CHIDOLUE MADU & ORS v. FEDERAL REPUBIC OF NIGERIA (2016)

CHIDOLUE MADU & ORS v. FEDERAL REPUBIC OF NIGERIA

(2016)LCN/8125(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of January, 2016

CA/J/16C/2012

RATIO

POSITION OF THE LAW WHEN CONSIDERING ISSUES FOR DETERMINATION

The law is trite that when considering issues for determination, the Court can either adopt same or reframe or even formulate new issues in the determination of the appeal. See FRN v. Obegolu (2006) 18 NWLR (Pt. 1016) page 158 at 225; Adaku v. Adjeh (1994) 5 NWLR (Pt. 316) page 582 and Ikegwuha v. Ohawuchin (1996) 3 NWLR (Pt. 435) p. 146. TIJJANI ABDULLAHI, J.C.A.

INGREDIENTS OF THE OFFENCE OF OBTAININIG MONEY UNDER FALSE PRETENCE

To prove the offence of obtaining money under false pretence, the prosecution has to prove the element of the offence under Section 1(1)(2) of the Advance Fee Fraud and Other Fraud Related Offence Act, 2006 which provides, thus:
“a Any person who by false pretence and with intent to defraud obtain from any other person in Nigeria or in any other Country, for himself or any other person;
b. Induces any other person in Nigeria or in any other Country to deliver to any person; or
c. Obtain any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence.
Thus, it goes further to break as follows:
i. That there is a pretence;
ii. That the pretence emanated from the accused person.
iii. And that it was false;
iv. That the accused person knows of its falsity or did not believe in its truth;
v. That there was an intention to defraud;
vi. That the thing was capable of being stolen;
vii. That the accused person made the owner to transfer his own interest in the property.”
See also Amadi v. FRN (supra), Alake v. State (supra) and Onwudiwe v. FRN (supra). TIJJANI ABDULLAHI, J.C.A.

ON THE DEFINITION OF CONSPIRACY

On the charge of conspiracy, it is settled that conspiracy is committed where there is an agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means, and the illegal act was done in furtherance by the agreement and that each of the accused person participated in the irregularity. See Abdullahi v. State (supra).
Also the Supreme Court in Gregory Godwin Daboh & Anor. V. The State (1977) ALL NLR 146 per Udo Udoma, JSC held:
“It is a well-recognized in law that conspiracy may exist between persons who have never seen each other or corresponded with each other: R. V. panel 14 cox 598 at page 515. Indeed, in order to convict of conspiracy. It is not necessary that the accused persons concerned should have concocted the scheme, the subject of the charge nor that they should have originated it. If a conspiracy is formed and a person joins it afterwards, he is equally guilty with the original conspirators. See R. V. Summons (1969) 1 Q. B 685”. TIJJANI ABDULLAHI, J.C.A.

THE STANCE OF THE LAW ON IRREGULAR PROCEDURE

It is however note worthy that where an action being commenced by a procedure which is irregular, a party who took active part in the proceedings, without raising a formal objection to the irregular procedure cannot be heard later to complain to the same procedure he consented. See Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) page 489 at 509. TIJJANI ABDULLAHI, J.C.A.

THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE: WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE JUDGEMENT OF THE TRIAL COURT.

The duty of evaluating evidence has long been settled that is within the realm of the trial Court. See Okey v. Obiaso (supra). That unless the findings are not supported by credible and reliable evidence, an appellate Court will not interfere with the Judgment of the trial Court. See Nkebisi v. State (supra). In Amadi v. Federal Republic of Nigeria (2008) LPELR – 441 (SC) the Supreme Court held, thus:
“The law is trite that an appellate Court will have no justification to upturn Judgment that are the product of admissible evidence and based on reasonable conclusions. In the instant case, the Supreme Court declined to upturn the findings of facts of the Lower Court. See Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1, Lengbe v. Imale (1959) SCNLR 640, Echi v. Nnamani (2000) 8 NWLR (Pt.667) 1 page283 paragraphs B-C)”. TIJJANI ABDULLAHI, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

1. CHIDOLUE MADU
2. CHIDO AND SONS CHEMICAL INDUSTRIES LTD
3. KOMIC INDUSTRIES NIG. LTD.
4. BARROW INDUSTRIES NIG. LTD Appellant(s)

AND

FEDERAL REPUBIC OF NIGERIA Respondent(s)

TIJJANI ABDULLAHI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of the Gombe State High Court of Justice, presided over by Hon. Justice B. L. Iliya delivered on the 4th day of July, 2011.

The 1st Appellant is the owner and managing Director of the 2nd to 4th Appellants, were all charged together and arraigned on a 19 counts charge before the Lower Court on the 8th December, 2009.

The Appellants pleaded not guilty to the charges. See pages 4010 and 125 of the Record of Appeal.

The charges leveled against the Appellants were of conspiracy to and to obtain money by false pretence under Section 1(1), 8(a), 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act.

The charges of conspiracy formed the subject of counts 1, 3, 5, 7, 9, 11, 13, 15 and 18, while obtaining money by false pretence formed the basis of counts 2, 4, 6, 8, 10, 12, 14, 16, and 17 of the charges.

At the trial, the Respondent (prosecution) called 3 witnesses to prove its case i.e PW1 ?PW3 and tendered 18 Exhibits i.e. 1-14, 17-20. At the close of the prosecution?s case, the Appellants selected to make a no

case submission. Parties exchanged addresses on the no case submission and adopted same on 28th July, 2010. The learned trial Judge in his considered ruling on the 25th October, 2010 dismissed the Appellants? no case submission and they (Appellants) applied to put up their defence. They called 3 witnesses and tendered Exhibits 16, 21 ? 32.

?In a well-considered judgment, the learned trial Judge held inter alia thus:-
?I have given full consideration to all the points raised in allocutus by him, and that there is no evidence of previous conviction by him. The Act provides for not more than 20 years imprisonment and not less than 7 years without option of fine. Considering the plea for leniency, I sentence the 1st accused person to 2 years imprisonment without option of fine. In addition he shall pay the complainant the sum of N2,480,000 as restitution.
The 2nd, 3rd and 4th accused persons are artificial persons in view of that they are to pay fine of N100,000 each?.

Dissatisfied with the Judgment of the trial Court, the Appellants filed Notice of Appeal consisting of three grounds for ease of reference, the grounds are

hereby reproduced hereunder.

GROUND ONE:
The trial Court erred in law when it found that:
?On the charge i.e. the whole 19 counts. The offences on which the accused persons were charged are clearly disclosed in the charge and the accused persons were in no way misled and more so no objection was taken immediately after the charge was read to the accused person? Therefore the issue of jurisdiction does not arise?.

GROUND TWO:
?The trial Court erred in law when it disregarded and made no determination on the defence of alibi put up by the accused persons to the 19 counts charge and that error occasioned miscarriage of justice to the Appellants.?

GROUND THREE:
?The judgment is against evidence adduced before the trial Court more ground (sic) to be filed upon receipts of record of proceedings.?

?From the above three grounds of appeal

reproduced supra, learned Counsel for the Appellant distilled two issues for determination to wit:
?1. Whether from the evidence on record now before this Honourable Court, the prosecution did prove the 19 counts charge against the Appellants beyond reasonable doubt, as required by law to justify their conviction by the trial Courts. (Distilled from ground 3 of the grounds of appeal).
2. Whether upon proper construction of the 19 counts charge preferred against the Appellants before the trial Court and evaluation of the evidence adduced, the learned trial Court was not wrong to have disregarded the alibi as evident on record and held that the issue of jurisdiction does not arise in the case. (Distilled form grounds 1 and 2 of the grounds of appeal)?

?For his part, learned Counsel to the Respondent in a brief settled by Abub akar Aliyu, Esq. formulated three issues for determination to wit:
?a. Whether the 19 counts charge before the Lower Court were and thus misled the Appellants at the trial which occasioned miscarriage of justice. (Distilled from ground 1 of the Appellants grounds

of appeal).
b. Whether the trial Court has properly evaluated both the oral and documentary evidence admitted at the trial to arrive at its decision convicting the Appellants. (Distilled from ground 2 of the Appellants’ grounds of appeal).
c. Whether based on the facts, evidence and circumstances of this case, the Respondent had proved its case, charges of conspiracy and obtaining money by False Pretence beyond reasonable doubt to warrant the conviction and finding of the Lower Court. (Distilled form ground 3 of the Appellants’ grounds of appeal)”.

On the 30th day of November, 2015, this appeal came before us for hearing. Learned Counsel for the Appellants H. N. Nwoye Esq. adopted Appellants’ brief of argument dated 12th day of June, 2015 and filed the same date and urged us to allow the appeal.

Learned Respondent’s Counsel Abubakar Aliyu, Esq. adopted his brief of argument dated 14th day of July, 2015 and filed the same date and urged us to dismiss the appeal.

The law is trite that when considering issues for determination, the Court can either adopt same or

reframe or even formulate new issues in the determination of the appeal. See FRN v. Obegolu (2006) 18 NWLR (Pt. 1016) page 158 at 225; Adaku v. Adjeh (1994) 5 NWLR (Pt. 316) page 582 and Ikegwuha v. Ohawuchin (1996) 3 NWLR (Pt. 435) p. 146.

A closer look at the grounds of appeal as well as the issues formulated by the parties to this appeal, the following issues would best settle the complain in this appeal, Thus:
1. Whether the trial Court has properly evaluated both the oral and documentary evidence admitted at the trial.
2. Whether the prosecution proved the 19 counts charge against the Appellants beyond reasonable doubts, as required by law to justify their conviction by the trial Court.

In arguing these issues, learned Appellant’s Counsel referred to counts of conspiracy i.e counts 1, 3, 5, 7, 9, 11, 13, 15 and 18 and submitted that the Respondent has the burden of proving the following elements of the offence.
1. An agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means;
2. That illegal act was done in furtherance of the agreement

and each of the accused persons participated in the illegality.

Learned Counsel submitted that from the evidence on record, PW1 is the complainant to the Respondent, his evidence is far from proving conspiracy, particularly when the 2nd, 3rd and 4th Appellants are corporate bodies. He maintained that PW1 did not adduce any evidence to give impression of existence of two or more persons as those charged before the trial Court for conspiracy to be made out. He cited and relied on the case of Ikwunne v. State (2005) 4 LRCNC 268 at 271 Ratio 5.

Learned Counsel urged us to allow the appeal of the Appellants against their conviction on conspiracy for lack of material evidence, want of proof of the elements of the offence, and as the trial Court has failed in evaluating the evidence properly. He cited and relied on the case of Ndukwu v. The State (2011) 9 LRCNC 219 Ratio 12 at page 227, Egunjobi v. FRN (2011) 53 WRN 20 Ratios 11 and 12.

?In his further submission, learned Counsel referred to charges in counts 2, 4, 6, 8, 10, 12, 14, 16, 17 and 19 and submits that the Respondent did not prove the charges beyond reasonable doubt as required. He relied on

the cases of Oghor v. State (1999)2 LRCNCC 117 Ratios 1, 2, 3 and 4 at pages 119 ? 120, Nweke v. State (2006) 5 LRCNCC 358 Ratio 2 pages 360-361. He also relied on Section 1 of the EFCC Act Cap AB LFN 2004, Section 1(1)(2) of the Advance Fee Fraud and Other Fraud Related Offences Act on the elements of the charge of obtaining by false pretence.

Learned Counsel submits further that the prosecution did not prove the charges against the Appellants. He referred to the evidence called by the prosecution i.e. evidence of PW1, PW2, PW3 at pages 128 -145 of the record and the documents tendered i.e. Exhibit 1-14, 17-20 and the Appellants’ evidence of DW1, DW2 and DW3 at pages 150 of the record and the documents tendered i.e Exhibits 21-32.

In another leg of his submission, learned Appellants’ Counsel submits that from the charges and evidence, the case of the Respondent against Appellants is that they obtain various sums of money fraudulently and with false pretence from PW1 at Gombe in Gombe Judicial Division. He referred to the case of Onwudiwe v. FRN (2008) 6 LRCNCC 334 Ratio 11 at 339 that an offence is said to have been committed

fraudulently when:
“…if the action or conduct is a deceit, to make, obtains or procures money illegally. By the fraudulently action or conduct, the accused deceives his victim by pretending to have abilities or skills that he does not really have. In one word he is an imposter”.

Learned Counsel submitted that the Respondent did not prove deceit, fraud, procurement of the sums of money giving rise to N2,480,000 by illegal means, beyond reasonable doubts. He added that there is nothing confessional, in the Exhibits 14 and 20 to be so construed by the trial Court, that the 1st Appellant in his statement in answer to the interrogation by PW2 made narratives of moneys received and how same were expended. He submits that it was wrongly construed by the trial Court to be confessional and felonious and consequently convicted the Appellants. He referred to pages 67 – 68 of the record and Exhibits 14 and 20.

Learned Counsel submits that the doubt as to the proof of intent to commit crime and commission of the alleged crimes under the advance fee fraud and other related offences was not established. He argued that

the relationship between the Appellants and the PW1 was normal business transaction. He relied on the case of Udosen v. The State (2008) 6 LRCNCC 192 Ratio 5 at pages 196 ? 197 of the Report, Alonge v. Inspector General of Police (1959) 4 FSC 203, Faloyimbo v. AG., Western Nigeria (1966) WNLR 4; and The State v. Musa Danjuma (1977)5 SCNJ 126 A 136 – 137.

Learned Counsel further submits that venue of crime is fundamental in trial of any criminal charge. He stated that it is an issue in the consideration of whether or not the Court has jurisdiction to try the indictment before it. He argued that the Gombe State High Court of Justice has no jurisdiction to try the Appellants as there is doubt as the subject matter of the case occurred within the territorial waters of Gombe State. He relied on the case of Madukolu v. Nkemdilim (2001) 46 WRN, Ratio 1 at page 2, Iyanda v. Laniba II (2002) 33 WRN 40 Ratio 4,5 and 6 NDIC v. Savanna Bank Plc (2002) 51 WRN 19 Ratio 2 at page 27.

Learned Counsel finally urged us to allow the appeal, set aside the Judgment of the trial Court, discharge and acquit the Appellants, order for the refund of the N100,000

each fine against the 2nd – 4th Appellants upon presentation of the payment receipts.

For his part, learned Counsel for the Respondent, in response to the argument canvassed by the Appellants’ Counsel submits that evaluation of evidence is within the realm of the trial Court and that unless the findings are not supported by credible and reliable evidence and have led to miscarriage of justice, an appellate Court will not interfere with the Judgment. He cited and relied on the cases of Okoye v. Obidso (2010)8 NWLR (Pt. 1195) page 145 at 160 paragraphs A-D(SC), Nkebisi v. State (2010) 5 (Pt.1188) page 471 at 488 paragraphs D-E (SC).

Learned Counsel submits further that the applicable principle governing the evaluation of evidence by a trial Court is that the totality of evidence adduced by the parties in the case should be considered in order to determine which has out weighed the other. He argued that, in doing so, the two should be put on an imaginary scale and weighed against the other then decide on which evidence actually weigh more and then accept it. He submits that where the trial Court failed, the appellate Court is in proper

position to do such evaluation. He relied on the case of Amadi v. FRN (2010)5 NWLR (Pt. 1186) page 87 at 115 paragraphs B-H (CA), Kaydee Ventures Ltd v. Min FCT (2010) NWLR (Pt. 1192) Page 171 at 209-210 paragraphs H-C (SC).

Learned Counsel submits that the Judgment is said to be perverse when it runs counter to the evidence or where it has been shown that the trial Court took into account matters which it ought not to have taken into account or when it has occasioned a miscarriage of justice. He relied on the case of Abi v. CBN (2012) 3 NWLR (Pt. 1288) Page 1 at 17 Ratio 27 page 39 paragraphs F-G (CA). He argued further that in the instant case, the Judgment of the trial Court, having acted as who saw and heard the witness has come to a specific findings of facts based on evidence and issues before it and its conclusion flowed from the credible and reliable evidence before it. Learned Counsel maintained further that the Judgment of the trial Court was very consistent and right and devoid of any iota of miscarriage of justice. He cited and relied on the case of Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) page 169 at 194 – 195 paragraphs G-H (SC).

He also referred to pages 161 – 176 and 178 of the Record of Appeal.

On the elements of obtaining money under false pretence, learned Counsel referred us to the cases of Amadi v. FRN (2005) 18 NWLR (Pt. 1119) page 259 at 265 – 266 Ratio 10(SC), Onwudiw v. FRN (2006) ALL FWLR (Pt. 319) page 77 at 812 paragraph E, 813 paragraphs G-F, Alake v. State (1991) 7 NWLR (Pt. 205) page 567 and Section 1(1) and (2) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

Learned Counsel submits that the evidence led by the prosecution showed that the 1st Appellant who is a business man and used to produce soap for sale, placed a mobile call to PW1 falsely informing him of an existing goods (Soap), and that 1st Appellant will effect supply of the soap to PW1 if he (PW1) will deposit the sum of N2.5 Million into the bank accounts of the Appellants. He referred to pages 128 – 131 of the record of appeal.

Learned Counsel submits further that the evidence led through PW1 which was corroborated by the evidence of PW2, PW3 and Exhibits 1-9, 145, 17-18 and 20 proved counts 2, 4, 6, 8, 10, 12, 14, 16 and 17 of the charge. He referred to

pages 153-155 of the record of appeal.

In his further submission, he submits that the best way of proving payment of money into a bank account is by production of the bank teller or an acknowledgment showing on its face that the bank has received the payment. He states that Exhibit 1-9, 17 and 18 are the bank tellers and statement of account, evidencing the deposit of money by PW1 into the account of 2nd – 4th Appellants but controlled by 1st Appellant. He relied on the case of UBA Plc v. G.S. Ind. (Nig.) Ltd (2011) 8 NWLR (Pt. 1250) Page 590 at 621 paragraphs A-C (CA).

Learned Counsel submitted that Exhibits 14 and 20 are confessional statements of the 1st Appellant which were all admitted without objection and clearly places further the particular of the false pretence on the part of 1st Appellant.

On the offence of conspiracy to obtain money by false pretense which formed the basis by counts 1, 3, 5, 7, 9, 11, 13, 15 and 18 of the charge, learned Counsel submits that the offence of conspiracy under the Advance Fee Fraud and Others Related Offences Act is any person who conspires with, aids, abets, Counsels, incites, procures or induces

any other person to commit an offence is guilty of the offence. He cited and relied on the case of Amadi v. FRN (supra) AT 206 Ratio 12 (SC) and Section 8 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006., Abdullah v. State (2008) 7 NWLR (Pt. 1085) Page 125 at 134 R. 7 (SC).

?Learned Counsel contended that in the offence of conspiracy, the mensrea is not easy to locate as it is mostly, not invariably, buried in secrecy, the actus reus of the offence which is easier to locate can draw the mensrea to open and make it possible for the Court to find inculpatory evidence. He cited and relied on Kaza v. State (2008) NWLR (Pt. 1085) Page 125. Learned Counsel added that all is needed to establish conspiracy is the meeting of minds to commit an offence and this meeting of minds need not be physical, that once the Court arrives at a conclusion that the prosecution has established some community effort on the part of the accused person aimed at committing a crime, it will be safe to convict him of conspiracy.

?He submits that the action of the 1st Appellant in successfully inducing PW1 to part with his money N2,480,000 and made him to believe

that he was to get supply of soap which was later found to be false, and 1st Appellant by using the bank accounts 2nd ? 4th Appellants (his companies) which he controls has constituted criminal conspiracy among themselves to defraud the victim (PW1) in this case.

Learned Counsel submits that the Lower Court was right in concluding that the offence of conspiracy to obtain money under false pretense has been made out against the Accused/Appellants.

On the proof beyond reasonable doubt learned Counsel submits that the method to prove the guilt of an accused is in either of the following:-
1. Confessional statement
2. Circumstantial evidence
3. Direct evidence: Evidence of an eye witness. He relied on the case of Fatilewa v. State (2007)5 ALLR Page 607 at 614 Ratio 17 (CA).

He submits that Exhibits 14, 16 and 20 are all confessional statements of the 1st Appellant which were duly admitted. He submits that once an accused person makes a statement under caution saying or admitting the charge or creating the impression that he committed the offences charged, the statement becomes confessional. He relied on Fatilewa v. State

(supra). He contends that a trial Judge can admit a confessional statement and act on it alone. He relied on the cases of Odeh v. FRN (2008)13 NWR (Pt. 1103) Page 106 Ratio 4 (SC), Adebayo v. AG, Ogun (2008) NWLR (Pt. 1085) page 201 at 204 Ratio 2 (SC).

Learned Counsel argued that based on the evidence on record and from the confessional statement of the accused person, it is over whelming proof that in fact the Appellants did commit the offence they were convicted. He submits that Court of law has a duty to act on an uncontradicted or uncontroverted credible evidence and testimony of the prosecution. He relied on the case of Magaji v. Nigerian Army (supra).

Learned Counsel finally urged us to dismiss the appeal for lacking in merit and uphold the Judgment of the trial Court.

Relating the above ingredients of the offence of obtaining money under false pretence in the instant case, the evidence of the prosecution Counsel is

very crucial in determining whether the prosecution established the elements of such offence. PW1 in his evidence-in-chief testified thus:
“That I was in my shop…when the accused person called me and told me that he has a soap on ground. If I can deposit N2.5 Million into his account he can supply me soap? after I deposit (sic) two million Naira into his accounts, I also gave him N480,000 at hand… when I went to Aba in Abia State I discovered that he has no soap on ground”.
See page 128 of the record of appeal.

The evidence of PW2 and PW3 also corroborated the evidence of PW1. See pages 132 and 144 of the record of appeal.

Under cross-examination DW2 (1st Appellant) testified that:
“The complainant paid N2,480,000.00 into my account. The money was to produce soap for him. He paid N2 million into my account and N480,000.00 cash… we did not produce the soap to him because he did not complete the money”.

The relevant consideration here, is that the complainant (PW1) deposited his money with the Appellants on the false pretence by the Appellants

(accused) which at the time the 1st Appellant communicated with the complainant was aware, he was not into the production of soap but made the complainant to believe him and led him to deposit his money with the Appellants. The resultant consequence of which, the complainant was defrauded by the Appellants (accused) as no soap or his (complainant) money was recovered.

An objection to produce shall be taken immediately after the charge has been read over to the accused and not later. See Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) page 338 at 383 – paragraphs H-B.

I have painstakingly gone through the record of appeal in this appeal, and I have not seen where the Appellants raised any objection as to validity of the charges against them before the trial Court. The Appellants even if there were any irregularities to the charges are deemed to have waived them.

Based on the facts and evidence adduced before the trial Court, I am of the considered view, that the learned trial Judge rightly convicted the Appellants and I so hold.

The Judgment of the Gombe State High Court of Justice presided over by Hon. Justice B. L. Iliya delivered on the 4th day of July, 2011 is hereby affirmed. I make no order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft the Judgment delivered by my learned brother, Abdullahi, JCA.
I entirely agree with it, and for the reasons which he has given, I too would dismiss the Appeal.
?

SAIDU TANKO HUSAINI, J.C.A.: I have had the advantage of reading in draft the lead Judgment of my Lord, Tijjani Abdullahi, JCA with whom I concur that the appeal lacks merit and same should be dismissed. I abide by other consequential orders in the lead Judgment.

Appearances

H. N. NwoyeFor Appellant

AND

Abubakar Aliyu (SD)For Respondent