ATIN VICTOR GENEROUS v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13720(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of July, 2019
CA/J/428C/2017
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ATIN VICTOR GENEROUS Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT
The Supreme Court in the case of Eze Ibeh v The State (1997)7 SCNJ 256 at 271 stated as follows:
?On evaluation of evidence…… It is an avowed and a long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the Court of trial which has the singular advantage or is preeminently placed of hearing the witnesses testify and watching their demeanor. For this reason, there is a presumption that a trial Judge?s decision on facts is correct. A presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate Court on its part in such a case should always be reluctant to interfere or to substitute its views the fact for those in the court of trial.”
See the Military Governor of Western State v Afolabi Lambe & Anor (1974) ALL NLR (Pt.2) 179 and Ajao v Alao (1986)5 NWLR (Pt.45) 802. PER MSHELIA, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
This Court must be very reluctant to differ from findings of the trial Judge on facts based on the credibility of witnesses. An Appeal Court would be reluctant to upset the findings of the trial Judge. See Eya & Anor v Olopade & Anor (2011) LPELR ? 1184 (SC), Wachukwu & Anor v Owunwanne & Anor (2011) LPELR -3466 (SC), Joseph v State (2011) LPELR ? 1630 (SC) Fidelity Bank Plc v Bayuja Ventures Ltd & Anor (2011) LPELR ? 8873) CA), Eze v State (1985)2 NSCC 1340 @ 1344. PER MSHELIA, J.C.A.
DEFINITION OF THE OFFENCE OF CONSPIRACY
Conspiracy has been defined under Section 8 of the Advanced Fee Fraud and Other Related Offences Act as follows:
?A Person who ?
(a) Conspires with aids, abets, or counsels any other person to commit an offence, or
(b) Attempts to commit or is an accessory to an act or offence, or
(c) Mates, procures or induces any other person by any means whatsoever to commit an offence, under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.”
Black?s Law Dictionary Tenth Edition also defined conspiracy at page 375 as follows:
?An agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreements objective, and action or conduct that further the agreement, a combination for an unlawful purpose. PER MSHELIA, J.C.A.
THE BURDEN OF PROVING THE OFFENCE OF CONSPIRACY
The burden of proving conspiracy is on the prosecution and same must be proved beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. The offence of conspiracy is complete when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means based on circumstantial evidence. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offences of conspiracy. It is immaterial that the persons had not met each other. The bottom line of the offence is the meeting of the minds of the conspirators to commit offence and the meeting of the minds need not be physical. See Adepobi v state (2011) 12 NWLR (Pt.1261) 347 at 375, Obiakor v State (2002) 10 NWLR (Pt.776) 612, Gbadamosi v State (1991)6 NWLR (Pt.196) 182 at 204, NWosu v State (2004)15 NWLR (pt.397) 466, Oduneye v State (2001)2 NWLR (Pt.697) 311 and Dabon v State (1977) SC 197. The trial Court may also infer conspiracy from a set of facts through which a common purpose is achieved. See Gbadamosi v State (supra), Aje v The State (2006)8 NWLR (Pt.982) 345 at 363 and Adejobi v State (2011)12 NWLR (pt.1261) 347 at 378-379. PER MSHELIA, J.C.A.
THE ESSENCE OF ISSUES FOR DETERMINATION
The essence of issues for determination is amongst others to enable the parties narrow down issues raised in the ground(s) appeal not tof o widen or stretch the scope of issues for determination and invariably arguments. See Labiyi v Anretiola (1992) 10 SCNJ 1 at 2; Stabilini Visioni (Nig.) Ltd v Sanderton Ventures Ltd (2011) LPELR – 4976 (CA), Nnonye v Anyichie (2000)1 NWLR (Pt.639) 66, WIH & Busch Ltd v Goodwill & Trust Investments Ltd (2004)8 NWLR (Pt. 874) 179. Agu v Ikewibe (1991)3 NWLR (Pt.180) 385, Attorney-General Bendel State v Aideyan (1989)4 NWLR (Pt.118) 646, Duwin P&C Co. Ltd v Beneks P&C Ltd (2008)31 WRN 1 at 17. PER MSHELIA, J.C.A.
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice Gombe State in charge No. GM/100c/2015 between THE FEDERAL REPUBLIC OF NIGERIA v ATIN VICTOR GENEROUS delivered on the 11th day of July, 2016 by Honourable Justice Abubakar Jauro.
The 2nd accused and one other were arraigned before the High Court of Justice Gombe for an offence of obtaining money under false pretence on amended charge which read thus:
?COUNT 1:
That you Pastor Emmanuel Markus Anga, Atin Victor Generous and Engr. Philimon Gora (now at large) sometimes in November 2013 at Gombe, Gombe State within the jurisdiction of this Honourable Court did agreed between yourselves to commit an illegal act to wit: conspiracy to obtain monies by false pretence from one Mr. David Madicson, thereby committed an offence contrary to the provision of Section 8 of the Advanced fee Fraud and other Fraud Related Offences Act, LFN 2006 and punishable under Section 1(3) of the same act.
?COUNT 2:
?That you Pastor Emmanuel Markus Anga, Atin Victor Generous and Engr. Philemon
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Gora (now at large) sometimes in November 2013 at Gombe, Gombe State within the jurisdiction of this Honourable Court did FRAUDULENTLY obtained the sum of Five Hundred Thousand Naira (N500,000.00) from one Mr. David Madicson under false pretence that the said sum was to be invested in Foreign Exchange Trading which sum you never invested instead diverted same to your personal use thereby committed an offence contrary to the Provision of Section 1(1) (a) of the Advanced Fee Fraud and other Fraud Related Offences Act, LFN 2006 and punishable under Section 1(3) of the same act.
The two count charges were read to the hearing and understanding of the 1st and 2nd accused person. Both pleaded not guilty. The record indicates that 3rd accused person was at large and absent throughout the proceedings, so his plea was not taken. Having commenced trial prosecution called 5 witnesses and tendered 8 Exhibits. The 1st accused (whose Appeal had been determined and conviction and sentence affirmed by the Court on 29/03/2018) called 3 witnesses and testified as DW4. While the 2nd accused (now Appellant) called one witness (DW5) and testified as DW6. The defence tendered 3
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Exhibits in all. At the close of evidence, written addresses were ordered. The learned trial Judge in a considered Judgment delivered on 11th July, 2016 convicted and sentenced the 1st accused to 7 years imprisonment for committing the offence under Count 1 but discharged and acquitted under count 2. While the 2nd accused (now Appellant) was convicted and sentenced to 7 years imprisonment on both the 1st and 2nd count charge.
Dissatisfied with the Judgment the 2nd accused (now Appellant) lodged an appeal to this Court, vide his Notice of Appeal filed on 12/10/2017 containing six (6) Grounds of Appeal. (See pages 307-313 of the record).
?
In compliance with the Rules of Court, parties exchanged their respective Briefs of Argument. Appellant?s Brief settled by Gregory N. Lar Esq., and Caleb N. Ramnap Esq., was dated 10/02/2017 and filed on 12/02/2017 but deemed properly filed and served on 14/02/2018. Respondent?s Brief of Argument settled by A.Y Muntaka Esq., dated 30/04/2018 and filed on 02/05/2018 but deemed properly filed and served on 11/04/2019. Appellant?s Reply Brief was dated 18/09/2018 and filed on 19/09/2018 but deemed properly
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filed and served on 11/04/2019.
When the appeal came up for hearing, Appellant?s counsel did not appear in Court, though served. Consequently the Court invoked Order 19 Rule 9(4) of the Court of Appeal Rules, 2016 and deem the Appellant?s Brief and Reply Brief as duly argued. Respondent?s counsel Mr. A.Y Muntaka Esq., adopted the Respondent?s Brief of Argument and urged the Court to dismiss the appeal.
In the Appellant?s Brief of Argument five issues were distilled for determination thus:
1. Whether or not there was proper evaluation of evidence adduced and Exhibit tendered in this case by the trial Court.
2. Whether or not the failure to properly evaluate and attach probative value to Exhibit D1 as well as the evidence on record occasioned a miscarriage of justice.
3. Whether or not Computer Generated Evidence most (sic) comply with Section 84(4) of the Evidence Act 2011 or dependent on the discretion of the trial Judge and whether the Admission of Exhibit AC2 contrary to Section 84(4) of Evidence Act which the trial Court relied on heavily to convict the Appellant on the offence of relieving by false
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pretence has not occasioned a miscarriage of justice.
4. Assuming but not conceding that the trial Judge was right in accepting the Evidence of the prosecution which did not comply with Section 84(4) of the Evidence Act 2011, whether or not it will amount to double standard for the same Court to reject a similar Computer Generated Evidence for non-compliance with the same Section when tendered by the Appellant.
5. Whether or not the prosecution proved a case of conspiracy against the Appellant by the evidence on record to warrant his conviction by the trial Court.
The Respondent on the other hand formulated two issues for determination as follows:
a. Whether based on the fact, evidence and surrounding circumstance of this case, the Respondent has proven the 1st and 2nd counts of its amended charge against the Appellant beyond reasonable doubt. (Distilled from Ground 1, 2, 3 and 4 of the Appellant Grounds of Appeal).
b. Whether the learned trial Judge has painstaking analyzed and evaluated the evidence of the Respondent before convicting and subsequent sentencing of the Appellant on the 1st and 2nd Count of the Amended Charge. (Distilled
5
from Ground 5 and 6 of the Appellant Ground of Appeal).
I have examined the issues raised by both parties. In determining this appeal, I will adopt the issues raised by the appellant. The issues formulated by the respondent will be considered along with that of the Appellant.
ISSUE 1 & 2
In arguing these issues, learned counsel for the Appellant submitted that it is a cardinal principle of law that the primary responsibility of a trial Court is to critically albeit passionately, appraise and evaluate the relevant evidence adduced by the parties before it. Reliance placed on Amadu v Yantumaki (2012) ALL FWLR (Pt.626) 503 CA. counsel contended that when admissible piece of evidence is rejected by the Court or admitted but wrongly omitted in the trial Court decision or not given the interpretation it deserves which ultimately occasioned a miscarriage of justice, a party affected by it as the appellant in this case, can impugn the trial?s Court evidence. Learned counsel submitted that Exhibit D1, is a letter written by the Managing Director (MD) of Gora Commanding Resources Limited in which he accepted liability and discloses that the fund
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N500,000.00 given to the Appellant was actually invested in the company, which was the purpose it was meant for. That as the Managing Director of the company, he is the number one agent who has the legal right to bind a company or ratify any transaction undertaken on its behalf by its authorised officers. That learned trial Judge failed to and appreciate this by reference to his statement at page 298 of the record. That the learned trial Judge failed to appreciate the company principle of ratification which Exhibit D1 was intended. That the learned trial Judge arrived at the conclusion that the funds were not invested but merely spent and this weighed heavily in his mind to convict the appellant for the offence of receiving money by false pretence. Counsel contended that Exhibit D1 was not properly evaluated and seek the Court intervention for a proper evaluation. Cited in aid State v Rabiu (2013)8 NWLR (Pt.1357) 585 SC. According to counsel the trial Judge seems to accept the evidence of the prosecution witnesses that PW1 invested in CASH FLOW and discredit that of DW6 (He Appellant) which is in consonance with that of PW2 that the investment was in GORA
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COMMANDING RESOURCES LIMITED. That learned trial Judge was wrong to arrive at the conclusion that the issue of GORA COMMANDING RESOURCES LIMITED was an afterthought. Learned counsel referred to the testimony of PW2 when she stated under cross-examination that the discussion between PW1, her husband and 1st accused person, as far as she heard centered on GORA COMMANDING RESOURCES LIMITED. Reference made to page 236 of the record. That the piece of evidence which created contradiction should have been resolved in favour of and was a foundation to whether the Appellant set out to deceive PW1 or not. See Famakinwa v State (2013)7 NWLR (Pt.354) Tamakuwa Adebiyi? v State (2013)7 NWLR (Pt.1354) 597 @ 622-623 para A.
Counsel further submitted that the learned trial Judge did not carry out proper evaluation of the evidence before coming to the conclusion that Exhibit D1 was tainted. That PW1 Statement was a dead blow to PW1 testimony that the money was to be invested in CASH FLOW. Counsel contended that the evidence of PW2 created a direct nexus with Exhibit D1 and confirmed that truly, there was an investment with GORA COMMANDING RESOURCES LIMITED. See the case of UBA Plc v BTL Ind. Ltd (2006)19 NWLR (Pt.1013) 61 SC ?
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on the reliance of documentary evidence and the fact that trial Court and appellate Courts have a duty to carefully consider them. He urged the Court to resolve the two issues in favour of the appellant.
The response of the respondent on issue of evaluation was covered under issue 2 formulated by the respondent?s counsel. Learned counsel for the respondent submitted that there is no better evaluation and analysis of the case as far as the trial Court is concerned. Reference made to pages 285-303 of the Judgment. Counsel also referred to the statement of the learned trial Judge at pages 25-26 of the Judgment appearing at pages 300-301 of the record. That the learned trial Judge only arrived at his Judgment after a painstaking analysis of the testimonies given by PW1, PW2, PW3, PW4 and PW5, as well as DW1, 2, 3, 4 and particularly DW5 & 6. The evaluation he argued also includes Exhibits AC1 and AC2, GT1 and GT2 as well as Exhibit 3 and 4 respectively. That these are the necessary facts and evidence led by prosecution upon which the trial Court drew its inference and safely arrived at the just conclusion.
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He urged the Court to re-affirm the position of the trial Court. Counsel referred to the authorities of Orhena Adugu Gbileve & Anor v Mrs. Ngunan Adingi & Anor LPELR (2014) SC 193/2012 and Sule Anyegwu & Anor v Aidoko Onuche (2009)3 NWLR 659 (SC) and submitted that both authorities are to the effect that the Court of Appeal cannot embark on a re-evaluation of evidence or ascription of other probative value to the evidence adduced as to arrive at a different conclusion from the one arrived by the trial Court. Unless and until the Judgment is found to be perverse. That appellate Court has no business in interfering with the conclusion and findings of the trial Court. He urged the Court not to interfere with findings of the learned trial Judge.
The complaint of the Appellant regarding evaluation of the evidence adduced is unfounded. It is evident from the record that the learned trial Judge properly evaluated the evidence adduced before him. The learned trial Judge arrived at his decision after a careful analysis of the testimonies given by PW1, PW2, PW3, PW4, PW5, as well as DW1, DW2, DW3, DW4 and particularly DW5 and DW6. The trial Court also
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evaluated all the documentary evidence i.e Exhibits AC1, AC2, GT1, GT2, D1 and Exhibits 3 and 4. Contrary to the argument of learned counsel for the appellant Exhibit D1 was evaluated by the learned trial Judge. The findings of the learned trial Judge appearing at page 298-299 of the record is very clear. The trial Judge had this to say:
?The picture painted by the 2nd Accused as DW6 is that of admission of the fact that he received the sum of N500,000.00 (Five Hundred Thousand Naira) credited to him through his personal account, the details of which he gave PW1 but that he has given the money to Engr. Philemon Gora the owner of GORA COMMANDING RESOURCES LIMITED from a different source. Assuming without conceding and/or deciding the discussion between the 2nd Accused person and PW1 related to GORA COMMANDING RESOURCES LIMITED not Cash Flow, the fact that the 2nd accused gave the money to Engr. Philemon Gora close (sic) not amount to investing in either GORA COMMANDING RESOURCES LIMITED or CASH FLOW COMPANY LIMITED. As it has long been settled in law that companies incorporated under the Companies and Allied Matter Act (Exhibits D2 and D3 are
11
relevant) are separate entities from their shareholders promoters and/or owners. Although DW6 claimed that he paid the money from another source not from the Account into which PW1 paid the money, he failed to furnish evidence to support that assertion. I am therefore swayed by the evidence of PW4 and Exhibits AC1 and AC2 that the 2nd Accused person simply withdrew the money in piece meal for his own personal use. I am similarly swayed by the testimony of PW3 and Exhibits GT1 and GT2 that the purported payment of dividend to the complaint through pocket-moni platform was an ATM Account to the GT Bank Account of Mr. David Madison (PW1) not from either GORA COMMANDING RESOURCES LIMITED or CASH FLOW COMPANY LIMITED. That ATM account to account transaction was designed to further persuade PW1 that his money has been invested in the FOREX business.
Exhibit D1 tendered through DW6, purportedly authored by the 3rd Accused who is at now large (sic) attempted exculpating the 1st and 2nd Accused persons and confirming that PW1 was a client who invested on line through the 2nd Accused in GORA COMMANDING RESOURCES LIMITED and stating that the money invested was in
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his possession. This piece of evidence is a classical case of tainted evidence see Olayinka v The State (2012)10 LRCNCC 199 R 3 @ 202. Both DW6 and the author have certain interest to protect and the author is as well at large and now on a wanted list in connection with this and other fraud cases. Besides, the document did not say that the money involved is in the company?s custody but in the possession of the author. I therefore find it difficult in denying any evidential value to Exhibit D1…”
From the above findings which are unassailable, it cannot be correct to say that the learned trial Judge did not properly evaluate Exhibit D1 as alleged. Appellant who testified as DW6 did not deny receiving N500,000.00 from the complainant (PW1). Appellant did not adduce cogent evidence to show that the said money was invested in either Cash Flow or GORA COMMANDING RESOURCES LIMITED. The trial Judge rightly accepted the evidence of the prosecution witnesses that PW1 invested in CASH FLOW because 1st accused who testified as DW4 from the onset introduced 2nd accused (Appellant) as the manager of CASH FLOW. There is no material contradiction as
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regards the evidence given by PW1 and PW2 relating to whether the money was invested in cash Flow or GORA COMMANDING RESOURCES LIMITED. The conduct of the Appellant clearly shows that he was out to deceive PW1 and he succeeded, in defrauding him of the sum of N500,000.00. The learned trial Judge rightly in my view convicted him for the offence of receiving money by false pretence.
It is my firm view that there is no better evaluation and analysis of the case as far as the trial Court is concerned, as such the appellant?s argument is far from the truth. It is the duty of the trial Court to evaluate evidence and to ascribe probative values to them. The Supreme Court in the case of Eze Ibeh v The State (1997)7 SCNJ 256 at 271 stated as follows:
?On evaluation of evidence…… It is an avowed and a long judicial policy in this
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country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the Court of trial which has the singular advantage or is preeminently placed of hearing the witnesses testify and watching their demeanor. For this reason, there is a presumption that a trial Judge?s decision on facts is correct. A presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate Court on its part in such a case should always be reluctant to interfere or to substitute its views the fact for those in the court of trial.”
See the Military Governor of Western State v Afolabi Lambe & Anor (1974) ALL NLR (Pt.2) 179 and Ajao v Alao (1986)5 NWLR (Pt.45) 802.
In the case at hand, the findings of fact made by the trial Judge was based on credibility of witnesses and documentary evidence, it was the trial Judge who saw the witnesses testify. He watched their demeanour and so is in the best position to comment on their credibility. This Court must be very reluctant to differ from findings of the trial Judge on
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facts based on the credibility of witnesses. An Appeal Court would be reluctant to upset the findings of the trial Judge. See Eya & Anor v Olopade & Anor (2011) LPELR ? 1184 (SC), Wachukwu & Anor v Owunwanne & Anor (2011) LPELR -3466 (SC), Joseph v State (2011) LPELR ? 1630 (SC) Fidelity Bank Plc v Bayuja Ventures Ltd & Anor (2011) LPELR ? 8873) CA), Eze v State (1985)2 NSCC 1340 @ 1344.
As earlier stated, the learned trial Judge properly evaluated the evidence adduced by both parties. There is no miscarriage of justice as far as the evaluation is concerned. I will accordingly resolve issues 1 and 2 in favour of the respondent.
ISSUE 3 & 4
Before I determine the merit of these issues, I find it necessary to first pronounce on the competency of same. I have noticed that issues 3 and 4 were framed from one ground of appeal i.e ground 6 of the Appellant?s Notice of Appeal. Although Respondent did not raise any objection I cannot close my eyes and resolve them as it is. The principle governing the formulation is that a number of grounds of appeal could where appropriate be formulated into a single issue
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running through them. But the reverse is not the case. It is undesirable to split issue in an appeal. The essence of issues for determination is amongst others to enable the parties narrow down issues raised in the ground(s) appeal not tof o widen or stretch the scope of issues for determination and invariably arguments. See Labiyi v Anretiola (1992) 10 SCNJ 1 at 2; Stabilini Visioni (Nig.) Ltd v Sanderton Ventures Ltd (2011) LPELR – 4976 (CA), Nnonye v Anyichie (2000)1 NWLR (Pt.639) 66, WIH & Busch Ltd v Goodwill & Trust Investments Ltd (2004)8 NWLR (Pt. 874) 179. Agu v Ikewibe (1991)3 NWLR (Pt.180) 385, Attorney-General Bendel State v Aideyan (1989)4 NWLR (Pt.118) 646, Duwin P&C Co. Ltd v Beneks P&C Ltd (2008)31 WRN 1 at 17. In another related case of Labiyi v Anretiola (1992)8 NWLR (Pt.258) 139 at 159. Karibi Whyte, JSC (as he then was) held concerning proliferation of issues thus:
The Court has always frowned at and viewed with disfavor the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of issues for determination into a single issue running through them.
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It is patently undesirable to split the issue in a ground of appeal.?
As it is, I find it difficult to pick one issue for determination under Ground Six. In consequence issues three and four are incompetent, they are discountenanced, same are struck out with the arguments in their support.
ISSUE 5
Issue 5 is whether or not the prosecution proved a case of conspiracy against the appellant by the evidence on record to warrant his conviction by the trial Court.
In arguing this issue, learned counsel referred to the case of Posu v State (Pt.1234) 393 (SC) (citation not properly supplied) wherein conspiracy is defined as follows: ?Conspiracy means meeting of the minds of the conspirators. It consists of the intent of two or more and agreement by them to do an unlawful act or to do a lawful act by unlawful means?. Counsel referred to the finding of the learned trial Judge appearing at page 301 of the record. Counsel cited the case ofBabatunde v State (2014) 3 NWLR (pt.1395) 568 (SC) wherein the Supreme Court opined that Criminal Conspiracy is sustained by leading evidence from which the Court can deduce inference of certain
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criminal acts of the person accused, done in pursuance of criminal purpose. Learned counsel contended that the evidence adduced by prosecution witnesses does not show conspiracy between the accused persons. That the evidence of PW1 and PW2 never pointed to conspiracy between the Appellant and the 1st accused person or between the Appellant and the 3rd accused person, who was at large all through the trials. Learned counsel referred to extract from the evidence of PW1 at page 223 line 9-17 and that of PW2 at page 234 line 6-10 of the record. According to counsel from the extract there could have been an agreement of the minds between the 1st and 2nd accused persons. Counsel referred to Section 8 of the Advance Fee Fraud and other related Offences Act, 2006 which defines conspiracy. That for conspiracy to exist, it is vital that persons accused for criminal conspiracy must have agreed to do an illegal act on cause to be done a thing or an act that may be lawful in an illegal manner. According to counsel in the instant case there is no direct or positive evidence that the Appellant conspired with any of the co-accused person as such there is no meeting of the
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minds. He placed reliance on Amuneke v State (1992)1 NWLR (Pt.217) 338 wherein it was held that evidence of conspiracy must be cogent and unequivocal. That the lower Court erred in its evaluation and analysis of evidence before it. Counsel submitted that although appellate Court does not normally evaluate evidence, however, where improper evaluation of evidence has occasioned miscarriage of justice, appellate Court can interfere and evaluate same. Reliance placed onNwolisah v Nwabufoh (2004)9 NWLR (Pt.507) 526-527 (G-A) (F-H). He urged the Court resolve issue 5 in favour of the Appellant.
The Respondent?s response is contained in the argument canvassed in support of issue 1 formulated by him. Learned counsel submitted that Respondent has duly established the offences of conspiracy and that of obtaining money under false pretences against the Appellant beyond reasonable doubt, in consonance with section 135 of the Evidence Act. Counsel referred to the conclusion arrived by the learned trial Judge at page 301 and the definition of conspiracy as provided under section 8 of the Advanced Fee Fraud and other related Offence Act punishable under S.1(3) of same Act.
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Learned counsel referred to the definition of conspiracy as provided in classical case of Njovens v State (1973)5 Sc 17 i.e the element of the offence of conspiracy is the meeting of minds of the conspirators:. See also State v Salahu (2011) 8 NWLR (Pt.1279) 580; Shodiya v State (1992) 3 NWLR (Pt.230) 457, Ime David Idiok v State (2006) 12 NWLR (Pt. 993). C.A.1 paragraph E-B. That all the authorities cited are in support of the Respondent?s position and urged the Court to so hold. Learned counsel submitted that the meeting of the minds of the conspirators in this instance, the Appellant and his co-convict can be inferred as envisaged by the case of Osuagwu v State (supra) notwithstanding denial of the Appellant. Learned counsel referred to the evidence of PW1 at page 219 of the record where he stated how the Appellant introduced him to business of Cash Flow and he got him involved. That the piece of evidence referred at page 219 of the record remained unshaken, uncontroverted and unchallenged. That Court of law is bound to act on such evidence. Cited in aid Magaji v Nigerian Army (2008)8 NWLR (Pt.1089) 338 @ 393 para D, Oforlete v State
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(2000)12 NWLR (Pt.681) 415 and Shodiya v State (1992) 3 NWLR (Pt.230) 457. That the testimony of PW1 was corroborated by evidence of PW2 and the Appellant himself while testifying as DW6. That Appellant and the then 1st convict (Pastor Emmanuel Anga), after having convinced the PW1 to involve in the non-existing business on one hand, he also caused the payment of Five Hundred Thousand Naira (N500,000.00) into his Personal Bank Account. Reference made to testimony of PW1, PW2, PW4, and GT1, GT2, AC1, and Ac2 respectively at page 220-222 of the record. That PW2 corroborated same at page 233-236 of the record.
Learned counsel further submitted that it was Pastor Emmanuel Anga (1st convict) that linked up the PW1 with the Appellant as well as taking step to send an account number of the appellant to PW1 for the payment into the Account of the Atin Victor Generous (Appellant). That the 1st convict equally facilitated the payment of N500,000.00 into Account of Appellant by PW1. That the conduct of the Appellant and the 1st convict leaves no one in doubt but to agree with the learned trial Judge that the prosecution has duly established the case of
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conspiracy and obtaining the sum of N500,000.00 for the Appellant and Pastor Emmanuel Anga (1st convict). He urged the Court to so hold and uphold Judgment of the lower Court. Counsel contended that the learned trial Judge was right to have inferred the commission of the offence of conspiracy against the Appellant and one Pastor Emmanuel Anga (1st convict) from the facts and surrounding circumstance available before the trial Court. That the law is trite that a Judge can infer from the fact and surrounding circumstance before him to arrive at his Judgment. Reliance placed on Kaza v The State (2008)7 NWLR (Pt.1085) 125 ratio 7 at 176. Also cited in aid are: Chierugu v State (2012)2 NWLR (pt.750) 225, Obiakor v State (2002)10 NWLR (Pt.776) 612, Upahar v State (2003) 6 NWLR (Pt.816) 230 and Idi v Ya?u (2001)10 NWLR (Pt.722) 640. Learned counsel finally submitted in respect of the 1st count of conspiracy that from the testimonies of PW1, PW2 and PW5 coupled with the unchallenged evidence led by prosecution, admitted during the trial and marked as Exhibit GT1, GT2, Ac1 and Ac2 it became manifest that the Appellant Atin Victor Generous and one Pastor
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Emmanuel Anga did conspire to defraud the nominal complainant?s legitimate earned money as contained on the 1st count of the amended charge.
Conspiracy has been defined under Section 8 of the Advanced Fee Fraud and Other Related Offences Act as follows:
?A Person who ?
(a) Conspires with aids, abets, or counsels any other person to commit an offence, or
(b) Attempts to commit or is an accessory to an act or offence, or
(c) Mates, procures or induces any other person by any means whatsoever to commit an offence, under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.”
Black?s Law Dictionary Tenth Edition also defined conspiracy at page 375 as follows:
?An agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreements objective, and action or conduct that further the agreement, a combination for an unlawful purpose.?
The burden of proving conspiracy is on the prosecution and same must be proved beyond reasonable doubt. See Section 135 of the Evidence Act, 2011
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The offence of conspiracy is complete when two or more persons agree to do an unlawful act or to do a lawful act by unlawful means based on circumstantial evidence. Concluded agreements can be inferred by what each person does or does not do in furtherance of the offences of conspiracy. It is immaterial that the persons had not met each other. The bottom line of the offence is the meeting of the minds of the conspirators to commit offence and the meeting of the minds need not be physical. See Adepobi v state (2011) 12 NWLR (Pt.1261) 347 at 375, Obiakor v State (2002) 10 NWLR (Pt.776) 612, Gbadamosi v State (1991)6 NWLR (Pt.196) 182 at 204, NWosu v State (2004)15 NWLR (pt.397) 466, Oduneye v State (2001)2 NWLR (Pt.697) 311 and Dabon v State (1977) SC 197. The trial Court may also infer conspiracy from a set of facts through which a common purpose is achieved. See Gbadamosi v State (supra), Aje v The State (2006)8 NWLR (Pt.982) 345 at 363 and Adejobi v State (2011)12 NWLR (pt.1261) 347 at 378-379.
It is pertinent at this stage to note the findings of the learned trial Judge appearing at page 295 of the record. He had this to say:
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?The scenario that appeared from the forging (sic) is that the 1st Accused person painted a beautiful picture of Cash-Flow that attracted PW1 to put his money into a business which was apparently lucrative. His informant 1st Accused did not inform him of the real state of the company (Cash-Flow). Had the 1st Accused disclosed the true state of the Cash-Flow PW1 wouldn?t have been attracted to that company or its sister company. I therefore believe PW1? version of the story to that of DW4, because had DW4 told PW1 what he stated in his evidence before this Court, PW1 wouldn?t have placed his money into Cash-Flow. The only reasonable inference that can be drawn from the circumstance of the evidence before me is that the 1st Accused person used the information he gave PW1 on cash-Flow as bait which PW1 swallowed and got caught.
The evidence of DW4 is that it was PW1 that persisted in getting a contract to enable him invest in the Foreign Exchange business, and that he simply asked PW1 to contact the 2nd Accused person since he already had his phone number. He said PW1 contacted the 2nd Accused who confirmed to him that the business is ongoing
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and that PW1 later informed him that he has invested through the 2nd Accused. Although DW4 said he had told PW1 that he had lost money to that investment, I would rather believe PW1 that the picture he painted of Cash-Flow was what attracted him, otherwise PW1 wouldn?t have placed his money in business had his informant told him he had lost money to that company(s). Whether or not it was PW1 that persisted on investing, and whether or not the investment was in Cash-Flow or a sister company (GORA COMMANDING RESOURCES LIMITED) owned by the 3rd Accused, evidence has shown that, it was DW4 (1st Accused) that introduced the 2nd Accused as a Manager of Cash-Flow but also dissuaded PW1 from his planned trip to Kafachan and Abuja together with the 2nd Accused to witness the formally opening of his Account with Cash-Flow. The 1st and 2nd Accused persons convince PW1 that the 2nd Accused was too occupied at Jos as such he could not make the trip to Abuja. The trust and confidence PW1 had in the 1st Accused, entrenched the same trust and confidence in the 2nd Accused. Evidence has disclosed that following that trust they (either the 1st Accused as stated by PW1 or
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the 2nd Accused as claimed by DW4 and DW6) forwarded the personal account details of the 2nd Accused person to PW1 and he finally fell into the trap by paying the sum of N500,000.00 (Five Hundred Thousand Naira) into the 2nd Accused to invest same the following day in Cash-Flow. Exhibits ?A? and ?AC2? are very clear on the payment into the personal account of Mr. Atin Victor Generous; in Access Bank Plc., Account No. 0051584221, Phone No. 08034619476.”
From the facts and circumstances of this case, it is my humble view that the findings of the learned trial Judge cannot be faulted. The evidence adduced by PW1 as disclosed in the printed record of appeal remained unchallenged and credible. The role played by the 1st accused Pastor Emmanuel Anga was sufficient for the Court to infer that there was an element of agreement between the 1st accused and 2nd accused (now Appellant) to defraud the PW1 by inducing him to advance money to the Appellant under the pre that the money would be invested in a foreign exchange business with Cash-Flow Company Ltd or Gora Communications Resource Limited. Appellant admitted receiving the sum
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of N500,000.00 which was paid into his account. It was 1st accused that introduced PW1 to 2nd accused (Appellant). The oral evidence of other prosecution witnesses like PW2 and PW4 and the documentary evidence in AC1, AC2, GT1 and GT2 supported the testimonies of PW1 and PW2 in some material respect towards the inference that there was element of agreement between the 1st accused and Appellant (2nd accused) person to defraud PW1. The learned trial judge rightly stated the position of the law at page 301 of the record wherein he said:
?The evidence of agreement between two or more persons to commit an illegal act is the basic constituent of the offence of conspiracy. There may not be a direct and positive evidence of the agreement between the 1st and 2nd Accused persons and perhaps the 3rd but the conduct of the Accused persons before the investment has disclosed sufficient circumstances to warrant the inference that the 1st and 2nd Accused persons and perhaps the 3rd Accused as well, were acting in unison. Agreements in such circumstances are often shrouded in secrecy and difficult to discern through direct and practical evidence. As such
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inference from surrounding circumstances is inevitable as held in Kaza v. State (2008)7 NWLR (Pt.1085) 125 ratio 7 @ 176.”
Counsel contended that there was no direct evidence led by the Respondent to establish the existence of any form of agreement whatsoever between the Appellant and his co-accused (1st accused) to warrant the conviction for conspiracy. The law is that in a charge of conspiracy, proof of actual agreement is not always easy to come by and thus, most often than not, a trial Court infers conspiracy from established facts before it and convicts on basis of the inference if it is satisfied there from that the actual persons pursued, by their acts, the same object one performing part of the act and the other performing the other part of the same act so as to complete their unlawful design. See Usufu v. State (2007) 3 NWLR (Pt. 1020) 94, Tanko v. State (2008) 16 NWLR (Pt.114) 597 and Yakubu v State (2014) 8 NWLR (Pt. 1408) 111. The lower Court in this case, inferred the agreement forming Kernnel of the offence of conspiracy against both 1st accused and the Appellant (2nd accused) from the proved facts in the oral testimonies
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of the first and 2nd prosecution witnesses and the documentary evidence tendered by the Respondent.
The facts relied upon by the trial Court were consistent and cogent. The learned trial Judge believed the evidence of the prosecution witnesses and disbelieved that of defence witnesses including the accused persons. The learned trial judge properly evaluated the evidence adduced by both parties before arriving at his decision. It is my firm view that prosecution has proved its case beyond reasonable doubt.
I will resolve issue 5 in favour of the Respondent.
In the result, having resolved issues 1, 2 and 5 in favour of the Respondent and against the Appellant I find this Appeal devoid of merit, same is hereby dismissed. The Judgment of Jauro J., of the High Court of Justice Gombe State holden at Gombe, delivered on 11th July, 2016 in charge No GM/283/2015 is hereby affirmed. The conviction and sentence affirmed.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, ADZIRA GANA MSHELIA, PJCA just delivered.
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I agree entirely with the reasoning therein and the conclusion arrived thereat that the Appeal is devoid of any merit and should be dismissed.
I also dismiss the Appeal and also abide by the consequential orders contained in the lead judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother ADZIRA GANA MSHELIA, (PJ) and I am in agreement with his reasoning and conclusion. I also dismiss the appeal and affirm the decision of the High Court of Gombe State.
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Appearances:
Appellant absent (though served)For Appellant(s)
A. Y. Muntaka, Esq.For Respondent(s)
Appearances
Appellant absent (though served)For Appellant
AND
A. Y. Muntaka, Esq.For Respondent