AIMUAMWEHI FRIDAY OSAREREN v. FEDERAL REPUBLIC OF NIGERIA(2018)

AIMUAMWEHI FRIDAY OSAREREN v. FEDERAL REPUBLIC OF NIGERIA

(2018) LCN/4738(SC)

In The Supreme Court of Nigeria

On Friday, the 23rd day of February, 2018

SC.670/2014

RATIO

POSITION OF THE LAW ON THE IMPLICATION OF A DEFECT IN THE COMPETENCY OF THE COURT

The implication of a defect in the competency of the Court is that any defect in the competence of the Court is fatal. It renders the proceedings a nullity no matter how well conducted the proceedings were: MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR (Pt. 4) 587; EGUNJOBI v. F.R.N. (2013) 3 NWLR (Pt. 1342) 257. PER EJEMBI EKO, J.S.C.

ATTITUDE OF THE SUPREME COURT TOWARDS CONCURRENT FINDINGS OF FACTS BY THE COURTS BELOW IT

POSITION OF THE LAW AS REGARDS CONSIDERATION OF SENTIMENTS IN JUDICIAL DELIBERATION

Sentiments, it must be borne in mind, command no place in judicial deliberations: EZEUGO v. OHANYERE (1979) 6 SC 17; MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 NWLR (Pt. 884) 396; ORJI UZOR KALU v. F.R.N. & ORS (2016) LPELR-40108 (SC). PER EJEMBI EKO, J.S.C.

INTERPRETATION OF SECTIONS 162, 163, 164 OF THE CRIMINAL PROCEDURE ACT AS REGARDS WHETHER LEAVE MUST BE OBTAINED BEFORE A CHARGE IS AMENDED

Section 162 states that: “162. When any person is arraigned for trial on an imperfect or erroneous charge, the Court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.” The above is applicable where an imperfect charge is before the Court. The Court may direct the prosecution to frame a new charge if he has not done so already. The judge has jurisdiction to direct the prosecution to frame a fresh charge when a charge is faculty. Section 163 states that: “163. Any Court may alter or add to any charge at any time before judgment is given or verdict returned any every such alteration or addition shall be read and explained to the accused.” The power to alter a charge includes the power to substitute a fresh charge. A charge may be amended after closing speeches but before judgment is delivered provided that Section 164 of the Criminal Procedure Act is complied with. Any amendment can be made provided that there is no injustice to the accused person. See R v Kano & Arisah (1951) 20 NLR p. 32 Okwechima v. Police (1956) 1 FSC p.73 Section 164 of the Criminal Procedure Act provides for the alteration of a charge. It states that: “164 (1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 that Court shall forth with call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge. (2) If the accused declares that he is not ready, the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case, the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form. Relevant extracts from the Record of Proceedings in the trial Court show that the charge was amended as follows: “Prosecutor: We discovered that there is a need to amend the charge in count six (6) instead of Skye Bank in place of Intercontinental Bank. I discussed this with the defence counsel but he preferred a new charge drafted to replace the present one and I have done so. Defence Counsel: We are not opposing the amendment. Court: The newly amended charge of 25/6/2012 is read and explained to each of the accused persons and each appeared to have understood satisfactorily and pleaded as follows……..” When it is the desire of a prosecutor to amend the charge or file a fresh charge, he files the process in the Registry and serves a copy of the process on the defence counsel. Leave means permission. An informal oral application is made to the trial judge in open Court to amend or file fresh charge/s and leave to amend is not formally granted by the judge. It is implied that leave has been granted when the accused person is called upon to plead to the amended charge or fresh charge. The fact that the accused person pleads to the amended charge is indicative of the fact that leave was obtained. Failure of the accused person to plead to the amended or fresh charge as provided by Section 164 of the Criminal Procedure Act renders the entire proceedings null and void. See R v. Eronini (1953) 14 WACA p.366, Adisa v. AG Western Nigeria (1965) 1 ALL NLR p.412. There was strict compliance with Section 164 of the Criminal Procedure Act, when the charge was amended, in that the appellant pleaded to the amended charge. The amended charge was not an abuse of process and the trial is not a nullity. PER OLABODE RHODES-VIVOUR, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

AIMUAMWEHI FRIDAY OSAREREN Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Appellant was the 1st accused person in the charge No. FHC/B/57C/2011 before the Federal High Court, Benin City. The eleven (11) count charge alleged that the Appellant and two others conspired to commit the offence of obtaining money from an American, Cynthia Taylor (F), by false pretences, and that they committed various offences of obtaining by false pretences various sums of money on diverse dates between May and December, 2008. The Appellant and two others pleaded not guilty to the charges. Thereafter two witnesses testified and tendered several documents. At the close of the prosecution’s case, and before the accused persons opened their defence, the prosecution submitted amended charge to which the three accused persons, each, pleaded “not guilty” afresh to each of the 11 charges. Thereafter the accused persons, particularly the appellant as the 1st Accused, each entered his defence.

At the close of the defence and the final addresses of the respective counsel for the prosecution and the defence the trial Federal High Court reserved its judgment to 13th June, 2016. It

delivered the reserved judgment on the said 13th June, 2013. The three accused persons were all convicted and sentenced to various terms of imprisonment. Finding that the prosecution had proved their case against the appellant herein, as the 1st Accused, on each of the 11 charges, the trial Court convicted him on all the 11 charges. The appellant lodged his appeal against his conviction on 20th June, 2013, on five grounds to the Court of Appeal (hereinafter called the “Court below”). The Notice of Appeal was subsequently amended with the grounds of appeal increased from 5 to 12 in the amended Notice of Appeal at the Court below.

The appellant’s appeal was heard by the Court below. It was on 16th July, 2014 dismissed in its entirety. The appellants conviction and sentence were affirmed by the Court below: hence this further appeal. The Notice of Appeal, filed on 3rd September, 2014, has 8 grounds of appeal. From these 8 grounds of appeal, the appellant’s counsel has formulated 4 issues for the determination of the appeal. They are:
1. Whether the decision of the Court below is not marred by unfairness and lack of fair hearing by their

deliberate refusal to countenance and determine various germane issues laid before them by the Appellant [from grounds 1, 2 & 3] .
2. Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 8-11 of the charge [from ground 6]
3. Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 1-7 of the charge [from grounds 7 & 8]
4. Whether the learned justices of the Court below were right in refusing to declare the trial of the Appellant a nullity since the amended charge upon which it was based is an abuse of Court’s process [from grounds 4 & 5]

Issue 4, raising issue of the competence or otherwise of the proceedings of the trial Court culminating in the conviction and sentence of the appellant, shall be given its deserved prominence and precedence over the other issues. The implication of a defect in the competency of the Court is that any defect in the competence of the Court is fatal. It renders the proceedings a nullity no matter how well conducted the proceedings were: MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR

(Pt. 4) 587; EGUNJOBI v. F.R.N. (2013) 3 NWLR (Pt. 1342) 257.

Appellants counsel submits that the Amended Charge before the trial Court, not initiated by due process of the law, was a nullity or void ab initio: and that the jurisdiction of the trial Court over it and him, on the basis of which the trial of the appellant proceeded was legally ousted, as such the proceedings are void ab initio. He called in aide OKORO v. THE STATE 14 WACA 370; ORUCHE v. C.O.P. (1963) 1 ALL NLR 262; THE STATE v. CHIEF MAGISTRATE ABOH MBAISE (1978) 1 LRN 316.

Learned counsel argues that the effect of Sections 162 and 163 of the Criminal Procedure Act (C.P.A.) is that every amendment to the charge after the accused had taken his plea to it shall be upon leave sought and granted; that the leave of Court for the prosecutor to amend the charge is a condition precedent to the validity of the amended charge; and that if the prosecutor proceeded to file amended charge without leave of Court first sought and obtained, the amended charge is fundamentally defective and invalid.

This objection, appearing to be posthumous, is predicated on the following facts.

The original charge was filed on 15th July, 2011. The appellant, as the 1st accused, took his plea to it on 18th July, 2011. The Pw.1, and Pw.2, the only witnesses called by the prosecution, concluded their testimonies on 3rd May, 2012 and they were discharged. The case was then adjourned to 26th June, 2012 for continuation of the hearing. However, on 25th June, 2012, the prosecutor filed the Amended Charge. In substance, the amendment affected only the original count 6. Therefrom Intercontinental Bank Plc was inserted. Apart from this, the 11 counts in Amended Charge remain ipssima verba with the 11 counts in the original charge. The prosecuting counsel brought this to the attention of the trial Court in the presence of the defence counsel. From all indications the defence counsel nudged and encouraged the prosecution to undertake this course. The minutes of the proceedings at pages 97-98 are as follows:
EDOBOR: We discovered that there is a need to amend the charge in count six (6) instead of Skye Bank in place of Intercontinental Bank. I discussed this with the defence counsel but he preferred a new charge drafted to replace the present one and I have

done so.
OYAKHIRE: We are not opposing the amendment.
USIFOR: No opposition to the amendment.
COURT: The newly amended charge of 25.6.2012 is read and explained to each of the accused persons and each appeared to have understood satisfactorily and pleaded as follows.
The 3 accused persons, this appellant inclusive, all pleaded NOT GUILTY to each of the 11 counts. Thereafter the prosecutor closed his case.
It is against this same procedure he acquiesced in that the appellant is making so much fuss about. Equity follows the law and will not allow a party to approbate and reprobate on the same issue. Equity, acting in personam, will forbid anything that is unconscionable to do. Thus it restrains a party from insisting on a right he had waived. If by his conduct he had made another person to assume that he could act in the way he had acted, it would therefore be unconscionable for the same party to renege on his words and insist on his legal right as doing so will prejudice the party who had so acted.
I am aware that this Court in MENAKAYA v. MENAKAYA (2001) 9-10 SC 1; (2001) 16 NWLR (Pt. 738) 203 had stated that this specie

of estoppel by conduct does not apply to statutory rights but only to personal rights. The MENAKAYA situation is distinguishable. In the instant case, the appellant can waive all niceties ensuring the protection of his personal right. He waived them.
Since the MENAKAYA case, the principle of estoppel by conduct had been codified and made statutory by virtue of Section 169 of the Evidence Act, 2011. In MENAKAYA case the parties and their counsel gave the trial Judge, in a divorce petition, their consent that the judgment be delivered in chambers instead of open Court. The law enjoins, in order to demonstrate that justice is not only done but seen manifestly to be done, that trials and delivery of judgment shall be done in open. That is what makes it a public right.
I do not, from the peculiar facts of this case, think that the appellant has suffered any prejudice by the failure of the trial Court to formally grant leave to the prosecutor to file the amended charge. It is clear to me, from the proceedings, that the trial Court and the parties, through their respective counsel, had approved the amendment and given the nod to the prosecutor file the

Amended Charge. The parties, including the appellant, were in no way misled. The insistence of the appellant’s counsel on the learned trial Judge failing “to formally grant leave for the amendment” is nothing but sheer insistence on crass or arcane technicality. Thus, as Aderemi, JSC stated in YUSUF v. ADEGOKE (2007) 6 SC (Pt. 1) 126; (2007) 11 NWLR (Pt. 1045) 332, a technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of case. In other words, it arises when a party holds or relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, like Shylock in the Merchant of Venice, the rules must be followed to the last sentence, the last word and the last letter. The party emphasising on technicality has little or no regard to the justice that would be sacrificed, or injustice that would be caused to the opponent. The attitude of the Courts, these days is to enthrone substantial justice without undue adherence to technicalities. Justice can only be done, as stated by Edozie, JSC in ADELUSOLA v. AKINDE (2004) 18 NSCQR 371; (2004) 12

NWLR (Pt. 887) 295, if the substance of the matter is examined. I have examined the substance of this complaint. The justice of it does not avail the appellant.
In any case, the appellant, being very vociferous about the learned trial Judge not formally granting leave to the prosecutor, under Section 102 CPA, to file the Amended Charge, was completely oblivious of the principle or rule of law in Section 167 of the same CPA to the effect that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge had been read over to the accused and not later. This objection at this appellate stage to the Amended Charge is no doubt belated. It is mere appeal to arcane or crass technicality. Since equity follows the law, and takes as done that which ought to be done; the fact that the learned trial Judge drew from the consent of the defence counsel to the prosecutor “to draft a new charge” and proceeded to read and explain “the newly amended charge” to the accused persons, including the appellant herein and immediately thereafter took their respective pleas thereto, suggest his defacto and substantial permission

or approval to prosecutor to file the Amended Charge.
This being a Court of justice as well and not only of law, I shall invoke Section 168(1) of the Evidence Act, 2011 to take as granted to the prosecutor the formal leave to file the Amended charge. It is enacted in Section 168(1) of the Evidence Act (supra) that when a judicial act is shown to have been done in a manner substantially regular, it is presumed that all formal requisites for its validity were complied. The justice of the matter demands that is formal act be taken as done as it ought to have been done. Coming, as I do, to this conclusion, issue 4 is hereby resolved against the appellant and I hereby declare that the learned Justices of the Court below were right in refusing to declare the trial of the appellant, founded on the Amended Charge, a nullity.

At the Court below, the appellant had raised issues 3, 5 & 6 thus-
3. Whether the learned trial Judge was right in relying on hearsay evidence, both oral and documentary, to adjudge the Appellant guilty of the offences charged
5 Whether the Appellant whose bail was revoked by the lower Court for daring to challenge

the voluntariness of some confessional statements sought to be tendered against him could be said to have had fair trial at the lower Court which ultimately culminated in his conviction and sentence
6. Whether the failure of the learned trial Judge to consider the defences of the Appellant before adjudging him guilty of the offences charged and to subject his purported confessional statements to the appropriate test laid down by law before proceeding to rely on them to the prejudice of the Appellant do not occasion substantial miscarriage of justice against the Appellant

Learned counsel for the appellant submits that the failure, one way or the other, of the Court below to consider these issues submitted to them for the determination of the appellant’s before them had undermined the appellant’s right to fair hearing, particularly as the Court below offered no reason for their failure to consider these three (3) issues. The cases: OKONJI v. NJOKANMA (1991) 7 NWLR (Pt. 202) 131; OWODUNNI v. REGISTERED TRUSTEES CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 675) 315; ABIOLA v. F.R.N (2015) 7 NWLR (1457) 125 at 135-136; OVUNWO v. WOKO (2011) 17 NWLR

(Pt. 1277) 522 at 533 and 548-549 are cited to buttress the submission.

It is further submitted for the appellant that while the Court below could reframe the issues formulated by the appellant, it could not justifiably, totally, ignore and abandon the core issue in the appeal. And that as an intermediate Court, the Court below has a duty, on the authority of ODUNAYO v. THE STATE (1972) 8-9 SC 290 at 296; IFEANYI CHUKWU (OSONDU) LTD v. SOLEH BONEH LTD (2000) 5 NWLR (Pt. 656) 322 at 338-339; A-G, FEDERATION v. A.I.C. LTD (2000) 10 NWLR (Pt. 675) 293 at 300 & 308; ADEOGUN v. FASOGBON (2011) 8 NWLR (Pt. 1250) 427 at 437-438 & 448; to consider and decide on all issues submitted to it for determination.

As a general principle, the intermediate Court, as the Court below, is duty bound to consider all issues raised and or placed before it. It does not have the liberty to decline a consideration of the issues before it, unless it intends to order a retrial and the further consideration of the issues in the case will prejudice the fresh hearing being ordered: EDEM v. CANON BALLS LTD (2005) 6 SC (Pt. II) 16; (2005) 12 NWLR (Pt. 938) 27. If the

Court failed to consider issues raised and placed it before it without any valid reason, then it would have failed in its judicial duty and there is a failure of justice: EDEM v. CANON BALLS LTD (supra) IKPEAZU v. OTTI & ORS (2016) LPELR-4005 (SC); OKONJI v. NJOKANMA (supra); CHUKWU v. SOLEH BONEH (supra).

Let me, from the onset, restate the law that not every error or mistake in the judgment results in allowing an appeal. The appeal Court will only interfere when the error or mistake is shown to have occasioned a miscarriage of justice: ABUBAKAR v. B.O. & A.P. LTD (2007) 2 SC 48; (2007) 18 NWLR (Pt. 1066) 319; UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 1) 1; (2008) 7 NWLR (Pt. 1086) 372. Because miscarriage of justice varies from case to case; the facts and circumstances of the case, where miscarriage of justice is alleged, must be examined: ABUBAKAR ABUBAKAR & ORS v. SAIDU USMAN NASAMU & ORS (2011) LPELR-1831 (SC). In effect the error resulting in miscarriage of justice is the mistake or error that is prejudicial or inconsistent with the right of a party:OLADIJA SANUSI v. OREITAN I. AMEYOGUN (1992) 4 NWLR (Pt. 237) 237 at 527. A

wrongful conviction based on a failure of the process of trial, no doubt, constitutes a miscarriage of justice. That is because a grossly unfair outcome in a judicial proceeding constitutes a miscarriage of justice: BLACKS LAW DICTIONARY.

The summary of issue 3, 5 & 6 the appellant raised at the Court below is –
I. Issue 3 challenged the admissibility of the evidence of the Pw.1 and Pw.2 at the trial Court. The evidence of the two witnesses are said to be hearsay.
II. Issue 5 raised the issue of the unfairness of the trial Court not ordering trial-within-trial to determine the voluntariness of the extra-judicial statements of the appellant herein.
III. In Issue 6, it was contended that the trial Court short its eyes to the defence of the appellant, as the 1st Accused.

The appellant’s six issues at the Court below are reproduced in the judgment of the said at page 289 of the record. The respondent’s 3 issues are also reproduced in the said judgment at page 290 of the record. The Court below gave its reasons for preferring to adopt the appellant’s issue 1 and the respondents three (3) issues. The reasons are stated at page 290

of the record. It is therefore not correct as stated robustly, albeit misleading, that “the learned justices of the Court below (did) not offer any reason for their failure to consider and determine these issues one way of the other.”

The Pw.1 and Pw.2, at the trial Court, testified to their investigatory roles including their recording statements of the accused persons, recovery of real evidence including documents, tracing the transfers of money and receipt of payments through Western Union Money Transfers. I do not think, or agree with the appellant, that the oral evidence of the Pw.1 and Pw.2 based on their investigatory roles are hearsay. Their oral evidence do not offend any principle of the Evidence Act on hearsay. Rather, they are in accord with Section 126 of the Evidence, 2011 that enjoins the witness to give direct evidence as to what he saw, heard, perceived or did.

The learned appellants counsel appears to me to have misconceived the purport of Exhibits A, C1-5 and D1-6 when he submits that they are documentary hearsay evidence. The learned counsel never showed where and how the trial Court used their contents to convict

the appellant. These documents were put into the evidence through the PW.1, an investigator, who gave the circumstances of their recovery in the course of the investigation. Exhibit A, for instance, is the petition that spurred the Pw.1 and other agents of the Economic and Financial Crimes Commission (E.F.C.C.) into investigation. Exhibits C1-4, said to be scam mails were recovered in the course of the investigation. It appears, from page 70 of the Record, that they were tendered and received in evidence without objection as real evidence. Ditto for Exhibits D1-6. It was the defence counsel (see page 82) who caused the Pw.2, under cross-examination, to read out the contents of Exhibits C2 and C3.

The learned trial judge, at page 167 of the Record, merely recounted how, from the evidence of Pw.1 and Pw.2, the appellant, as the 1st Accused was arrested and Exhibits A, B, C1-4, D1-6, E, F, I1-3 were recovered in the course of their investigation. I cannot see how and where Exhibits A, C1-4 and D1-6, said to be hearsay documentary evidence, formed the basis of the judgment of the trial Court convicting the appellant. I also cannot see how the Court below

affirmed the conviction of the appellant on those bases.

Competent issues for determination of an appeal are formulated or raised from competent ground(s) of appeal, which also flow directly from the reasons for the decision appealed. A valid ground of appeal attacks the decision of the Court on an issue decided by that Court: F.M.B.N. v. N.D.I.C. (1999) 2 NWLR (Pt. 591) 333. An issue for the determination of an appeal, like the appellant’s issue 3 at the Court below, which does not arise from the decision appealed is incompetent. An appellant, whose incompetent issue is allegedly ignored cannot complain of a miscarriage of justice.

The unfairness of the failure of the trial Court not ordering a trial-within-trial to determine the voluntariness of the appellant’s extra-judicial confessions is said to be the substance of the appellant’s issue 5 at the Court below. The Pw.1, who recorded the extra-judicial statements of the appellant, the 1st Accused was testifying when the prosecutor sought to tender the statements, Appellant’s counsel objection to their admissibility on grounds of involuntariness of their making. It appears, from page

73 of the record, that all the counsel agreed that trial-within-trial be conducted to determine the voluntariness of the statements.

The trial Court did not actually scuttle or jettison the idea or propriety of the trial-within-trial. Continuation of the proceedings was adjourned to 3rd May, 2012 for that purpose. Before the adjournment the trial Court, observing that “there is likelihood the case will take longer time and (that) we cannot guarantee accused persons bail till then”, suo motu revoked the bail of the accused persons.

When the trial Court re-convened on 3rd May, 2012; Mr. Afolabi of counsel to the appellant announced dramatically that they were withdrawing their “objection (to) the tendering (of) the 1st and 2nd Accused’s statements in evidence”. That was how the trial-within-trial was aborted. The order of the trial Court suo motu revoking the bail of the appellant appears arbitrary and wrong. It was also an appealable order, by virtue of Section 318 of the Constitution that was not appealed.

It is not true, ex facie the minutes of the proceedings in the printed record, that “even though the prosecutor conceded to the ordering

of a trial-within-trial in order to determine the voluntariness or otherwise of the said purported confessional statements, the learned trial Judge refused to order a trial-within-trial”. This sheer falsehood contrived by the learned counsel for the appellant in support of this issue is completely suppositious. It is a lie full of sound and fury and yet signifies nothing. The printed Record does not support and substantiate the rather unethical conduct of the learned counsel, Charles Ihua-Maduenyi, Esq., who settled this Appellant’s brief. Based on this blatant falsehood, the learned counsel submits that the appellant was constrained to withdraw his objection to the admissibility of his confessional statements, the learned trial Judge having instilled fear on the appellant and intimidated him.

The Pw.1, who recorded the confessional statement of the appellant under caution, testified that on 5th April, 2011 the appellant, as the 1st Accused, “Confessed (that he was) the brain behind the scam scandal and (that) he started as pen-pal to Cynthia Taylor before he introduced (the) loan scam”. Pw.1 testified further that the appellant admitted that “he

promised to help (Cynthia Taylor) obtain or secure a loan from a bank in Nigeria and asked for advance fee for processing”, that he (the appellant) continued his scam until he was ready for his Youth Service before he handed it to his friend, the 2nd Accused”, and that on 6th April, 2011, the appellant led the investigators to the 2nd Accused and he was arrested.

The Pw.1 and Pw.2, on 3rd May, 2012 after the vexed revocation of bail of the appellant suo motu by the trial Court, were cross-examined. No attempt, albeit feeble, was made by the appellant’s counsel to discredit their evidence either as to the fact of the appellant’s admission or as to the voluntariness of the appellant’s confessional statements in Exhibits I1-3, written personally by the appellant.

Learned Appellant’s counsel submits on authority of AHMED v. COMMISSIONER OF POLICE, BAUCHI (2012) 9 NWLR (Pt. 1304) 104 at 133, correctly, that Courts are recognized as hallowed chambers of justice, not where fear is meted out to citizens standing trials thereat. The facts of this case do not warrant this principle. Courts of justice are also not theatres where lawyers enjoy the luxury of

maligning Judges with blatant lies crafted skillfully to win cases at all costs.

The unchallenged evidence of Pw.1 and pw.2 establishing the oral confession of the appellant, standing on its own, is a strong evidence pointing in the direction of complicity of the appellant in alleged offences. It also corroborates the appellants confessions in Exhibits I1-3.

Counts 8-11 in the Amended charge are not really about obtaining by false pretences. Rather, they allege that the appellant was in possession of scam e-mails. The scam e-mails that the appellant was allegedly in possession of are Exhibits C1-4. The defence of the appellant to counts B-11, as found at page 105 of the Record, is that:
Exhibits C1-4 were documents (sent) to Chi-Egwe by Cynthia Taylor (the lawyer who wrote the petition to E.F.C.C.). These documents were not found in my possession.

The Pw1, through whom Exhibits C1-4 were tendered in evidence, never testified that Exhibits C1-4 were found in possession, or recovered from the passion of the appellant. He merely averred in his evidence at page 70 of Record, that “some scam mails were recovered during

investigation”. He thereafter indentified Exhibits C1-4 as the scam mails. Pw.2 also did not aver that Exhibits C1-4 were in the possession of the appellant. However, based on the appellant’s confessional statements the trial Court found that Exhibits C1-4 were found in the possession of the appellant and recovered therefrom. The Court below however took its time to consider this before it affirmed the finding.

This same issue was issue 4 considered by the Court below at pages 302-309 of the Record. The substance of appellant’s issue 6 at the Court below, subsumed in issue 4, was considered by the Court below.

Having demonstrated that the appellant’s issues 3, 5 and 6 at the Court below were considered by the Court below, I hereby resolve issue 1 before us against the appellant.

I did touch, under issue 1 just resolved, some salient points on whether the scam mails, Exhibits C1-4 were found in the possession of the appellant and recovered therefrom. Exhibits C1-4 are the subject of counts 8- 11 the Amended Charge. The trial Court and the Court below made concurrent findings of facts that the appellant was in possession of Exhibits C1-4.

The trial Court predicated this finding on the confessions of the appellant. The learned appellant’s counsel preferred not to attack this finding. He left the said finding of fact inviolate. The Court below also addressed the point before affirming the finding of fact. Again, rather than offering a frontal attack, the learned counsel merely submits, incorrectly, that the trial Judge and the justice shut their eyes to the admission of the Pw.1, allegedly, that they “found or recovered” Exhibits C1-4 from the e-mails sent to E.F.C.C. by Barrister Chi-Obi Igwe, Cynthia Taylor’s lawyer. Page 67 to which learned counsel pointed as the factual sources of this submission does not bear him out. Lines 9 and 10 of page 67 of Record to wit:
We went through the additional documents sent to us by the complainant among which are SCAM Mails
have been clearly misconceived or twisted by the learned counsel. The scam mails alluded to here have not been linked to, or identified as, Exhibits C1-4. When the PW.1 was cross-examined no such effort was so made. The opportunity was missed and wasted.

Appellant’s issue 3 before us here is supposed to have sprung from his

grounds 7 and 8 of the Grounds of Appeal, which shorn of their particulars complain that –
7. The learned Justice of the Court of appeal erred in law in affirming the conviction and sentence of the Appellant in counts 1-7 of the charge when the same was never proved beyond reasonable doubt.
8. The learned Justice of the Court of Appeal erred in law in failing to come to the conclusion that the finding of the appellant guilty in counts 2, 6 and 7 of the charge by the learned trial Judge who had earlier discharged the Appellant’s co-accused on the same was erroneous’ and perverse.

The issue formulated from the two grounds is: whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 1-7 of the charge It is difficult to find that this issue distilled from grounds 7 and 8 above reproduced, has its focus on attacking the very facts on which concurrent findings of fact on which the conviction and sentence rested. Learned appellant’s counsel cannot therefore use the issue to spring attacks on admissibility of Exhibits A. C1-4 and D1-6 on the grounds that they are documentary hearsay evidence.

He cannot use the issues as a basis to insist that the appellant’s confessional statements were made involuntarily and therefore inadmissible.

The trial Court and the Court below having found concurrently that the respondent, the prosecutor, had proved the guilt of the appellant beyond reasonable doubt on facts regards counts 1-7, the duty of the appellant’s counsel in this further appeal is to demonstrate how perverse and unreasonable those concurrent findings of facts were. That burden is not discharged by whining and whimpering.

The appeal on this issue is clearly predicated on the question of facts requiring proof by empirical evidence. The attitude of this Court, on concurrent findings of facts by the trial Court and the intermediate Court, has since fossilized. Unless the appellant shows that there are special circumstances: that is that the conclusions reached were wrong or perverse, this Court will not readily interfere with the concurrent findings: IBRAHIM v. OSUNDE & ORS (2009) 6 NWLR (Pt. 1137) 382 (SC); OMOTOLA & ORS v. THE STATE (2009) 7 NWLR (Pt. 1139) 148 (SC). I do not think the appellant has satisfactorily shown

why the concurrent findings of facts by the trial Court and the intermediate Court should be interfered with to warrant my venturing to interfere with the findings. The viva voce confession of the appellant which the Pw.1 testified to read with the confessions in Exhibit I1-3, amount to the appellant’s conclusive admission of his guilt of the offences in counts 1-7 of the Amended Charge.

The defence put up by the appellant at pages 103-108 of the Record were completely prevaricatory and unreliable. For instance, at page 107 of the Record, he made this ambivalent explanation of the $2,000 USD he admitted receiving from Cynthia Taylor to effect that the $2000 USD was “not only for my personal upkeep” But also for what He did not say.

The operative false pretence in counts 1-7 is the false representation made to Cynthia Taylor that the appellant and his co-accused were in a position to help her obtain or secure loan from a Nigerian bank. This representation was factually a hoax from the totality of the prosecution’s evidence, including the confessional statements of the appellant made under his own hand, Exhibits I1-3. The appellant, testifying

as Dw.1 at pages 103-108 of the Record, interestingly never once alluded to the damaging evidence that he falsely represented to Cynthia Taylor that himself and his co-accused were in a position to give or secure loan to her from a Nigerian bank and in furtherance of that asked her “for an advance fee for processing” of the loan. Cross-examined the appellant, Dw.1, admitted that he “gave statements to E.F.C.C.” and that he was not a loan lender. He offered no iota of evidence in rebuttal of the prosecution’s evidence on the operative false pretence. Thus, the appellant failed to discharge the evidential burden on him to cast any reasonable doubt on this crucial operative false pretence. I cannot, therefore, fault the holding of the trial Court as a matter of fact that the confession of the appellant, “Exhibits I1-3 were admitted in evidence with no objection” and that the Exhibits are consistent with the knowledge, acts and intentions of the appellant. In dismissing the appellant’s appeal and affirming the conviction of the appellant, the Court below found “that the prosecution has proved beyond reasonable doubt the offences of criminal conspiracy to obtain

money from Cynthia Taylor by false pretences, and obtaining various sums of money from the said Cynthia Taylor by false pretence.

It is an established judicial policy of this Court that it will not readily and ordinarily interfere with the concurrent findings of facts by Courts below it, unless the appellant satisfactorily shows or establishes that the said concurrent findings are perverse, unreasonable and not supported by facts in the printed record: BASHAYA v. THE STATE (1998) 4 SC 199; (1998) 5 NWLR (Pt. 550) 351; OGBU v. THE STATE (1992) 10 SCNJ 88; (1992) NWLR (Pt. 259) 255; OGUNDIYAN v. THE STATE (1991) 4 SCNJ 44, (1991) 3 SC 100. The appellant herein has not satisfactorily shown why this judicial policy shall not be followed in this case. In what appears an appeal to mere sentiments, the appellant’s counsel submits that since the trial Court had held that counts 2, 3, 6 and 7 were not proved against the 2nd and 3rd accused persons, the trial Court could not offer any reason which made it to adjudge the appellant guilty on those same counts. Sentiments, it must be borne in mind, command no place in judicial deliberations: EZEUGO v. OHANYERE

(1979) 6 SC 17; MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 NWLR (Pt. 884) 396; ORJI UZOR KALU v. F.R.N. & ORS (2016) LPELR-40108 (SC). On this note, I hereby dismiss this issue, and resolve it against the appellant.

On the whole, I find no substance in this appeal. It is hereby dismissed in its entirety.

The decision of the Court of Appeal in the appeal No. CA/B/349AC/2013 affirming the conviction and sentence of the appellant by the Federal High Court in the charge No. FHC/57C/2011 is hereby affirmed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the privilege of reading in draft the leading judgment of my learned brother, Ejembi Eko, JSC. I am in full agreement with his lordship reasoning and conclusions. In view of the importance of the jurisdiction point in particular I have decided to add a few paragraphs of my own.
Issue No. 4 reads:
“Whether the learned Justices of the Court below were right in refusing to declare the trial of the appellant a nullity since the amended charge upon which it was based is an abuse of Courts process”

The substance of the complaint is that since the learned

trial judge did not formally grant leave to the prosecutor before the amended charge was filed, the subsequent trial founded on the amended charge is a nullity as the jurisdiction of the trial Court over such proceedings is ousted, and the proceedings null and void.

The simple issue is:
“Whether leave must be obtained before a charge is amended.
Sections 162, 163, 164 of the Criminal Procedure Act must be considered.
Section 162 states that:
“162. When any person is arraigned for trial on an imperfect or erroneous charge, the Court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.”
The above is applicable where an imperfect charge is before the Court. The Court may direct the prosecution to frame a new charge if he has not done so already. The judge has jurisdiction to direct the prosecution to frame a fresh charge when a charge is faculty.
Section 163 states that:
“163. Any Court may alter or add to any charge at any time before judgment is given or verdict returned any every such alteration or addition shall be read and explained to the accused.”
The

power to alter a charge includes the power to substitute a fresh charge. A charge may be amended after closing speeches but before judgment is delivered provided that Section 164 of the Criminal Procedure Act is complied with. Any amendment can be made provided that there is no injustice to the accused person. See R v Kano & Arisah (1951) 20 NLR p. 32 Okwechima v. Police (1956) 1 FSC p.73
Section 164 of the Criminal Procedure Act provides for the alteration of a charge. It states that:
“164 (1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 that Court shall forth with call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.
(2) If the accused declares that he is not ready, the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case, the Court may proceed with the trial as if the new or altered charge had been the original charge.
(3) If the new or altered charge

is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary.
(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.
Relevant extracts from the Record of Proceedings in the trial Court show that the charge was amended as follows:
“Prosecutor: We discovered that there is a need to amend the charge in count six (6) instead of Skye Bank in place of Intercontinental Bank. I discussed this with the defence counsel but he preferred a new charge drafted to replace the present one and I have done so.
Defence Counsel: We are not opposing the amendment.
Court: The newly amended charge of 25/6/2012 is read and explained to each of the accused persons and each appeared to have understood satisfactorily and pleaded as follows……..”
When it is the desire of a prosecutor to

amend the charge or file a fresh charge, he files the process in the Registry and serves a copy of the process on the defence counsel.
Leave means permission.
An informal oral application is made to the trial judge in open Court to amend or file fresh charge/s and leave to amend is not formally granted by the judge. It is implied that leave has been granted when the accused person is called upon to plead to the amended charge or fresh charge. The fact that the accused person pleads to the amended charge is indicative of the fact that leave was obtained.
Failure of the accused person to plead to the amended or fresh charge as provided by Section 164 of the Criminal Procedure Act renders the entire proceedings null and void. See R v. Eronini (1953) 14 WACA p.366, Adisa v. AG Western Nigeria (1965) 1 ALL NLR p.412.
There was strict compliance with Section 164 of the Criminal Procedure Act, when the charge was amended, in that the appellant pleaded to the amended charge. The amended charge was not an abuse of process and the trial is not a nullity.

It is for these observations that I too, find no merit in this

appeal.

Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to register the support I have for the reasonings, I shall make some comments.

This is an appeal against the decision of the Benin Division of the Court of Appeal or Court below or Lower Court delivered on the 16th day of July, 2014 which affirmed the conviction and sentence of the appellant by the Federal High Court sitting at Benin per Adamu Hobon J on the 13th day of June, 2013.

The facts leading to this appeal are well captured in the lead judgment and so there is no point repeating them unless when the occasion arises for a use of any part of those facts.

On the 29th day of November, 2017 date of hearing, learned counsel for the appellant, Charles Ihua-Maduenyi, Esq. adopted the brief of argument filed on 27/9/17 and deemed filed on 8/11/17 wherein were crafted four issues for determination, which are as follows:-
1. Whether the decision of the Court below is not marred by unfairness and lack of fair hearing by their deliberate refusal to

countenance and determine various germane issues laid before them by the appellant.
2. Whether the Court below was right in affirming the conviction and sentence of the appellant in respect of counts 8-11 of the charge.
3. Whether the Court below was right in affirming the conviction and sentence of the appellant in respect of counts 1-7 of the charge.
4. Whether the learned justices of the Court below were right in refusing to declare the trial of the appellant a nullity since the amended charge upon which it was based is an abuse of process.

Ifeanyi Agwu Esq., legal officer of E.F.C.C. for the respondent adopted its brief of argument filed on 1/11/17 and deemed filed on 8/11/17 and in it were raised three questions for determination, which are thus:-
(1) Whether the respondent/prosecution has proved beyond reasonable doubt the offence of conspiracy against the appellant.
(2) Whether the respondent/prosecution has proved beyond reasonable doubt the offence of obtaining money under false pretence in count three to seven (2-7) against the appellant.
(3) Whether the respondent/prosecution has proved the offence of being in

possession of documents (scam, mails) containing false pretence against the appellant beyond reasonable doubt.

I see it would be easier to collapse all the issues as crafted on either side into one issue and coined in the way that would be easy to utilize in the determination of the appeal and that is thus:
SOLE ISSUE:
Whether the Court below was right in affirming the conviction and sentence of the appellant in respect of all the counts of the charge relating to the appellant.

Learned counsel for the appellant stated that appellant at the Court below filed and relied on 12 grounds of appeal from which six issues for determination were canvassed and argued but that the Court adopted appellant’s Issue 1 and respondents 1, 2 and 3 upon which it based its judgment. That in none of the issues did the Court below subsume the appellant’s conviction and the Court below did not proffer any reason for not considering and determining those issues one way or the other. That this was an infraction of Section 36 of the Constitution of the Federal Republic of 1999 (as amended) (CFRN). He cited Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131;

Owodunni v. Registered Trustees, Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 315; Abiola v. F.R.N. (2015) 7 NWLR (Pt. 1457) 125 at 135-136; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522 at 533.

He referred to appellant’s issues 3, 5 and 6 at the Court below for emphasis and stated that the Court below ignored them and failed to consider them which was against the proper practice in the determination of an appeal. He cited Odunayo v. State (1972) 8-9 SC 290 at 296; Ifeanyi Chukwu (Osundu) Ltd v. Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at 338-339; A.G. Federation v. A.I.C. Ltd (2000) 10 NWLR (Pt. 675) 293 at 308; Adeogun v. Fasogbon (2011) 8 NWLR (Pt. 1250) 427 at 437-438.

That the manner with which the bail of the appellant was revoked showed a level of inducement on which the appellant retracted his objection to his extra-judicial statement and this is an area which the Court below ought to have considered. That the failure to do so led to a miscarriage of justice for which there is necessity for the intervention of this Court. He referred to Idakwo v. Ejuga (2002) 13 NWLR (Pt. 783) 156; Ibori v. F.R.N. (2009) All FWLR (Pt. 487)

159 at 163-164; Ahmed v. C.O.P. Bauchi (2012) 9 NWLR (Pt. 1304) 104 at 133.

For the appellant, learned counsel raised the fact that appellant was charged with the offence of being in possession of fraudulent or scam e-mails contrary to Sections 6 and 8 (b) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act. That to prove the guilt of an accused person under Section 6 aforesaid, the prosecution must establish that the offensive document or fraudulent or scam e-mails was found in the possession of the accused. He cited Odiawa v. F.R.N. (2008) All FWRN (Pt. 436-439) 436 at 448.

That failure to prove this all – important ingredient entitles the appellant to an acquittal and discharge. He cited Okoro v. The State (1988) 7 NWLR (Pt. 94) 255; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Abiodun v. F.R.N. (2009) All FWLR (Pt. 4830) 1260 at 1365-1366; Ubanatu v. C.O.P. (1959) WNLR 230 at 231; Omonga v. State (2006) 14 NWLR (Pt. 1000) 532.

Mr. Ihua-Maduenyi of counsel contended for the appellant that since PW1 and PW2 were not eye witnesses, their testimonies were hearsay and

inadmissible. He relied on Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74 at 80-81; Ekpo v. State (2001) FWLR (Pt. 55) 454 at 458; Okoro v. State (1998) 12 SCNJ 84 etc.

That Exhibits C1-4 being computer generated documents are inadmissible hearsay evidence since the prosecution failed to comply with the provisions of Section 84 of the Evidence Act 2011 which is fatal to their case. He cited Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 at 549-550.

Learned counsel for the appellant submitted that Cynthia Taylor was a vital witness and the failure of the prosecution to call her to testify was fatal to their case. He cited Ashake v. Army Council (2007) 1 NWLR (Pt. 1015) 408 at 416 at 426; Opeyemi v. State (1985) 2 NWLR (Pt. 5) 101 etc.

It was further stated for the appellant that the trial at the Court of first instance ought to have been declared a nullity as the amended charge upon which the conviction and sentence were based on was an abuse of Court process. He cited Egunjobi v. F.R.N. (2013) 3 NWLR (Pt. 1342) 534 at 540; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257 at 264.

That leave of Court was not obtained after the appellant

took plea and the charge thereafter amended contrary to Sections 162 and 163 of the Criminal Procedure Act. He cited Ekpenyong v. Nyong (1975) 2 SC 71 at 81-82; C.O.P. v. Alao (1959) WRNLR 39 etc.

That when the charge is an abuse of Court process the jurisdiction of the Court over it is ousted and everything done on it amounts to a nullity. The cases of Okafor v. State (1976) 5 SC 13; Ezeze v. State (2004) 14 NWLR (Pt. 894) 491; Fawehinmi v. A.G. Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 etc.

Responding, learned counsel for the respondent submitted that the meeting of the minds, agreement between the accused to carry out a common intention were captured in the evidence before Court and so the necessary ingredients of the offence of conspiracy established. He cited Etim v. The State (1994) 5 NWLR (Pt. 345) 522 at 524; Omotola v. F.R.N. (1999) 12 NWLR (Pt. 682) 483 at 501-502; David Idiok v. State (2006) 12 NWLR (Pt. 993) 1.

In respect of the offence of obtaining money under false pretence, learned counsel for the respondent stated that the essential ingredients of the offence were made out beyond reasonable doubt. He referred to

Odiawa v. F.R.N. (2008) ALL FWLR (Pt. 439) 436 at 447; Onwudiwe v. F.R.N. (2006) ALL FWLR (Pt. 319) 774 at 779-780.

That there was no objection from the appellant or counsel as to the admissibility or the statements which clearly were voluntarily made and were confessional aided the proof of the offence. He cited Stanley Idugiun Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383; Ayo v. State (2009) 8 WRN 134 at 139; Stephen v. State (2013) 3-4 MJSC (Pt. 1) 137 at 742 etc.

Learned counsel for the respondent contended that the prosecution is not expected to call a large number of witnesses in proof of its case and it is enough if one or more witnesses called sufficiently established the case of the prosecution, the absence of a particular witness would not change the situation. Therefore that the said Cynthia Taylor, the complainant was not called did not damage the case of the prosecution. He cited Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 at 6, Adeyemo v. State (2015) 16 NWLR (Pt. 1485) 311 at 325; Busari v. State (2015) ALL FWLR (Pt. 777) 715 at 734; Nigerian Air Force v. Obiosa (2003) 4 NWLR (Pt. 810) 233 at 276; Nwankwo v. F.R.N. (2003) 4

NWLR (Pt. 809) 1 at 37 & 94.

For the respondent, it was contended that there is nothing in evidence suggesting the strong arm tactics which appellant’s counsel alludes to that pushed the appellant into withdrawing his objection to the tendering of his confessional statement and the statement properly admitted therefore. He cited Abdullahi v. F.R.N. (2016) ALL FWLR (Pt. 843) 1770 at 1794; Duru v. State (2017) ALL FWLR (Pt. 893) 1243 at 1282-1283; Mathew Okechuchwu Enekwe v. Int’l Merchant Bank of Nig. Ltd & Ors (2006) 19 NWLR (Pt. 1031) 146 at 174 etc.

Continuing further, learned counsel for the respondent submitted that the appellant had knowledge of the scam documents, authored some and had control of the said documents and so the ingredients of the offence were established.

That the Court below had power to reformulate issues and that cannot be taken as not considering issues raised by the appellant. He cited many authorities.

On the offence of conspiracy, it is to be noted that it is an offence with the unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it

difficult to establish the physical contact among the persons who are said to have agreed to carry out an illegal act or perform a legal act through illegal means. Most of the essential element of the offence of conspiracy are made through circumstantial evidence or by inference from an overt act of the conspirators or one of them. The offence of conspiracy is complete when two or more persons have agreed to do something at the moment of the agreement or even in the future. It is of no moment that something was done or omitted to be done beyond the stage of the agreement between those persons who have agreed to prosecute the act. To expatiate further, it is to be said that the moment the meeting of the mind has been reached and thereafter one of the conspirators reneges, repents, acquires cold feet and stops interaction with the others or may no longer have opportunity to participate or carry out his role in the agreement the offence has been already committed.
Again to be stated in this queer offence is that the conspirators need not know each other or meet at any point in time and this could mean their living in different towns, cities or even

countries. It is enough that the conspirators have communicated at any point. For a fact it is an offence with damning features and a later change of mind at any given stage matters not. See Erim v. The State (1994) 5 NWLR (Pt. 345) 522 at 524; Omotola v. F.R.N. (1999) 12 NWLR (Pt. 682) 483 at 501-502.
Taking the matter of conspiracy further, the point has to be made that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is taken as liable for the consequence of the act that ensues. It is irrelevant which of the accused did what.
Stated differently, where two or more persons act in concert in committing an offence any of them can be convicted for that offence, I rely on David Idiok v. State (2006) 12 NWLR (Pt. 993) 1.
Situating the essential ingredients or elements of the offence of conspiracy as stated above to the facts of the present case where the appellant was charged with the offence of conspiracy to commit felony to wit; obtaining money under false pretence with two other accused persons. The appellant who was 1st accused at the trial Court admitted that he

introduced the 2nd accused person, Omorede Darlington to one Cynthia Taylor to act as a bank manager for the purpose of giving her loan. This was stated in his extra-judicial statement, Exhibit “F1”.
After that introduction the 2nd accused sending e-mails to Cynthia Taylor on obtaining for her the loan purportedly to be given to her from his bank. Then the 2nd accused introduced the 3rd accused persons Iyokho Nosa into the act and both 2nd and 3rd accused went on sending e-mails to Cynthia Taylor with intent to defraud her knowing that the information they were pushing to her were false. Then the 2nd accused demanded money from Cynthia Taylor for the processing of the purported loan which money she sent to him through western union in the name of the 3rd accused person which name had been sent to her by the appellant and the 2nd accused person. In evidence is that the 3rd accused handed the money to the 2nd accused and the money shared among the three of them, appellant inclusive.
Clearly the agreement and the meeting of the minds were established and the appellant cannot claim not to be involved in the conspiracy because he did not carry out

any part of the transaction. Therefore the Court below saw as the trial Court did that the links or connections between the appellant and his cohorts were glaringly in sight. The offence of conspiracy was proved beyond reasonable doubt against the appellant.

In respect to the offence of obtaining money under false pretence in counts three to seven against the appellant, I shall first cite the relevant statutory provision thus:-
Section 1(1) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, states thus:
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intend to defraud…
(a) Obtain from any person, in Nigeria or in any other country, for himself or any other person… Any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under this Act.”
On the essential elements of the offence of obtaining by false pretence for which the appellant was charged, this Court in Odiawa v. F.R.N. (2008) ALL FWLR (Pt. 439) 436 at 447 laid down what could

constitute the said offence.

A look at the extra-judicial statement of the appellant would be of assistance. Exhibit “F1″ the appellant stated thus:-
” I have seen the copies of the papers before me i.e. First Bank savings account identity card. I agree that the picture on it is mine. I used the identity card to collect the sum of $1000 from Cynthia Taylor through Western Union. The Cynthia Taylor sent me the money because I told her I was a loan agent. I told her I give out loan as a loan agent and she get paid the fee for getting the loan. The fee I told her was $250 which she paid and I again told her to pay a sum of one hundred dollars as clearance fee which she did. The Cynthia Taylor also paid a sum of two hundred dollars as bank transfer charges for transferring the loan….”

From the admission of the appellant in that statement to the police and as shown in evidence the appellant knew he had not the capacity to give a loan to the victim and knew of the falsity of his claim and did not believe in the truth of the claim even as he put it across to the victim and based on that claim of being who he was not the said Cynthia

Taylor made available various sums of money. In its finding in that regard, the Court below held as follows:-
“In the present case, it is in evidence that the appellant had presented himself to the victim Cynthia Taylor that he was a loan agent capable of giving out loans to clients. The appellant had also proceeded to obtain various sums of money from the said Cynthia according to the appellant, to process the loan for her. The said pretence was however contained in the various emails sent to her which means communication constitutes an offence under the said law. Again, the various sums of money sent to the appellant were monies or items capable of being stolen and that the appellant had carried on these acts with intent to defraud; Cynthia Taylor.”

From the extra-judicial statement which was admitted without objection the respondent had been able to positively establish also through credible evidence that the appellant committed the offences in Counts 2, 3, 4, 5, 6 and 7 of the charge. See Stanley Idigun Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 838.
The purported attempt at retracting the extra-judicial statement did not affect

the admissibility and so that statement taken alongside other pieces of evidence demonstrated the link between appellant and the acts culminating in the offences charged. See Ayo v. State (2009) 8 WRN 134 at 139.
Indeed, that Exhibit F1 alone would have been sufficient to ground the conviction of the appellant being voluntarily made, cogent and direct and it was easy for the Court to accept it as true. See Stephen v. State (2013) Vol. 3-4 MJSC (Pt. 1) 137 at 1423.

The appellant had raised a lot of dust over the non appearance of the complainant/victim, Cynthia Taylor, an American national to testify at the trial Court which appellant posits is fatal to the case of the prosecution as her testimony was necessary in order to prove the case. That is in my humble view a generalization taken too far as while the evidence of such a witness could on its own settle the case of the prosecution, it does not translate to the fact that in its absence and while other avenues exist for the prosecution to carry out its bounden duty to prove its case beyond reasonable doubt that the alternative route or angle cannot suffice. The reason is that the law has not

prescribed the category or the total number of witnesses the prosecution is obligated to call in order to prove its case. The choice of how to go about proving its case resides squarely on the prosecution and it is at liberty to conduct its case as it thinks best so long as what the prosecution proffered satisfies the standard expected in establishing the essential ingredients of a stated offence. It is not in all instances that the testimony of the complainant is necessary. Come to think of it, in a murder trial the victim dies and not in a position to speak for himself as to stating how things happened but murder trials are conducted successfully without even the body of the victim seen. If the prevailing circumstances are such that proof can be made in a criminal trial with or without the victim, so be it. See Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 at 6; Nwankwo v. F.R.N. (2003) 4 NWLR (Pt. 809) 1 at 34 & 94.

It was for the appellant to produce such evidence to prop up his case and not for it to dictate who must testify for the prosecution for appellant’s guilt to be established. I rely on Adeyemo v. State (2015) 16 NWLR (Pt. 1485) 311 at

325; Busari v. State (2015) All FWLR (Pt. 777) 715 at 734; Nigerian Air Force v. Obiosa (2003) 4 NWLR (Pt. 810) 233 at 276.

Again the appellant had sought to impugn the integrity of the trial Court on the learned trial judge’s revocation of the bail of the appellant which learned counsel now alludes to being the reason learned counsel withdrew his objection to the tendering of the confessional statement of the appellant which was slated for the mini trial or trial within trial. It must be noted that what propelled the learned counsel withdrawing his objection to the voluntariness of the statement remained in his bosom, unstated to the Court and so far no evidence has been elicited to show that the revocation of the bail of the appellant was the strong arm tactics that forced the hand of the defence. This is because when the appellant’s counsel withdrew the objection he gave no reasons for it and none was required, therefore it is too late in the day at this stage to push forward this reason of coercion from the trial Court without proof or whiff of a reason. It therefore calls to mind a similar scenario in the case of Stephen v. State (2013) Vol.3-4

MJSC (Pt. 1) 137 at 142 where the Supreme Court held thus:-
“State counsel, we seek to tender the statement of the accused as exhibit. Mr. Atirene Defence Counsel I object to the admissibility of the statement of the accused on the ground that it is not voluntarily made. I am withdrawing the objection. I pray that substantial justice be done in this case. Court, cautionary statement of the accused is admitted and marked as Exhibit 5. It is clear to my mind from the proceedings that the appellant’s confessional statement is true since there was no objection from the appellant at the stage when it was tendered as an exhibit. Both Courts below were correct to be satisfied with that fact.”
On the withdrawing of the objection to the tendering of the statement which the learned counsel for the appellant is at this Apex Court building up a case of bias and denial of fair hearing against the learned trial judge especially where there is nothing really on which to hang the insinuations being propped up at this level. The Court of Appeal on the withdrawal of the objection had this to say in its finding, viz:-

“It is worthy of note that learned counsel

for the appellant did not give any reason for withdrawing his objection to tendering the appellant’s statement in evidence which gave graphic (sic) details of his communication with the victim…. The accused person has corroborated this assertion when learned counsel withdrew his objection to the admissibility of the document which was tendered as Exhibit “F1″.”
Clearly there was no basis for the attack of counsel to the appellant on the learned trial judge save for a desperate intention to score a cheap point and win the case for his client at all cost with distorted facts even if it meant destroying the reputation and standing of a defenceless judge, carrying out his sworn duty. The conduct of counsel is deprecated and counsel is advised to desist from such, See Abdullahi v. F.R.N. (2016) All FWLR (Pt. 843) 1770 at 1794; Duru v. State (2017) All FWLR (Pt. 893) 1243 at 1282-1283; In Matthew Okechukwu Enekwe v. Int’l Merchant Bank of Nig. Ltd & Ors (2006) 19 NWLR (Pt. 1031) 146 at 774; Tobi, JSC cried out thus:-
“Judges have no forum to defend themselves in the judicial process for positions they take in their judgments. They cannot speak one

more word outside their judgments in defence of the positions they have taken. Let parties be slow in pouring venom on them. It is a serious attack on a judge to say that he introduced in the case, new matters which were not before the Court. So much is involved as so much could be read into or out of the allegation. I will stop here, hoping that counsel will have some sympathy for judges, their partners in the smooth and successful administration of justice. It is only when judges and counsel are in some form of ‘romance’ that their joint partnership in the crusade for building the best justice system will be achieved in our legal system.” See also, Bolanle v. Abeke (2007) 9 NWLR (Pt. 1040) 411 at 432 paras B-E.

My Lords, we are constantly reminded that proof beyond reasonable doubt required of the prosecution in proof of a criminal offence against an accused is not the same as proof beyond the shadow of a doubt and in the case at hand the prosecution has duly acquitted itself of this burden of proof in the offences charged including the one of possession of documents containing false pretence contrary to Section 6 and 8(b) of the Advance Fee Fraud

and Other Fraud Related Offences Act 2006 as in the confessional statement, Exhibit “F1” the appellant stated as follows:-
“The e-mail address I used in communicating with her was silviojean.lender@gimail.com. The other ones are silviojean11@yahoo.com and silviojean@yahoo.com.”
The prosecution carried out its function creditably and as expected by law. See Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30; Odiawa v. F.R.N. (2008) All FWLR (Pt. 436-439) 436 at 448.

The concurrent findings of the two Courts below are without fault and there is no foundation or base on which this Court can upset or interfere with those findings.
See Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471; Afolabi v. State (2010) 16 NWLR (Pt. 1220) 534.

From the foregoing and the fuller and better reasoning in the lead judgment, I too dismiss this appeal which lacks merit. I abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the leading judgment of my learned brother Eko, JSC just delivered. I agree that the concurrent judgments of the two lower Courts are

unassailable.

My brother has dealt adequately with all the issues raised in this appeal. I agree with the reasoning and conclusion arrived thereat and I adopt his judgment as mine. I find no merit in this appeal and in terms of the lead judgment, I hereby also dismiss same.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is hereby dismissed.

Appearances:

Olayiwola Afolabi, Esq. with him, A. I. Tsado, Esq., E. C. Abednego, Esq., M.O. Asuma, Esq. and Noma Ogbodu, Esq. For Appellant(s)

Ifeayin Agwu, Esq. Legal Officer (EFCC) For Respondent(s)

Appearances

Olayiwola Afolabi, Esq. with him, A. I. Tsado, Esq., E. C. Abednego, Esq., M.O. Asuma, Esq. and Noma Ogbodu, Esq. For Appellant

AND

Ifeayin Agwu, Esq. Legal Officer (EFCC) For Respondent