (CA) Per Ndukwe – Anyanwu, JCA (PP. 16 – 20 paras F – A. See also Ikechukwu Ikpa vs. The State (2017) LPELR – 42590 (SC) Per Augie, JSC (PP. 28 – 29 Paras A – D). PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Gombe State High Court, delivered by Hon. Justice Abubakar Jauro in Suit No. HC/GM/27C/2017 on 10th April, 2018. In the said judgment the Appellant was convicted on the amended two count charge preferred against him and one other accused person at large. The amended charge reads:
“STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to obtain Money under False Pretence contrary to the provision of Section 8(a) of the Advance Fee fraud and other Fraud related Offences Act, LFN 2006 and punishable under Section 1(3) of the same Act.
PARTICULARS OF THE OFFENCE
That you, ALHAJI ISA AHMAD and B. C. AMADI sometimes in December, 2012 at Gombe State within the Jurisdiction of this Honourable Court, with intent to defraud, did agree among yourselves to obtain Money to the tune of Thirty Million Naira Only (N30,000.000.00) from the Union Bank Plc under the false pretence that the said sum were for disbursement of same to the members of Multi-purposes corporation (sic) society with the Ministry of Information Gombe State, which you

never did and thereby committed an offence.
STATEMENT OF OFFENCE – 2ND COUNT
Obtaining Money by False Pretence contrary to the provision of Section 1 (1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act, LFN 2006 and punishable under Section 1 (3) of the same Act.
PARTICULARS OF THE OFFENCE
That you, ALHAJI ISA AHMAD and B. C. AMADI sometimes in December, 2012 at Gombe State within the Jurisdiction of this Honourable Court, with intent to defraud, did Obtain Money, the sum of Thirty Million Naira (N30,000.000.00) Only from the Union Bank Plc under the false pretence that, such money be collected as Agric Loan and for the disbursement of same to the members of Multi-purpose corporation (sic) society with the Ministry of Information Gombe State which you never did instead diverted same to your personal used (sic) and thereby committed an offence.
STATEMENT OF OFFENCE – 3RD COUNT
False personation contrary to the provision of Section 179 of the Penal Code Law of Gombe State and punishable under the same Section of the Law.
PARTICULARS OF THE OFFENCE
That you, ALHAJI ISA AHMAD, sometimes in

December, 2012 at Gombe State within the Jurisdiction of this Honourable Court, did falsely paraded (sic) yourself as the Chairman of Multi-purpose corporation (sic) society with the Ministry of Information Gombe State, thereby committed an offence.”

The charge was triggered by a petition written at the instance of Union Bank, Gombe branch against some officials of Gombe State Ministry of Information Staff Multi-Purpose Cooperative Society, to wit, Alhaji Isa Ahmed, Mr Eric Kabul and Mrs Hafsat A. Mohammed for alleged offences of fraudulent dealings, criminal conversion and cheating committed against Union Bank of Nigeria, Plcto the tune of thirty million Naira (N30, 000,000.00) only. The petition was addressed to the Executive Chairman, Economic and Financial Crimes Commission (EFCC). The petition was tendered in evidence at the lower Court and admitted in Evidence as Exhibit “H”. The said Exhibit “H” is hereby referred to for details. The EFCC moved into investigation at the conclusion of which three persons, namely, Alhaji Isa Ahmad, Yahaya Manga and the Bank Manager, Mr. B. C. Amadi (at large) were charged to Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The first two – Alhaji Isa Ahmad and Yahaya Manga pleaded not guilty. The matter proceeded to trial in the course of which the 2nd accused (Yahaya Manga) passed away. This resulted to an amendment of the charge, by which amendment B. C. Amadi (at large) became the 2nd accused person.

On conviction, the 1st accused person (now appellant) was sentenced to 7 years imprisonment for the offence of conspiracy to obtain money by false pretence and another 7 years imprisonment for the offence of obtaining money by false pretence under Section 1 (3) of the Advance Fee Fraud and other fraud Related Offences Act, 2006.
Not satisfied with the conviction, the appellant filed a notice of appeal containing nine (9) grounds of appeal on 24/5/2018.

The record of appeal duly compiled and transmitted, parties through their respective Counsel filed and exchanged their briefs of argument.

The Appellant’s brief of argument, settled by Matthew G. Burkaa, Esq. was filed on 30/10/19. In the said brief of argument 4 issues were distilled for determination.
The issues are:
1. Whether the Judgment of the trial Court is not a nullity for the

obvious fact that the date of delivery of the Judgment contradicts the date it was signed by the Trial Court two different dates. (Distilled from Ground 2).
2. Whether the Trial Court was not wrong in law when it convicted the Appellant on count 1 for conspiracy to obtain money by false pretence under Section 8(a) of the Advance Fee Fraud and Related Offences Act 2006 and punishable by Section 1(3) of the same Act despite the glaring fact that the 2nd Defendant (Mr. Amadi) with whom the Appellant was said to have conspired was not tried and/or convicted on the same offence. (Distilled from Ground 3).
3. Whether the Trial Court was not wrong when it admitted and relied on Exhibit P being the extra-judicial statement of the Appellant. (Distilled from ground 5).
4. Whether from the totality of evidence and circumstance of this case, the Defendant has proved the charges against the Appellant to warrant the conviction and sentence of the Appellant. (Distilled from grounds 4, 6, 7, 8 and 9).

A.Y Muntaqa, Esq. who settled the Respondent’s Brief of argument filed same on 23/6/20. It was deemed properly filed and served on 25/6/20. The

Respondent adopted the appellant’s four issues but canvassed arguments converse to the appellant’s on the 4 issues. The Appellant filed a reply brief of argument on 25/6/20.

The four issues formulated by the appellant and adopted by the Respondent adequately address the complaints comprised in all the grounds of appeal. Therefore, I adopt them for the determination of this appeal.
I will therefore consider the issues seriatim.

Issue One
Whether the Judgment of the trial Court is not a nullity for the obvious fact that the date of delivery of the Judgment contradicts the date it was signed by the Trial Court two different dates. (Distilled from Ground 2).
The contention of the appellant on issue one is that the judgment of the lower Court is a nullity by reason of two dates therein, to wit, that it was delivered on 10/4/18 but dated and signed on 9/4/18. For this submission, reliance is placed on the case of the Ake Properties Ltd & Ors vs. Mrs. Adebisi George (2014) LPELR-22428 at Pp. 5 – 6, paras D – E.

It is submitted that the fact that the judgment was signed on an earlier date before it was delivered

renders the judgment incurably defective.

For the Respondent, it is contended that it is not every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. That the error or mistake to result in the upturn of a judgment must be substantial and must have occasioned a miscarriage of justice. Counsel refers to Kayode vs. The State (2016) 7 NWLR (Pt. 1511) 199 at 232 paras C – E and Nwoko vs. Azekwo (2012) 12 NWLR (Pt. 1313) 151. It is submitted that the purpose of dating judgment is to give the parties an opportunity to appeal against it within time. The Court is referred to the case of Julius Berger Plc vs. 7up Bottling Co. Plc (1997) 2 NWLR (Pt. 489) 603, and Ohuabunwa vs. Duru & Ors (2008) LPELR-46699 (CA) per Garba, JCA pages 34 – 36 para A – D. Also cited and relied on is the case of Yongopila & Ors vs. Nenshi (2017) LPELR-42456 (CA) per Sankey, JCA, pages 17 – 18 paras D – E. It is further submitted that Ake Properties Ltd &Ors vs. Mrs Adebisi George (2014) LPELR-22428 (CA) was cited out of context.

That the judgment on appeal is dated and signed on 9/4/18 but delivered on 10/4/18 is not in doubt. What is in contention is whether the judgment is a nullity or not. In the case of Ake Properties Ltd & Ors vs. Mrs. Adebisi George (supra), my Lord Pemu, JCA declared a similar judgment a nullity. She held thus at pages 7 – 8 paras B – F:
“But the issue here is that the date on the judgment contradicts the date it was signed… Assuming the different dates in the judgment appealed was a mistake on the part of the Court below, decidedly, the inherent power of Court to amend or vary its own judgment, or order is limited only to situation where (a) there is a clerical mistake in the judgment or Order; or… it is however not the function of the Court of Appeal to do this on behalf of the lower Court Assuming this Court could do that, it is my view that what obtained in the judgment was not a clerical mistake, neither was it a slip of whatever nomenclature.
To determine the other issues for determination in this Appeal would amount to embarking on an academic exercise. Even the Preliminary Objection, because all of them are predicated on the

Judgment of the Lower Court which is the subject matter of this Appeal.
In consequence, the Judgment of Charles Efanga Archibong (J) dated 28th May, 2012, but signed on the 21st of May, 2012 is hereby set aside while Suit No. FHC/L/CS/1555/2012 is hereby struck out, being a nullity.”
The Judgment appealed against is on pages 261 – 289 of the record of appeal. Page 261 in which the judgement commenced shows that the sitting of the Court for the purpose of delivering the judgment was on 10/4/18.
After recording the appearance of Counsel and parties the Court proceeded to deliver the judgment. The signing and dating is at page 289. The date therein shows the date to be 9/4/18. The reasonable inference to draw is that the Judgment was prepared before the date of delivery and signing. When it was subsequently delivered on the next date there was an omission to reflect the date of delivery. What that translates to is that the Judgment was dated and signed on an earlier date before the date of delivery.
Dealing with a situation such as this, the Court of Appeal, in the case of Dakingari vs. Ward & Green (1999) LPELR-9930 (CA)

held:
“The Judgment signed and dated a day before its delivery is quite in order under the law as it could then be delivered subsequent to the date it was signed within the time prescribed by Section 258 (1) of the 1999 Constitution by the Judge himself who wrote or prepared the judgment or by any other Judge of the same Court for that matter if for any reason the Judge who wrote or prepared and signed the Judgment is not able to deliver it.” per Mohammed, JCA (P. 22 paras A – C).
A slightly similar situation confronted this Court in the case of Nyiutsa Yongopila & Ors vs. Wuayolna Nenshi (2017) LPELR-42456 (CA). In that case, there was a discrepancy between the date endorsed on the face of the Judgment and the date on which it was subsequently delivered. The learned trial Judge sought to explain the anomaly. Even though the Learned Jurist Sankey, JCA considered the difference in the two dates irregular, she did not nullify the Judgment.
A similar issue also came up for determination before the Supreme Court in the case of Hadi Sule vs. The State (2017) LPELR-47016 (SC) in which one of the complaints in that case was that

the learned trial Judge did not sign or seal the Judgment with the date therein in open Court, which is even a more serious complaint, in my view, than the complaint herein in this appeal. The apex Court inter alia held:
“… Equity follows the law, and takes as done that which ought to be done. This is what Section 168(1) of the Evidence Act, 2011, is about when it provides that when any judicial act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. On this presumption, and without the appellants showing in what manner their rights have been compromised or prejudiced or that they had suffered any miscarriage of justice, I hold that the trial Court delivered its judgment wherein the appellants were convicted and sentenced for the offence(s) alleged against them on the date the Judgment was delivered in open Court. The importance is that the Judgement was delivered in open Court by the learned trial Judge before whom they were tried. This resort to arcane technicality has not impressed me. I will not allow the appeal on this issue.” Per Eko, JSC (Pp. 33 – 34, paras E – F).

In the instant appeal, the record of appeal on which this appeal is prosecuted shows that the Judgment was delivered on 10/4/18. The Notice of Appeal indicates that the appeal is against the Judgment delivered on 10/4/18. Beyond the complaint on the differences in dates, the appellant has not shown what miscarriage of Justice he has suffered. With due respect to his Lordship, Pemu, JCA, in the case of Ake Properties Limited & Ors vs. Mrs. Adebisi George (supra) she did not advert her mind to the fact that beyond the bare assertion that there is difference between the date the Judgment was dated and signed, and the date same was delivered, the appellant had an inescapable duty to point out the miscarriage of justice he had suffered. The days of technical justice are long gone. This is my area of disagreement with her Lordship, with the greatest respect. Having said that I reach the inevitable conclusion that issue one is resolved against the appellant and in favour of the Respondent.

Issue Two
Whether the Trial Court was not wrong in law when it convicted the Appellant on count 1 for conspiracy to obtain money

by false pretence under Section 8(a) of the Advance Fee Fraud and Related Offences Act 2006 and punishable by Section 1(3) of the same Act despite the glaring fact that the 2nd Defendant (Mr. Amadi) with whom the Appellant was said to have conspired was not tried and/or convicted on the same offence. (Distilled from Ground 3).
The argument on issue was commenced by the appellant with a reproduction of the provision of Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act which defines the offence of conspiracy and the punishment on conviction. It is submitted for the appellant that to prove the offence of conspiracy the prosecution must show that there is an agreement between two or more persons to commit an offence or an illegal act, and the said act apart from the agreement itself must be expressed in furtherance of the agreement. It is submitted not only was the appellant not proved guilty of the offence of conspiracy to obtain money by false pretence but that he cannot be tried alone and be convicted for the offence of conspiracy. We are referred to pages 148 – 150 of the record which show that the appellant was charged

along with one other defendant, Mr. B. C. Amadi (2nd defendant) for conspiracy to obtain money by false pretence, but who was at large and so the appellant was alone tried and convicted for conspiracy. It is therefore contended that the trial Court was therefore wrong when it convicted the appellant alone for the offence of conspiracy to obtain money by false pretence. Counsel relies for this submission on the case of Umaru vs. State (2018) LPELR-44430 (CA) PER OWOADE, JCA at Pp. 40 – 42 paras A – F.
This Court is urged to resolved this issue in favour of the appellant.

Responding to the appellant’s argument on issue two, the Respondent’s Counsel submits that the respondent proved the essential elements of the offence of conspiracy against the appellant and that the trial Court correctly convicted him.

The issue addressed here is not whether there is evidence on record which proved the offence of conspiracy but that since the appellant was tried alone, the law precludes him from being convicted at all alone for the offence of conspiracy. It is submitted for the Respondent on the strength of the case of Yusuf vs. FRN

(2018) 8 NWLR (Pt. 1662) 502 at page 522 para E that:
“A person can be convicted of conspiracy with a co – conspirator who is at large. All that is required is evidence on record to support the conviction.”
Further cited is the case of Ogugu vs. State (1990) 2 NWLR (Pt. 134) Section 39. It is further contended that the case of Umaru vs. State (2018) LPELR-44430 cited by the appellant is not relevant to the case at hand as the facts in that case are clearly distinguishable. Moreso, it is a decision of the Court of Appeal whereas Yusuf vs. FRN (supra) is a Supreme Court decision.
The Respondent in his argument submitted that the case of Umaru vs. The State is distinguishable from the instant case, but failed to explain what makes the facts distinguishable from the instant case. However, the case was decided by the Court of Appeal, whereas Yusuf vs. FRN is a Supreme Court decision. In that case, that is, Yusuf vs. FRN (2017) LPELR-43830 (SC) the apex Court held:
“From the piece of the judgment of the Court below, it is clear that the appellant was not convicted for conspiracy with the said co-accused but was convicted with

the said Ibrahim Abdullahi Usman whose name appeared in count 1 but was stated to be at large and so the appellant’s submission that he ought to have been discharged and acquitted since the co – accused in the charge was discharged, was a misconception. That a person can be convicted of conspiring with a co – conspirator who is at large as all that is required is evidence on record in support of the conviction. see Ogugu vs. The State (1990) 2 NWLR (Pt. 134) at 533.”
I need to comment on the case of Umaru vs. State (2018) LPELR-44430 cited and relied on by the appellant, so that it might not be misconstrued that the learned Jurist, Owoade, JCA got it wrong. In other words, I want to point out that the facts in that case are different from those in the instant appeal. In that case, the appellant was specifically charged with conspiracy with the 2nd accused person who was only convicted of the lesser offence of screening of offenders under Section 167 of the Penal Code.
It is not the case that the appellant or the 2nd accused person was charged with others at large. Therefore, the conviction of the 2nd accused person alone for

the offence of screening of offenders only leaves the appellant alone, hence the decision of the Court that he alone cannot be convicted of conspiracy.
Therefore, the submission of the appellant’s Counsel that the appellant here cannot be convicted of the offence of conspiracy without the 2nd accused person who was at large and could not be brought to trial is a clear misconception. Indeed, what matters here is whether there is evidence on which the appellant can be convicted of conspiracy, and not that he cannot at all be convicted because the 2nd accused person who was at large could not be brought to trial with him. This will be decided under issue four (4). Therefore, clearly issue two is resolved against the appellant and in favour of the Respondent.

Issue Three
Whether the Trial Court was not wrong when it admitted and relied on Exhibit P being the extra-judicial statement of the Appellant. (Distilled from ground 5).
It is contended for the appellant that Exhibit “P” (the joint extra judicial statements of the appellant) is not reliable and wrongly admitted in the first place and liable to be expunged from the record

in as far as it was not tendered for the purpose of contradicting the appellant.

It is submitted that the extra judicial statement of a witness can only be tendered and admitted as evidence for either side for the purpose of contradicting him. Reliance is placed on the case of Afam Okeke vs. The State (2016) LPELR-40024 (CA) and Ibrahim vs. The State (2018) LPELR-46391 (CA) PER Mahmoud, JCA at Pp. 23 – 25 paras C – A.

For the submission that the Court can expunge inadmissible evidence wrongly admitted, the case of S. O. Ntuks & Ors vs. Nigerian Port Authority (2007) LPELR-2076 (SC) PER Ogbuagu, JSC at Pp. 19 – 20 paras G – B.is cited and relied upon.

It is further submitted that assuming, without conceding that Exhibit P was not wrongly admitted, it is not a Confessional Statement but a narration of the appellant’s story, and is devoid of any clear, precise and unequivocal statement of the commission of the offences. That it is not direct and positive on the commission of any offence to qualify as a Confessional Statement. It is submitted that for a statement to be a Confessional Statement, it must be direct,

clear, precise and unambiguous as to the commission of the crime. Reliance is placed on the case of The State vs. Sheevo Shonto (2019) LPELR-47431 (SC) Per Galumje, JSC at Pp. 45 – 47 paras F – A. It is therefore further submitted that Exhibit “P” not being a confessional Statement, it was not only wrong for the learned trial Judge to admit it in evidence as Exhibit “P” but equally wrong when it was regarded as a Confessional Statement and relied on heavily to convict the Appellant.

For the Respondent, it is submitted that Exhibit P is a Confessional Statement and that an accused person may be convicted on a Confessional Statement alone provided that it is free, voluntary, direct and positive even if it is retracted or otherwise. Counsel relies on the case of Abirifon vs. State (2013) 13 NWLR (Pt. 1372) 619 at page 635 paras E – G. In what seems to be a reply to the appellant’s submission that the statement of a witness can only be admitted for the purpose of contradicting the witness, it is submitted, with the aid of the case of Ikechukwu Ikpa vs. the State (2017) LPELR-42590 (SC) Per Augie JSC, that the

voluntary statement of an accused is part of the case for the prosecution whether it contains a confession or not, and whether the accused person resiles from it or not at the trial. That it is not part of the defence of the accused person. Reliance is also placed on the case of Usung vs. State (2010) WRN 165, lines 40 -45. On what amounts to a Confessional Statement, the Court is again referred to the case of Ibrahim vs. The State (2014) 3 NWLR 305 at 338 paras F – G. Counsel refers to page 26 of Exhibit P as containing statements credited to the appellant that amounts to confession. On the importance of extra judicial statement of the accused person to the prosecution’s case, the Respondent’s counsel relies also on Kiwo vs. State (2015) 3 NWLR (Pt. 1446) 207 at 228 paras C – D, Amala vs. State (2004) 12 NWLR (Pt. 888) 520 at 549 paras A – B. It is pointed out that Exhibit “P” was tendered and admitted without objection. On the import of this, the Court is referred to the case of Nkie vs. FRN (2014) 13 NWLR (Pt. 1424) 305, Nwabueze vs. The People of Lagos State (2014) 3 NWLR (Pt. 1394) 401 at 25 paras D – G.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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While it is a correct statement of the law to say that the statement of a witness can only be admissible in evidence for the purpose of discrediting such a witness, the same cannot be said of the statement of an accused person. As stated in the case of Ikechukwu Ikpa vs. The State (2017) LPELR-42590 (SC);
“The voluntary statement of the accused is part of the case for prosecution, whether it contains confession or not and whether the accused person resiles from it at the trial or not …” Per Augie JSC (Pp. 52 – 54, paras F – C.
See also Usung vs. State (2010) WRN 165 lines 40 – 45. See also the case of Ayinde vs. State (2018) LPELR-44761 (SC) Per Augie, JSC (P. 25 paras B – C). In the case of The State vs. Sheevo Shonto (2019) LPELR-47431 (SC) the apex Court held:
“For a statement of an accused person to constitute a Confessional Statement, it must admit clearly, precisely and unequivocally the offence for which he is charged with …” Per Galumje, JSC (Pp. 45 – 47, paras F – A).
In Francis Nkie vs. FRN (2014) LPELR-22877 (SC) the apex Court held:

“… a Confessional Statement can only become proof of an act when it is true, positive and direct. A Confessional Statement made voluntarily, stating or suggesting the inference that an accused committed an offence for which he is standing trial is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. Also, any voluntary information given by an accused at any time during investigation which leads to the discovery of any fact material to the charge against him is equally admissible … it is quite reasonable to hold that voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by the accused, is accepted as satisfactory evidence on which the Court can convict…” per Okoro, JSC (Pp. 29 – 30, paras G – E).
It is now pertinent to examine the appellant’s statement in Exhibit P that is regarded as an admission of the offences with which he is charged. The Respondent relies on the following extracts from Exhibit P, at page 26 of the record. This extract is contained

in the first page of the statement of the appellant, which he volunteered during investigation on 13th June, 2016. It reads:
“I did not inform the ministry when the money was transferred to Aupctre Account with Union Bank as a result of my illness at that time; also I did not inform the bank about the agreement we made with Aupctre officials and I did not inform the bank that I am not interested in the loan as a result of my illness I being the Chairman of the Union. I didn’t inform my Secretary that the loan was given to us by Union Bank …”
The Appellant was charged and convicted on two count charge of conspiracy to obtain money under false pretence contrary to Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act, and obtaining money to the tune of N30, 000,000.00 by false pretence. The extracts of the statement reproduced supra has fallen short of a direct, positive, equivocal and unambiguous admission of all the elements of the two offences. In fact, at the tail end of his statement that was made on 6/6/16, the appellant stated that nothing was given to him out of the Thirty Million Naira.

The trial Court’s treatment of Exhibit “P” can be found at page 286 of the record of appeal, at lines 3 – 7 where the Court stated:
“I think the mens rea to commit the offences in counts 1 and 2 lies in the confession by the 1st defendant’s admissions both orally before this Court and his statements tendered in evidence as Exhibit “P”.
I have gone through the said Exhibit “P” but unable to find the appellant’s admissions therein that qualify as Confessional Statements in which to base a conviction for the two offences.
That’s not to say that the Court cannot draw inferences from the statements made by the appellant in the said Exhibit P, and I dare say, that is how far Exhibit P can come in aid for the Respondent if the Court finds some statements therein to be of probative value to the Respondent’s case.
This brings me to the conclusion that issue three must be resolved in favour of the appellant and against the Respondent.

Issue four
Whether from the totality of evidence and circumstance of this case, the Defendant has proved the charges against the

Appellant to warrant the conviction and sentence of the Appellant. (Distilled from grounds 4, 6, 7, 8 and 9).

The Appellant’s Counsel points out that the trial Court convicted the Appellant for the offence of obtaining money by false pretence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and punishable by Section 1(3) of the same Act. Counsel sets out the ingredients of the offence with reference to the cases of Onwudiwe vs. FRN (2006) LPELR-2715 page 1 at page 33, Confido Consult Services Ltd vs. FRN (2018) LPELR-43676 (CA) and Duru vs. FRN (2018) 12 NWLR (Pt. 1632) 20. Counsel submits that the elements of false pretence and intention to defraud which are central and germane ingredients are lacking in the instant case. Counsel proceeds to consider the ingredients one after the other, thus:
False Pretence:
Adverting his mind to Section 20 of the Act which defines false pretence, counsel submits that the amount of money requested for by the appellant and other Executives of the ministry of information staff Multi-Purpose Cooperative Society Gombe (MISMPCSG) made on behalf of their

members to Union Bank in the sum of N30, 000,000.00 was processed and paid into the account of the Cooperative Society at a time the Appellant was not feeling fine; to be disbursed to its members. That as he was not well he offered to return the loan but was advised to transfer it to another union, A.U.P.C.T.R.E. which had also applied for the same loan but yet to materialise, and based on this the Appellant entered into an agreement with Chairman of that union (the then 2nd defendant) in the office and presence of the nominal complainant. Counsel refers the Court to the evidence of PW1, PW2, DW1, DW2 and Exhibit A, lines 1 – 8. The Court is referred to the evidence of PW2 at lines 13 – 20 at page 251 of the record.

As to the list of beneficiaries, counsel asks this Court not to rely on Exhibit N which is based on Exhibit O, which is to the effect that the list of beneficiaries contained in Exhibit N are not staff of the ministry of information because Exhibit O is not based on any formal list of the staff of the ministry of information and that PW4 who tendered Exhibit “O” is not a staff of the ministry of information.

That PW4 stated under cross examination at page 222 of the record that Exhibit “O” is restricted to the period of 2016. Counsel therefore finds no evidence of false representation, as according to him, the Appellant had all along disclosed material fact of affairs to the nominal complainant. It is therefore submitted that the Appellant never represented any false fact to the bank; and that it is clear from the evidence that the application for loan from the nominal complainant which was approved was not false representation. Further submits that it is not the complaint of the bank that the loan application was false. That it is also not the complaint of the Co-operative Society that it did not authorise the application for the loan.

Intention to defraud
It is contended for the appellant that the offence of obtaining money by false pretence deals with the mens rea of the appellant in respect of the allegation against him. It is submitted that there is no iota of evidence to show wilful act by the appellant to deprive the nominal complainant of its money. Counsel further submits that from the evidence before the Court, it was crystal clear that

because the Appellant never had any intention to defraud the bank, no false representation ever operated on the mind of the bank from whom the loan was obtained and subsequently transferred to AUPCTRE with the approval of the said bank. It is further submitted that the trial Judge relied on fact not borne out of the record when it held that the branch manager of Union Bank was not acting within his mandate when he participated in the transfer of the facility to AUPCTRE. The Court is referred to page 278 of the record of appeal. Counsel further submits that the evidence of PW3 that at the time the loan was given, B. C. Amadi was acting on behalf of the bank contradicts the finding of the trial Court that due process was not followed in obtaining the facility. The Court is referred to pages 217 and 219 of the record of appeal.

Counsel regards as hearsay the evidence of PW1 that the appellant had laid claim to ownership of the Cooperative Society. That the findings of trial Court at page 278 of the record is borne out of assumptions, intuitions and speculations which have place in law. Reliance is placed on the case of Chukwu & Anor vs. Chukwu & Ors

(2018) LPELR-45482 (CA), per Oredola, JCA at Pp. 47 – 48 paras F – B.

It is submitted that from Exhibit A there is intention to repay the said loaned sum, part of which had been paid as noted by the trial Court at page 16 of the judgment. See page 276 of the record of appeal.

It is further contended for the appellant that despite the avalanche of evidence of attempt to offset the loan, yet the trial Court held that the appellant had the intention to defraud the nominal complainant of its funds. The complainant, Counsel submits only embarked on recovery of loan and nothing else.

Counsel further submits that PW1 is a tainted witness whose evidence ought to have been treated with caution but that the trial Court failed to do that, and instead relied heavily on her inconsistent evidence. As to who can be termed a tainted witness, counsel relies on the case of Adetola V. The State (1992) 4 NWLR (PT. 235) 267, Egwumi V. State (2013) 13 NWLR (PT.1372) 525.

Counsel faults the evidence of PW2 who claimed that he gave N2,000,000.00 to the Appellant and relied on Exhibit B (break down list) on ground that there is no acknowledgement of the

receipt of the money and the fact that PW2 told the Court that he could not remember the names, number or even the amount given to each person. Counsel concludes that neither fraudulent intention or conversion was proved against the Appellant and urges that the appeal be allowed and the judgment of the trial Court, set aside.

For the Respondent, it is submitted that the two counts of the charge have been proved against the Appellant beyond reasonable doubt.

Dealing first with the substantive offence charged under count 2, it is submitted for the Respondent that the elements of the offence of obtaining money or goods under false pretence are as stated in the case of Duru vs. FRN (2008) 12 NWLR (Pt. 1632) 20 at 43 paras E – G, and Ifeanyi vs. FRN (2008) 12 NWLR (Pt. 1632) 164 at 187 paras E – G. Counsel lists out the ingredients of the offence, which are:
(a) that there was a pretence
(b) that the pretence emanated from the accused person
(c) that the pretence was false
(d) the accused knew of its falsity or did not believe in its truth
(e) that there was an intention to defraud
(f) that the thing is capable

of being stolen
(g) that the accused person induced the owner to transfer his whole interest in the property.

Counsel picks the ingredients and addresses the Court on them. He starts with, whether there was pretence, and finds that there was pretence in the fact that the Appellant used his wife as the treasurer when infact she is not a staff of their ministry; that he signed Exhibit ‘D’ as president as opposed to his testimony in Court that he was appointed as Vice Chairman and chairman when the chairman was promoted to Permanent Secretary. Next is on Exhibit N to which he attached list of beneficiaries to give the impression that they are members of the society, whereas by Exhibit O, dated 27/5/16, none of the names in the list is a staff of the ministry. It is submitted that from the onset the Appellant hid under the pretence of obtaining the loan to disburse to the members of the society (Exhibits ‘O’ and ‘N’ refer) but in actual sense the names of the beneficiaries as far as the record in the ministry is concerned are fictitious. It is further pointed out that the loan was supposedly to be disbursed for the

purpose of assisting in farming activities but ended up being diverted to DW2, Chairman of AUPCTRE. Other submissions on the element of pretence are contained in pages 16 – 7 (paras 4.22 – 4.30) of the Respondent’s brief of argument.

Counsel next dealt with the 2nd element, which is whether the pretence emanated from the Appellant, which he answered in the positive, with specifics contained at pages 18 – 19 (paras 4.32 – 4.38) of the Respondent’s brief of argument. Next element is whether the pretence is false; the submission on that is that it is. See page 19 (paras 4.40 – 4.42) of the Respondent’s brief. On whether the Appellant knew of its falsity, which is the next element considered by the Respondent, it is submitted that the Appellant knew. I refer to paras 4.44 – 4.46 (pages 19 – 20) of the Respondent’s brief. On the element of intention to defraud, counsel submits that documents were procured to convince the bank to grant the loan. He refers to Exhibits ‘A’ – ‘F’. It is submitted that the intention to defraud can only be determined from the facts and

surrounding circumstances, and this counsel seems to infer from the action of the Appellant in avoiding other executive members of the Cooperative Society and choosing to use his wife in the running of the affairs of the same that belongs to the Ministry of Information. On the power of an Appellate Court to draw inferences from surrounding circumstances the Court is referred to Runsewe & Ors. vs. Odutola (1996) LPELR – 2964(SC) per Onu, JSC at pages 17 – 18 paras D – E, and Adegboye vs. The State (2015) LPELR – 41723 (CA) per Oniyangi, JCA at pages 39 – 41 paras D – A.

The next element is whether the thing is capable of being stolen. The submission is that it is.

And as to whether the Appellant induced the owner to transfer the whole of his interest in the property, it is submitted that the Appellant used the medium of Exhibits ‘C’, ‘D’, ‘E’ and ‘F’ to induce the bank to pay the sum of N30,000,000.00 on 6th December 2012 as evidenced by Exhibit K (the statement of Account of the society) as masterminded by the Appellant.

Counsel concludes on the note that all

the essential elements of the offence of obtaining by false pretence were proved by the Respondent.

The Offence of Conspiracy
It is submitted that considering the evidence led by the prosecution, no one is left in doubt of the existence of the premidated intention of the Appellant with that of the 2nd defendant and DW2 to defraud the bank. That the learned trial judge was right to have inferred the commission of the offence of conspiracy against the Appellant and 2nd defendant at page 278 of the record of appeal.

Concluding, it is submitted that from the testimonies of PW1 – PW5 coupled with Exhibits A – Q the Appellant conspired to defraud the nominal complainant of its money.

In reply to the Appellants submission regarding the evidence of PW1 as being a tainted witness counsel cites Pius vs. State (2015) 7 NWLR (Pt. 1459) 628 at 638 paras A – B as to who can be said to be a tainted witness. It is submitted that it is not enough to seek to discredit the evidence of a witness by labelling such a witness a tainted witness just because a witness is related to the victim without anything concrete to support that assertion.

Counsel cites Kiwo V. State (2015) 3 NWLR (PT. 1446) 207 page 225 para C.

Finally, it is submitted for the Respondent that it is the duty of the Appellant who relies on improper evaluation to set aside the concurrent decisions of the two Courts to identify the improperly evaluated evidence to show that if the error alleged is corrected the conclusion reached by the two Courts would not only have been different but in his favour. Cited in support is the case of Bassy Okpa V. The State (2017) LPELR 42205 (SC) per Muhammad, JSC.
Counsel urges the Court to dismiss the appeal and affirm the decision of the lower Court.

Issue four (4) as can be seen deals with the conviction for the offence of conspiracy to obtain money by false pretence under Section 8(a) and punishable under Section 1(3) of Advance Fee Fraud and other Fraud Related Offences 2006; and the offence of obtaining money by false pretence under Section 1(1)(a) punishable under Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

I will start the resolution of the arguments on issue 4 with the conviction for conspiracy. The particulars of offence shows that the

Appellant conspired with B. C. Amadi (who in this case was the nominal complainant’s manager) with intent to defraud, did agree among themselves to obtain money to the tune of N30,000,000.00 from Union Bank under the false pretence that the money was for disbursement of same to the members of Multipurpose Cooperative Society.

It is to be recalled that both the Appellant’s and Respondent’s Counsel relied on the case of Duru v. FRN (2018) 12 NWLR (Pt. 1632) in identifying the elements of the offence of obtaining money by false pretence. One of these elements is that the pretence operated on the mind of the person from whom the property was obtained. In this case the person whose property was obtained is the nominal complainant, in this case Union Bank, Gombe branch which in this transaction was represented by B. C. Amadi. It is to be recalled that contrary to the finding of the trial Court, the only staff of the Union Bank who testified as PW3 (Abdulfatah Ayinla) told this Court that at the time of this loan, the 2nd defendant was the manager and that he acted on behalf of the bank. It was argued for the Respondent that but for the false

pretence on the part of the Appellant, the Appellant could not have accessed the loan.

I refer to page 22, paragraph 4.56 of the Respondent’s brief of argument where the Respondent submitted:
“The Appellant using the medium of Exhibit “C” “D”, “E” and “F” induced the bank to pay the sum of N30,000,000.00 on the 6th day of December 2012 as evidenced by Exhibit K1, statement of account of the society which was masterminded by the Appellant”.

The bank as earlier pointed out from the evidence of PW3 was represented by the 2nd defendant, B. C. Amadi. That means, that Mr. B. C. Amadi was induced by the Appellant to pay the sum of N30,000,000.00 into the account of the Cooperative Society. Is the bank not blowing hot and cold at the same time here? In one breadth the 2nd defendant was alleged to have conspired with the Appellant as in count one and in another breadth, he was said to have been induced by the appellant.

It is trite law that an individual alone cannot be charged with and be found guilty of conspiracy. I have earlier dealt with this issue with the aid of decided cases on the point. I refer to those cases. It will be

appreciated that even though it is the Appellant alone that was convicted for conspiracy, I have to consider the evidence against the 2nd defendant even though he did not stand trial but as shown in the cases cited, the Appellant can in law be properly convicted of conspiracy since he was charged with the 2nd defendant who was at large throughout the trial if there is evidence. Where there is no evidence of conspiracy against the 2nd defendant, that in effect would mean that the Appellant alone cannot be convicted of conspiracy. As earlier stated the 2nd defendant who was said to have been induced by the appellant to give out the bank’s money to him could not at the same time be said to have conspired with the said appellant to give out the bank’s money to him (the Appellant). Therefore, the charge of conspiracy against the 2nd defendant and by implication, also the Appellant cannot be sustained.

However, to nail the issue on the head, it is important to consider in more detail the evidence of PW3. This can be found at page 213 of the record. From his evidence, the Appellant complied with all the procedure before the facility was granted. He

told the Court under cross examination that he is the Small Medium Enterprises Manager and gave his evidence based on the documents he found in the bank. He also told the Court that from Exhibit “E” the applicant complied with the condition precedent for the grant of the loan.

In convicting the Appellant, the trial Court at page 286 of the record of appeal stated inter alia:
“I think the mens rea to commit the offences in counts 1 and 2 lies in the confession by the 1st defendant’s admissions both orally before this Court and his statements tendered in evidence as exhibit P. They amount to confessions of committing the 1st and 2nd Counts of the offences he was tried for. The evidence of witnesses brought by the complainant some of which are circumstantial, some evidence of eye witnesses like PW1 and PW2 and DW2 have clearly corroborated exhibit P. The criminal intention to commit conspiracy is often than not shrouded in secrecy. Therefore, recourse to inference of the criminal intention of the accused from the physical acts or omission is often resorted to. See Abraham V. The State (2017) LPELR – 42873 (CA). I am

satisfied beyond doubts that the actions of the 1st defendant (established by evidence) has proved his intention to collude in committing the conspiracy.”

Now, I had earlier elsewhere in this Judgment come to the conclusion that Exhibit P is not a Confessional Statement because it is not a positive, equivocal and unambiguous admission of guilt. I now need to state that even if it is a Confessional Statement, it does not bind the 2nd defendant because in law, a statement made by an accused person which implicates the co-accused does not bind him unless it is made in the presence of the co-accused person and he adopts it. Therefore, the lower Court was in error when it held that the evidence of PW1, PW2 and DW3 corroborates the Appellant’s Confessional Statement to establish the offence of conspiracy between the Appellant and the 2nd accused person who did not adopt the appellant’s statement (Exhibit P).

I have also, in the light of the finding of the trial Court, meticulously read the evidence of PW1, PW2 and DW2 to see if there is in them evidence to establish conspiracy between the appellant and the 2nd accused. I find no such

evidence. Of course, the evidence if any suggests that based on the documents presented to the 2nd defendant by the Appellant the former was induced to grant the approval of the request for loan made by the Appellant’s Cooperative Society. And I think it is on the strength of these pieces of evidence that the Appellant was charged on count 2, which is to the effect that on the strength of false pretence that he made out to the bank, the 2nd defendant who acted for the bank was induced to grant the application for the loan. It is therefore clear to me that there is no evidence to sustain the charge of conspiracy against the appellant. His conviction for that offence, to my mind was in error. I so hold.

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“1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud (a) obtains from any other person, in Nigeria or in any other country, for himself, or (b) induces any other person, in Nigeria or in any other country, to deliver to any person, any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.”
To sustain a conviction for the offence of obtaining by false pretence, the following ingredients must be established by the Prosecution (a) That there was a pretence (b) That the pretence emanated from the accused person (c) That it was false (d) That there was the intention to defraud (e) That the accused person knew of its falsity (f) That the thing is capable of being stolen, (g) That the accused person induced the owner to transfer his whole interest in the property. See Segun Adelodun vs. The FRN (2017) LPELR-42356 (CA). Per Barka, JCA (P. 2) paras B – E. See also the case of Rosulu Idowu Ronke vs. FRN (2017) LPELR-43584 (CA), Per Abubakar,

JCA (Pp. 73 – 74 paras (C- A).

In the appeal before us, the fact that there was a representation is not in doubt. What is in contention between the appellant and the Respondent is whether the representation made by the appellant to the nominal complainant (Union Bank) represented herein by the Respondent is false and intended to defraud the nominal complainant of its money; and whether the nominal complainant acted on the false representation to part with its money by the grant of the loan request.

On the face of the documents presented to the bank for the application for the loan the latter believed everything to be normal and authentic. It was not until there was a problem and EFCC stepped in and commenced investigation that it was discovered that the appellant presented as the Treasurer of the Co-operative Society, his wife Hafsat Adamu Mohammed who was neither a staff of the ministry of information nor a member of the Cooperative Society, whereas the signatories to the account are the Appellant, the Society Treasurer, by name Hajiya Rabi Yadi, and Ahmed (Secretary). In the application and guarantee form, he brought in his wife as the

Treasurer who appended her own picture and signed as such. This can be verified from the evidence of the Appellant under cross-examination. I refer to page 249 of the record and Exhibit C. The Appellant’s wife testified at the trial as PW1 and told the Court how the appellant used his powers as her husband to force her to play along by signing all the documents she was made to sign by her erstwhile husband as the Treasurer when she was not, in fact, a staff of the ministry of information. That the Appellant told her that the Society was his. The Appellant’s Counsel has urged us in this Court to treat her evidence as a tainted witness but could not substantiate why. The lower Court believed her as a witness of truth, and I find no reason to do otherwise. The Appellant himself admitted that she was not a staff of the ministry of information. Therefore, it stands to reason that the only way he could persuade her to play along with him is to claim that the Society is his, and that could be the only reason that his wife(PW1) who is not a member of the Co-operative Society could be made to play the role of an official of that society. The documents that

the Appellant caused his wife to sign as a treasurer, sidelining the authentic treasurer included exhibits “A” and “E”. Exhibit A is the document (agreement) by which the N30, 000,000.00 loan granted the Cooperative Society was transferred to the Chairman, AUCPTRE (the Amalgamated Union), and Exhibit E is the banks letter of offer of the banking facility to the ministry of information MPCS, dated 21/11/12. Now, in the appellant’s multiple statements in the course of investigation, admitted as Exhibit P, the appellant gave no justification for sidelining the Executive officials of the Association, particularly the treasurer, and preferring to use his wife who was not a staff of the ministry of information and definitely could not by any stetch of imagination occupy, the position of the society’s treasurer.

Curiously, the list of beneficiaries, a precondition for a bank to grant such a loan, which would guarantee recovery of the loan by the bank was also fictitious. In the course of investigation, the EFCC through Exhibit “N” wrote the Permanent Secretary Ministry of Information, Gombe, Gombe State a letter

dated 17/5/16 requesting to confirm from him the following:
1. Whether the Cooperative Society exists.
2. Whether the list of beneficiaries attached are staff of the ministry of information and (3) any other information that may assist the commission in its investigation.

The Permanent Secretary gave his reply through Exhibit “O” dated 27/5/16 which reads:
“With reference to your letter … on the above subject matter, I am directed to write and inform you that the said Multipurpose Co-operative Society existed in this ministry, but none of the staff mentioned in the attached list is a staff of this organization”.

What a shocker! A loan is being accessed for staffers, and a list showing the beneficiaries, how much they draw as salary and how they will repay the loan does not contain the names of the beneficiaries or staff of that ministry? It would appear to me that the Permanent Secretary of the Ministry of Information was also misled at the time the application for the loan was made. This is because in a letter dated 3rd May, 2012, addressed to the Branch Manager, Union Bank of Nigeria, Plc Biu Road,

Gombe, titled: Letter of Guarantee in respect of Agricultural loan of Thirty Million Naira only (N30,000,000.00) to Ministry of Information Staff Multipurpose Cooperative Society (Exhibit F) the Permanent Secretary confirmed that the members of the above union are staff of the Ministry, and recommended that they be granted the loan.

Paragraphs 2 and 3 of the said letter are pertinent on the issue of misrepresentation and the bank’s reliance on it, and I hereby reproduce these paragraphs:
“In the event of transfer of any of the beneficiaries, the pay point would not be changed without prior agreement in writing while the terminal benefits would be paid through your bank incase he/she finally leaves office.
In view of the above, you are being assured that the Thirty Million Naira (N30,000,000.00) and interest will be paid through monthly deductions from salaries of all beneficiaries and be lodged by cheque or cash to the union account with your bank for the period of ten months.”

From the onset, the Appellant caused the Ministry to guarantee the grant of the loan, whereas at the same time they sent a list of beneficiaries

who are not members of staff of the Ministry of Information. So, what is his aim for this misrepresentation?

Appellant’s Counsel contended that the list sent to EFCC contained in Exhibit O was as at 2016. But throughout the trial, the Appellant did not present any list of beneficiaries as at when the loan was applied for. PW4 – Andrew Ayuba who testified on this list told the Court that the list (Exhibit N) did not contain names of staff of the Ministry of Information as at 2016, but went on to also state that the list was from the record with the Ministry of Information.

The Appellant did not offer any explanation for his action in sending the fictitious list of beneficiaries. He did not explain why he did not send the list of members of the Co-operative Society for whom the loan was accessed. The only conclusion that can be drawn is that the false representation was made to lure the bank to grant the loan which he never intended to give to the beneficiaries. No wonder, when it had been approved and ready for collection, he hid under the cover of his illness to pretend to reject the loan and had it given to a different union which by his

statement he did not provide any list of beneficiaries from that union to the bank before the transfer of the loaned sum to them. The Appellant has by his actions which I describe as nothing but fraudulent foisted upon the bank a situation which makes the recovery of the loaned sum difficult if not impossible.
In the circumstances I can only reach the conclusion that the Appellant made a false pretence which he knew to be false to the bank which acted on it to approve the loan application believing that it would recover same plus accrued interests as guaranteed by the Permanent Secretary Ministry of information in Exhibit “F”.
What I am left to consider is whether the Appellant did the false pretence with fraudulent intention.
A misrepresentation is said to be fraudulent if the maker intends the assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies the truth of his assertion or (c) knows that he does not have the basis for what he states or implies for the assertion.

See The State vs. Bolanle Susan Osasona (2019) LPELR – 48492 (CA) Per Ndukwe – Anyanwu, JCA (PP. 16 – 20 paras F – A. See also Ikechukwu Ikpa vs. The State (2017) LPELR – 42590 (SC) Per Augie, JSC (PP. 28 – 29 Paras A – D).

I find the submission of the Appellant’s Counsel on the element of intention to defraud very amusing. I begin to wonder whether Counsel himself believes in his submissions. I refer to page 8 paragraphs 4.47 – 4.49 of Appellant’s brief of argument. He submits that there is no any iota of wilful act by the Appellant to deprive the nominal complainant of its money by any means. It is further submitted by him that the evidence before the Court is crystal clear that because the Appellant never had any intention to defraud the nominal complainant, no false representation ever operated on the mind of the nominal complainant (Union Bank) from whom the loan was obtained and subsequently transferred to AUPCTRE with the approval of the nominal complainant. That the bank was at no point in time misled on facts to show any intention to defraud it.

Now I ask the following questions – what was

in the mind of the Appellant in sidelining the authentic Treasurer of the society and using his wife who was not a staff of the Ministry of Information to act as the Treasurer? What operated in his mind when he went to the bank and formally changed the signatories in the bank to bring in his wife as the Treasurer? This is part of his statement in Exhibit P.

Now, if nothing else could be said to have worked in the mind of the Court in granting the loan, can the Appellant explain to everyone’s satisfaction why he would, in applying for the loan send as beneficiaries, list of persons who are not members of the Cooperative Society, not being staff of Ministry of Information to the bank? What did he have in mind when he deceived his Permanent Secretary to guarantee the loan with a strong undertaking that the beneficiaries are staff of the Ministry and would offset the loan plus interest with their salaries and terminal benefits if they leave office before the loan is finally refunded? The Appellant has urged this Court to hold that he has no fraudulent intention because he transferred the loan to AUPCTRE with an agreement entered in the presence of the

bank manager. It should be noted that there is no documentary evidence to show that the bank was involved in the so called transfer of the loaned sum to AUPCTRE. As admitted by the Appellant himself in one of his statements, (Exhibit P) no beneficiaries list was provided by AUPCTRE to the bank.

Therefore, who were those persons who benefitted from the loan from whom the bank can recover its money? Unless the Appellant can be made to account for his criminal misrepresentation, he has plunged the bank into a cul-de-sac in the recovery of the loan.

Now consider this; in his extra judicial statement made on 13/6/2016, the Appellant stated inter alia:
“I did not inform the ministry when the money was transferred to AUPCTRE Account with Union Bank as a result of my illness at that time, also I did not inform the Bank about the agreement we made with AUPCTRE officials, and I did not inform the bank that I am not interested in the loan as a result of my illness, I being the Chairman of the union. I didn’t inform my Secretary that the loan was given to us by Union Bank. There is no reason for me not to inform the Secretary of the Union on the loan.”

The Appellant did not deny making this statement. It was tendered along with the other extra judicial statements of his, all admitted together in one bundle as Exhibit P. If all these facts put and considered together do not constitute fraudulent misrepresentation, I cannot see what else can.

There are some findings of the lower Court that were faulted by the Appellant, and correctly too in my view. Now, it is important to state this in the light of my finding in this appeal. The duty of an Appellate Court is to decide whether the decision of the learned trial Judge was right and not whether the reasons or modalities regarding how the decision was reached were right. An Appellate Court is more concerned with correctness of the decision in question and not otherwise. Hence an Appellate Court will not interfere if the judgment is right. See Simeon Adesugba Ogundare & Ors. vs. Julius Alao (2013) LPELR – 21845 (CA) Per Oredola, JCA (P. 31 paras C – D). Therefore, despite some pitfalls in the judgment of the trial Court, its decision in convicting and sentencing the Appellant for the offence of obtaining money by false

pretence under Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 is right and cannot be disturbed. In sum, issue 4 is partly resolved in favour of the Appellant, and partly resolved in favour of the Respondent.

In consequence, I allow the appeal in part as follows: the conviction for the offence of conspiracy under Section 8 (a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 punishable under Section 1(3) of the same Act is hereby set aside.

However, the appeal against conviction for the offence of obtaining money by false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006 lacks merit and is hereby dismissed. Accordingly the conviction and sentence as contained in the Judgment of Hon. Justice Abubakar Jauro delivered on 10/4/2018 is hereby affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in advance the Judgment of the Court just delivered by my learned brother, Abundaga, JCA. I agree with his reasoning and conclusion. In furtherance of my agreement, I will add a few words.

It has since been settled by the apex Court that the

signing and dating of a Judgment a day before its delivery is quite in order under the law as it could then be rightly delivered subsequently, but within the time prescribed by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), either by the same Judge who prepared and wrote the Judgment or by any other Judge of the same Court if the Judge is, for any reason, not available to deliver it. See Dakingari V Ward & Green (1999) LPELR-9930(CA) 22, A-C, per Mohammed, JCA (AHTW, later CJN).
There is a difference between dating a Judgment and delivery of a Judgment. The date a Judgment is delivered in Court or pronounced is the critical and important date in line with Section 294(1) of the Constitution (supra), the various statutes enacted in respect of each Court or Tribunal make provisions for the delivery of decisions of such Courts. It is common practice that decisions of Courts are usually dated and signed on the date of delivery. However, there is no known Rule of practice in all the Courts which categorically provide that a decision dated on a particular date cannot be delivered on another date, so long as it was

delivered within the period prescribed by the Constitution. In particular, that a decision cannot be delivered on a later date than it was actually signed and dated, as in the instant case. However, even where two dates appear on a Judgment, the date the Judgment is delivered is the vital date for all legal and practical purposes. The date of delivery as far as the parties to the suit are concerned is the date on which the Court finally determined the dispute submitted to it for resolution. Until that date, the parties cannot claim that their case had been concluded by the Court. Until its delivery in Court, the Judgment remains within the bosom of the Court. Thus, until delivery, a Judgment remains inchoate and incipient. It is the date of delivery of the decision that gives birth to its legal existence and efficacy under the Constitution and other relevant statutes, irrespective of the date on which it was signed. Consequently, the date of delivery of a Judgment is the date of that Judgment, and not any other date that might appear on any other part of the decision. That date serves as the date on which the decision was made. A Judgment can be written, dated

and signed, but unless and until it is delivered and/or pronounced in Court, it is not the Judgment of the Court. See Yongopila V Nenshi (2017) LPELR-42456(CA) 17-18, D-E per Sankey, JCA; Nwoko V Azekwo (2011) LPELR-42030 (CA) 15-17, E-B; Ohuabunwa V Duru (2008) LPELR-4699(CA) 34-36, D per Garba, JCA; AG Federation V ANPP (2003) 15 NWLR (Pt. 844) 600.
The seal is placed on the cap of this issue by the recent decision of the Supreme Court in Hadi Sule V State (2017) LPELR-47016(SC) 33-34, E-F, per Eko, JSC, where his lordship held inter alia thus:
“The Appeal is not about the substance of the Judgment, but about only the non-signing or sealing of the Judgment and its non-dating. Equity follows the law and takes as done that which ought to be done. This is what Section 168(1) of the Evidence Act, 2011 is about when it provides that when any judicial Act is shown to have been in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. On this presumption, and without the appellants showing in what manner their rights have been compromised or prejudiced, or that they have suffered any miscarriage of

justice, I hold that the trial Court delivered its Judgment wherein the Appellants were convicted and sentenced for the offence(s) alleged against them on the date the Judgment was delivered in open Court. The importance is that the Judgment was delivered in open Court by the learned trial Judge before whom they were tried. This resort to arcane technicality has not impressed me. I will not allow the appeal on this ground.”
I have also considered the facts and the reasoning for the decision rendered in Ake Properties Ltd V George (2014) LPELR-22428(CA) 5-6, D-B, per Pemu, JCA relied upon by learned Counsel for the Appellant. However, I agree with the lead Judgment that in line with the decisions of the Supreme Court thereon, what should be of paramount importance is substantial justice as against kowtowing to technicality, as well as a consideration of whether the Appellant is able to show how he has been prejudiced and so, establish that a miscarriage of justice has been occasioned thereby.

Secondly on the issue of whether the lower Court was right to have convicted the Appellant on the count of conspiracy when the 2nd accused person, the

alleged co-conspirator, was said to be at large, the law is long since settled that a person can be convicted of conspiring with a co-conspirator who is at large so long as there is sufficient evidence on record that proves the ingredients of conspiracy and such can support the conviction. See Yusuf V FRN (2017) LPELR-43830(SC) 28-29, E-B, per Peter-Odili, JSC; Ogugu V State (1990) LPELR-19873(CA) 25, C-F, per Awogu, JCA. However, from the facts available on Record in the instant case, the allegation of conspiracy against the 2nd accused person was not established/proved by credible evidence. Therefore, it follows that the Appellant alone cannot be convicted of conspiracy. Hence, I agree that the conviction for conspiracy cannot stand.

Consequently, based on these reasons and the comprehensive reasons stated in the lead Judgment of my learned brother, the Appeal succeeds in part. I endorse the consequential orders made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of a preview of the lead Judgment read by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I agree entirely with the reasoning and conclusion reached

therein.

As found by my learned brother, there was no evidence of conspiracy against the 2nd defendant and consequently, the Appellant could not be convicted for the offence of conspiracy. The soundness in this position lies in one of the component parts of the offence. The test must always be, do these acts, considered together, portray any continuity of purpose. One ingredient of the offence is that the criminal design alleged must be common to all. In other words the conspirators must have common mind or purpose. See the cases of Oyeridan vs. Republic 1967 NMLR 22, Haruna & Ors vs. The State 1972 All NLR and ERIM vs. The State 1994 LPELR-1159 SC.

In consequence, I also find the Appeal unmeritorious and is hereby dismissed. I affirm and uphold the Judgment and conviction of the High Court of Justice, Gombe State in Suit No; HC/GM/27C/2017 delivered on 10th April, 2018 by Hon. Justice Abubakar Jauro.

Appearances:

Matthew G. Burkaa, Esq. For Appellant(s)

Y Muntaqa, Esq. For Respondent(s)

Appearances:

Matthew G. Burkaa, Esq. For Appellant(s)