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BABALOLA v. STATE (2020)

BABALOLA v. STATE

(2020)LCN/14344(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/IB/407C/18

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

SOLA BABALOLA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE CRIMINAL OFFENCE OF OBTAINING PROPERTY BY FALSE PRETENCE

Section 419 of the Criminal Law, Laws of Ogun State:- Obtaining property by false pretence, etc.
(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
(A) obtains  from
As can be seen, these provisions provide for, and punish the offence of obtaining by false pretence by a person, and with intent to defraud, any property from any other person in Nigeria or any other country for himself or any other person.
Section 20 of the Fraud Act defines pretence as follows:-
False pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, or 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.
In Uzoka v FRN (2010) 2 NWLR (1177)118, this Court referred to the definition of false pretence in 7th Edition of Black’s Law Dictionary, as follows:-
The crime of knowingly obtaining title to another’s personal property by misrepresenting a fact with intent to defraud. See also Onwudiwe v FRN (2006) ALL FWLR (319) 774. PER AKINBAMI, J.C.A.

ESSENTIAL INGREDIENTS WHICH CONSTITUTE THE OFFENCE OF OBTAINING BY FALSE PRETENCES
In the case of Alake v State the Court per Tobi, JCA, set out the essential elements or ingredients which constitute the offence of obtaining by false pretences under the provisions of the Criminal Code, as follows:-
1. That there was 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;
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. PER AKINBAMI, J.C.A.

DEFINITION OF THE OFFENCE OF CONSPIRACY

The Supreme Court, in the case of ACN v INEC (2013) 13 NWLR (1370)161 @ 185 defined conspiracy as follows:-
“Conspiracy is an agreement by two or more persons to do, or cause to be done, an illegal act or a legal act, by illegal means.” See Ikemson v.State (1989) 3 NWLR (110) 455; Osondu v State (2000) 12 NWLR (682) 483; Aje v State (2006) 8 NWLR (982) 345; Shurumo v State (2010) 19 NWLR (1226) 73; Abondejo v FRN (2013) 7 NWLR (1353) 285; Ogogovie v State (2016)12 NWLR(1527)468. In the case of Ikemson v State (1989) (supra) Karibi-Whyte, JSC said that:-
“An offence of conspiracy can be committed where persons have acted either by agreement or in concert, bare agreement to commit an offence is sufficient. The actual commission of the offence is not necessary.”
The ingredients of the offence of conspiracy were set out in the case of Akinkunmi v State (1987) 7NWLR (52) 606 as follows:-
1. There must be two(2) or more persons;
2. They must form a common intention;
3. The common intention must be towards prosecuting an unlawful purpose;
4. An offence must be committed in the process; and
5. The offence must be such a nature that its commission was a probable consequence.
See also Sodiya v State (2009) LPELR-4430 (CA); Aituma v State (2006) 10 NWLR (989)452.  PER AKINBAMI, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL OFFENCES

The law in Section 135(1) and(2) of the Evidence Act, 2011 places the burden of proof of the offences with which the Appellant was charged before the lower Court, beyond reasonable doubt, on the Respondent throughout the trial on the basis of the Constitutional presumption of innocence guaranteed in his favour. See Onye Chimba v State (1998) 8 NWLR (563); Igbi v State (2000) 3 NWLR (648) 169; Ani v State (2003) 11 NWLR (830)142; Igabele v State (2006)6 NWLR (975)100.

The law is also settled that the burden of proof beyond reasonable doubt placed on the Respondent does not mean beyond any or every shadow of doubt, but that all the essential ingredients or elements which constitute offences with which he was charged, must be established, or proved by sufficient and credible evidence which is so cogent and strong against the Appellant, such that there would not be even the remotest probable doubt, that he in fact committed the offences he was charged with. In the case of Dibie v State (2007) 3 SC (PT1)176, Tobi JSC, stated the law that:- “Proof beyond doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused person, the Court is entitled to convict him. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mensrea and actusreusor, both the prosecution has discharged the burden placed on it.”
See also Yongo v COP (1992) 4 SCNJ 113; Akalezi v State (1993) 2 SCNJ 19 (1993) 2 NWLR (273) 1; Abadom v State (1997) 1NWLR(479) 1; Akinyemi NWLR (607) 463; Uwagboe v State (2007) 6 NWLR (1031) 606; Uluebeka v State (2011) 4 NWLR (1237) 358; Nwaturuocha v State (2011) LPELR-8119(SC); Abo v State(2011) LPELR-4799(CA).
Proof beyond reasonable doubt can be achieved and the guilt of an accused proved in any one or more of the following ways:-
By confession freely and voluntarily made by the accused person which meets the requirements of the law;
By cogent, credible and compelling evidence of eye witnesses to the commission of the offence; or
By circumstantial evidence which satisfies, the requirements of the law and irresistibly points and fixes the accused and no other as the person who committed the offence.
SeeIgabele v State (supra); Nwaeze v State (1996) 2 NWLR (428)1; Akinmoju v State(2000)4 SC(PT1)64; Durwode v State (2000) 12 SC (PT1)1; Uwani v State (2003) 18 NWLR(851)22; Emeka v State (2001) 6 SCNJ, 259; Joshua v State (2010)1 WRN 41. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Ogun State delivered by Olopade J., Chief Judge on the 4th day of July, 2018; wherein the Appellant was found guilty of the offence of conspiracy to Defraud and Obtaining goods under False Pretences under Sections 422 and 419 of the Criminal. Code Law, Laws of Ogun State, 2006 respectively. Appellant was then convicted and sentenced to seven years imprisonment on each of the two counts, but the sentence were to run concurrently. The facts are briefly that the Appellant was alleged to have conspired with two others to defraud one Mr. Francis Adeyemi and his wife, Mrs. Oluwatoyin Adeyemi of the sum of N14,700,000.00 on or about 3rd day of September, 2014 at a shrine at Omu-Sorin village, Mowe area in the Abeokuta Judicial Division. Appellant was then arrested, arraigned, tried, convicted and sentenced to seven years imprisonment on each of the two counts but all sentences to run concurrently. The three parties in this appeal gave their own version of what constitutes the facts of the case at the trial the prosecution called five witnesses and

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tendered Exhibit A Punch Newspaper dated the 10th day of September, 2014, Exhibit B Statement of Sheu Salami, Exhibit C Statement of Sola Babalola and Exhibit D Statement of Risikat Oriyomi. PW1 and PW2 are the victims of the alleged offence, while PW3, PW4 and PW5 are investigating Police officers. It is proper for this Court to reproduce the charge against the Appellant and proceed to consider the grievance of the Appellant against the decision of the lower Court.
The two-count charge against the Appellant read as follows:
COUNT I
STATEMENT OF OFFENCE
Conspiracy to Defraud, Contrary to Section 422 of the Criminal Code Law, Laws of Ogun State of Nigeria, 2006.
PARTICULARS OF OFFENCE
That you SHEU SALAMU(M), RISIKATU ORIYOMI(F) SOLA BABALOLA (F) and others at large on or about the 3rd day of September, 2014 at Omu-Sorin village, Mowe area in the Abeokuta Judicial Division conspired together to commit a felony to wit; fraud.
COUNT II
STATEMENT OF OFFENCE
OBTAINING GOODS UNDER FALSE PRETENCE, Contrary to Section 419 of the Criminal Code Law, Laws of Ogun State, 2006.
PARTICULARS OF OFFENCE
That you SHEU

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SALAMU(M), RISKATU ORIYOMI(F),SOLA BABALOLA(F) and others at large on or about the 3rd day of September, 2014 at a shrine at Omu- Sorin village, Mowe area in the Abeokuta Judicial Division fraudulently obtained the sum of N14,500,000:00 from Mr. Francis Adeyemi.

The Assistant Director Public Prosecutions J. O. Mafe for the Attorney-General Ogun State, filed the charge against the Appellant at the lower Court. Upon reading the charge to the defendant, she pleaded not guilty and trial commenced; the Prosecution called five witnesses and tendered Exhibits A-D. The Appellant also testified at the trial. At the conclusion of trial Appellant was found guilty and sentenced to seven years imprisonment on each of the two counts. The sentences to run concurrently. Appellant being dissatisfied with the decision of the lower Court, therefore filed Notice of Appeal on the 1st day of August 2018, which was amended by order of Court on the 9/11/18 containing six grounds of appeal.

The Appellant through learned counsel Oluwatosin Ajose Popoola filed Appellant’s brief of argument on the 9th day of November, 2018, and nominated two issues for determination,

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Appellant canvassed argument on the two issues and filed reply brief.

The reply brief is a repeat of the Appellant’s argument in his brief of argument. It is therefore needless to consider it as the essence of a reply brief is to give the appellant an opportunity to react to new issues in the Respondent’s brief of argument.
Appellant’s two issues for determination are reproduced as follows:
1. Whether the refusal of the Respondent to give the Appellant Exhibit A, in line with Section 36 (6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) before tendering it and admission of same by the trial Court despite objection does not amount to violation of the Appellant’s right to fair hearing.
2. Whether considering the patent and material contradiction in the Respondent’s case, the trial Court was right to convict and sentence the Appellant.

The learned Assistant Director of Public Prosecutions, Ogun State Ministry of Justice, filed the Respondent’s brief of argument on the 28th day of May, 2019, the brief was deemed as properly filed and served on the 28th day of April, 2020. The Respondent also formulated

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two issues for determination as follows:
1. Whether the prosecution proved the offenses of conspiracy to defraud and obtaining goods by False Pretence against the Appellant beyond reasonable doubt.
2. Whether the failure of the Prosecution to serve a copy of Exhibit A on the Defendant occasioned a breach of fair hearing.

I think that, in the determination of this appeal, the issues nominated by the Appellant shall form the core of discourse, therefore l also adopt them as the issues to resolve in this appeal. I will take the argument of counsel on the issues one after the other, and after taking the submissions of counsel on the entire issues submitted for determination, I will then proceed to resolve the issues in the final determination of the appeal.

Submitting on issue number one, learned Counsel for the Appellant said the learned trial Judge admitted Exhibit A, which is the Punch Newspaper of the 10th day of September, 2014 in contravention of Section 36 (6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The contravention he demonstrated with the aid of evidence on record i.e that the Respondent during

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trial at the lower court tendered Exhibit A, in evidence .The admissibility of the document was objected to on the ground that, the Respondent did not avail the Appellant copy of the said document. The learned trial judge despite the objection of the Appellant, admitted Exhibit A in evidence. The proceeding of the trial Court containing the Appellant’s objection and Respondent’s response is at page 75 lines 4-10 of the record of appeal thus:
“Mr. Owosho objects: It is not part of the Proof of Evidence. It was never mentioned in the Evidence.
In criminal matters surprises are not allowed. Prosecution is bound to give to Defendant before trial every piece of evidence they intend to rely upon. This is springing of surprise, urges Court to reject same. Mr. Mafe: Prosecution has given a hint that witness will give details of further investigation carried out by him. Witness had laid foundation of how he came about this Newspaper. He saw in the Newspaper he bought and kept it inside the Police case file.
The relevance of this Document is what the Court should consider, prays court to dismiss objection.”

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Overruling Appellants’ objection on the inadmissibility of Exhibit A, the learned trial judge held at page 75 lines 15-22 of the record of appeal thus:
“The prosecution has indeed filed and served Proof of Evidence to be given at trial. There is a clear indication therein that details of further investigation would be given at trial. This witness is in the box testifying as to what he did as one of the investigating officers in this case.
I believe this piece of evidence is relevant and l will admit same. Objection is overruled.
The Punch Newspaper of September 10, 2014 particularly page 4 and 5 is admitted as Exhibit A.”

The basis of the trial Court’s admission of Exhibit A, is apparent from the Record of Appeal. The learned trial judge admitted Exhibit A, in evidence on the ground that same is relevant and that the Respondent had given the Appellant notice vide the Proof of Evidence, that details of further investigation carried out will be supplied during trial. Appellant contended that this cannot be the intendment of the draftsmen of Section 36(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria.

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Learned counsel for the Appellant said that the Supreme Court has reiterated the importance of attaching proof of evidence to an information upon which an accused person is to be tried as a matter of law. Proof of evidence must be attached to application for consent to prefer information. In support of the above contention counsel cited the case of Abacha v State (2002)11 NWLR (PT. 779) 437 at 469, and Section 72, 77 and 340 of Ogun State Criminal Procedure Law, 2006.

It was reiterated by learned counsel that Sections 36(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) no doubt donates in favour of the Appellant right to copies of documentary evidence, the Respondent intends to use against the Appellant, before the trial. The essence of the service of proof of evidence. Learned counsel contended that in this appeal, the Respondent did not avail the Appellant a copy of Exhibit A, infact Exhibit A came to the knowledge of the Appellant for the first time at the point of tendering same on the 3rd day of September, 2017. Appellant was arrested on 8th day of September, 2014 as is recorded in the record of appeal. Whilst Exhibit A, was

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taken on the 9th day of September, 2014 and published on the 10th day of September, 2014. The Respondent’s Application for consent to prefer a Criminal Charge against the Appellant, and her case mate at the trial Court was filed on the 20th day of October, 2016. The Chief Judge of Ogun State gave the Respondent consent to prefer the Criminal Charge against the Appellant and her case mates at the trial Court on the 23rd day of November, 2016. The Charge Sheet upon which the Appellant was prosecuted at the trial was filed on the 24th day of January, 2017. Learned counsel made the point that the Respondent, applied for Consent to prefer a Charge against the Appellant Exhibit A, was already in existence, needless to say that as at the point the Consent was granted, and the Charge was preferred the Respondent was in custody of Exhibit A and D, being documents that came into existence on the 10th and 8th of September, 2016 respectively. The Respondent elected to serve Exhibit D on the Appellant and indeed served same but deliberately withheld Exhibit A, contrary to the provision of Section 36(6)(b) of the 1999 Constitution. That there is no excuse in the

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record of appeal for not serving the Appellant with Exhibit A, prior to the point at which same was sought to be tendered. The refusal is a violation of the Appellant’s right to fair hearing.

Learned counsel is not ignorant of the law that relevancy determines admissibility. That for a document to be admissible in a civil suit where proof is on the preponderance of evidence, it must first of all be pleaded. A document not pleaded cannot pass the admissibility test relevancy notwithstanding. He cited the cases of Ogu v M.T & M.C.S. LTD (2011) 8 NWLR (PT. 1249) 345; Okonji v Njokanma (1999) 12 SCNJ 259; Olowoyo v State (2012) 17 NWLR (PT1329) 346 at 371.

On constitutionality of proof of evidence, counsel cited the case of Ogunsanya v State (2011) 12 NWLR (PT. 1261) 401 at 416-417.

Learned counsel further submitted that the proceedings of 3rd Oct., 2017 and the admissibility of Exhibit A, runs contrary to the provisions of Section 36 of the 1999 Constitution, therefore violates the Appellant’s right to fair hearing, he cited the cases of Ibrahim v Lawal (2015) 17 NWLR (PT. 1489) 490 @ 525-526 PARA G-B; Ifezue v Mbadugha & Anor (1984) NSCC

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315 @ 316 lines 6-20, Onochie v Odogwu (2006) 6 NWLR (PT 975) 65; Okegbu V The State (1979)11SC1; Amanchukwu v F. R.N(2009) All FWLR (PT. 465) 1672 at 1679; Ogunsanya v State (supra) 401 at 436; Inakoju v Adeleke (2007) 4 NWLR (PT. 1025) 423; Akinfe v The State(1988) 3 NWLR(PT. 85) 729.

Learned counsel urged this Court to find merit in his submissions and resolve issue in favour of the Appellant.

On issue number two, which is whether considering the patent and material contradiction in the Respondent’s case, the trial Court was right to convict and sentence the Appellant. Submitting on this issue, Learned Counsel for the Appellant said, the law is settled that an offence is said to have been proved beyond reasonable doubt , if only all the elements of the offence are established. He posited that if any element that must be proved is not proved, the offence cannot be said to have been proved beyond reasonable doubt by the prosecution, the consequence of which is an acquittal. He cited the cases of State v Ajayi (2016) 14 NWLR (PT. 1532) 196 @233 paras D-E; Alabi v State (1993) 7 NWLR (PT 307) 511 at 523 ; Ozaki v State (1990) 1 NWLR (PT. 124) 92 at 115;

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Buba v State (1992) 1 NWLR (PT. 215) 1 at 10; Okechukwu v State (1993) 9 NWLR (PT. 315)78 at 93.

Learned counsel submitting further contended that the Appellant’s conviction and sentence cannot stand in law, on the apparent contradictions in the evidence of the Respondent. To buttress his argument counsel relied on the evidence in chief of PW1, PW2,PW3,PW4, PW5, Exhibit A, and C. It was noted by counsel, that Appellant herein is the 4th Accused person on the charge sheet before it was amended. PW1 and PW2, gave evidence before the information sheet was amended on 3rd October, 2017. Consequent upon the amendment of the information, the Appellant herein who was originally the 4th accused in the old charge became the 3rd accused person in the amended information dated 2nd, June, 2017, after the testimony of PW1 and PW2. The Appellant was the 4th accused person, before the amendment, and 3rd accused after the amendment. That PW1 and PW2, in their testimonies were certain that the Appellant was not one of those that defrauded them to the tune of N14.5million and that she did not conspire with Baba Omu’s gang to defraud them. Learned counsel surmised

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that from the above, the respondent placed two versions of story before the trial Court. In one breadth, the Appellant is a member of the gang, that defrauded the Appellants and in another breadth she is not a member of the gang. He cited the cases of Shande v State (2005)12 NWLR (PT. 939) 321 paras B-D; Gabriel v State (1989) 5 NWLR (PT. 122) 457 at 468-469; Alake v State (1991) NWLR (PT 205) 567.

Learned counsel contended that in view of the contradictions in the testimonies of PW1 and PW2, the Respondent failed to prove that:
1. There was a pretense from the Appellant as she was neither the person who made representation to PW2 to pay N14,500,000.00, nor a member of the gang.
2. If the Appellant is not a member of the gang that made representation to the PW1 and PW2, then she could not know whether the representation made was false or not and if the representation was with intention to defraud or not.
3. The Appellant who is not a member of the gang could not have induced PW1 and PW2 to pay the sum of N14,500,000.00.

It was reiterated by learned counsel that the contradictory piece of evidence from the respondent, that the Appellant

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is not a member of the gang that defrauded him creates serious doubt to the Respondent’s case. He contended that on the contrary PW1 and PW2’s testimonies above exonerated the Appellant. He emphasized that the contradiction in the Respondent’s case is substantial, therefore this Court should allow this appeal. He relied on the cases of Njovens & Ors v The State (1973) 8 N.S.C.C 257 at 279; Kachi v State (2015) 9 NWLR (PT. 1464) 213; R v Onubogu (1974) 9 SC 1 page 13-14.

Finally learned counsel urged this Court to allow the appeal.

Learned Counsel for the Respondent reacted to Appellants issue one contending that the prosecution in a criminal trial is required to prove his case against the Appellant beyond reasonable doubt. He cited the case of Abirifon v The State (2013) 9 SCM 1 at 5. He gave the Black’s Law Dictionary, 7th Edition definition of conspiracy “as an agreement between two or more persons or parties to commit an unlawful act, a combination for unlawful purpose.”

Learned counsel contended that the offence of conspiracy is complete, when two or more persons agree to do an unlawful act or do a lawful

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act by an unlawful means. He cited the case of Osetola & Anor v The State (2012) 13 SCM (PT. 2347) 371. On the nature of the offence of conspiracy, learned counsel cited the case of Upahar v The State (2003) 6 NWLR page 230 @ 239. See also cited case of Obiakor v State (2002) 100 LRCN 1716 at 1719. On proof of Conspiracy, certain criminal acts of the accused persons done in pursuance of an apparent criminal purpose in common between them. He relied on the case of Yakubu v The State (2011) LPELR-19749 (CA) 16-17; Ibrahim v The State (1995) 3 NWLR (PT. 381) 44. In his further submissions, counsel contended that it is generally a matter of plausible inference deduced from the actions of each of the parties. He referred to the testimonies of PW1 and PW2 as well as Exhibits B-D, which are the confessional statements of the defendants. That it is apparent that each of the persons charged before the trial Court had different roles to play which in the end resulted into a carefully choreographed intent and purpose. He again referred to the testimony of PW2, wherein he testified that the police entered, and searched the house and found the two white witches covered

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with white clothing. The Police asked the witches who they were and unveiled the two of them, who turned out to be the Appellant and the 3rd Defendant. See pages 42 to 46 of the record of appeal. Learned counsel further reiterated that the above testimony of PW2 was corroborated by PW1. In that both testimonies of both PW1 and PW2 point to the fact that, the Appellant and co -defendants were arrested at the scene of the crime, where they all were waiting expectantly for PW1 and PW2 to bring the sum of N1Mmillion Naira in furtherance of the offence they were charged with for which they were consequently convicted.

Learned counsel contended further that the testimonies of PW3 and PW4, further strengthened and reiterated the testimonies of PW1 and PW2. That PW3, further stated that when he asked the Appellant and the other defendant why they covered their faces, they answered “that was their role. They were Heavenly witches.”

It was summed up by learned counsel that the totality of the evidence adduced by the prosecution witnesses, which have been highlighted in paragraphs 4.06-4.07 of the Respondent’s Brief has shown that all the

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Defendants including the appellant were all arrested, at the crime scene, and this points unequivocally to the common purpose amongst the Appellant and the other Defendants to the commission of the crime. He surmised that the prosecution witnesses gave evidence that satisfies the burden of proof placed on the prosecution and the learned trial judge was right to have so held. The evidence of PW1, and PW2, established beyond reasonable doubt, that they were defrauded and that the Appellant as well as the co-defendants together with some others still at large contributed by acting in separate roles to defraud them. Furthermore, the oral testimonies of PW1 and PW2 were placed on strong footing by Exhibit B, C, and D containing, the statements of the Appellant and other defendants. Learned counsel referred to page 32 of the record where the Appellant in her statement pointing to her commission of the offence alongside the other Defendants can be gleaned. Appellant not only mentioned that she is a fraudster but also that she was arrested at the crime scene and also made mention of the fact that the other two defendants were arrested at the crime scene with

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her. He again commended the case of Obiakor v State (supra) which posits that the actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act has in fact been committed. But that in this instant appeal, the Respondent has been able to establish not just that there was an agreement but that the said agreement led to the doing of an act which makes up the offence committed by the Appellant and the other two Defendants.

Consequent upon the above exposition, learned counsel urged this Court not to disturb, the finding of the trial Court on the issue of conspiracy, and to further affirm that the Prosecution has proved the offence of conspiracy against the Appellant beyond reasonable doubt.

The second leg of issue 1 – offence of obtaining goods by false pretence and whether the prosecution proved its case beyond reasonable doubt. Learned counsel referred to the case of Mukoro v FRN (2015) LPELR- 24439(CA)21-22, the ingredients required to be proved in order to establish the charge of obtaining money by false pretence were elucidated.

In establishing the ingredients of obtaining money by false

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pretence, learned counsel referred to the statements of the Appellant and the 3rd Defendant, where they conceded to the fact that they made a false representation to PW1 and PW2 as white witches. The said statement learned counsel contended that they show sufficient proof of a pretence, that the pretence emanated from the appellant and the other defendants; that the pretence was false; that the accused person knew of the falsity or did not believe the truth; and finally that there was an intention to defraud. In establishing the last two ingredients to wit; that the property or thing is capable of being stolen; that the accused person induced the owner to transfer his interest in such property, it is worthy of note to state that it goes without saying that money is capable of being stolen and it is abundantly express in the evidence before the trial Court, and indeed before this Court that monies belonging to PW1 and PW2 were collected from them without the intention of returning same.

Learned counsel contended that in proving the above ingredients, Exhibits B, C, and D where the Appellant and the other Defendants stated that money was collected from

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PW1 and PW2, and the monies were given to Baba Jeje, whom they all claimed to be their gang leader. They all further stated they received their different shares of the money collected.

Finally, the false representation of “white witches” and “false prophesies of death” both served as sufficient inducement which made PW1 and PW2 transfer their money to the tune of Fourteen Million, Five Hundred Thousand Naira (N14,500,000.00) to the Appellant and the Defendants. By this, ingredients necessary in establishing the offence of obtaining goods by false pretence are completely proved.

It was further contended by learned counsel, that the above arguments and submissions, have established the ingredients necessary in proving the offence of obtaining goods by false pretence as established also in the case of Michael Alake & Anor v State (1991) NWLR (Part 205) 567 at 591.

On the claim of Appellant, that there are manifest contradictions in the testimonies of prosecution witnesses, learned counsel contended that it does not hold water. To buttress his contention he cited the case of Akpa v State (2007) All FWLR (PT. 351) 1563.

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He argued that the contradictions claimed by the Appellant are mere discrepancies, that cannot, and should not affect a watertight case such as that of the prosecution. He reiterated this point by relying on the judgment of the trial Court on page 271 of the record of appeal.

Learned counsel further urged this Court to take into consideration the nature of Exhibits B, C, and D which are confessional statements of the two other defendants and Appellant, corroborated by PW1 and PW2 in their testimonies in resolving issue 1 in favour of the Respondent. He urged this Court to resolve issue 1 in favour of the Respondent and against the Appellant.

Respondent’s counsel on issue 2, “whether the failure of the prosecution to serve a copy of Exhibit A, on the Defendant occasioned a breach of his right to fair hearing”.

Learned counsel submitted that the failure of the prosecution to serve a copy of Exhibit A, on the Appellant does not constitute a breach to her right to fair hearing with reference to Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria, 1999.

Learned counsel contended that, in dispensing

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with the need to provide an accused person adequate time, and facilities to prepare his defence, the trite practice is for the prosecution to serve on the accused alongside the information/charge, the proofs of evidence. In support of his argument counsel cited the case of Shema & Ors v FRN(2018) LPELR-43723(SC), Elucidating on Proof of Evidence in the case of Bayo Dada v FRN (2015) ALL FWLR (Part 784) at 78 (CA). As regards the nature of proof of evidence, counsel cited the case of Pius v State (2013) ALL FWLR (PART. 689) 1180 (CA).

Referring to this appeal, learned counsel submitted that at the trial Court, the Prosecution served the Appellant, and the other Defendants with the information, together with the proof of evidence containing the statements of the prosecution witnesses, the list of Exhibits, list of documents to be tendered in the case. These can be gleaned from pages 22 – 33 and pages 60-61 of the record of appeal. Learned counsel reiterated that in line with the requirements of the above cited cases, the proofs of evidence served on the Appellant was sufficient to give notice to prepare for her defence.

​The Exhibit A, learned counsel

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submitted is a copy of Punch Newspaper only showing the pictures of the Defendants at the crime scene at a parade by the Police, though it was not expressly mentioned in the proof of evidence to be tendered at the trial Court, hence the issue of breach of fair hearing raised by the Appellant. The Respondent’s reaction is that the failure of the prosecution to serve a copy on the Defendants, did not in any way deprive the Appellant of adequate notice required to prepare his defence. Learned counsel submitted that the right to fair hearing of the Appellant was not tainted in any possible way. He referred to page 24 of the record of appeal where it was stated by the Prosecution Witness in his statement that he would give details of further investigation carried out by him and his team. Therefore, while giving his testimony as PW3 during the trial Exhibit A was tendered through him.

Learned counsel contended that the absence of the particular exhibit in the proof of evidence did not affect the purpose that proof of evidence should serve. He cited the case of FRN v Wabara (2014) ALL FWLR (PART 714) 76 SC. Premised on this judgment, the proof of

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evidence served on the Appellant and the other Defendants by the Respondent showed sufficiently without anything to the contrary, the entire case and the evidence upon which the prosecution sought to rely on in establishing the case. Therefore the Punch Newspaper was in no way part of the exhibits tendered to establish prima facie the ingredients of the offences, with which the Appellant was charged. Furthermore, in reaching its judgment, the Trial Court expressly stated on page 270 of the record that; “This Court therefore finds Exhibit B, C, D good proof to show that the Accused persons indeed conspired to defraud PW1 and PW2 and in fact obtained money from them.” Learned counsel reiterated that the above extract shows proof that Exhibit A, served as a superfluous addition in the case of the prosecution and not as an evidence with a sine qua non status.

In his further submissions, learned counsel considered without conceding that the Respondent’s failure to serve a copy of Exhibit A on the Appellant constituted a breach of his fair hearing or a wrong, he invited this Court to examine the totality of the evidence before the

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Court, and the proceeding before the trial Court to determine if the failure to file the Exhibit together with the proof of evidence, or to serve on the Defendant, and subsequent admittance of same by the trial Court constitutes so much an error as to amount to the reversal of the judgment of the trial Court. In support of his assertion, learned counsel cited the cases of Ibekwe v FRN (2004) ALL FWLR (PT. 213) 1809 (CA); Gbadamosi v Dairo (2007) ALL FWLR (PT. 357) 817 (SC).

Premised on the above decisions, learned counsel asked that given the totality of evidence before the trial Court against the Appellant and the other Defendants (admitted and corroborated confessional statements, testimonies of Prosecution witnesses), could the trial court have reached a decision favorable to the Appellant in the absence of Exhibit A? He answered in the negative. This is because, the particular Exhibit A, in question is a copy of the Punch Newspaper containing only the picture of the Appellant, and the other Defendants at the scene of the crime, after their arrest. Learned counsel reiterated that this in no way, makes up the required ingredients in proving conspiracy

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to obtain goods by false pretence, or, the offence itself. He considered, without conceding that the Exhibit helps in placing the Appellant and the other Defendant at the scene of the crime. He submitted that the testimony of PW3, contained on pages 73 and 74 of the record of appeal, the testimony of PW1 and PW2, contained on page 40, and 46, of the record of appeal, and Exhibits B, C, D, respectively sufficiently place the Appellant and the other Defendants at the scene of crime, thus rendering Exhibit A, a needless superfluity.

On whether from the trial, at the trial Court, evidence before the trial Court, judgment of the trial Court, did the admittance of Exhibit A, by the lower Court constitute injustice to the Appellant in any way? The reaction of the Respondent on this question is that no injustice was done to the Appellant, by the trial Court in admitting Exhibit A. The Exhibit contained picture of the Appellant and the Defendant. He asked the question, what defence or explanation could the Appellant, have made to dispel the Exhibit, giving the omnibus evidence that corroborate the Exhibit.

The question whether the Appellant successfully

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dispensed with the burden of proving that injustice was done to her? Learned counsel, submitted that the appellant has not dispensed with the burden of proving miscarriage of justice. All that the Appellant has done is to allege breach of fair hearing, without explaining how failure to serve Exhibit A, precluded her sufficient notice, and hindered her from adequately preparing for her defence. He referred to the cases of Surgeon Captain C. T. Olowu v The Nigerian Navy (2011) LPELR SC-182/2007; Gbadamosi v Dairo (supra).

The learned counsel contended that the entire claim of the Appellant, that her right to fair hearing was breached is nothing other than a foul cry and disjointed verbiage deserving of no further consideration by this Court for it is not just lacking in merit but an after-thought.

In concluding, learned counsel relied on the record of appeal, that it is plainly clear that the claim of fair hearing that the Appellant, so vigorously contend is merely a tactic to wriggle out of the coffers of the conviction of the trial Court. This is so because the Appellant already made a confessional statement (which was contested and found to be

 

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true, credible and relevant against the Appellant) acquiescing to the commission of the offence. Learned counsel urged this Court consequently to resolve this issue in favour of the Respondent and against the Appellant.

As I noted earlier in this judgment, the Appellant filed a reply brief, which in my opinion is a re-argument of the case of the appellant and not reply to new issues in the Respondent’s brief. The law is trite that a reply brief is not an opportunity to improve the argument of the appellant. Rather, it is to answer the arguments in the Respondent’s brief, which were not taken in the Appellant’s brief. See Mozie & ors v Mbamalu & Ors (2006) 15 NWLR (PT. 1003) 466; Oguanuhu & Ors v Chiegboka (2013) 6 NWLR (PT. 1351) 588, (2013) LPELR-19980(SC).

RESOLUTION:
By the Charge dated the 23rd day of June, 2017 and filed same day the Appellant was charged with two(2) counts of conspiracy to defraud contrary to Section 422 of the Criminal Code Law, Laws of Ogun State of Nigeria, 2006. She pleaded not guilty to all the counts of the charge.
Section 419 of the Criminal Law, Laws of Ogun State:-

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  1. Obtaining property by false pretence, etc.
    (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
    (A) obtains  from
    As can be seen, these provisions provide for, and punish the offence of obtaining by false pretence by a person, and with intent to defraud, any property from any other person in Nigeria or any other country for himself or any other person.
    Section 20 of the Fraud Act defines pretence as follows:-
    False pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, or 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.
    In Uzoka v FRN (2010) 2 NWLR (1177)118, this Court referred to the definition of false pretence in 7th Edition of Black’s Law Dictionary, as follows:-
    The crime of knowingly obtaining title to another’s personal property by misrepresenting a fact with intent to defraud. See also Onwudiwe v FRN (2006) ALL FWLR (319) 774.
    In the case of Alake v State

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the Court per Tobi, JCA, set out the essential elements or ingredients which constitute the offence of obtaining by false pretences under the provisions of the Criminal Code, as follows:-
1. That there was 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;
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.

The Supreme Court, in the case of ACN v INEC (2013) 13 NWLR (1370)161 @ 185 defined conspiracy as follows:-
“Conspiracy is an agreement by two or more persons to do, or cause to be done, an illegal act or a legal act, by illegal means.”
See Ikemson v.State (1989) 3 NWLR (110) 455; Osondu v State (2000) 12 NWLR (682) 483; Aje v State (2006) 8 NWLR (982) 345; Shurumo v State (2010) 19 NWLR (1226) 73; Abondejo v FRN (2013) 7 NWLR (1353) 285; Ogogovie v State (2016)12 NWLR(1527)468. In the case of Ikemson v State (1989) (supra) Karibi-Whyte, JSC said that:-
“An offence of conspiracy can be committed

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where persons have acted either by agreement or in concert, bare agreement to commit an offence is sufficient. The actual commission of the offence is not necessary.”
The ingredients of the offence of conspiracy were set out in the case of Akinkunmi v State (1987) 7NWLR (52) 606 as follows:-
1. There must be two(2) or more persons;
2. They must form a common intention;
3. The common intention must be towards prosecuting an unlawful purpose;
4. An offence must be committed in the process; and
5. The offence must be such a nature that its commission was a probable consequence.
See also Sodiya v State (2009) LPELR-4430 (CA); Aituma v State (2006) 10 NWLR (989)452.

The law in Section 135(1) and(2) of the Evidence Act, 2011 places the burden of proof of the offences with which the Appellant was charged before the lower Court, beyond reasonable doubt, on the Respondent throughout the trial on the basis of the Constitutional presumption of innocence guaranteed in his favour. See Onye Chimba v State (1998) 8 NWLR (563); Igbi v State (2000) 3 NWLR (648) 169; Ani v State (2003) 11 NWLR (830)142; Igabele v State (2006)6 NWLR (975)100.

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The law is also settled that the burden of proof beyond reasonable doubt placed on the Respondent does not mean beyond any or every shadow of doubt, but that all the essential ingredients or elements which constitute offences with which he was charged, must be established, or proved by sufficient and credible evidence which is so cogent and strong against the Appellant, such that there would not be even the remotest probable doubt, that he in fact committed the offences he was charged with. In the case of Dibie v State (2007) 3 SC (PT1)176, Tobi JSC, stated the law that:- “Proof beyond doubt does not mean proof beyond any shadow of doubt. Once the proof drowns the presumption of innocence of the accused person, the Court is entitled to convict him. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mensrea and actusreusor, both the prosecution has discharged the burden placed on it.”
See also Yongo v COP (1992) 4 SCNJ 113; Akalezi v State (1993) 2 SCNJ 19 (1993) 2 NWLR (273) 1; Abadom v State (1997) 1NWLR(479) 1; Akinyemi v State (1999) 6

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NWLR (607) 463; Uwagboe v State (2007) 6 NWLR (1031) 606; Uluebeka v State (2011) 4 NWLR (1237) 358; Nwaturuocha v State (2011) LPELR-8119(SC); Abo v State(2011) LPELR-4799(CA).
Proof beyond reasonable doubt can be achieved and the guilt of an accused proved in any one or more of the following ways:-
By confession freely and voluntarily made by the accused person which meets the requirements of the law;
By cogent, credible and compelling evidence of eye witnesses to the commission of the offence; or
By circumstantial evidence which satisfies, the requirements of the law and irresistibly points and fixes the accused and no other as the person who committed the offence.
SeeIgabele v State (supra); Nwaeze v State (1996) 2 NWLR (428)1; Akinmoju v State(2000)4 SC(PT1)64; Durwode v State (2000) 12 SC (PT1)1; Uwani v State (2003) 18 NWLR(851)22; Emeka v State (2001) 6 SCNJ, 259; Joshua v State (2010)1 WRN 41.

At the trial of the Appellant before the lower Court, the two people PW1 and PW2, whom the Appellant was said to, in concert with the other two accused persons, have obtained money by false pretences, testified in proof of the

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offences, she was charged with. In brief, their evidence was that they were stopped by three men in a Camry car, while driving along Owode-Onirin. One of the men identified himself as a cleric, the last child of Alhaji Bulala, who later asked if they were about to acquire a property, to which they answered in the affirmative. The said cleric warned about an impending danger, and death, but promised to pray for them. He informed them that he was only in Lagos for a little while, and exchanged contacts with them. At about 7:00pm on the same day, the cleric called PW1 and they all agreed to meet at mile 12 and upon getting to Mile 12, the Cleric informed them that a ram would be needed for rituals, so as to avert the impending death. PW1 gave the cleric N35,000.00. The cleric asked that PW1 and PW2, should meet him at one hotel at ljede Road, lkorodu where he was lodged the next day. He told them to buy egg and salt when coming, which they did. PW1 and PW2 then met the cleric. The cleric collected the egg and asked PW2 and PW1 to go outside. After about 3 minutes, he called them back in, he smashed the egg on the floor and a small padlock came out of it. The

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cleric explained that the egg has been used to lock the life of both PW1 and PW2 and they needed to go to Omu to meet someone who could unlock them. They all left for Omu with the ram on that same day. They met one Baba Omu who told them that the padlock was dangerous, and would need for him to put incisions on the hands and head of PW1 and PW2, after which he showed them a room where they claimed to have seen “two white witches clothed in white clothing.” They were afterwards given a big box to take home to keep the money intended to buy the property in same. PW1 and PW2 did as they were told and locked the box with the padlock given to them by the said Baba Omu.

Upon opening the box, the next morning PW1 and PW2 realized that the money had disappeared and only a big cowry remained in its stead. They Reported the happening to the cleric and Baba Omu, who informed them that a sacrifice would have to be made on their behalf. For the purpose of the sacrifice the sum of N500,000.00 and N2million were requested and collected from PW1 and PW2 by Baba Omu. On getting home afterwards, while going over the incident, they consciously realized they

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had been defrauded. The cleric called again to further ask for the sum of N1,000,000:00, which they promised to bring. PW1 and PW2, however approached the State Crime Investigation Department (CID) Eleweeran to make a report. They were clandestinely followed by police officers to the crime scene, where the Appellant who was one of the “witches” dressed in white was arrested together with the two co-defendants. Consequently, they were charged and arraigned before the trial Court. The evidence was not discredited under cross-examination, but rather strengthened by the admission of the Appellant, in her statement to the police, during investigation of the matter, which was put in evidence as Exhibit-C by which she substantially confirmed the evidence of PW1, PW3, PW4 and PW5 on how they obtained money from PW1 and PW2.

In its judgment, the lower Court after a restatement of the principle of the law on the essence and proof of the offence of conspiracy, stated that:-
“ln the light of the extracts of PW1 and PW2’s, oral testimonies and Exhibits B-D (Statements of the Accused persons) one would ask-what were these three,

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and others found at the scene of crime at Omu Sorin doing together? Did they have anything in common? Surely finding them together was not a mere coincidence. It was not by accident. They were there conjunctively for a certain common and known purpose.”

The position of the lower Court is unassailable as the evidence adduced by the Respondent shows beyond reasonable doubt that the Appellant who admitted that she posed as a white witch and was arrested whilst dressed in white clothing. The admission of Appellant that she was at the venue The admission of Appellant that she was at the venue wrapped in white clothing posing as a white witch, as was admittedly shown by the uncontroverted evidence before the lower Court shows the common intention of the Appellant and the other two co accused to deceive the PW1 and PW2, to part with their money. In the case of Adejobi v State (2011) LPELR-97(SC) it was held per Rhodes-Vivour, JSC that:-
“The offence of conspiracy is complete when two or more persons agree to do an unlawful act by an unlawful means. Concluded agreements can be inferred by what each person does or does not do in furtherance

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of the offence of conspiracy. It is immaterial that persons had not met each other.
The apex Court in Daboh v State (1977) 5SC,122 stated the law in the words of Udo Udoma JSC that:-
“It is well recognized law that conspiracy may exist between persons who have never seen each other or corresponded with each other.” R v Parnell 14 Cox 508 at page 515. See also Odigiji v State (1976) 6 SC 152; Njovens v State (1973) 5SC 12; Lawson v State (1975) 4 SC (Reprint) 84; Okosun v A.G.Bendel State (1985) 16 NSCC (PT II) 1327.
The lower Court was right in its finding that the evidence adduced before it by the Respondent, has proved beyond reasonable doubt, all the essential ingredients of the offence of conspiracy to ground a conviction against the Appellant.

On the offence of obtaining by false pretences, the misrepresentation continued deception and inducement by the Appellant to PW1 and PW2 to part with various sums of money, leaves no doubt that the money admittedly paid to and collected or received by the Appellant and her co accused was obtained by false pretence, which she knew was not true but false. The misrepresentation made by the

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Appellant to PW1 and PW2 in both words and conduct, which was false and she knew to be false or did not believe it to be true constituted false pretence under Section 20 of the Fraud Act. The lower Court rightly appraised the facts and correctly evaluated the evidence placed before it on the offence of obtaining by false pretence as follows in its judgment:-
“In resolving the above stated requirements, after reviewing, evaluating and assessing the evidence before this Court, I find sufficient proof that the 2nd and 3rd Accused persons made a representation to PW1 and PW2 as white angels from heaven and so hold that the falsity in their action is very clear. They knew they were not angels or white angels from anywhere. The extract from the 1st accused person’s statement to the police earlier reviewed also shows that he was aware of this falsity, and was in fact part of same. Also, the evidence before the court further shows that sums of money were collected from PW1 and PW2 by one Baba Jeje whom the accused persons all claimed to be their gang leader in their different statements.”

In both her statement and Exhibit, as well

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as her oral evidence, the Appellant plainly and unequivocally admitted the facts and evidence placed by the Respondent before the lower Court in respect of the transactions between her and the PW1 and PW2. The law remains that there is no evidence of a fact or set of facts better or stronger than an unequivocal, express and direct admission of the existence of such a fact or set of facts by a person against whom they were asserted. By the provision of Section 28 of the Evidence Act 2011, admission in criminal law, of the commission of an alleged crime or offence by an accused person either during or in the course of investigation of the crime or offence or at the trial of the accused person for the said crime or offence before a Court of law is a confession by the accused person that he in fact committed the offence or crime he was charged or tried for. This in effect, was what the Appellant did in Exhibits…as well as her testimony at the trial; to confess to the commission of the offence of obtaining money by false pretence, which is a thing or property capable of being stolen; Adejobi v State (supra) Olamolu v State (2013) 2 NWLR (1339) 580, deceit and

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inducement, which she knew to be false and did not believe to be true. In the case of FRN v Iweka (2013) 3 NWLR (1341)285, Tabai, JSC, stated that:- A confessional statement made by an accused person and properly admitted in evidence is in law, the best pointer to the truth of the role played by such an accused person in the commission of the offence.
See also Mohammed v State (2014) 12 NWLR (1421) 387; Nkie v FRN (2014) 13 NWLR (1424) 305; Alo v State (2015) 9 NWLR (1464) 238; Afolabi v State (2018) 11 NWLR (1524)497.

The evidence adduced by the Respondent undoubtedly, has established all the ingredients of the offence of obtaining money by false pretence against the Appellant, as required by the law beyond reasonable doubt and the lower Court was right to have so found in its judgment.

All the above ingredients of the offence of obtaining by false pretence are clearly seen in the transaction which gave rise to this appeal. There is no doubt about that.

On the whole, l agree with the Court below that the Prosecution proved the charge against the Appellant beyond reasonable doubt and that the Appellant beyond reasonable doubt and that the

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appellant failed to lead credible evidence to show that the prosecution’s evidence was doubtful. Thus, this issue does not avail the Appellant and l accordingly resolve it against her.

In my considered view, Appellant’s issue one is completely useless and ought to be ignored.
Accordingly, issue two is also resolved against the Appellant.
Having resolved all the issues against the Appellant, l hold that there is no merit in this appeal. It is accordingly dismissed. I affirm the judgment of the Court below delivered on 4th July, 2018.

TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother AKINBAMI JCA, granted me the privilege of reading the leading judgment prepared and rendered in this appeal. I am in agreement with the reasoning and conclusion and adopt the judgment as my own. I have nothing extra to add.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in advance the judgment of my learned brother, FATIMA OMORO AKINBAMI, JCA, where the facts giving rise to this appeal and the issues in contention have been well encapsulated. I agree with my learned brother’s reasoning

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and his conclusion that this appeal lacks merit. I also dismiss it and affirm the judgment of the lower Court.

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Appearances:

O Muraina, Esq. For Appellant(s)

O. Mafe, Esq. Assistant Director Public Prosecutions. For Respondent(s)