ATTA ADOGA v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12827(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/J/228C/2018
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“Evaluation of evidence is the primary duty of the trial Court to determine the credibility of witness, all relevant matters taken into account. A trial Court having the opportunity of hearing the witnesses, and watching their demeanour in the witness box is entitled to select witnesses to believe or facts it finds proved Kwale Vs. State (2017) 9 NWLR (pt. 1571) 399 at 411. Once there is sufficient evidence on record upon which the trial Court based its findings, the Appeal Court does not interfere with it unless it can be proved to be perverse. See Edoho Vs. State (2010) 14 NWLR (pt. 1214) 651. In the instant case the judgment of the trial Court cannot be faulted to be interfered with. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence Osuagwu Vs. State (2013)1 SCNJ 33 and Egwumi Vs. State (2013) 13 NWLR (pt. 1372) 525 at 556.” PER TANI YUSUF HASSAN, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“Where a Court is satisfied that a confessional statement was made voluntarily and it is clear, positive and unequivocal as to the accused persons participation in a crime, it is sufficient without more to ground a conviction. It is trite that, an accused person can be convicted on his confessional statement if properly proved and circumstances make it probable. In criminal procedure, such confessional statement, like admission in civil procedure is the best and strongest evidence of guilt on the part of an accused person. Indeed stronger than the evidence of eye witness. See Okoh Vs. State (2014) 8 NWLR (pt.1410) 502 at 510-511; Akpa Vs. State(2008) 14 NWLR (pt. 1106)72 and Nwaebonyi Vs. State (1994) 4 NWLR (pt. 343) 138.” PER TANI YUSUF HASSAN, J.C.A.
INTERPRETATION: MEANING OF CONSPIRACY
“Now on conspiracy, conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. In so far as proof goes, conspiracy is generally a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose common in between them. See Dabo Vs. State (1977) 5 SC 197 and F.R.N. Vs. Amah (2017) 3 NWLR (pt. 1551) 139 at 143.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES:
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ATTA ADOGA – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Borno State High Court, Maiduguri delivered on the 15th of January, 2018 by Hon. Justice F. Umaru in charge No. BOHC/MG/CR/90/2017.
The appellant herein and two others namely Prince Philip Power and Christopha Wema were arraigned before the High Court of Borno State sitting at Maiduguri and charged with two counts dated 16th November, 2017 as follows:
COUNT ONE
That you, Prince Philip Power, Atta Adoga and Christopha Wema sometime in July, 2017 at Maiduguri, Borno State within the jurisdiction of this Honourable Court did agree among yourselves to do an illegal act, to wit: conspiracy to obtain money under false pretence from one Ali Musa contrary to and punishable under Sections 8 (a) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
COUNT TWO
That you Prince Philip Power, Atta Adoga and Christopha Wema sometime in July, 2017 at Maiduguri Borno State within the jurisdiction of this Honourable Court and with intent to defraud, induced one Ali Musa to deliver to you the sum of one hundred and fifty thousand naira only (N150,000.00) under the false pretence that the said sum would be utilized to service his interest in a business for the supply of iron scrap, facts you knew to be false and you thereby committed an offence contrary to and punishable under Sections 1(1) (b) and 1 (3) of the Advance Fee Fraud and other Fraud Offences Act, 2006 respectively.
The accused persons pleaded not guilty to the charges against them and the matter proceeded to trial. The prosecution in proof of its case called four witnesses and tendered exhibits. The accused persons testified in their defence and called no other witnesses to testify on their behalf.
Trial commenced, and at the close of trial, the appellant was sentenced to ten (10) years imprisonment for conspiracy and 10 years for obtaining money under false pretence contrary to Section 8(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences, Act, 2006, the sentence to run concurrently. The Court also ordered a payment of N150,000.00 compensation to the PW1 (complainant) or to serve two (2) years imprisonment in default of payment of compensation.
The appellant is dissatisfied with the conviction and sentence and he appealed to this Court. The Amended Notice of Appeal filed on the 18th of October, 2018 was deemed properly filed on the 26th of November, 2018. The Notice of Appeal contained seven grounds of appeal with their particulars and reliefs sought.
In line with the extant Rules and practice of this Court, parties filed and exchanged briefs of argument which they adopted and relied on, as their arguments, when the appeal came up for hearing on the 4th of February, 2019.
The appellants brief was dated and filed on the 7th day of December, 2018. The brief settled by Wilcox Abereton (SAN) has four issues distilled for determination as follows:
i. Whether the Learned Trial Judge was right in all the circumstances of this case in convicting the appellant of the offence of false pretences under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 when the same was not proved beyond reasonable doubt (Grds 1,3,5 &7).
ii. Whether the lower Court was right in holding that the appellant must be convicted because he confessed through Exh. I to the alleged offence in counts 1 and 2 (Grd. 2).
iii. Was the learned trial judge right to convict appellant of the offence of conspiracy under Section 8 (a) of the said Act in all the circumstances of this case (Grd. 4).
iv. Whether the sentence of the learned trial judge whereby the appellant was ordered to pay the sum of N150,000.00 to the PW1 as compensation and in default to spend an additional term of two years in prison is not unwarranted and excessive Grd. 6)
The respondents brief dated 19th day of December, 2018 was filed on the 20th of December, 2018 settled by Khalid Sanusi Esq. In it a lone issue was formulated thus:
Whether or not from the totality of the evidence adduced in the trial Court, the prosecution has proved its case to warrant the said conviction of the Appellant.
It is settled that the Court of Appeal must consider all issues submitted to it, where the Court becomes satisfied that consideration of one or more issues may determine the appeal, it may no longer be necessary to consider all issues Tunbi Vs. Opawole (2000) 1 SC; (2000) 2 NWLR (pt. 644) 275.
Issues 1, 2, and 3 of the appellant relate to conviction. It is unnecessary for the learned Senior Counsel to pluralise his issues for determination. The appellate Court is empowered to reformulate issues for determination in order to accentuate the principal questions that call for the Courts decision. In so doing, it could even adopt a sole issue where it is determinative of the appeal Governor, Ekiti State & Ors. Vs. Olubunmo & Ors. (2017) 3 NWLR (pt. 1551) 1 at 13-14. See also 7-up Bottling Co. Ltd Vs. Abiola and Sons Ltd (2001) 13 NWLR (pt. 730) 469 and Onochie Vs. Odogwu (2006) 6 NWLR (pt. 975) 65.
Since issues 2 and 3 can be subsumed into issue one, I reframe the issues into a sole issue to read thus:
Whether in view of the evidence and circumstances of this case, the trial Court was right in the conviction of the Appellant for the offences of conspiracy and obtaining money by false pretence.
Issue 4 of the appellant is adopted and it will be taken as issue 2 in resolving this appeal. I shall be guided by the two issues.
ISSUE ONE
Whether in view of the evidence and circumstances of this case, the trial Court was right in the conviction of the Appellant for the offences of conspiracy and obtaining money under false pretence.
It is the submission of the learned Senior Counsel for the appellant that the lower Court was wrong to have convicted the appellant for the offence of false pretences under the Advance Fee Fraud. Relying on the case of Chief Olabode George Vs. F.R.N. (2014) 5 NWLR (pt. 1399) 1 at 24 para B, it is submitted that for the prosecution to sustain a conviction of the offence of obtaining money under false pretence, the ingredients of the offence must be proved beyond reasonable doubt irrespective of the words of the statute creating the offence. That the prosecution must establish the particulars of the offence as laid out by it.
It is argued that the prosecution has failed woefully to prove the particulars and the trial Court was in error in convicting the appellant of the offence, as there was no evidence that the appellant acted in the opening of any account with intent to defraud. That he never met PW1, Mr. Ali Musa, the victim of fraud and there was no evidence that the appellant induced PW1 to deliver to him (appellant) the sum of N150,000.00 for the supply of the metal scrap. Also that the evidence adduced did not show that PW1 in fact delivered the said sum of N150,000.00 to the appellant. It is contended that the appellant did not participate in the Fraud or induced PW1 to part with his N150,000.00 for metal scrap.
Referring to FRN Vs. Amah (2017) 3 NWLR (pt. 1551) 139 and Duru Vs. F.R.N. (2018) 12 NWLR (pt. 1632) 20 at Pp. 43-44, it submitted that where the prosecution is alleging, false pretences under Section 1(1) (b) of the Advance Fee Fraud and Other Related Offences Act, several factors must be proved to earn a conviction but the trial Court misdirected itself in the evaluation of evidence in proof of this criteria. He referred to pages 78-79 of the record. It is further submitted that contrary to what PW3 (IPO) said the 1st accused person told him, whose evidence the trial gave more credence than it was entitled to, the 1st accused who testified as DW1 said he did not give the 2nd accused (appellant) the sum of N150,000.00. That the trial Court was wrong in ignoring the evidence of DW1.
Relying on the case of Nwoke Vs. Okere (1994) 5 NWLR (pt. 343) 159 at 175 para C, it is submitted that it is not enough for a trial Judge to say I believe or I do not believe but that the Courts conclusion should come within the evidence on record, in the absence of which the finding must be deemed perverse. Also referred is the case of Uwah Vs. Akpabio (2014) 7 NWLR (pt. 1407) 472 at 488 para G and that the finding of the trial Court is perverse because there is no admissible evidence on record that the appellant knew of the falsity. That the evidence of PW3 which the trial Court believed in, is hearsay.
It is argued on behalf of the appellant that the appellant did not mention the name of Musa Bello in his statement to the police the person in whose name the account was opened at FCMB, and there was therefore no link between the appellant and the account.
With regard to exhibit I the confessional statement of the appellant, it is submitted that exhibit I was not a confession because there was no admission and there was nothing linking the appellant with the crime alleged. That the purported confessional statement falls short of the glory of the requirements of a confession as provided in Section 15 (4) read together with Section 17(2) of the Administration of Criminal Justice Act, 2015. The case of Charles Vs. F.R.N. (2018) 13 NWLR (pt. 1635) 50 was referred to. That failure to comply with Section 15 (4) of the ACJA renders the statement impotent, incompetent and therefore inadmissible. That outside this confession, there is nothing to prove that the allegation is true. Also that an accused who resiled from his confessional statement has the duty to explain to the Court as part of his defence the reason for the inconsistency, to establish that his confessional statement could not be correct Adisa Vs. State (2015) 4 NWLR (pt. 1450) 475 at 510. It was argued that, that was what the appellant did and ought to be commended because the law does not strangulate a party who retracts his earlier statement, like the trial Court did to the appellant. That it is clear exhibit I is wrongly admitted by the lower Court and we are urged to so hold.
On the issue of conspiracy learned Senior Counsel for appellant contended that there was no evidence of any agreement between the three accused persons, the trial Court having acquitted the 3rd accused of the offence. That the evidence relied upon by the trial Court in convicting the appellant of conspiracy is the evidence of the substantive offence as there was no independent evidence of conspiracy adduced before the trial Court.
Relying on the case of Okiemute vs. State (2016) 15 NWLR (pt. 1535) 297 at 324 para F, it is submitted that the trial Court was wrong to convict the appellant of conspiracy while relying on the evidence in proof of the substantive offence. That the offence of conspiracy having not been backed by any evidence it cannot stand. We are urged to resolve the issue in favour of the appellant and against the respondent.
Learned counsel for the respondent submitted that the burden on the prosecution in criminal cases is to prove the guilt of the accused beyond reasonable doubt and that the prosecution in the instant case has established all the ingredients of obtaining money by false pretence against the appellant. The Court was referred to F.R.N. Vs. Usman (2010) ECLR VOL. I pg. 217-218 para H. Also referred is the evidence of PW1 and PW3 which established the commission of the offence by the appellant.
It is argued for the respondent that exhibit I is the confessional statement of the appellant in which he admitted to the commission of the offences. Relying on the case ofIke Vs. State (2010) 5 NWLR (pt. 1186) 41 at 50, it is submitted that the law is settled, an accused person can be convicted on this confessional statement. That Sections 15 and 17 of Administration of Criminal Justice Act referred to by the appellants counsel is not applicable in Borno State and therefore does not arise in this case. That what is applicable in Borno State is the Criminal Procedure Code Cap 42 of 1994.
On the offence of conspiracy, counsel contended that the evidence adduced by the prosecution linked the appellant to the commission of the offence. The Court was referred to Ugwanyi Vs. F.R.N (2010) 14 NWLR 397 at 409 para C-D and 412 para D-E. We are urged to resolve the issue in favour of the respondents.
The appellants Senior Counsel in contending that the trial Court was wrong in convicting the appellant for the offence of false pretence, submitted that the prosecution has failed to establish the ingredients of the offence beyond reasonable doubt.
Learned counsel for the respondent in conceding that the prosecution owe a duty to prove the guilt of an accused beyond reasonable doubt, submitted that the prosecution has established all the ingredients of obtaining money by false pretence against the appellant. We are urged to so hold.
For the prosecution to sustain a conviction the Supreme Court in Alake Vs. State (1991) 7 NWLR (pt. 205) 567 at 591 paras G-H, set out the ingredients to be established by the prosecution in an allegation of obtaining by false pretences thus:
1. There is a pretence;
2. That the pretence emanated from the accused person;
3. That it was false;
4. That the accused person knew of its falsity or did not believe in its truth;
5. That there was an intention to defraud;
6. That the thing is capable of being stolen;
7. That the accused person induced the owner to transfer his whole interest in the property. See also Onwudiwe Vs. F.R.N. (2006) LPELR 2715 SC; (2006) 10 NWLR (pt.989) 382 at 431; Ikpa Vs. State (2017) LPELR 42590 (SC) and Smart Vs. State (1974) LPELR 3076 (SC).
Having considered the evidence led at the trial Court on record against the appellant and the ingredients of obtaining by false pretence, I have nothing to fault the decision of the trial Court in its judgment.
The Supreme Court in Agwuna Vs. A-G of the Federation (1995) 5 NWLR (pt. 396) 418 held that the law is settled that all persons who are participes Crriminis, whether as principal in the first degree or as accessories before or after the act to a crime, are guilty of the offence and may be charged and convicted with the actual commission of the offence. Parties i.e participes Criminis, to a crime include inter alia, every person who actually does the act, or makes the commission which constitutes the offence or who counsels or procures others to commit the offence or knowingly gives succor or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence.
The appellants Senior Counsel in their brief disagreed with the learned trial Judge contending that his lordship erred in the manner of evaluation of the evidence of the witnesses. He argued that the trial judge relied on the evidence of PW3 and confessional statement of the appellant which he resiled when he testified in his defence and without considering the evidence of DW1 who said he did not give the N150,000.00 to the appellant. That the trial judge relied on the confessional statement of appellant exhibit I which is disfavourable to the appellant due to his state of mind at the time he wrote the statement i.e that he is a hepatitis patient on drugs and thinking of his fathers burial that was coming up.
The appellant in his additional statement exhibit B7 at page 12 of the record, and in his evidence before the Court at page 65 of the record is a retraction of what he wrote in his first statement to the police exhibit I
The history of this case is that PW1, Ali Musa, a metal scrap dealer received a phone call from one Musa that there was a scrap worth N150,000.00k each and that there are seventy pieces of the said scrap. When he requested for a sample, he was asked to deposit the said sum of N150,000.00k into a First City Monumemt Bank account sent to him through his cellular phone and the complainant Ali Musa in turn sent the amount into the said account. He sent the payment details twice before it was acknowledged. Ali Musa called and requested for sample but was asked to pay another N2,000,000.00 (two million naira) to which he replied he had no money. Thereafter his calls were not picked. He went to First City Monumemt Bank and lodged a complaint but was directed to the Economic and Financial Crime Commission where he lodged a complaint. The phone used for the interaction was tendered and admitted in evidence as exhibit A.
PW2, Musa Ahmed Biu, a staff of First City Monument Bank Maiduguri testified to the effect that the Bank received a letter from EFCC sometime in the year 2017 requesting for the details of the account in question. The account was discovered to be opened at the Jos Branch of the Bank. It was scanned and sent with the letter from EFCC to the Jos Branch and details of the account was furnished and all the documents were opened in the name of Musa Bello.
PW3 is a staff of EFCC attached to Maiduguri Zonal office. His evidence is that upon receipt of the complaint from Ali Musa, he led a team to First City Monument Bank Jos where one Mr. Fashola Samuel the account officer of Musa Bello took them to Kupang Village to scout for Musa Bello. A lady identified Musa Bellos picture and took them to him. The said Bello said his name is not Musa Bello but Victor Agbo popularly known as Alaye. Victor Agbo was taken to zone C police station and was shown the petition which was read to him. He made a statement under words of caution indicating that the account was opened by Prince Philip Power (1st accused) wherein he used the name Musa Bello, in opening the account and using the passport. Photograph of the said Victor Agbo as the purported Musa Bello.
PW4 is Victor Agbo who corroborated the evidence of PW3 when he testified that the account in the name of Musa Bello was opened by Prince Philip Power using his photograph as the said Musa Bello.
The appellant in his statement exhibit I stated thus; at pages 1 and 2 of the statement Mr. Christopher Wema (3rd accused) called me and asked me that he has a business transaction if I have account with FCMB, I told him I don’t have but will ask for him because the reason is that his client only has FCMB in his locality and I called one Mr. Prince (1st accused) who is used to buy honey from if he has FCMB account and he said yes and he text it to me so I forward to him Christopher Wema. So Prince called me that he has seen the sum of N150, 000.00 so I went there met with him we drove together with Prince and gave him the money.
At page 2 it is stated thus:
There is never an agreement between me and Prince of any 30% or 70%. I gave Wema N150,000.00 and he in turn appreciate Prince by given him 30,000 naira only. I was not given penny out of the N150,000.00.
The prosecution witnesses led evidence to show that money the sum N150, 000.00 was obtained by false pretence. The denial of the appellant that he did not receive any penny out of the N150, 000.00 and did not take participation in the opening of the account with FCMB is of no moment, having assisted in the commission of the offence. His confessional statement reproduced above has pinned him to the crime. The issue is not as the opening of an account. The fact remains that the appellant assisted in providing the FCMB account in which the money for the fraudulent act was deposited. The appellant is economical with the truth when he said, the 1st accused upon receipt of the money handed same to the 3rd accused, whereas the 3rd accused denied asking the appellant to assist him with FCMB account and denied receiving any money. The 1st accused also denied having any transaction with the 3rd accused. It is therefore immaterial whether the appellant was given anything or not from the N150,000.00k. The truth is that he is aware of the fraudulent act. His denial is nothing but an afterthought, as he could not have assisted in getting the FCMB account without knowing the purpose of which it is to be used.
Where a Court is satisfied that a confessional statement was made voluntarily and it is clear, positive and unequivocal as to the accused persons participation in a crime, it is sufficient without more to ground a conviction. It is trite that, an accused person can be convicted on his confessional statement if properly proved and circumstances make it probable. In criminal procedure, such confessional statement, like admission in civil procedure is the best and strongest evidence of guilt on the part of an accused person. Indeed stronger than the evidence of eye witness. See Okoh Vs. State (2014) 8 NWLR (pt.1410) 502 at 510-511; Akpa Vs. State(2008) 14 NWLR (pt. 1106)72 and Nwaebonyi Vs. State (1994) 4 NWLR (pt. 343) 138.
In the instant case, beyond the confessional statement of the appellant, the evidence of the prosecution witnesses offered the desired corroboration in view of the appellants futile effort to retract his statement. See Ajayi Vs. State (2014) 14 NWLR (pt. 1426) 1 Section 27 (i) of the Evidence Act 2011 states:
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
The appellants Senior Counsel contended that the appellant having retracted from his confessional statement the trial Court ought not to have relied on it to convict him. It is trite that the mere fact of retracting a confessional statement is not a reason for not acting thereon. See Ajayi Vs. State (2014) (supra). I am therefore unable to agree with the learned Senior Counsel that the appellants conviction on his confessional statement by the trial is wrong.
Having considered the evidence of the prosecution witnesses, the misrepresentation by the appellant and his cohort, the non- existence of metal scrap but which was presented to exist, the existence of the said scrap certainly operated in the mind of PW1 which made him to part with his money in furtherance thereof. I agree that the operative false representation was the scrap which did not exist to the knowledge of the appellant and his cohort.
Now on conspiracy, conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. In so far as proof goes, conspiracy is generally a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose common in between them. See Dabo Vs. State (1977) 5 SC 197 and F.R.N. Vs. Amah (2017) 3 NWLR (pt. 1551) 139 at 143. In the instant case, the appellant by his own showing in exhibit I has agreed to assist the 1st accused with an First City Monument Bank account, and which he did and which account was used in defrauding PW1. Even though the appellant in his confessional statement exhibit I implicated the 3rd accused but as rightly found by the trial Court there was no evidence of the commission of crime made against him, hence his discharge. The fact that the FCMB account was opened in the name of Musa Bello by the 1st accused and the appellant being referred to as Mustapha by the 1st accused only goes to show their common intention in the commission of crime.
The trial Court was therefore in order to find the appellant guilty of conspiracy because what was ascertained is that the act of the appellant was done in pursuance of a criminal purpose held in common with his co-hort, the 1st accused. Issue one is resolved in favour of the respondent against the appellant.
ISSUE TWO
Whether the sentence of the trial Judge whereby the appellant was ordered to pay the sum of N150, 000.00 to the PW1 as compensation and in default to spend an additional term of two years in prison is not unwarranted and excessive.
The learned Senior Counsels argument on this issue is that the sentence of ten years imprisonment and further terms of two years imprisonment if appellant defaults to pay N150,000.00 to PW1 is unreasonable unwarranted and excessive. That by Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act, 2006, a person who commits an offence under subsection of this section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of fine. It is submitted that the appellant being a first offender, the trial Court was wrong to sentence him to ten years imprisonment which is not the minimum sentence the trial Court could give under the section.
Referring to the evidence of DW1 the 1st accused who admitted under cross examination that he did not give the sum of N150,000.00 or any money to the appellant, counsel argued that it is difficult to understand why the trial Court believed the evidence of DW3, the 3rd accused when he said he did not ask the appellant of FCMB account and he was not paid any money. It is the submission of the learned Senior Counsel that the trial Court was inconsistent when it ordered the forfeiture of the FCMB account with which the fraud was committed on the one hand, and for the appellant to pay a part or the whole of N150,000.00 after his compatriot Christopher Wema was discharged and acquitted. That there is no legal basis for the harsh sentence, the double portion afflicted the appellant by the trial Court. We are urged to quash the sentence.
For his part, learned counsel for the respondent submitted that the trial Court was right to order the appellant to pay the sum of N150,000.00 to PW1 as compensation and in default to serve additional term of 2 years imprisonment. That the procedural law of criminal trial in Borno State which is the Criminal Procedure Code allows the Court to order a convict to pay compensation. He referred to Section 365 of the Criminal Procedure Code Laws of Borno State Cap 42 of 1994. That it is the discretion of the Court to award compensation and impose sentence. We are urged to resolve in favour of the respondent.
The contention of the appellants counsel is that since DW1 (1st accused admitted that he did not give the appellant whom he calls Mustapha any money, it is difficult to understand why the trial Court had to believe the evidence of DW3 (3rd accused).
The appellant in his confessional statement stated that it was the 3rd accused who asked him if he operates an account with FCMB and to which he, the appellant answered in the negative but promised to assist him to get somebody with an account in FCMB to which he said he asked the 1st accused who answered in the affirmative. The evidence of DW3 on record is that he did not ask the appellant to get him anybody with FCMB account and he did not receive any money. The evidence of DW3 (3rd accused) was corroborated by the evidence of DW1 (1st accused) when he said he never had any business with the DW3 (3rd accused). It follows therefore that the appellant was not truthful when he said it was the 3rd accused, Christopher Wema that requested for FCMB account, to which he got him the account of the 1st accused opened in the name of Musa Bello. That is why the trial Court did not have any difficulty when it held, at page 82 of the record thus:
It is crystal clear that there is conflict between the additional statement of the 2nd accused (appellant) and his oral testimony in Court. I hold that the additional statement and the oral testimony of the 2nd accused person are sham and an afterthought. I have watched the 2nd accused (appellant) testify in Court and I have watched his demeanour. He is not a witness of truth.
Evaluation of evidence is the primary duty of the trial Court to determine the credibility of witness, all relevant matters taken into account. A trial Court having the opportunity of hearing the witnesses, and watching their demeanour in the witness box is entitled to select witnesses to believe or facts it finds proved Kwale Vs. State (2017) 9 NWLR (pt. 1571) 399 at 411. Once there is sufficient evidence on record upon which the trial Court based its findings, the Appeal Court does not interfere with it unless it can be proved to be perverse. See Edoho Vs. State (2010) 14 NWLR (pt. 1214) 651. In the instant case the judgment of the trial Court cannot be faulted to be interfered with.
Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence Osuagwu Vs. State (2013)1 SCNJ 33 and Egwumi Vs. State (2013) 13 NWLR (pt. 1372) 525 at 556.
In the instant case, I am satisfied with the evidence tendered by the prosecution with regard to the conviction of the appellant.
With regard to the issue of sentence, Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 reads:
A person who commits an offence under Section (1) or (2) of this section is liable on conviction to imprisonment for a term of not more than twenty years and not less than seven years without the option of fine.
Section 8 (a) of the Act provides:
A person who conspires with, aids, abets or counsels any other person to commit an offence under this Act, commits offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.
The sentence of ten years imprisonment imposed on the appellant by the trial is, by law in force, is appropriate and not excessive as argued by the learned Senior Counsel for the appellant. Section 1 (3) of the Advance Fee Fraud and other Related Offences Act, 2006 under which the appellant was charged, tried and convicted and sentenced imposes a maximum of not more than 20 years and a minimum of not less than seven years. Since the trial Court did not go outside the correct principles this Court cannot interfere in the award of sentence. It is at the discretion of the Court to award the minimum of not less than seven years or maximum of not more than twenty years. On the additional two years imprisonment in default of payment of compensation in the sum of N150, 000.00, that also is at the discretion of the trial judge. The option is open for the appellant to either pay the compensation or serve another two years in addition to the ten years imprisonment. This Court will not interfere with the exercise of discretion of the trial Court when it is made based on the principle of law.
Issue 2 is resolved in favour of the respondent and against the appellant. The result is that the appeal lacks merit and it is dismissed. Judgment of the trial Court in charge No. BOHC/MG/CR/90/2017 is affirmed.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Tani Yusuf Hassan, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusion reached therein.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the draft of the judgment just delivered by my learned brother, TANI YUSUF HASSAN, JCA. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add.
Hence I also conclude that the Appeal lacks merit and I dismiss it.
I abide by the consequential orders therein.
Appearances:
Wilcox Aberton, SAN with him, Manasseh Mikak For Appellant(s)
Khalid Sanusi For Respondent(s)
