AKEJU ISAAC BOLA v. FEDERAL REPUBLIC OF NIGERIA (2019)

AKEJU ISAAC BOLA v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13679(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2019

CA/B/448C/2018

RATIO

CRIMINAL LAW : STANDARD OF PROOF

It is the duty of the prosecution to prove each count of the offences beyond reasonable doubt, if not, the accused must be discharged and acquitted. The Supreme Court in Oseni v. State (2012) 5 NWLR Pt. 1293 Pg. 351 (SC) expressed that proof beyond reasonable doubt simply means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. See Abokokuyanro v. State (2016) LPELR-40107(SC); Idemudia v. State (1999) 7 NWLR Pt. 610 Pg. 202 at 215; Esangbedo v. State (1989) 4 NWLR Pt. 113 Pg. 57. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

FALSE PRETENSE: DEFINTION

Section 20 of the Advance Fee Fraud and other Fraud related Offences Act, 2006 defines false pretence as follows:
In this Act, ?false pretence? means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false, or does not believe to be true PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ELEMENTS REQUIRED TO PROVE FALSE PRETENSE
Indeed, the law is settled that the elements that are required to be proved to establish the charge of obtaining money by false pretence are as follows:
a) that there was a pretence;

b) that the pretence emanated from the accused person;
c) that the pretence was false;
d) that the accused person knew of the falsity of the pretence, did not believe its truth;
e) that there was an intention to defraud;
f) that the property or thing is capable of being stolen;
g) that the accused person induced the owner to transfer his whole interest in the property.
See Alake v. The State (1991) 7 NWLR Pt. 205 Pg 591; FRN v. Amah (2016) ALL FWLR Pt. 818 Pg 889. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: TYPES OF EVIDENCE A PROSECUTION NEEDS IN PROVING GUIILT

Let me define what constitutes an attempt under the law. Attempt is when a person, intending to commit an offence, begins to put his intention into execution by means adopted to its fulfillment and manifest his intention to such an extent as to commit the offence, he is said to attempt to commit the offence. See D.P.P v. Stone House 1977 2 ALL E.R P. 909; Osetola & Anor v. State (2012) LPELR-9348 (SC). The Supreme Court in Jegede v. State (2001) LPELR-1603 (SC) gave a composite and comprehensive definition of what constitutes an attempt in law as follows:
Then what is the offence of attempt under our law? If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifest his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction is said to commit the attempt of the offence intended (see S. 6 of the Criminal Code). The end to which the accused arrived must have been substantially attained but for intervention which he never volunteered to meet or anticipated which prevented the commission of the full offence intended. (See Orija v. Police (1957) NRNLR 189; Police v. Fowowe (1957) WRNLR 188) PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

AKEJU ISAAC BOLA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High Court delivered by Honourable Justice E.F. Ikponwen on 28/6/2018 wherein the Appellant was convicted of conspiracy and attempt to obtain under false pretences and sentenced to seven years imprisonment accordingly.

?The facts that led to this appeal are as follows:
?PW1, Dr. Sunday Osasu Olotu, a Medical Director at Federal Neuropsychiatric Hospital Benin City, sometime in May 2013 received a letter which purportedly emanated from the Economic And Financial Crimes Commission (EFCC) and was asked to call one of the operatives with a phone number on the letter. The receiver of the call who claimed to be Principal Detective Superintendent Olusegun told PW1 that there was a petition against him and he was supposed to come for a chat at the EFCC office but the caller would find a way around it if PW1 could pay him the sum of N1.2 Million (One Million Two Hundred Thousand Naira only). PW1 agreed to pay in installments. PW1 made an initial payment of N50, 000 (Fifty Thousand Naira) into a UBA account provided by

purported PDS Olusegun. PW1 later visited the office of the EFCC in Abuja and discovered the letter neither emanated from the EFCC nor was there anyone called PDS Olusegun at the Office. He was however told by the EFCC operatives to play along in order to apprehend the culprits. He informed PDS Olusegun that he was ready to pay the balance but PDS Olusegun told him to pay it into an Enterprise Bank Account Number bearing the name Joseph Badmus. Joseph Olatunde Badmus, the 1st accused at trial (now at large) and the Appellant were both arrested in connection with the crime. Both of them were initially arraigned on 7 (Seven) Count charge of Conspiracy, impersonation, uttering, forgery, and attempt to obtain under false pretence. At the close of the prosecution?s case, the 1st accused person at trial jumped bail after his testimony and the charge against him was withdrawn. The Appellant was then re-arraigned on two count charge of conspiracy and attempt to obtain under false pretence as follows:
COUNT 1
STATEMENT OF OFFENCE
Conspiracy contrary to Section 8(a) of the Advance Fee Fraud and Other Related Offences Act, 2006.
PARTICULARS OF OFFENCE

Akeju Isaac Bola and Joseph Olatunde Badmus (now at large) and others at large, on or about the 6th day of June, 2013, in Benin, within the jurisdiction of the High Court of Benin City, did conspire to obtain the sum of N200, 000. 00 (Two Hundred Thousand Naira Only) from Dr. S.O. Olotu, Medical Director, Federal Neuropsychiatric Hospital Benin City, under false pretence.
COUNT 2
STATEMENT OF OFFENCE
Attempt to obtain under false pretence contrary to Section 8 (b) of the Advance Fee Fraud and Other Related Offences Act, 2006.
PARTICULARS OF OFFENCE
Akeju Isaac Bola and Joseph Olatunde Badmus (now at large) on or about the 6th day of June, 2013, in Benin, within the jurisdiction of the High Court of Benin City, with the intent to defraud attempted to obtain the sum of N200, 000.00 (Two Hundred Thousand Naira) only from Dr. S.O. Olotu, Medical Director, Federal Neuropsychiatric Hospital Benin City, under the false pretence that the said money was for the settlement of a purported petition against the said Dr. S.O. Olotu with Economic and Financial Crimes Commission.

?In proof of its case against the Appellant at trial,

the Respondent called three (3) witnesses, tendered 9 Exhibits and closed its case. The Appellant testified in person and did not call any witness.

In a considered judgment, the trial Court found the Appellant guilty of the 2 (two) count of the information, convicted and sentenced him accordingly.
Dissatisfied, the Appellant filed a Notice of Appeal on 24/7/18. The Appellant filed amended brief of argument on 26/2/19.

?Since this appeal was filed by the Appellant, the EFCC despite repeated service on the Commission neither bothered to appear nor file any process in respect of this appeal. Consequently, this Court ordered on 15/5/19 that the appeal be heard on the Appellant?s brief alone. Also at the hearing of this appeal on 3/6/19, the Respondent was absent although there is an affidavit of service to the effect that Ben U.B Esq. of counsel to the Respondent was served by on 30/5/19 to appear for the hearing of this appeal. It is obvious that the Respondent is not willing or is unable to defend this appeal. I would in any event determine whether or not the Appellant?s appeal is sustainable in law on the issues canvassed by him

in the Appellant?s brief.

Since the Appeal was heard on the Appellant?s brief alone and since the Respondent did not file brief of argument to respond to the issues and points canvassed in the Appellant?s brief, only the submissions by the Appellant are available for consideration in the determination of this appeal. However, failure of the Respondent to file a Respondent?s brief is of no moment because an Appellant must only succeed or fail on his brief or case. See Ogbu & Anor v. State (2007) LPELR-2289 (SC). The absence of a Respondent?s brief will not place the Appellant at undue advantage. This is because the Respondent already has in its favour, a judgment of the trial Court.
?
Adeshina Olaniyan Esq., Taiwo Hassan Adediran Esq., and Olugbenga A. Oladejo Esq., who settled the Appellant?s brief of Argument identified two (2) issues for the determination of this appeal as follows:-
1. Whether the prosecution succeeded in establishing the ingredients of the offences preferred against the Appellant to warrant and justify his conviction by the lower Court.
2. Whether from the evidence put before the

trial Court the prosecution has proved beyond reasonable doubt the evidence of the alleged offence of Conspiracy and attempt to commit felony by the Appellant.
?
In the determination of this appeal, I humbly hold the firm view that there is only one issue which is necessary to address the complaints raised by the Appellant and it is set out as follows:-
Whether or not the Respondent proved its case against the Appellant beyond reasonable doubt to sustain the conviction of the Appellant.

SOLE ISSUE
Whether or not the Respondent proved its case against the Appellant beyond reasonable doubt to sustain the conviction of the Appellant.

Learned Appellant?s counsel submitted that where there is charge of conspiracy, the prosecution must prove the ingredients of the offence charged and it is not necessary to prove that the act had been committed. Counsel cited Yakubu v. State (2014) LPELR-2240; Obiakor v. The State (2002) FWLR Pt. 113, 299, (2002) 6SC Pt. 11 33 at 39-40.
?
Counsel further submitted that from the totality of evidence before the Court, there was no piece of evidence, either direct or circumstantial, that linked the

Appellant with the offence and the evidence adduced did not disclose common intention to commit conspiracy.

Counsel argued that the trial Court failed in its primary duty of evaluating the evidence and defence of the Appellant and thus did not consider whether the ingredients of the offence were made out or not. Counsel cited Ndom v. Nkappinang (2001) FWLR Pt. 46 Pg. 917; Onuoha v. State (1995) NWLR Pt. 385 Pg. 591 at 600.

Counsel argued that the defence that the Appellant?s account was dormant was not investigated to ascertain the veracity of the dormancy and that alone created doubt which should have been resolved in favour of the Appellant. Counsel argued that the Appellate Court has the power to reverse the findings and set aside the conviction for the lesser offence where the trial Court failed to resolve the doubt in favour of the Appellant. Counsel cited Emmanuel Zacheous v. People of Lagos (1976) ALL FWLR Pt. 783; Kalu v. State (1988) 4 NWLR Pt. 90 at 503; Okonji v. The State (1987) 1 NWLR Pt. 52 Pg. 659.
?
Counsel further argued that there was no contrary evidence to the fact that the Appellant only asked the 1st Accused person at

trial who is at large, to oblige him his account number for receiving financial assistance, without prior knowledge that the money to be deposited was from the proceeds of criminality.

Counsel argued that there was no evidence linking the Appellant to the offence or to the discussion the PW1 had with PDS Olusegun and that the Appellant had no connection with the first UBA Account number sent to the PW1.

Learned counsel argued that there was no evidence on record that Exhibits D1, D2 and D3 were issued or forged by the Appellant and also that the Prosecution failed to establish the probative value of these Exhibits but only dumped them before the Court.

Counsel emphasized that the evidence of PW2 that nothing incriminating was found in the Appellant?s house and that of the other accused person, also confirmed that the Appellant was neither involved nor had any connection with the previous payment made by the PW1 into the UBA Account provided by PDS Oluwasegun.
?
Learned counsel submitted that the evidence of PW1 that the phone numbers used by the fraudsters in communicating with the him did not belong to the Appellant or the other

accused persons exonerated the Appellant of the crime.

Learned counsel argued that the Appellant never denied knowing one Olusegun who asked him to send his account number when he approached him for financial assistance, however, the UBA account the PW1 paid the sum of money does not bear the names of the Appellant while the picture and address on the account do not relate to the Appellant or the other accused person at trial.

Learned counsel strongly emphasized that the PW3 gave evidence that he could not remember when the Access Bank and UBA accounts were opened, he could not remember if the phone numbers used by the syndicates was actually investigated with the network providers and he could not also remember if their investigation revealed that PW1?s phone number was on the call logs of the Appellant or that of the other accused person at trial.

Counsel submitted that where the evidence of the opposing party strengthens the case of the other party, it amounts to a solemn admission in favour of the latter and it is usually referred to as admission against interest. This particular admission should have influenced the Court?s

decision.

Counsel further submitted that a trial Court in the evaluation of evidence cannot pick and choose the evidence of one witness over that of another witness for the same party, just because one was favourable and the other was not. Counsel cited Sanya v. Saumam (2012) ALL FWLR Pt. 618 Pg. 917.

Counsel argued that this Court can reappraise the evidence of the lower Court especially in the circumstances of this case where it is obvious that the trial Court was perverse in the evaluation of evidence which then led to miscarriage of justice.

Learned counsel submitted that the standard of proof is not that of absolute certainty, but the Court seized of the matter must convince itself beyond all proof that the crime was actually committed and the accused must be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been raised. Counsel cited Mbanengen Shande v. The State 22 NSCCXR 756 at Pg. 772-773.

Learned Counsel opined that the evidence of PW2 and PW3 supported the case of the Appellant but the lower Court did not consider the Appellant?s defence thereby

occasioning miscarriage of justice.

?Counsel submitted that a defence raised by an accused person ought to be adequately considered however, weak, foolish or unfounded such defence may appear and it is also immaterial whether they are contradictory.

Counsel opined that once the evidence elicited under cross examination meet all the legal requirements as to admissibility, it enjoys the same weight as that which is elicited under any other examination of the witness and should be given its due weight. Counsel cited Akomolafe v. Guardian Press Ltd Printers (2010) ALL FWLR Pt. 517 773 at 784.

Counsel argued that the element of attempt to commit crime was not present in the instant case because an act can only constitute attempt if it is immediately connected with the possible commission of the substantive offence. In other words there must be a clear unequivocal nexus between the overt act of attempt and the substantive offence. Counsel cited Iden v. State (1994) 8 NWLR Pt. 356 Pg. 719 at 727-728.

Counsel submitted that for the trial Court to determine whether the legal duty imposed on the Respondent was duly discharged, the trial Court must

consider the totality of the evidence before the Court after which the Court determines the issue as to whether or not the case against the accused person was made out or established beyond reasonable doubt. Counsel cited Isiaka v. The State (2011) ALL FWLR Pt. 583 Pg.1996; Akpabio v. The State (1994) 7 NWLR Pt. 359 at 635.

Counsel argued that the Respondent did not conduct discreet investigation thereby casting negative aspersion on the strength of the Respondent?s case. The investigation conducted by PW2 and PW3 left so much doubt in the Respondent?s case and same ought to be resolved in favour of the Appellant. Counsel cited Kalu v. State (1988) 4 NWLR Pt. 90 at 503.

Counsel urged this Court to expunge all pieces of evidence relating to the absconding 1st Accused person at trial from the Record because a Court or tribunal should never act on the evidence of a witness who was not available for cross examination after he was examined in chief. Counsel cited Isiaka v. The State (supra).
?
While relying on Njovens & Ors v. The State (1973) NSCC 280, Counsel urged this Court to hold that the ingredients of conspiracy and attempt

to obtain money under false pretences were not proved against the Appellant because the Respondent did not lead any credible evidence to substantiate the allegation of conspiracy and attempt to obtain money under false pretence which weakened the case of the Respondent at trial. Counsel citedOrija v. Inspector General of Police (1957) NRNLR 189; Ozigbo v. C.O.P (1976) 2SC 67.

OPINION
The crux of this appeal is to determine whether from the totality of evidence before the Court, there was no piece of evidence, either direct or circumstantial, linking the Appellant with the crime in question.

The Appellant was charged before the trial Court with the offence of conspiracy contrary toSection 8(a) of the Advance Fee Fraud and other Related Offences Act, 2006 in count one and attempt to obtain under false pretence, contrary to Section 8(b) of the same Act in count two. It is the duty of the prosecution to prove each count of the offences beyond reasonable doubt, if not, the accused must be discharged and acquitted. The Supreme Court in Oseni v. State (2012) 5 NWLR Pt. 1293 Pg. 351 (SC) expressed that proof beyond reasonable doubt simply means the

prosecution establishing the guilt of an accused person with compelling and conclusive evidence. See Abokokuyanro v. State (2016) LPELR-40107(SC); Idemudia v. State (1999) 7 NWLR Pt. 610 Pg. 202 at 215; Esangbedo v. State (1989) 4 NWLR Pt. 113 Pg. 57.

In order to determine whether or not the Respondent proved its case against the Appellant beyond reasonable doubt to sustain the conviction of the Appellant, I will start by addressing the second count of the information, that is attempt to obtain under false pretence.

Section 20 of the Advance Fee Fraud and other Fraud related Offences Act, 2006 defines false pretence as follows:
?In this Act, ?false pretence? means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false, or does not believe to be true?
?Indeed, the law is settled that the elements that are required to be proved to establish the charge of obtaining money by false pretence are as follows:
a) that there was a pretence;

It must however be pointed out that in proving the guilt of an accused person, the Prosecution has open to it three basic types of evidence namely:
(a) By testimony of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c) Through circumstantial evidence which clearly point to the fact that the accused and no other person committed the offence charged.
See Ibrahim Kamila v. The State (2018) LPELR-43603; Emeka v. The State (2001) 6 SCNJ 267.
?
Let me define what constitutes an attempt under the law. Attempt is when a person, intending to commit an offence, begins to put his intention into execution by means adopted to its fulfillment and manifest his intention to such an extent as to commit the offence, he is said to attempt to commit the offence. See D.P.P v. Stone House 1977 2 ALL E.R P. 909; Osetola & Anor v. State (2012) LPELR-9348 (SC). The Supreme Court in Jegede v. State (2001) LPELR-1603 (SC) gave a composite and comprehensive definition of what constitutes an attempt in law as follows:
Then what is the offence of attempt under our law? If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifest his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction is said to commit the attempt of the offence intended (see S. 6 of the Criminal Code). The end to which the accused arrived must have been substantially attained but for intervention which he never volunteered to meet or anticipated which prevented the commission of the

full offence intended. (See Orija v. Police (1957) NRNLR 189; Police v. Fowowe (1957) WRNLR 188)?

What then are the pieces of evidence led by the Respondent to prove the essential elements of the offence with which the Appellant was charged?
?
In proof of its case, the Respondent called three witnesses. PW1, Dr. Sunday Olotu, a Medical Doctor, was the victim of the offence. PW1 gave evidence at Pg 172 -176 of the Record of how he received a letter, Exhibit A, which purportedly emanated from the EFCC and was asked to call a particular phone number on the letter. The receiver of the call, one Principal Detective Superintendent Olusegun asked him to pay the sum of 1.2 Million (One Million, Two Hundred Thousand Naira) in order to drop the petition written against him which he then agreed to pay. P.D.S Olusegun gave him a UBA account number bearing the name Akinola Jide. PW1 made a payment of N50, 000 (Fifty Thousand Naira) into the said account. He visited the EFCC office in Abuja and discovered the letter was not genuine, but was implored to play along in order to arrest the culprits. He later paid another N100, 000 (One Hundred Thousand Naira) into

the same UBA account. When he got some extra funds, he told PDS Olusegun he was ready to pay but PDS Olusegun gave him an Enterprise Bank Account number bearing the name Joseph Badmus. PW1 paid into the Enterprise Bank account on 6/6/2013.

The PW2, Mahomud Yakubu, an Inspector of Police attached to EFCC as investigator, at Pg 177 of the Record particularly gave evidence as follows:
?Sometime in June 2013 one Dr, Sunday Olotu, a medical Doctor of Psychiatric Hospital Benin City reported to our operation office of the EFCC. He brought a letter purported to have emanated from EFCC. He was informed that the letter did not emanate from the EFCC. He volunteered a statement and was advised to play along with the fraudsters who originated the letter to enable us arrest them. There was a phone number on the letter brought by Dr. Olotu. He was asked to continue communicating with them. PW1 was given an account number into which he was asked to paid(sic) some amount of money. For the Account in UBA he paid N100, 000 in two installments and later he was given an account number in enterprise Bank where he paid N200, 000. He informed the commission and we

wrote to the Banks directing them to arrest any person who comes to operate the account. The 1st Accused person, Joseph Badmus went to Enterprise Bank in Ibadan to withdraw the sum of N400, 000 which was paid by Dr, Olotu, he was arrested and handed over to the Police by the Bank Manager. The Police at Gbagi Police Station informed our office in Abuja and a team of operatives booked and left for Ibadan. The 1st Accused person was handed over to the team on 8/6/13. He was interrogated where he linked the 2nd Accused into the matter. I was with the team. The 2nd Accused on the 9/6/13 reported himself to the team. He was interrogated and he mentioned another person at Akure Ondo State. We booked and left with him for Akure but on arrival he could not show us the person
?
PW2 further gave evidence that the 1st Accused gave his account number in Enterprise Bank to the Appellant who then gave it to a 3rd party who is now at large. The PW3, Daniel Anozia, Deputy Detective Superintendent with the EFCC in the Advance Fee Fraud Unit, Team 8 also gave evidence that they sent letters of investigation activities to EcoBank, Access Bank, and Enterprise

Bank and got responses which they analyzed and confirmed that the 1st Accused received N200, 000.00 from Dr. Sunday Olotu.

From the evidence of PW1, PW2 and PW3, it is my humble but firm view that the Respondent was able to establish that PW1 parted with his money. All the events leading to him parting with his money was proved to be false from the evidence adduced. For instance, it was clear the PW1 received a letter which did not emanate from the EFCC. The PW2 convincingly gave evidence that the letter, Exhibit A did not emanate from them. The Principal Detective Superintendent (P.D.S) Olusegun did not exist in the EFCC while the Phone number provided on Exhibit A was used in calling the non existing officer-PDS Olusegun.
?
At Pgs 227-231 of the Record, the defence of the Appellant was that sometime in June 2003, he sought financial assistance from an old friend, Olusegun who lives in Akure while the 1st Accused offered at trial his account number to send to Olusegun in Akure. The account was sent and Olusegun confirmed that money was sent into the account before the 1st Accused headed for Bank to make withdrawals and in the attempt, he was

arrested.

The fact that the 1st Accused was arrested in an attempt to withdraw the money sent into the Enterprise Bank Account by PW1 in my view, clearly shows that there was a nexus between the 1st accused and PDS Olusegun who gave the 1st Accused person?s account number to the PW1. The Appellant here claimed he sent the account number to PDS Olusegun after the 1st Accused obliged him to use it. PDS Olusegun then sent the same account number to PW1. It is my view in the circumstances of this case that there exist a connection between PDS Olusegun who was relating with the PW1, the 1st Accused who is now at large and the Appellant who claimed Olusegun was his friend.

I do not agree with the evidence of the Appellant especially in the face of the overwhelming evidence of the Respondent that linked the proceeds of the crime directly to the Appellant. In my humble view, there was no credible evidence to substantiate the claim of the Appellant that he was not really part of the plan to obtain money from the PW1 under false pretence.
?
The contention of the Appellant?s counsel that the trial Court did not consider the evidence of the

Appellant at trial is false. At Pg 289-290, the learned trial judge evaluated the defence of the Appellant. The Court considered Exhibit B- the statement made by the Appellant and weighed it against the evidence adduced by the PW1. The trial Court after evaluation of the evidence observed as follows:
?From the trail of evidence above, one can easily see and find that the money emanated directly from PW1. It is therefore proved beyond reasonable doubt that the persons who gave PW1 an account number under false pretences that they are from EFCC and those who attempted to cash the money are with this link the accused person and the fleeing 1st accused.?
?
I am of the same opinion with the learned trial judge that the unidentified PDS Olusegun, the 1st accused at trial now at large and the Appellant were all working in concert to achieve a common criminal purpose of obtaining under false pretence. This offence became an attempt when the 1st accused person who was the owner of the account used in perpetrating the criminal act, went to claim the money from the Bank and was arrested and handed over to the Police. When an accused person is

prevented from committing the complete offence, a conviction for attempt to commit the offence may be sustained. See Jegede v. State (supra).

In my view, I do not think the Appellant?s defence and evidence is sufficient to unravel the obscurity around Exhibit A, the purported letter from the EFCC, and who PDS Olusegun really was. The elements of the offence of attempt to obtain under false pretence were completely proved beyond reasonable doubt.

The Appellant was charged with conspiracy in the first count, and it was contended that the Respondent did not prove the offence of conspiracy against the Appellant. It is important to state at this point that conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related.
?
Conspiracy is an express or implied agreement between two or more persons to do an unlawful act. The offence of conspiracy is complete once the parties agree to effect an unlawful purpose. An inference or circumstantial evidence of an agreement can be used to prove beyond reasonable doubt, the agreement between the parties. See

Smart v. State (2016) LPELR-40827 (SC); Salawu v. State (2011) LPELR-8252(SC); (2011) 10 SCM 76; Agugua v. State (2017) LPELR-42021 (SC); (2017) 10 NWLR Pt. 1573 Pg. 254. In order to establish an offence of conspiracy against an accused person, the Prosecution is required by law to prove the following:
a. That there was an agreement between two or more persons to do or cause to be done, some illegal act or an act which is not illegal but by illegal means;
b. Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
c. Specifically, that each of the accused individually participated in the conspiracy.

In the instant case, the Respondent based the charge of conspiracy on the same facts for the attempt to obtain under false pretence. I am also of the same opinion with the learned trial judge that the evidence of PW1 reveals a common intention to prosecute an unlawful purpose to deprive PW1 of his money.
In my humble view, the trial Court was right to have relied on the extra judicial statement of the Appellant – Exhibit B

and the inability of the Appellant to give any information on his so called friend, Olusegun who acted as the EFCC official to obtain money from PW1 to find him guilty of the offence of conspiracy. The law is that evidence given which relates to things said or done by one conspirator or the other in the execution or furtherance of the common purpose of all such conspirator is admissible against all of them. See Okosun v. AG. Bendel State (1985) LPELR-2500 (SC); Samson Aigbe & Ors v. The State (1976) 9-10 SC 77; Kayode v. State (2016) LPELR -40028 (SC). Although the Appellant was not caught withdrawing the money from the bank, by his own admission he used the absconded Badmus to get the money.
As I said earlier, it is not necessary that there should be direct communication between each conspirators, all that needs to be established is that the criminal design alleged is common to all of them. I strongly feel the criminal minds met when they agreed to transfer the money into the account of the absconded Joseph Badmus. The Court can only infer from the overt act to withdraw the money sent into the Enterprise Account number of the absconded Joseph Badmus

by the PW1, which the Appellant also admitted to be part of. In fact, he was the one that knew PDS Olusegun and gave him Joseph Badmus? Enterprise Account number. Circumstantial evidence in this case was properly received because of its usefulness and necessity. This is because it enables a judge to raise a presumption of inference of a fact from other facts proved by direct evidence in the absence of direct evidence in proof of a fact.
I am of the same opinion with the learned trial judge when His Lordship stated on Pg. 292 of the Records as follows:
?I am satisfied therefore that the prosecution proved its case beyond reasonable doubt in that the accused person by his own evidence and the evidence adduced by the prosecution which I believe and find very credible and unassailable committed the offences of conspiracy and attempt to obtain under false pretence.?
?In any event, the Respondent was able to prove his case beyond reasonable doubt. An accused shall be liable where he is found guilty of an inducement to make his victim part with a thing capable of being stolen or to make a victim deliver a thing capable of being stolen.

The learned trial judge did just that and I have no reason to upstage the reasoning and conclusion reached therein. This issue is resolved against the appellant.

?In the circumstances, I find no merit in this appeal. The judgment of the Edo State High Court delivered by Honourable Justice E.F. Ikponwen on 28/6/18 in charge No. B/EFCC/3/13 is hereby affirmed. Appeal Dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the leading judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU JCA. I am in total agreement with the reasoning and conclusion reached in the said judgment wherein His lordship exhaustively and adequately issues in contention having regard to the relevant statutory provisions. On this premise I have nothing extra to add.
I also hold that the appeal lacks merit and it is hereby dismissed.
The Judgment of the High Court of Edo day of June 2018 in Charge No. B/EFCC/3/13 hereby affirmed.

?MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA.

I agree

that the appeal lacks merit and I also dismiss it.

Appearances:

Adesina Olaniyan, Esq. with him, Olayinka AlabiFor Appellant(s)

Respondent absentFor Respondent(s)

Appearances

Adesina Olaniyan, Esq. with him, Olayinka AlabiFor Appellant

AND

Respondent absentFor Respondent

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