CHUKWU v. FRN (2020)

CHUKWU v. FRN

(2020)LCN/14335(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/A/788C/2017

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

SUNDAY CHUKWU (ALIAS IDRIS AYUBA) APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

It is settled law that the right to fair hearing, being a fundamental constitutional right guaranteed by the Constitution; the breach of it in any trial, investigation or inquiry, nullified the trial, investigation or inquiry and any action taken on it is also a nullity- per Obaseki J.S.C. in ADIGUN v. ATT. GEN. OYO STATE (1987) 1 NWLR (PT. 678) AT 709.
The Supreme Court, more recently in S & D Construction Coe Ltd v. Chief Bayo Ayoku & Anor (2011) 6 SCNJ (Pt. 1) 268 at 291 – 292, reiterated the essential attributes of fair hearing to the effect that: “The right to fair hearing is a constitutional right enshrined in Section 36 of the 1999 Constitution. The right to fair hearing is a very essential right for a person to secure justice. The basic attributes of fair hearing include:
(a) That the Court shall hear both Sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudiced to any party in the case.
(b) That the Court or Tribunal gives equal treatment, opportunity and consideration to all concerned
(c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing. (d) That having regard to all circumstances in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have been done. The burden is on the party alleging breach of fair hearing in a case to prove the breach and he must do so in the light of the facts of the case.
See MAIKYO v. ITODO (2007) 7 NV(LR (PT. 1034) PG. 443. PER ABOKI, J.C.A.

THE CRIMINAL OFFENCE OF CONSPIRACY

Now, in dealing with the offence of conspiracy, the Court ought to satisfy itself with the fact that there was a meeting of the mind of the alleged conspirators to commit an offence. Being that the envisaged meeting of the minds is more often than not hatched and shrouded in secrecy, the best evidence is usually from one or more of the conspirators and/or from their body language which in the legal parlance is termed the actus reus and/or circumstances surrounding their action. Thus, the ingredients of the offence of conspiracy would normally constitute the following:
a. An agreement by two or more persons to execute an agreed act;
b. The agreed act must be unlawful; and
c. The execution of a lawful act but in an unlawful manner.
In the authority of BELLO V. THE STATE (2010) 12 SCM (PT. 2) 2, para. C, it was held that: The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and the concluded agreement can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy.
Furthermore, in the case of OMOTOLA & ORS. V. THE STATE (2009) 19 SCLR (PT. 24) 92 AT 102, the apex court had held that: “In order to get conviction on account of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means… Circumstantial evidence is often used to point to the fact that the confederates had agreed on the plan to commit the crime. There must be an overt act from which to infer the conspiracy
See also ABEDA v. STATE (2016) LPELR 42927 (CA), CLEMENT v. FRN (2019) LPELR 47232 (CA). PER ABOKI, J.C.A.

THE CRIMINAL OFFENCE OF OBTAINING MONEY BY FALSE PRETENCE

The offence of obtaining money by false pretence is codified under Section 1 of the Advance Fee Fraud and Other Related Offences Act 2006, which provides as follows:
1. (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 any other person, in Nigeria or in any other country for himself or any other person; or
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
(c) obtains 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, commits an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other county, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.
(3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.
8. A person who –
(a) conspires with, aids, abets, or counsels any other person to commit an offence; or
(b) attempts to commit or is an accessory to an act or offence; or
(c) incites, procures or induces any other person by any means whatsoever to commit an offence, under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.
False pretence is defined in Section 20 of the Act as:
‘False pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact of 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.”
For the offence of obtaining by false pretences to be committed, it must be proved that the accused person had an intention to defraud and that the thing is capable of being stolen. An inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused person to imprisonment for the offence.
It therefore follows that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are:
1. That there was a pretence.
2. That the pretence emanated from the accused person.
3. That the pretence was false.
4. That the accused person knew of the falsity of the pretence or did not believe in its truth.
5. That there was an intention to defraud.
SeeMUKORO v. FRN (2015) LPELR 24439 (CA), ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 55
ODIAWA vs. FRN (2008) ALL FWLR (PT. 439) 436. PER ABOKI, J.C.A.

DEFINITION OF THE OFFENCE OF “ATTEMPT”

In JEGEDE v. STATE (2001) LPELR 1603 (SC), the Supreme Court, per Belgore defined attempt as follows:
“….what is the offence of attempt under our law? If a person intends to commit an offence, and in the process of puffing his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction is said to commit the attempt of the offence intended. (See of the Criminal Code). The end to which the accused arrived must have been substantially attained but for intervention which he never volunteered to meet or anticipated which prevented the commission of the full offence intended.”PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The Appellant herein, was arraigned at the High Court of the Federal Capital Territory, holden at Maitama, on a two count charge to wit:
COUNT ONE
That you Sunday Chukwu (alias Idris Aruba) and others now at large, on or about the 3rd of May, 2012 in Abuja within the Judicial Division of the Federal Capital Territory, did conspire among yourselves to do an illegal act to wit: obtaining money by false pretence thereby committing an offence contrary to Section 8(a) of the Advance Fee Fraud and Other Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT TWO
That you Sunday Chukwu (alias Idris Aruba) and others now at large, on or about the 3rd of May, 2012 in Abuja within the Judicial Division of the Federal Capital Territory, did with the intent to defraud, attempt to obtain the sum of N350,000 (Three Hundred and Fifty Thousand Naira only) being the price of a Carton of Solar Panel Rings from one Aminu Mansur, under the false pretence that you are a Manager with Dantata and Sawoe and deals in the supply of the said Solar Panel Rings and

thereby committed an offence contrary to Section 8(b) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.

The charges were read and explained to the Appellant who pleaded not guilty to the two count charge.

The story of the Prosecution is that on the 3rd of May, 2012, the Appellant was arrested by officers of the EFCC, upon a petition by one Aminu Mansur that he received a phone call from one woman, telling him that he was required to supply solar panel rings and that he needed to collect a sample of the said solar panel rings from one Idris Ayuba who was purportedly a Store Manager with Dantata and Sawoe. The said Aminu Mansur was given the phone number of Idris Ayuba, who, according to the Prosecution, turned out to be the Appellant. The price of the panel rings was set at N350,000.00 (Three Hundred and Fifty Thousand), and the said Complainant Aminu Mansur was then to sell it at N420, 000.00 (Four Hundred and Twenty Thousand). The Complainant spoke with the Appellant and they agreed to meet at Giri Junction with the sum of N350,000.00 in exchange for the said purported solar panels.

In the interim, the Complainant suspected that the arrangement was fraudulent and petitioned the EFCC who advised him to play along with the Appellant. On the 3rd of May, 2012, the Complainant alongside the officers of the EFCC went to meet with the Appellant. One of the officers of the EFCC acted like the driver of the Complainant. They met with the Appellant who came with a nylon bag purportedly containing the solar panel rings, while he demanded for N350,000.00 from the Complainant; whereupon he was arrested. Upon investigation, Dantata and Sawoe was contacted and they stated emphatically that the Appellant was not a store manager with them. Upon further investigation, it was discovered that the purported solar rings were bicycle spare parts.

In the bid to establish its case, the Prosecution called three witnesses, and tendered Four Exhibits.

The Appellant testified in his defence, after his no case submission was overruled by the Trial Court, and called no other witness. The case made out by the Appellant was that he was arrested while coming from the mechanic with a taxi he was driving. It was around his environment in a local restaurant with other

people there. He had finished eating and when the EFCC officials entered, many people ran away but they succeeded in apprehending him. He was dragging with them until they showed him their ID Card, then he said that he did not know they were police. They arrested them and took them to their vehicle, the two others were Hausa men. They were speaking hausa to him and he told them he doesn’t understand hausa. They brought out a nylon bag and asked him to tell them what was inside. He said he doesn’t know. He was taken to an office and they took him to a room. And they asked him to tell them how they do 419. He told them he drives taxi and doesn’t do 419. They brought out some things, including electric shock and told him they would use them on him, if he didn’t tell the truth. So he told them to write whatever they wished. Then they wrote, although he told them nothing.

At the close of trial, the Trial Court found the Appellant guilty as charged and sentenced him on each of the two counts of the charge to a term of ten (10) years imprisonment each without an option of fine, and the terms of imprisonment in both counts were to run concurrently.

It is against his conviction and sentence that the Appellant appealed to this Court; vide a Notice of Appeal dated and filed on the 18th of July 2016, upon Five (5) grounds. See pages 135 – 141 of the Record.

In line with the Rules and practice of thus Court, parties filed and exchanged briefs of argument, which they adopted and relied on in support of their respective positions, when the appeal came up for hearing on the 27th of April, 2020.

The Appellant’s brief was dated the 20th December, 2017 and filed on the 22nd of December, 2017. ESSIENEKAK ESQ., of Counsel to the Appellant, who settled the Appellant’s brief, postulated Four (4) issues for determination. They are:
1. Whether the Prosecution was successful in proving the offence of conspiracy against the Appellant to warrant the conviction by the Trial Judge under Section 8(a) of the Advance Fee Fraud and Other Related Offences Act 2006?
2. Whether the Prosecution was able to prove beyond reasonable doubt, the legal requirements of the ingredients of attempt to commit offences under Section 8(a) of the Advance Fee Fraud and Other Related Offences Act 2006?
3. Whether the Learned

Trial Judge was not bound to consider and pronounce on the issues raised or formulated for determination?
4. Whether the Learned trial Judge was clothed with the requisite jurisdiction to try the Appellant, when due processes were not followed, hearing notice was not ordered and served on the Appellant’s counsel when service of a hearing notice was a condition precedent to the trial Court assuming jurisdiction.

The Respondent prosecuted this appeal through ASHIBI AMEDU ESQ., of the Economic and Financial Crimes Commission, (EFCC) Abuja. In its brief filed on the 30th of April, 2018, but deemed filed on the 27th of April, 2020, Four (4) issues were also formulated for determination, to wit:
1. Whether the Prosecution has discharged the onus placed on it to prove the charges against the Defendant beyond reasonable doubt the offence of conspiracy against the Appellant to secure its conviction?
2. Having regard to the evidence of the Prosecution and the circumstance of this case, whether the learned trial Judge was right in convicting the Appellant?
3. Whether the Prosecution has proved beyond reasonable doubt, the legal requirements of the

ingredients of attempt to commit offences under Section 8(a) of the Advance Fee Fraud and Other Related Offences Act 2006?
4. Whether the Prosecution has complied with all the legal requirements to confer and empower the learned trial Judge with jurisdiction to try and convict the Appellant?

In considering and determining this appeal, I am inclined to adopt the Appellant’s four issues. I intend to first consider and determine issue 4 before considering the other issues. Issue Four asks the question:
“Whether the Learned trial Judge was clothed with the requisite jurisdiction to try the Appellant, when due processes were not followed, hearing notice was not ordered and served on the Appellant’s counsel when service of a hearing notice was a condition precedent to the trial Court assuming jurisdiction?”

It is submitted for the Appellant that the Appellant under the law was entitled to be allowed by the Trial Court on the application of his Counsel to enable the witnesses of the prosecution who have given evidence and such was to be recalled even after the Prosecution has closed its case and a submission of no answer was made and a ruling delivered.

Learned counsel for the Appellant invited this Court’s attention to pages 123 and 124 of the Record and argued that when on the 9/7/14 and 15/10/14, the application to recall the witnesses was made by the Appellant counsel, the Trial Court was bound by the provisions of the Criminal Procedure Code (CPC), on the oral application of the Appellant’s counsel to order a recall of the witnesses. He relied on:
SECTION 162 OF THE CPC;
SECTION 36(6)(D) OF THE CFRN 1999 (AS AMENDED).

Learned counsel for the Appellant stated that even when the witnesses of the Prosecution had been cross examined at the stage of the Prosecution’s case, the right to be further recalled is unshaken and ought to have been granted to the accused person. He maintained that the failure of the Trial Court to grant the application made by the Appellant to recall the witnesses of the Prosecution impacted upon the rights of the Appellant. He placed reliance on these cases:
OYINOLA v. COP (1975) NNLR 36; DISO v. KANO N.A. 1968-1969 SCOPE 19; IGWENAGU v. IGP (1958) NNLR 80; JIMETTA v. COP (1969) NNLR 29

It is the opinion of learned counsel for the

Appellant that the Trial Court adopted a strange procedure in the case of the Appellant, in that the Trial Court ordered the Appellant, who was unrepresented by Counsel, and who did not elect to defend himself; to enter his defence, upon the application of the Prosecution, who urged the Court to mandate the Appellant to defend himself. He called the attention of this Court to:
Pages 115 – 130 of the Record;
SECTIONS 108 & 180(a) OF THE EVIDENCE ACT.

He posited that the Appellant gave his defence, without taking an oath, and was thoroughly cross examined by the Prosecution, without his counsel, and this occasioned a serious infraction of justice against the Appellant.

Learned counsel for the Appellant contended that the failure of the Trial Court to order the issuance and service of the hearing notice to the Appellant’s counsel on record, violated the right to fair fearing of the Appellant, who throughout the trial was in custody, goes to the jurisdiction of the Trial Court to try the matter.

It is his view that the failure to be accorded the opportunity of a fair trial by the Trial Court has entitled the Appellant to be

discharged and acquitted.

This Court is urged to so hold and resolve this issue in favour of the Appellant.

In response to the above, it is submitted for the Respondent that the Trial Court had complied with the position of the law with regards to far hearing. Learned counsel for the Respondent referred this Court to pages 123 – 126 of the Record, and contended that it was Appellant’s counsel that asked that the application to recall the prosecution witnesses be withdrawn.

According to him, it is on record that on the 23rd June, 2015, despite the fact that the Appellant’s counsel was in Court on the last adjourned date, he (the Appellant’s counsel), was not in Court, prompting the Appellant to say that: “The way I see my lawyer, I don’t think he is interested in this case.”

He maintained that fair hearing is fair to all parties and it entails that during the course of trial, all that will make an impartial observer to believe that the trial had been balanced evenly on both sides. It is not a one sided affair. He maintained that a party who has every opportunity to present his case before the Court and fails to do so, cannot

be heard to complain of the breach to his right to fair hearing. He called in aid, the following cases:
BOMOR v. EKIYOR (1997) 9 NWLR (PT519) 1;
OKODUWA v. THE STATE (1988) 2 NWLR (PT. 76) 33;
OGUNDOYIN v. ADEYEMI (2001) NWLR (PT. 730) 400;
KOTOYE v. CBN (1989) NWLR (PT. 98) 419.

This Court was urged to hold that the Appellant was given a fair hearing, and resolve this issue against him.

justice. The basic attributes of fair hearing include:
(a) That the Court shall hear both Sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudiced to any party in the case.
(b) That the Court or Tribunal gives equal treatment, opportunity and consideration to all concerned
(c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing. (d) That having regard to all circumstances in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have been done. The burden is on the party alleging breach of fair hearing in a case to prove the breach and he must do so in the light of the facts of the case.
See MAIKYO v. ITODO (2007) 7 NV(LR (PT. 1034) PG. 443.
An Appellant cannot complain of breach of fair hearing where he was afforded the opportunity to present his case but failed to avail himself of the opportunity. The Appellant cannot blame the trial Court for failure to prosecute his case. See
OGOLO V. FUBARA (2003) 11 (PT. 831) PG. 231;

OSSAI V. WAKWAH (2006) 4 NWLR (PT. 969) PG.208.

In the instant case, there is no dispute as to the fact that the Appellant at page 124 of the record of appeal, had made an oral application for the witnesses of the Prosecution to be recalled for further cross examination. The Trial Court ordered that the application be formalized so that both parties can be heard and for a proper consideration, consequent upon which the Appellant’s counsel filed a motion on the 23rd of October for the recalling of the witnesses. However, at page 125 of the Record, the Appellant’s counsel on record told the Court as follows:
“….We had filed an application for recalling of prosecution witnesses. However, we have an instruction from the accused to withdraw the application because the accused says he wants to enter his defence right away. We therefore apply to withdraw Motion Rog M/831/14, filed on the 23/10/14.”
COURT (at page 126)
“Application for withdrawal is granted and the Motion No M/831/14 filed on 23/10/4 is hereby accordingly struck out.”

From the foregoing, it is evident that the Appellant, on his own volition withdrew his application to

recall the Prosecution witnesses. He cannot turnaround to blame the Trial Court for not recalling the witnesses.

On the issue of the Trial Court not ordering a hearing notice to on the Appellant’s counsel, it is also on record that on the 7th of May, 2015, the Appellant’s Counsel was in Court and he said:
“At the last adjourned date, the records show that the accused person wishes to enter his defence straight away without recalling previous witnesses.”

The Appellant then entered his defence. He was sworn on the Holy Bible and stated in English that his name is Sunday Chukwu. However, at about 4:30 p.m., the Court ordered parties to take a date for continuation at this stage and both Counsel agreed to the 23rd of June, 2015, and the Court adjourned to the 23rd of June, 2015, for further of defence. (See page 126 of the Record).

On that date (i.e. the 23rd of June 2015), the Appellant’s Counsel was not in Court and no reason was given to the Court for his absence. The Appellant intimated the Court of his desire to retake his plea. The Court then adjourned the matter again to the 29th of June, 2015 for the Appellant to retake his plea.

On the 29th of June, 29th of June, 2015, the Appellant’s counsel was absent and no reason proffered. The 1st Count was read over and explained to the Appellant in English language. He said that he understood the charge against him and he pleaded not guilty on Count One. The second count of charge was read and explained to the Appellant in English Language. He said he understood same but pleaded guilty with frustration to Count Two of the Charge. According to him, the reason he pleaded guilty with frustration was because he didn’t know anything about the case and since his arrest, his family had been suffering.

The Court, pursuant to the application of the Prosecution, ordered the Appellant to continue his defence. He was reminded of his oath.
(See pages 127 — 130 of the Record)

The Appellant’s counsel has made heavy weather of the proceedings at the Trial Court, which he termed a “strange procedure”, at pages 12 – 13 of the Appellant’s brief. He contended that the Appellant was ordered to enter his defence, in violation of the provisions of Section 180(a) of the Evidence Act, and the Appellant gave his evidence without the oath being

administered on him, when he testified. More over, the Trial Court did not deem it fit to order hearing notice on the Appellant’s Counsel or give counsel notice of the pendency of the case.

With due respect to learned Counsel for the Appellant, this submission is not a true representation of what transpired at the Trial Court. I have averted my attention to the proceedings of the Trial Court at pages 127 to 130 of the Record. I do not see how the appellants’ fair hearing had been breached in the circumstances of what transpired in the Trial Court.
I must also point out to Learned Counsel for the Appellant that it is incumbent upon him to prosecute the case of his client with all diligence and dedication, in line with Rule 14 (1) of the Rule of Professional Conduct for Legal Practitioners, 2007 which provides as follows:
“14(1) It is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and subject to any rule of law, to act in a manner consistent with the best interest of the client.”
When learned Counsel have been given an opportunity to present the cases of their clients but failed to do so, or do

so negligently or incompetently, and the learned trial judge proceeds to the determination of the proceedings which do not eventually favour a party, it is not unheard of for parties or their learned Counsel to invoke the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered that there had been a violation of principles of fair hearing. Fair hearing is a concept that seeks to protect and safeguard the rights of the appellant and the respondent, including the Court that ought to dispense justice speedily, and the society that stands to benefit from the outcome of the proceedings. Fair hearing is not a one way traffic. On the issue of what constitutes “the interest of justice” the Supreme Court held in WILLOUGHBY VS. INT. MERCHANT BANK NIG. LTD. (1987) 18 NSCC (PT.I) 41 AT PAGES 53 TO 54 to wit: “… It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the Court. In other words, the adjournment being sought should be of a strict sense be in the interest of all concerned…”
Now, the true test of fair

hearing, is the impression of a reasonable man, present in Court, who watched the proceedings of the Court as in the
instant case on 15/10/2014; 20/11/2014; 18/03/2015; 07/05/2015; 23/06/2015 and 29/06/2015, would form and have, whether indeed justice was evenly dispensed to the parties. There is no doubt in my mind that the Appellant was amply afforded the opportunity to present his case and the learned Counsel for the Appellant, who was given an opportunity to present the case of his client but failed to do so, or did so negligently or incompetently, cannot be heard to complain of a breach of fair hearing.
In the end, I am of the considered opinion that there was no breach of fair hearing and denial of the same to Appellant, to vitiate the decision of the Trial Court.
Therefore, I resolve this issue against the Appellant.

ISSUE ONE
Whether the Prosecution was successful in proving the offence of conspiracy against the Appellant to warrant the conviction by the Trial Judge under Section 8(a) of the Advance Fee Fraud and Other Related Offences Act 2006?

It is submitted for the Appellant that the Prosecution failed and was not

able to establish the requisite agreement that is sine-qua-non, for conviction under Section 8(a), having failed to prove the agreement of sort between the Appellant and those he was alleged to have conspired with, in that it was only the Appellant that stood trial before the Trial Court.

Learned counsel for the Appellant defined conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing their joint efforts, some unlawful or criminal acts or some act which is lawful in itself but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal means for the commission of an act not in itself unlawful. He cited these cases:
ODUNEYE v. THE STATE (2001) 13 WRN 88;
STATE v. HARUNA (1972) 8 – 9 SC 174;
IDRIS AHMED v. STATE (1998) 7 SCNJ 60.

It is his contention that one person could not have agreed with himself to do a thing. It requires two or more to answer allegations bordering on conspiracy. He relied on SECTION 97 OF THE PENAL CODE as well as the following cases:
CHIANUGO v. THE STATE (2002) 2 NWLR (PT. 750) 225 @ 236; UPAHAR v. THE STATE

(2003) 6 NWLR (PT. 816) 230 @ 262; OBIAKOR v. THE STATE (2002) 10 NWLR (PT. 776) 612 @ 628.

Learned counsel for the Appellant posited that throughout the trial, the prosecution, through its witnesses, particularly PW2 and PW3, could not establish that agreement between the Appellant and the others to warrant a conviction under Section 8(a), more so, as the Appellant under oath, stated vividly how he was tortured to make Exhibit B, his purported confessional statement. He invited this Court’s attention to pages 58, 59, 68 and 69 of the Record.

He therefore urged this Court to hold that the Prosecution did not establish that there was an agreement between the Appellant and others to warrant a conviction under Section 8(a), and resolve this issue in favour of the Appellant.

In response to the above, it is submitted for the Respondent that the trite position of the law is that for the Prosecution to secure a conviction in a charge of conspiracy all that is required is evidence of agreement of the parties, whether express or implied before there can be conviction. He called in aid these case:
ABACHA v. THE STATE & ANOR (2002) 11 NSCQR 345;

NJOVENS v. THE STATE (1973) NMLR 76 @ 95;
ODUNEYE v. THE STATE (2001) 5 NSCQR 1.

Learned counsel for the Respondent argued that in the instant case, the nominal Complainant, PW1, was clear in his testimony that one Grace Okon called him, to meet up the Appellant and one Dr. Charles Okiro. PW2 also testified how the Appellant and others now at large, attempted to dupe him. It is the further submission of learned counsel for the Respondent that the Appellant in Exhibit B, also stated how he learned the business of 419 from one “Elder”, and how the said “Elder” sent him to deliver a packet to someone along Lokoja Expressway Way, Gwagwalada. All these pieces of evidence, according to learned counsel for the Respondent are sufficient to establish the offence of conspiracy; as conspiracy to commit an offence is quite often inferred from circumstantial evidence, and the basis is common intent and purpose. He placed reliance on the following cases:
JEGEDE v. THE STATE (2001) NSCQR 107; ADELEKE v. THE STATE (2013) LPELR 20971 (SC);
AIGBE v. THE STATE (1976) NMLR 184.

He maintained that from the written statements and oral evidence of

PW1, PW2 and PW3, it is conclusive that there is an overt act from which to infer that there was an offence of conspiracy.

This Court is urged to so hold, and resolve this issue against the Appellant.

common criminal purpose. It is immaterial that the persons had not met each other and the concluded agreement can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy.
Furthermore, in the case of OMOTOLA & ORS. V. THE STATE (2009) 19 SCLR (PT. 24) 92 AT 102, the apex court had held that: “In order to get conviction on account of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means… Circumstantial evidence is often used to point to the fact that the confederates had agreed on the plan to commit the crime. There must be an overt act from which to infer the conspiracy
See also ABEDA v. STATE (2016) LPELR 42927 (CA), CLEMENT v. FRN (2019) LPELR 47232 (CA)

I have gone through the evidence adduced by the Prosecution and the defence of the Appellant before the Trial Court. I have also gone through the judgment. The Appellant denied any agreement with any person to carry out any unlawful purpose. The Trial Court was also very clear in its findings as regards the role of the Appellant.

PW1, was clear in his testimony that one Grace Okon called him, to meet up the Appellant and one Dr. Charles Okiro. PW2, also testified how the Appellant and others now at large, attempted to dupe him. The Appellant in Exhibit B, also stated how he learned the business of 419 from one “Elder”, and how the said “Elder” sent him to deliver a packet to someone along Lokoja Expressway Way, Gwagwalada. All these pieces of evidence, are sufficient to establish the offence of conspiracy.

There is no doubt that there was a meeting of mind between the Appellant and the other persons now at large, to conspire to swindle PW2 by purporting to sell to him solar panel rings. I hold the view that the conviction of the Appellant for the offence of conspiracy stands, in the face of all the evidence at the Trial Court.
I therefore resolve this issue against the Appellant.

ISSUE TWO
Whether the Prosecution was able to prove beyond reasonable doubt, the legal requirements of the ingredients of attempt to commit offences, under Section 8(b) of the Advance Fee Fraud and Other Related Offences Act, 2006?

It is the submitted for the Appellant that the Prosecution

was unable to prove attempt, under Section 8(b) of the Advance Fee Fraud and Other Related Offences Act 2006.

Learned counsel for the Appellant contended that the Prosecution needed to lead evidence tending to show that the Appellant had the two elements of intentions and actions; to secure a conviction. He maintained that to secure a conviction under Section 8(b), the act of the accused person must be connected to the offence he is alleged to be committing and it must be something more than mere preparation. He commended this Court to the following authorities:
SECTION 95 OF THE PENAL CODE;
JEGEDE v THE STATE (2001) 14 NWLR (PT 733); (2001) NSCQR 107;
BASSEY AKPAN v. THE STATE (1994) 8 NWLR (PT. 365)

Learned counsel for the Appellant argued that the Trial Court ought not to have relied heavily on Exhibit B, the alleged confessional statement of the Appellant when the Appellant in his oral testimony has categorically stated that the said Exhibit B, was obtained under duress.

He opined that the case of the Prosecution ought to fail, as none of the Prosecution witnesses in their evidence in Court, were able to tell the Trial

Court that PW2, nor any of the EFCC operatives did give, or attempted to give or hand over the alleged sum of N350,000.00 or any sum to the Appellant. According to him, they did not offer any cash, or monies to the Appellant when he was arrested. He argued that the offence to commit, is completed, when what was intended, is about to occur, and that since there was no physical cash being given or taken to the Appellant, he (the Appellant), could not have attempted nor did attempt to obtain.

He urged this Court to so hold, and resolve this issue in favour of the Appellant.

In its response, it is submitted for the Respondent that the learned trial Judge was right in convicting the Appellant, in view of the evidence adduced at the trial.

Learned counsel for the Respondent referred this Court to page 17 of the Record, as well as the testimonies of PWs 1 – 3, as well as the confessional statement of the Appellant (Exhibit B) and stated that all the evidence adduced at the trial point to the guilt of the Appellant. He maintained that though the Appellant, in his oral testimony in Court retracted the said Exhibit B, the Exhibit was bound to be

considered and the Trial Court did so, in arriving at its decision. He commended this Court to the following cases:
HASSAN v. THE STATE (2001) 7 NSCQR 107;
MBANENGEN SHANDE v. THE STATE (2006) FWLR (PT 286) 35.

Relying on the case of MUKORO v. FRN (2015) LPELR 24439 CA, learned counsel for the Respondent listed the ingredients that the Prosecution is required to prove in the offence of obtaining money by false pretenses under Section 8(b) and (c) of the Advance Fee Fraud, and Other Related Offences Act, 2006, and maintained that the Prosecution has been able to discharge the burden placed on it by law.

Learned counsel for the Respondent opined further that to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged, and must be something more than mere preparation for the commission of the offence. He relied on the following:
OZIGBO v. COP (1976) ANLR 109 @ 115;
JEGEDE v. THE STATE (2001) NSCQR 399

In all, it is the submission of the learned counsel for the Respondent that by the evidence of the Prosecution witnesses as well as the Appellant’s confessional statement

(Exhibit B), the Prosecution has successfully discharged the burden imposed on it to prove the guilt of the Appellant beyond reasonable doubt.
He urged this Court to so hold and resolve this issue against the Appellant.

In conclusion, this Court is urged to resolve all the issues raised in this appeal against the Appellant, dismiss the appeal and affirm the decision of the Trial Court.

The gravamen of this appeal and the submissions of learned counsel on both sides is on whether the Prosecution proved beyond reasonable doubt the offence of obtaining by false pretence with intent to defraud for which the Lower Court convicted the Appellant as charged under Section 1 (1) (a) of the Advance Fee Fraud and Other Related Offences Act 2006. That said, it is imperative to reproduce and examine the exacts texts of Sections 1, 8 and 20 of the Advance Fee Fraud and Other Related Offences Act, 2006.
The offence of obtaining money by false pretence is codified under Section 1 of the Advance Fee Fraud and Other Related Offences Act 2006, which provides as follows:
1. (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 any other person, in Nigeria or in any other country for himself or any other person; or
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
(c) obtains 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, commits an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other county, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.
(3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.
8. A person who –
(a) conspires with, aids, abets, or counsels any other person to commit an offence; or
(b) attempts to commit or is an accessory to an act

or offence; or
(c) incites, procures or induces any other person by any means whatsoever to commit an offence, under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.
False pretence is defined in Section 20 of the Act as:
‘False pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact of 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.”
For the offence of obtaining by false pretences to be committed, it must be proved that the accused person had an intention to defraud and that the thing is capable of being stolen. An inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused person to imprisonment for the offence.
It therefore follows that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false

pretence are:
1. That there was a pretence.
2. That the pretence emanated from the accused person.
3. That the pretence was false.
4. That the accused person knew of the falsity of the pretence or did not believe in its truth.
5. That there was an intention to defraud.
See
MUKORO v. FRN (2015) LPELR 24439 (CA)
ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 55
ODIAWA vs. FRN (2008) ALL FWLR (PT. 439) 436.

anticipated which prevented the commission of the full offence intended.”

In resolving the question of whether there was a false pretence emanating from the Appellant and which induced the PW1 to part with her money the Lower Court after reviewing, evaluating and assessing the evidence adduced concluded as follows: –
“I have carefully gone through all written statements before the Court, the evidence of PW1, PW2, and PW3 and the admitted Exhibits to ascertain whether or not there was any form or pretence emanating from the defendant with intent to defraud PW2. … From the totality of charge against the defendant and the weighty evidence against the defendant, I am of the humble view that there was a false pretence emanating from the defendant in his written statement stated that one Elder who taught him 419 sent him to deliver a packet of some items to someone along Lokoja Expressway, Gwagwalada. From the actions of the defendant culled from the corroborative evidence of the prosecution witnesses and the written statements before the Court, I have no difficulty in finding that the defendant attempted to obtain money under false pretences from

the nominal complainant. This is even more so when the evidence of the defendant before the Court is not capable of being believed. Suffice to say that the prosecution has succeeded in establishing that it was the defendant who actually attempted to defraud PW2 as he is the central figure shown with a dishonest intention to cause wrongful loss to the PW2…..To my mind therefore, the evidence before the Court reveals beyond reasonable doubt that the defendant conspired with others at large as in Count 1 of the charge and did in fact attempt to obtain by false pretences from PW2 as per Count 2 of the charge…”
(See 76 – 77 of the Record)

The crux of the submissions of the Appellant in his arguments of the Appellant’s Brief can be summed up as being that the Prosecution did not prove its case beyond reasonable doubt because the ingredients of the offence charged were not made out. Is this position correct? I have already set out the findings made by the Trial Court on the basis of which it held that the essential ingredients or elements of the offence had been made out and the offence proved beyond reasonable doubt.

It is trite law that where the

findings made in a case are supported by the evidence believed by the trial Court, an appellate Court will be loath to interfere with such findings unless they are evidently perverse. See IGBI vs. THE STATE (2000) LPELR (1444) 1 at 15. The question therefore is whether the findings by the Lower Court are supported by the evidence or whether they are perverse.
The question therefore is whether the findings by the Trial Court are supported by the evidence or whether they are perverse.
The false pretence on the part of the Appellant is very clear. Part of the testimony of PW2 under cross examination is as follows:
“…The accused person asked me for money when I met him. Accused person said here is the goods when I saw him at the place he asked me to meet him. All I demanded to see what was in the bag. It was at this point Simi came out and grabbed the accused. He asked me for the money as he specifically called to ask if I have the money and I said yes….”
See the testimony of the PW2 at page 107 of the Records.
The Appellant’s version of events is nothing other than a denial of having had any dealings with the PW2 (See the testimony of the

Appellant on pages 34 – 36 of the Records).
At the time the Appellant made the representation to the nominal complainant, he knew that he had no solar rings to give the nominal complainant. What he had were bicycle parts which he was passing off as solar, with the aim of defrauding the nominal complainant of the sum of N350, 000.000; and that made the pretence false. According to the statement made by the 3rd of May, 2012, and admitted by the Trial Court as Exhibit B1, the Appellant clearly stated that he delivered some items to PW2.
He went further to confess in his written statement that he has been in the business of 419 and he defrauded one Ambrose. According to him “Apart from my brother, I have also defrauded one Ambrose from Dei-Dei the sum of N12,000 using the same method. I have done this to several unsuspecting citizens both in Abuja and in Enugu since 2008 till date.”
The above statement was further corroborated by PW1 in his evidence wherein he stated as follows:
“On getting to the office, we interviewed him jointly with some members of the team he confessed that he is actually into the business of 419. But this particular one

is called “calling, calling” where they call people at random to get their victims who fall into their trap.”
Without a doubt and as rightly found by the Trial Court, the ingredients of the offence of obtaining by false pretences were made out and the charge against the Appellant was established beyond reasonable doubt. See AMADI vs. THE STATE (2008) LPELR (441) 1 at 25 or (2008) 12 SC (PT 111) 55.
Consequently, there is no basis on which this Court can interfere. In my view, the Prosecution proved the offence of obtaining by false pretences against the Appellant beyond reasonable doubt.
I therefore resolve this issue against the Appellant.

ISSUE THREE
Whether the Learned Trial Judge was not bound to consider and pronounce on the issues raised or formulated for determination?

It is the submission of the learned counsel for the Appellant that a Court of law must make a decision and pronouncement on every application before it and failure to do so is a breach of fair hearing. He relied on these cases:
TITILOYE & 4 ORS OLUPO & 4 ORS (1991) 9 – 10 SC 120;
AFRO CONTINENTAL & ANOR v. CO-OPERATIVE ASSOCIATION OF PROFESSIONAL INC

(2003) 3 SCN 1; BRAWAL SHIPPING (NIG) LTD v, ONWADIKE CO LTD (2000) 6 SCNJ 508.

It is his view that the learned trial Judge ought to have considered and pronounced on the 2nd issue distilled by the Appellant at the Trial Court and the failure to consider the Appellant’s 2nd issue, which bordered on jurisdiction, occasioned a miscarriage of justice. He called in aid these cases:
OLUYODE ISHOLA v. MEMUDU AJIBOYE (1994) 7 – 8 SCNJ 1; AYISA v. OLAOYE AKANJI & 5 ORS (1995) 7 SCNJ 245

This Court is urged to hold that failure of the Trial Court to consider the Appellant’s 2nd issue distilled for determination, occasioned a miscarriage of justice; and resolve this issue in favour of the Appellant.

In conclusion, this Court is urged to resolve all the issues raised in this appeal in favour of the Appellant, allow the appeal, set aside the decision of the Trial Court and discharge and acquit the Appellant.

No doubt, the law is settled that the Court particularly the trial Court and the Court of Appeal has a duty to decide all issues properly raised before it for adjudication especially when the Court is not the

final Court. See THE STATE V. AJIE (2000) LPELR – 3211 (SC), UZUDA V. EBIGAH (2009) LPELR – 3458 (SC), OVUNWO & ANOR V. WOKO & ORS. (2011) LPELR – 2841 (SC).
The law enjoins the trial Court to make a pronouncement on all the issues properly raised before it so as to give the appellate Court the benefit of the opinion of the Court before the points comes up for further consideration at appellate Court and to avoid a miscarriage of justice. See:
UZOKWELU v. PDP & ORS (2018) LPELR 43767 (CA);
AFRICAN REINSURANCE CORPORATION v. ITF & ANOR (2019) LPELR 46891 (CA).
Failure to decide all issues properly raised before the Court amount to abandonment of statutory duty and sometimes a denial of fair hearing.
In the instant appeal, the grouse of the Appellant herein is that the Trial Court did not pronounce on the second issue raised in the Appellant’s written address, which was “whether flowing from the circumstances of this case, the defendant was fairly heard.” The crux of the Appellant’s submission is that the Trial Court’s failure to recall the witnesses of the Prosecution was a denial of the Appellant’s right

fairing which occasioned a miscarriage of justice.
While I agree with the Appellant that the Trial Court did not consider this second issue, this however will not automatically vitiate the Trial Court’s judgment but would open the door for this Court to do what the Trial Court failed to do.
I have considered the issue of whether the Appellant was denied his right to fair fearing, which occasioned a miscarriage of justice and robbed the Trial Court of its jurisdiction to hear and determine the case of the Appellant. This issue was raised as the Appellant’s issue four, which I resolved at the beginning of this judgment, to the effect that the Trial Court did not deny the Appellant his right to fair hearing.
That said, there is no gainsaying that the law enjoins the trial Court to make a pronouncement on all the issues properly raised before it so as to give the appellate Court the benefit of the opinion of the Court before the points comes up for further consideration at appellate Court and to avoid a miscarriage of justice.
In the instant case, even though the Trial Court did not consider the Appellant’s issue two, this did not occasion a

denial of fair hearing and this issue is resolved against the Appellant.

In the final analysis, having resolved all the issues formulated by the Appellant against him, I adjudge this appeal to be devoid of merit. It is accordingly dismissed.
The judgment of the Trial Court delivered on the 19th of May 2016, is hereby affirmed.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU ABOKI, PJCA. I agree with the reasoning, conclusions and orders therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the Judgment just delivered by ABDU ABOKI, JCA/PJ, and I am in complete agreement with the reasoning and resolution of the issues donated for determination in the Appeal.

Let me just add my voice to the complaint that the Appellant was not given a fair hearing, the question of fair hearing is not a magic wand that any Appellant can swing it and it sets aside a Judgment Appealed against. It is being misused by Counsel who should know better. When the allegation is obviously not supported by the

Record of Appeal, one therefore, wonders how a Counsel can move the issue forward. It is not how brilliant a counsel address is, the Record of Appeal must reflect the breach. Where a party was given an opportunity to be heard and elects to take certain steps, he cannot turn round to complain when those steps fail to yield the desired result, particularly where he is represented by counsel, see the Supreme Court Judgment of AYOADE V STATE (2020) LPELR-49379(SC) which held thus:
“The term, fair hearing, is a recurring decimal in criminal cases because, it is a fundamental right guaranteed to citizens under the Constitution, and a breach of which will nullify the proceedings in favour of a victim, therefore, it is very easy for lawyers and litigants alike to come crying to an appellate Court that their right to fair hearing has been violated. But “fair hearing” is not just an expression of mere rhetoric or empty verbalism; it cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached. See Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC.
In other words, it is not enough for a

party alleging such a breach to merely mention fair hearing, and expect this Court to automatically side with him and determine the case in his favour; just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading, as this Court made very clear in Adebayo V. A.G., Ogun State (supra). In this case, the Appellant’s cry is that his right to cross-examine the said PW1, which “is within the rubric of his right to fair hearing”, was foreclosed by the trial Court, and this denial of fair hearing to him, occasioned miscarriage of justice. ….. The word “opportunity” means “a time or set of circumstances that makes it possible to do something” – see LEXICO powered by OXFORD. … Circumstances where a Party cannot be heard to complain of being denied the right to fair hearing were stated by the Apex Court as follows: “I said it in the past and will say it again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case, but it is not the duty of the Court to make sure that a Party takes advantage of

the atmosphere or environment by involving himself in the fair hearing of the case. A Party, who refuses or fails to take advantage of the fair hearing process, created by the Court, cannot turn around to accuse the Court of denying him fair hearing. This is not fair to the Court, and counsel must not instigate his client to accuse the Court of denying him fair hearing.
….The trial Court created the atmosphere for the fair hearing of the case, but he failed to take advantage of the opportunities provided to do so. So, he cannot accuse the trial Court of denying him a fair hearing or find fault with Court of Appeal for affirming the trial Court’s decision.” Per AUGIE, J.S.C.

The lead Judgment also explained and I adopt the Judgment as mine and abide by the orders made therein.

Appearances:

M. Essiackak with him, Festus A. Osimhen For Appellant(s)

Sylvanus Tahir with him, Aisha Ibrahim and Hadiza Afegbua For Respondent(s)