BABATUNDE MOSES v. FEDERAL REPUBLIC OF NIGERIA (2019)

BABATUNDE MOSES v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13484(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2019

CA/IB/235C/2017

RATIO

ARRAIGNMENT: REQUIREMENTS FOR A VALID ARRAIGNMENT

It is trite law that for an accused person to be validly arraigned, the following requirements must co-exist:
1) He/She must be placed before the Court unfettered unless the Court shall see cause otherwise.
2) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
3) The accused shall then be called upon to plead thereto unless of course, there exist any valid reason such as objection to want of service.
See OGUNYE VS. THE STATE (1999) 5 NWLR PT. 604 PG. 548 AT 565; IDEMUDIA VS. THE STATE (1999) 7 NWLR (PT. 610) PG. 202; KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) PG. 721; LUFADEJU VS. JOHNSON (2007) 8 NWLR (PT. 1037) PG. 538.PER FOLASADE AYODEJI OJO, J.C.A.

OPTIONS OPEN TO AN ACCUSED WHEN THE PROSECUTION HAS CLOSED ITS CASE
By virtue of Section 287 (1) (a) of the Criminal Procedure Laws, Laws of Ogun State 2006, an accused person has three options open to him after the prosecution has closed its case. He may:
i. Make an unsworn statement from the dock in which case he will not be liable to cross examination or
ii. Give sworn evidence in the witness box and be cross examined or
iii. Elect not to say anything at all.
See N. M. ALLI. & ANR. VS. THE STATE (1988) 1 NSCC 14.PER FOLASADE AYODEJI OJO, J.C.A.

CONSPIRACY: DEFINITION

Conspiracy is an agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is a distinct offence separate from the substantive offence with which an accused person has been charged. It is generally agreed that it is not always easy to prove actual agreement between parties to do an unlawful act. Because the offence of conspiracy is often hatched in utmost secrecy, the circumstances of the offence must be carefully appraised and microscopically considered. Coker JSC in the celebrated case of PATRICK NJOVENS VS. THE STATE (1973) NNLR 331 made the following analogy which I find very relevant to this appeal:
When it is proposed to give evidence of happening inside hall, it is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed it would be preposterous to look for such evidence in other directions.PER FOLASADE AYODEJI OJO, J.C.A.

CONVICTION ON CONSPIRACY IS BASED ON CIRCUMSTANTIAL EVIDENCE
A conviction for conspiracy is not without its inherent difficulties as it is one of those offences predicated on circumstantial evidence. It follows therefore that to secure conviction for the offence, evidence relied upon must be of such quality that irresistibly compels the Court to come to the conclusion that indeed the accused person and no other committed the offence.
See PATRICK NJOVENS VS. THE STATE (1973) 5 SC 17; DABOH & ANR. VS. THE STATE (1977) 5 SC 22; KAZA VS. THE STATE (2008) 1 ? 2 SC 151 AT 164 -165 and ONYENYE VS THE STATE (2012) ALL FWLR (PT. 643) 1810.PER FOLASADE AYODEJI OJO, J.C.A.

THE DUTY OF AN ACCUSED WHEN THERE IS A DEFECT IN THE TRIAL
The law is trite that where in the opinion of counsel to an accused person there is a defect in the trial of the accused person, it is his duty to take objection to the perceived irregularity concerning the procedure. Such objection should be raised and taken promptly. Where that is not done, the objection would be taken as waived. See MONZIE VS. THE STATE (2012) LPELR 14353 (CA); ADEKUNLE VS. THE STATE (2006) 14 NWLR (PT. 1000) 717; KAMORU ALIMI ADIO VS. THE STATE (1986) 3 NWLR (PT. 31) 714 and GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2011) ALL FWLR (PT. 587) PAGE 664 AT 723.PER FOLASADE AYODEJI OJO, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

BABATUNDE MOSES Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The Appellant, Babatunde Moses and one Dapo Bello (a.k.a. Olaolu Oyewole) were on the 16th of March, 2010 arraigned before the Ogun State High Court Sitting at Abeokuta on a nine count charge with No: AB/EFCC/01/2010. They pleaded not guilty to the charge. The record of Court shows that the 1st accused (Dapo Bello) jumped bail and this necessitated the filling of an Amended Information against only the Appellant. The Amended Information dated 11th May, 2010 contains a seven count charge. See pages 137 ? 142 of the record.

The Appellant pleaded not guilty to the charge. His trial commenced. The 1st accused was in the course of trial re-arrested which again necessitated the filing of an Amended Information dated 28th of June, 2010 which was filed on the 29th of June 2010 against the Appellant and Dapo Bello. See pages 157 ? 163 of the record. The Amended Information contains an 11 count charge.
The charge without its particulars read thus:

?STATEMENT OF OFFENCE – 1st COUNT
?Conspiracy to steal contrary to Section 516 of the Criminal Code, Cap.29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 2nd COUNT
Stealing contrary to Section 390 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978.
STATEMENT OF THE OFFENCE ? 3rd COUNT
Attempt to steal contrary to Section 509 and 390 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 4th COUNT
Conspiracy to commit felony to wit: forgery contrary to Section 516 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 5th COUNT
Forgery contrary to Section 467 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 6th COUNT
Forgery contrary to Section 467 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 8th COUNT
Forgery contrary to Section 467 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 9th COUNT
Conspiracy to commit felony to wit: uttering of a false document

contrary to Section 516 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 10th COUNT
Uttering contrary to Section 468 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria, 1978
STATEMENT OF OFFENCE ? 11th COUNT
Uttering contrary to Section 468 of the Criminal Code, Cap. 29 Vol. 2, Laws of Ogun State of Nigeria.?

The Appellant and the co-accused pleaded not guilty to the charge. The trial however commenced de-novo pursuant to a ruling delivered by the lower Court on the 8th day of October, 2010. See pages 189 ? 191 of the record.

At the close of the prosecution?s case, learned counsel to the Appellant informed the Court, the Appellant was resting his case on that of the prosecution and would not be calling any evidence. The Court in a considered judgment delivered on the 28th of October, 2015 found the Appellant and his co-accused guilty and convicted them accordingly. The learned trial judge in its judgment concluded as follows:
Following the consideration of the issues for determination, findings have been made

which I reiterate in this concluding part of the Judgment. The plea of the Accused Persons was duly taken afresh in satisfaction of the dictate of the law. Secondly, the letter written by E.F.C.C. to kick-start the proceedings is sufficient compliance with the law in the circumstances of this matter.
Lastly, having regard to the evidence placed before the Court, the Prosecution has proved the entire charge against the Accused Person beyond reasonable doubt.
The law cannot force a man to love his neighbor. However, the law should prevent every man from lunching or offending his fellow man. Where an offence is committed by a person against another; and the law catches up with the offender, he must be tried. At the end of the ensuing trial, a verdict must be reached which should culminate for the guilty one.?
VERDICT:
The 1st Accused Person is found guilty as charged in counts 1, 2, 3, 4, 5, 6, 7, 9 and 10
The 2nd Accused Person is found guilty as charged in counts 1, 2, 3, 4, 5, 6, 8, 9 and 11?

Briefly, the facts leading to the information preferred against the Appellant is that on the 15th of January, 2010,

the Economic and Financial Crimes Commission (EFCC) received a petition from the United Bank for Africa Plc. against the Appellant and one Dapo Bello (the 1st accused). In that petition, the bank alleged that on the 13th of January, 2010 Dapo Bello presented a cheque with No. 91087367 for the sum of N133,000.00 (One Hundred and Thirty Three Thousand Naira) made out in his name to be drawn on Account No. 03910250005025 belonging to one Adesunloye Olufemi Kelvin who testified as PW2 at the trial. After the cheque was honored, the account holder received an alert of the transaction and to the banks utmost surprise, he (the account holder) denied knowledge of such transaction. On the 15th January, 2010 the Appellant went to the same bank with a cheque No: 91087365 for the sum of N150, 000 (One Hundred and Fifty Thousand Naira only) written in his name to be drawn from the same account belonging to Adesunloye Olufemi Kelvin. Upon presentation of the cheque he was arrested and his arrest led to the arrest of Dapo Bello. Investigation revealed that the two cheques drawn on the account of Adesunloye Olufemi Kelvin by the Appellant and Dapo Bello were cloned and that

the means of identification used by the Appellant and the co-accused which are drivers licenses were forged.

The Respondent at the trial called eight witnesses and tendered several Exhibits.

Dissatisfied with the judgment of the lower Court delivered on the 28th of October, 2015, the Appellant has appealed to this Court vide a Notice of Appeal dated 21st of February, 2017 and filed on the same date. The Notice of Appeal which contains four grounds is at pages 419 ? 423 of the record. The grounds of Appeal without their particulars are as follows:
1. The learned trial Judge erred in law in convicting the 2nd Accused Person/Appellant on counts 1, 2, 3, 4, 5, 6, 8, 9 and 11 of the Information.
2. The learned trial Judge erred in law in convicting the 2nd Accused Person on counts 2, 3, 5, 6, 8 and 11 of the Information when the statement of the Accused Person to the Police did not reveal that the 2nd Accused Person was involved in any forgery and/or uttering of cheques which were presented by the prosecution.
?3. The trial Judge erred in law by allowing the defence to rest his case on that of the prosecution without taking any

evidence from the defence in a criminal matter of this nature.
4. The trial Judge erred in law in convicting and sentencing the 2nd Accused Person/Appellant when the provision of S. 340(2) of the Civil Procedure Law of Ogun State on Judge?s consent has not been complied with.

In line with the rules of this Court, parties filed their respective Briefs of Argument. Appellants Brief of Argument settled by Femi Alamu Esq. filed on the 10th of October, 2017 was deemed as properly filed on the 17th of October, 2017. Respondents Brief of Argument settled by Babatunde Sonoiki Esq. filed on 25th of February, 2019 was deemed as properly filed on the 27th of February, 2019.

The Appellant’s Counsel distilled four issues for determination of this appeal in the Appellant?s Brief of Argument. They are:
1. Whether the plea of the Accused/Applicant which was not taken fresh goes to the root of the matter and constitute a ground of Appeal to nullify such proceedings.
2. Whether the inability of the Accused/Appellant to call evidence will not affect the outcome of the proceedings.
3. Whether the evidence of the

witnesses support the conclusion that there was conspiracy between the Principal Accused Person and the Accused/Applicant.
4. Whether the oversight of the Prosecution to address letter to the Chief Registrar of the High Court about his intention to file information in respect of this matter will not vitiate the proceedings at the lower Court.

Learned Counsel to the Respondent in the Respondent?s Brief of Argument adopted all the issues distilled by the Appellant as his own issues for determination. I shall therefore proceed to determine this appeal based on the issues formulated by the Appellant?s Counsel.
ISSUE NO 1
Whether the plea of the Accused/Applicant which was not taken fresh goes to the root of the matter and constitute a ground of Appeal to nullify such proceedings.

Learned Counsel to the Appellant submitted that plea taking in a criminal trial is a pre-requisite for valid Criminal Proceedings and that failure to take the plea of an accused person vitiates the entire proceedings. Relating his submission to this appeal, learned Counsel argued that the failure to take the plea of the Appellant vitiates the

entire proceedings before the lower Court and urged us to declare same as null and void. He relied on the cases of FADIORA VS. GBADEBO (1978) 3 SC 219 and AUDU YERIMA & 2 ORS. VS. THE STATE (2010) 14 NWLR (PT. 1213) 24 AT 45 ? 46 as well as Section 215 of the Criminal Procedure Laws 2006, Laws of Ogun State.

Learned Counsel to the Respondent while dealing with this issue submitted it is not every case transferred from one judicial division to another that ends up starting de novo. He argued that where a case is transferred to the same judge who had been handling the case before his transfer to another judicial division in the same state there would be no need for such trial to start de novo. He drew our attention to the fact that as at the time of the transfer of the trial judge to the Ijebu-Igbo Judicial Division from the Abeokuta Division where trial had commenced before him, the prosecution had called six witnesses and tendered twenty Exhibits. He submitted there is only one High Court in each State of Nigeria and that Judicial Divisions are created for administrative convenience to enable the wheels of justice run speedily and smoothly. He

therefore urged us to hold as incomprehensible the submission of Appellants Counsel that the case file transferred from Abeokuta Judicial Division to be heard by the same judge in Ijebu-Igbo Judicial Division be started de novo.

This issue under consideration stems from ground one of the Notice of Appeal. Ground one and its particulars read as follows:
The learned trial Judge erred in law in convicting the Second Accused Person/Appellant on counts 1, 2, 3, 4, 5, 6, 8, 9 and 11 of the Information.
PARTICULARS OF ERROR
a. The Accused Person?s plea was not taken before the commencement of the proceedings the second time when the trial began de novo.
b. The Court wrongly relied on the fact of the case only as stated on proof of evidence and evidence given by the PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 as commended to the Court by the prosecutor, but did not insist on the defence to defend the case of the Appellant, as it is important for the accused person to defend himself of the allegations levied against him.
c. The prosecutor did not use facts to support the charge of conspiracy with which the second accused person

was charged.

The complaint of the Appellant under this issue is as contained in particular No. 1 under ground one of the Notice of Appeal. It is that the trial Court did not take a fresh plea of the Appellant when the trial commenced de novo. The Appellants Counsel in his Brief of Argument while arguing this issue made it clear that the grievance of the Appellant is that his plea was not taken after the trial commenced de novo.
I wish to state at this point that the learned Respondent?s Counsel embarked on a voyage of discovery in his response to this issue in his Brief of Argument. It is apparent that counsel grossly misconstrued the Appellant?s grievance and dissipated needless energy to pursue matters which were not the subject of the complaint of the Appellant when he submitted that is not every case that is transferred from one judicial division to another that ends up starting de novo. The Appellant?s complaint under this issue is not whether the case transferred from Abeokuta Judicial Division to the same judge in Ijebu-Igbo Division should be started de novo. His complaint is very clear and it is that the trial Court

ought to have taken his plea afresh when the trial commenced de novo and failure of the trial Court to do so nullifies the entire proceeding. It is significant to note that when the case was transferred from the Abeokuta Judicial Division to the Ijebu-Igbo Division before the same judge, the trial did not start de novo. The learned trial judge continued the case from where he stopped before his transfer.
The law is settled that where an issue raised by one party is not countered by the other party, it does not automatically follow that the Court would take such argument hook line and sinker. In other words failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merits on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See ADAH VS. N.Y.S.C. (2004) 13 NWLR (PT. 891) 639; TANKO VS. UBA PLC (2010) 7 NWLR (PT. 1221) 80; OBIUWEUBI VS. CENTRAL BANK OF NIGERIA (2011) 17 NWLR (PT. 1247) 80; and AGI VS. ACCESS BANK PLC. (2014) 9 NWLR (PT. 1411) 121.
Let me also add that an Appellant succeeds or fails on his own brief and must establish that the

judgment appealed against is wrong.
The Appellant?s appeal must succeed on the strength of his own case and not on the failure of the Respondent to address the issue raised in the Appellant?s Brief. See ECHERE VS. EZIRIKE (2006) LPELR (1000) 1 AT 20; STABILINI VISINANI (NIG.) LTD. VS. SANDERTON VENTURES LTD (2011) 8 NWLR (PT. 1249) 258; FEDERAL REPUBLIC OF NIGERIA VS. DANIEL (2015) LPELR 24801 (CA) and OGBU VS THE STATE (2007) ALL FWLR (PT. 361) PG. 1651 AT 1675.

I shall therefore go on to resolve issue one as distilled by the Appellant to which the Respondent has not responded.

NWLR PT. 604 PG. 548 AT 565; IDEMUDIA VS. THE STATE (1999) 7 NWLR (PT. 610) PG. 202; KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) PG. 721; LUFADEJU VS. JOHNSON (2007) 8 NWLR (PT. 1037) PG. 538.

The record of Court shows that after trial commenced the Respondent filed an amended information on the 29th of June 2010. The proceedings of 30th of June, 2010 is at pages 181 -184 of the record. The information was amended after the co-accused who hitherto had jumped bail was re-arrested. On that day, both the Appellant and Dapo Bello (a.k.a Olaolu Oyewole) were present in Court and represented by Counsel. The prosecuting counsel was Rotimi Oyedepo. The proceedings of that day reads in part:
?Mr. Oyedepo says the 1st Accused has been arrested and the charge has consequently been amended. He urges the Court to accept the amended information and cause the plea of the Accused to be taken.
The plea of the Accused person is taken starting with the 1st Accused.
The accused persons say they understand English.
The 1st Count is read to the 2nd Accused person. They say they understand the same and both plead NOT GUILTY.
The 2ND Count

is read to the 2nd Accused person and they say they understand the same and they both plead NOT GUILTY.?
See pages 181 ? 182 of the record.

The record shows that all the eleven counts of the charge were read to the accused persons which include the Appellant and they both pleaded not guilty.

After taking the plea of the accused persons, the trial judge requested counsel to address him on whether or not the trial should start de novo. In a considered ruling delivered on the 8th day of October 2010, the trial judge ruled that the case start de novo pursuant to the amended information filed on the 29th of June 2010. Trial of the Appellant and the co-accused commenced de novo on 22nd February 2011 when the prosecution called its first witness who testified as P.W.1. See pages 203 ? 209 of the record.

It is the trial that commenced on the 22nd of February 2011 that resulted in the judgment the subject of this appeal. See pages 372 ? 401 of the record.

The trial Judge at page 372 stated in his judgment thus:
?THE CHARGE
The offences with which the Accused Persons stand charge are as contained in the

11 count charge stated in the amended information dated June 28, 2010 but filed by the prosecution on June 29, 2010. They are as follows. . . . . . .?

The defence counsel raised the issue of the validity of the arraignment in his address before the lower Court. The trial judge at page 388 of the record found as follows:
The question is, were the accused persons validly arraigned before this Court?
It is important to point out that after the trial had commenced the prosecution filed an Amended Information on June 29, 2010. When the matter came up on June 30, 2010, learned Rotimi Oyedepo Esq. for the Prosecution informed the Court that the Amended Information was filed consequent upon the arrest of the 1st accused person who had earlier been said to have jumped the administrative bail granted to him by EFCC.
On the said June 30, 2010 the two accused persons were physically present in Court. The record of this Court shows this much. They stood freely in the dock not controlled or restricted. . . . . . .
The record also shows that the two accused persons indicated that they understand English language; and the charge preferred

against each of them as contained in the amended information was read to them in English language and they said they understand them. Suffice it to say that I was satisfied that the accused persons understood the charge. Thereafter, each of the accused persons pleaded ?not guilty? to the charge relevant to him and their plea was recorded forthwith by me. This much is crystal clear in the record of proceedings of June 30, 2010. . . . . .
This Court finds that the preliminary points raised by the learned Defence Counsel that the plea of the accused persons was not taken a fresh at the commencement of their trial de novo is baseless, grossly misconceived and contrary to the record.?

?The complaint of the Appellant on the issue of his plea not been taken when the trial commenced de novo is not supported by the record. It is clear from the record that Section 215 of the Criminal Procedure Act and other binding case law on arraignment were complied with in the trial of the Appellant. Argument of Appellant?s Counsel that the plea of the Appellant was not taken afresh before the proceedings of 22nd of February, 2011 when his trial

commenced de novo is baseless and has no leg to stand.

The plea of the Appellant was taken on the Amended Information before the commencement of his trial. I therefore have no hesitation in resolving this issue against the Appellant. Issue No. 1 is resolved against the Appellant.

ISSUE NO: 2
Whether the inability of the Accused/Appellant to call evidence will not affect the outcome of the proceedings?

In arguing this issue Appellant?s Counsel submitted that the evidence of the Appellant is compulsory in a Criminal Matter such as the one before the lower Court and that failure to take his evidence is fatal to the proceedings. He urged us to hold that the Appellant was denied the opportunity to prove his innocence.

Arguing per contra, the Respondent?s Counsel submitted that where a Defendant rests his case on that of the Plaintiff, that Plaintiff is bound by the evidence called in support of the case of the Plaintiff. He submitted further that where a Defendant relies on the case of the prosecution he is deemed to have accepted the facts and evidence adduced by the prosecution. He relied on the cases of OFOMAJA VS. COMMISSIONER FOR EDUCATION (1995) 8 NWLR (PT. 411) and

INCAR (NIG.) LTD VS. ADEGBOYE (1985) 2 NWLR (PT. 8) PG. 458 AT 460.

Evidence on record shows that the Appellant rested his case on that of the Respondent. He chose not to give evidence of his own free will. The record of Court shows that on the 26th of February, 2014 when the case was called up, Counsel to the Appellant, A. A. Adewole Esq. informed the Court that having considered the matter, the defence rests its case on the prosecution?s case. See page 276 of the record.
By virtue of Section 287 (1) (a) of the Criminal Procedure Laws, Laws of Ogun State 2006, an accused person has three options open to him after the prosecution has closed its case. He may:
i. Make an unsworn statement from the dock in which case he will not be liable to cross examination or
ii. Give sworn evidence in the witness box and be cross examined or
iii. Elect not to say anything at all.
See N. M. ALLI. & ANR. VS. THE STATE (1988) 1 NSCC 14.
In the instant appeal, the Appellant chose the third alternative of not saying anything at all which is well within his legal rights. The import

of this however is that the Appellant did not wish to explain or place any fact before the trial Court in rebuttal of evidence presented against him by the prosecution. The trial Court was thus denied the opportunity of listening to the Appellant tell his story, of watching his demeanor and assessingthe credibility of his evidence and that of his witnesses where available. Appellant’s Counsel’s submission that the evidence of the Appellant is compulsory in Criminal Matter is erroneous and has no basis in law. The Appellant of his own volition chose not to give evidence. The Court cannot force him to do so.
The Appellant left the trial Court with no other choice than to decide the case on the one sided evidence before it. He shut himself out and has himself to blame. A trial Court is not expected to speculate on what the accused might have said if he testified. The Appellant gambled and did not do himself any good by opting to rest his case on that of the Respondent. He (and not the trial Court) had the opportunity to tell his own side of the story but failed to utilize the opportunity. He cannot now blame his misfortune on the trial Court and

cannot come before us to complain that he was not allowed to prove his innocence. It should also be pointed out that it is evident from the record that the trial Court evaluated the evidence before it before arriving at its conclusion. It observed the decision of the Appellant not to give evidence but rest his case on that of the Respondent. See page 383 of the record where the trial Court said:
After the prosecution closed its case, learned counsel for the defence, A. A. Adewole Esq. (Director Citizen?s Rights Department) on February 26, 2014 indicated that the defence was resting its case on that of the prosecution. Having regard to this and upon the agreement of counsel on both sides, the Court order final written submissions.
I have carefully gone through the record of proceedings and it is my firm view that there is no question that evidence against the Appellant including his Confessional Statement (Exhibit P22 (i) and (ii)) is overwhelming. His remaining silent in the face of that evidence did not help him. I wish to say again before concluding that a prudent Counsel should always resort to the doubtless right of his client

to rest his case on that of the prosecution with great caution.
This issue is resolved against the Appellant.

ISSUE NO. 3
Whether the evidence of the witnesses support the conclusion that there was conspiracy between the Principal Accused Person and the Accused/Applicant.

Learned Counsel to the Appellant submitted that the evidence of the Prosecution (Respondent) Witnesses do not support the conviction of conspiracy between the Principal Accused Person and the Appellant. It is Counsel?s contention that the Appellant innocently assisted the principal accused person to cash the cheque without knowing that the cheque in question did not belong to him. He submitted that the principal accused person confirmed during cross examination that he only gave the cheque of N150, 000 to the Appellant to assist him to cash. He argued further that the trial Court did not evaluate and appraise the evidence before it as required by law. He craved in aid of his submission the case of SULE VS. THE STATE (2009) VOL. 7 LRCNCC 1 AT PAGE 9.

Respondent’s Counsel did not respond to this issue in the Respondent?s Brief of Argument.

Conspiracy is an agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is a distinct offence separate from the substantive offence with which an accused person has been charged. It is generally agreed that it is not always easy to prove actual agreement between parties to do an unlawful act. Because the offence of conspiracy is often hatched in utmost secrecy, the circumstances of the offence must be carefully appraised and microscopically considered. Coker JSC in the celebrated case of PATRICK NJOVENS VS. THE STATE (1973) NNLR 331 made the following analogy which I find very relevant to this appeal:
?When it is proposed to give evidence of happening inside hall, it is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed it would be preposterous to look for such evidence in other directions.?
?A conviction for conspiracy is not without its inherent difficulties as it is one of those offences predicated

on circumstantial evidence. It follows therefore that to secure conviction for the offence, evidence relied upon must be of such quality that irresistibly compels the Court to come to the conclusion that indeed the accused person and no other committed the offence.
See PATRICK NJOVENS VS. THE STATE (1973) 5 SC 17; DABOH & ANR. VS. THE STATE (1977) 5 SC 22; KAZA VS. THE STATE (2008) 1 ? 2 SC 151 AT 164 – 165 and ONYENYE VS THE STATE (2012) ALL FWLR (PT. 643) 1810.

With all the above in mind, the pertinent question is whether the Respondent proved acts of the Appellant with others from which inference can be drawn that they conspired to commit forgery, utter false documents as well as steal the sum of N283,000.00 (Two Hundred and Eighty Three Thousand Naira) belonging to Kelvin Adegunloye.

PW1 Hassan Kabir an investigating officer with EFCC testified that two drivers? licenses (Exhibits P1 and P2) were recovered from the duo of Dapo Bello (1st accused at the trial) and the Appellant with one of the exhibits presented by the Appellant for payment of money at UBA. He testified further that the two licenses and the cheques

(Exhibits P7ii and P7iii) presented by the Appellant and Dapo Bello are fake. Appellants Counsel did not cross examine PW1 at all on this material evidence. See page 209 of the record. Infact he did not cross-examine PW1 at all.

PW8 (Fashakin Akinwunmi) the officer in charge of drivers license issuance at FRSC corroborated the evidence of PW1 when he testified that Exhibits P1 and P2 did not emanate from FRSC. The Appellant Counsel did not cross examine PW4 (Taiwo Babalola) an administrative officer with UBA on his evidence that the Appellant came to UBA to cash a fake cheque which Dapo Bello gave him as well as his evidence that Dapo Bello was arrested outside the bank?s premises with two drivers? licenses and charm. Counsel did not also deem it fit to cross examine PW7 (Mrs. Bukola Jaga) of Fraud Prevention and Investigation Department of UBA on her evidence on unauthorized withdrawal by Dapo Bello and the attempt of the Appellant to withdraw money in the same manner.

PW3S testimony of how Dapo Bello and the Appellant were arrested was corroborated by PW6 (Ojo Oladimimeji auditor and investigation Officer at the head office, UBA

Plc.). Exhibits P22 and P23 tendered through PW5 (Howard Audu) a sergeant attached to UBA Fraud Section contain self confessional acts of the Appellant and Dapo Bello in pursuance of an apparent purpose common to both of them. PW5s evidence at page 230 of the record is that from investigation, his findings was that the Appellant and Dapo Bello had relationship long before they were caught and that they had been dealing in clone cheques and were experts in forging signatures.

The Appellant?s failure to cross examine the Respondent witnesses on the above highlighted material facts imply that the evidence is correct and accepted. See ABIADOM VS. THE STATE (1997) 9 NWLR (PT. 479) PAGE 1 AT 20 PARAGRAPHS C-D.

The lower Court was left with no other option than to accept their testimony as true. The learned trial judge after evaluating the evidence before him held at pages 393 ? 394 of the record as follows:
Following the foregoing, I agree with the submission of the prosecution that from the evidence placed before Court, the accused persons demonstrated sufficient overt acts from which this Court can reasonably infer

the meeting of their minds in pursuant of unlawful acts. I find the 1st accused person guilty of conspiracy as charged in counts 1, 4 and 9. He is convicted accordingly.
I equally find the 2nd accused person guilty of conspiracy as charged in the said counts and I convict him accordingly.?

The above finding and conclusion of the trial Court is supported by evidence. I find no reason to disturb same. The lower Court was right when it found the Appellant guilty of the offence of conspiracy.
This issue is also resolved against the Appellant.

ISSUE NO 4.
Whether the oversight of the Prosecution to address letter to the Chief Registrar of the High Court about his intention to file information in respect of this matter will not vitiate the proceedings at the lower Court.

This issue is distilled from ground four of the Notice of Appeal. The said ground and its particulars are as follows:
4. The trial Judge erred in law in convicting and sentencing the 2nd Accused Person/Appellant when the provision of S. 340(2) of the Civil Procedure Law of Ogun State on Judge?s consent has not been complied with.

PARTICULARS OF ERROR
a. There was no prosecution letter addressed to the Chief Registrar of the High Court notifying him of the intention to file information in respect of this matter. This is fundamental in prosecuting this case and the prosecution has failed to do this.
b. The prosecution making reference to Section 174(1) of the Constitution of the Federal Republic of Nigeria 1999 and Section 13(2) of the Crimes Commission Establishment Act No. 1 of 2004 cannot take the place of the letter to be addressed to the Chief Registrar of the High Court notifying him of the intention of the prosecution to file information in respect of this matter.

On this issue, learned counsel on behalf of the Appellant submitted that failure to obtain consent of a Judge of the High Court of Ogun State before filing the information vitiates the proceedings. He submitted that the offences for which the Appellant was charged are against the relevant provisions of the Criminal Code Law, Ogun State which underscores the need for the Respondent to comply with Section 340(2) of the Criminal Procedure Law of Ogun State.

He relied on the provisions of Section 2 of the Criminal Procedure Law 2006, Laws of Ogun State which defines an indictable offence to submit that all the offences for which the Appellant was charged are indictable offences. He further relied on the cases of FEDERAL REPUBLIC OF NIGERIA VS. OTUNBA J.O. DANIEL (2012) O. G. S. L. R (PT. II) 32 AT 45, BAMAIYI VS. ATTORNEY GENERAL OF THE FEDERATION & ORS. (2001) 7 NSCQR 598 AT 617 and OKAFOR VS. THE STATE (1976) 10 NSCC 259.

He urged us to hold that failure of the EFCC to obtain the required consent rendered the information against the Appellant incompetent, void and liable to be quashed.

In his response, learned counsel to the Respondent referred us to page 1 of the Record of Proceedings as well as the case of EGBO VS. AGBARA (1997) 1 NWLR (PT. 481) PAGE 22 PARAGRAPHS A-B to the effect that it is not every irregularity that automatically nullifies an entire proceeding particularly where such irregularity did not in any way materially affect the merits of the case or occasion a miscarriage of justice.

Section 340 (1) and 2(a), (b) of the Criminal Procedure Law, Laws of Ogun State, 2006 provides as follows:
(1) Subject

to the provisions of this Section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the Registrar shall, if he is satisfied that the requirements of the next following Section have been complied with file the information and it shall thereupon be proceeded with accordingly:
Provided that if the Registrar shall refuse to file an information a judge if satisfied that the said requirements have been complied with may on the application of the Prosecutor or on his own motion direct the Registrar to file the information and it shall be filed accordingly.
(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either:
a. The person charged has been committed for trial; or
b. The information is preferred by the direction or with the consent of a judge or pursuant to an Order made under part 31 to prosecute the person.?
It is clear from the above provision

particularly Section 340(2)(b) what is required of the prosecution before filing an information with a charge against an accused person for an indictable offence. The Registrar shall only accept the information for filing only if he is satisfied that the direction or consent of a judge has been obtained.

On page 1 of the record is a letter with Reference No: CB3510/EFCC/VOL/6/55 dated 16th March, 2010 written by one M. S. Hassan for the Executive Chairman EFCC and addressed to the Chief Registrar High Court of Ogun State, Abeokuta Judicial Division, Abeokuta. It reads thus:FEDERAL REPUBLIC OF NIGERIA
VS.
1. DAPO BELLO (a.k.a. OLAOLU OYEWOLE)
2. BABATUNDE MOSES.
Pursuant to Section 174(1) of the Constitution of the Federal Republic of Nigeria 1999 and Section 13(2) of the Economic and Financial Crimes Commission Establishment Act No. 1 of 2004. I intend to file attached information against the above mentioned accused persons. Kindly cause the information to be filed in Court.
Attached herewith are copies of the information and Proof of Evidence, one copy each for service on the accused persons.?

It is significant to note that the Appellant raised the complaint about the filing of the information for the first time in the final written address of his counsel at the lower Court. As at the time it was raised the Appellant had pleaded to the charge, the case had gone through a rather protracted trial in which the Respondent/Prosecution had called eight witnesses and tendered several Exhibits. The Appellant had also gone on to rest its case on that of the Respondent. Evidence had practically closed. There had been a full blown trial in which the Appellant participated before he raised this issue of how the information was filed.
The law is trite that where in the opinion of counsel to an accused person there is a defect in the trial of the accused person, it is his duty to take objection to the perceived irregularity concerning the procedure. Such objection should be raised and taken promptly. Where that is not done, the objection would be taken as waived. See MONZIE VS. THE STATE (2012) LPELR ? 14353 (CA); ADEKUNLE VS. THE STATE (2006) 14 NWLR (PT. 1000) 717; KAMORU ALIMI ADIO VS. THE STATE (1986) 3 NWLR (PT. 31) 714 and GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2011) ALL FWLR (PT. 587) PAGE 664 AT 723.

In the case of STATE VS. CORNELIUS OBASI (1998) 9 NWLR (PT. 567) PAGE 686 it was held per Akpabio JCA at page 692 ? 693 as follows:
…where an accused person perceives that an indictment or information is incurably defective, he should properly file a motion to have the information quashed before the plea is taken. It was therefore wrong for the learned counsel for Respondents to wait for the plea of the Respondents in the instant case to be taken and for the prosecution to be commenced and concluded before raising his objection against the competence of the information in the course of making his ?no case? submission and not even by motion. The objection was not properly made and so should have been ignored or refused by the learned trial judge. See the cases of OKOLI VS. THE STATE (1992) 6 NWLR (PT. 247) 381 and IKOMI VS. STATE (1986) 3 NWLR (PT. 28) 340.
In the instant case, the Appellant waited for too long before complaining about the perceived irregularity relating to the competence or otherwise of the information and I so hold. It was rather too

late in the day. The lower Court was therefore right when in its judgment it held that it was too late for the Appellant who participated fully in the trial to raise the issue of the irregularity in the commencement of his trial.

Be that as it may, the issue of competence of a letter to the Chief Registrar in the commencement of a criminal trial has been laid to rest by the Supreme Court in the case of ABACHA VS. THE STATE (2002) 11 NWLR (PT. 779) 437 when Belgore JSC at pages 478 ? 479 paragraphs H ? C held thus:
“But the main problem with laying an information is that the law has not set out the clear procedure for laying the information. All that Section 340(2)(b) Criminal Procedure Law provides is for filing an information by direction or with the consent of a Judge (see R. v. Zik?S Press Ltd. (1974) XII WACA 202). There is nothing in either Section 77 (supra) or 277 CPL as regards summary trial that precludes a High Court from entertaining a complaint that relates solely to a non-indictable offence. Thus it seems that no format has been devised in State of the Federation governed by Criminal Procedure Law for laying an

information and a simple letter is enough in so far as it is accompanied by proofs of evidence and the charges containing the counts. It is a different procedure in the State applying Criminal Procedure Code Law e.g. Kaduna or Plateau State, where Rules are specifically made for application to prefer charges under Section 185 Criminal Procedure Code Law (see Criminal Procedure (Application to prefer a charge in the High Court) Rules). Suffice however that wrong method, if letter writing is such, will not vitiate the application once it is clear what the intendment of the Attorney-General is. ?
The above decision says it all. I also wish to add that an irregularity in the procedure in a criminal proceedings will not automatically result in the success of an appeal. The Court must be satisfied that there has been a miscarriage of justice. The onus is on the Appellant to prove that he has suffered injustice by the irregular procedure adopted in his trial. He must show that the irregularity in procedure has occasioned a miscarriage of justice. See UMARU VS. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR 20503 CA; OKAFOR VS. THE STATE (1990) 1 NWLR (PT. 125)

128 AT 136 PARAGRAPHS D ? E and ORESUNLEMI VS. THE STATE (1967) NWLR 278.
The instant Appellant has failed to show that he suffered any injustice by the manner in which the information used in the commencement of his trial was filed. He cannot hang on an irregularity in procedure to seek for an acquittal before this Court unless he is able to show that such irregularity led to a miscarriage of justice.

From all the foregoing, I have no hesitation in resolving this issue against the Appellant and in favour of the Respondent.

Having resolved all issues in this appeal against the Appellant, the end result is that this appeal lacks merit and it is accordingly dismissed. I affirm the decision of the Ogun State High Court in Suit No: AB/EFCC/011/2010 delivered on the 28th of October, 2015.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother Folasade Ayodeji Ojo, JCA gave me the benefit of reading before now, the draft of the judgment just delivered. My learned brother exhaustively considered all the issues set out for determination in this appeal. I agree with his reasoning and conclusions on all the

issues.

I only wish to say a few words of mine on issue two (2) which touch on the decision of the defence not to call evidence. By so doing, the defence rested their fate on the strength of the evidence adduced by the prosecution. It is not in doubt, that, the duty of a trial Court, indeed any Court, is to give opportunity to an accused person to be heard in his defence at the trial. The duty of the Court is to hear the accused, or give him the opportunity of being heard. No law says that a Court should compel a party before him to avail himself of the opportunity of being heard. It is in realization of that fact, that Section 287(1)(a) of the Criminal Procedure (Law) (CPL) of Ogun State, 2006 permits an accused person keep silent after the prosecution has closed its case. An accused person cannot therefore be compelled to give evidence in his defence. Where he elects not to give evidence, he must swim or sink on the strength of the evidence adduced against him by the prosecution. See Uzoaaba & Anor v. C.O.P. (2012) LPELR – 15525 (SC); Musa v. State (2014) LPELR – 24026 (CA); Sugh v. State (1988) 2 NWLR (pt.77) 475 and Nasiru v. State

(1999) 2 NWLR (pt. 589) 87. See also Section 36(11) of the Constitution of the Federal Republic of Nigeria, 1999 which stipulates that:
“No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

It is for the above reasons and the fuller reasons set out in the lead judgment that I agreed that this appeal lacks merit.
It is accordingly dismissed.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have been privileged with a preview of the Judgment just delivered by my learned brother, Folasade Ayodeji Ojo JCA. I agree with his reasoning and conclusion that this appeal lacks merit and it is accordingly dismissed.

I only wish to comment on the attitude of the defence counsel at the trial. On 26th of Feb., 2014 when the case was called up, counsel to the Appellant A.A. Adewole Esq informed the Court that having considered the matter, the defence rest its case on the prosecution case (See page 276 of the record). Learned counsel choose for his client to either swim or sink on the strength of the case of the prosecution. In the case of Lauwers Import – Export v. Jozebson Ind. Ltd

(1988) 3 NWLR (pt. 83) 434 at 455 Nnamani JSC has this to say:
“The relationship of a layman and his counsel is a complex one. While it is true that a counsel cannot and ought not to take any action in the course of proceedings without the instruction of his client, it would be wrong in my view not to recognize that when a layman entrust his case to a lawyer he expects legal advice and guidance from him, he expects counsel to advise what further steps he deems appropriate in the proceedings and it is then the client (unless of course he himself is also a lawyer) having considered that advice, instructs him to proceed or not.”
I must say that in this instant case, the learned defence counsel has failed to display that part of his knowledge acquired through special training. He has failed to put up a proper defence bearing in mind the rules and practice of Court.

I also dismiss the appeal and I abide by the consequential order in the lead Judgment.

Appearances:

P. O Alamu, Esq.with him, N.T. ApeFor Appellant(s)

Bashir Shamsudeen, Esq.For Respondent(s)

Appearances

P. O Alamu, Esq.with him, N.T. ApeFor Appellant

AND

Bashir Shamsudeen, Esq.For Respondent

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