LEONARD DURU VS FEDERAL REPUBLIC OF NIGERIA
In the Supreme Court of Nigeria
Thursday, March 1, 2018
Case Number: SC.636/2016
MUSA DATTIJO MUHAMMAD
JOHN INYANG OKORO
CHIMA CENTUS NWEZE
AMINA ADAMU AUGIE
LEONARD DURU (AKA EMMANUEL OBIEZE)
FEDERAL REPUBLIC OF NIGERIA
USE OF CIRCUMSTANTIAL EVIDENCE IN THE ABSENCE OF DIRECT EVIDENCE
“Circumstantial evidence is often the best evidence where direct evidence is lacking, especially in sophisticated criminal ventures like the one in hand. See for example the case of Felicia Akinbisade v. State (2006) 17 NWLR (pt.1007) 184 at 203 as follows – “There is overwhelming evidence that the appellant operated the fraudulent account. How could she have done this without knowledge of the existence of the account? I entirely agree with the learned trial Judge that if the appellant did not open the account personally, she must have aided, counselled or procured someone to open the account and that brings her in terms with section 7 of the Criminal Code of Ogun State. It is not in all cases that absence of evidence of handwriting expert is prejudicial to the case of the prosecution. While such evidence could be a desideratum in some cases, it is not invariably so. Where there is a very strong connecting link between the accused and the document to the extent that the circumstances zero on the commission of the offence by the accused, the court is entitled to draw the inference circumstantially that the accused was the author of the document and therefore the author of the crime. It is because our adjectival law realises that it is not in all cases that direct evidence of an eye witness is possible that the law has carved out a niche to assimilate or accommodate circumstances surrounding the commission of an offence; a position which leads to the admission or admissibility of circumstantial evidence.” (My emphasis).”
CONTENT OF A GOOD JUDGEMENT
“The judgment therefore contained the summary of the evidence, the point(s) for determination, the reasons for determination and the reasons for the decision or conclusion which made it a good judgment in a criminal trial. I do not fault the judgment. With the said proper evaluation of the evidence the court below undoubtedly discharged the onerous primary duty of appraising/assessing the evidence in the rather laborious case which has left no room for me to intervene in the assessment of the evidence in question. See Omogodo v. State (1981) 5 SC 5, Udedibia v. State (1976) 11 SC 133, Obidike v. State (2014) 10 NWLR (pt.1414) 53, Akinbisade v. State (supra) at 211.”
(DELIVERED BY JOHN INYANG OKORO. JSC)
This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on the 25th day of February, 2016 wherein the court below dismissed the appeal of the appellant herein. The learned trial Judge of the Lagos State High Court had earlier convicted and sentenced the appellant to ten (10) years in prison in aggregate for the offences of conspiracy to obtain money by false pretense, obtaining money by false pretense, forgery and uttering of false document contrary to section 8 (a) and 1 (3), of the Advance Fee Fraud and other Fraud Related Offences Act, sections 467 (1) (b) and 468 of the Criminal Code Cap C17 Vol.2 Laws of Lagos State of Nigeria respectively. A brief fact of the case will suffice.
The case against the appellant at the trial court was presented through eleven (11) witnesses and seventy – one (71) documentary exhibits, whilst the appellant tendered eight (8) documentary Exhibits through the witnesses called by the Respondent and rested his case on the evidence adduced by the Respondent.
The gist of the evidence against the appellant is that he acted in league with other persons and obtained various sums of money totaling $397,800 from one Mr. Puchstein, a German, on the pretext that Mr. Puchstein’s Company, Deramic Company, would be awarded contract to supply and install computers, printers and office equipment to the Federal Ministry of Mines and Power which was never awarded, nor the monies so obtained by the appellant returned to Mr. Puchstein; and that the appellant forged/uttered a false document relating to the alleged transaction. At the close of the Respondent’s case, the appellant and his co-defendant made a No case submission which was rejected and they were ordered by the trial court to enter their defense.
Rather than enter a defense, the appellant rested his case on the case presented by the respondent. The trial court accepted the one sided evidence as adduced by the Respondent upon which it convicted and sentenced the appellant to ten years in prison cumulatively for the offences herein before stated. The appellant was convicted on counts 1, 5, 6, 15, 16, 31 and 32 of the charge. The trial court also made restitution order against the appellant.
Dissatisfied with the stance of the learned trial Judge, the appellant lodged an appeal at the court below and in a judgment delivered on 25th February 2016; the Court of Appeal upheld the decision of the trial court.
Again, the appellant is not satisfied with the decision of the Court of Appeal. He has further appealed to this court. Notice of Appeal was filed on 20th May, 2016 which has six grounds of appeal. From the six grounds of appeal, the appellant has formulated six issues for the determination of this appeal.
On 6th December, 2017 when this appeal was heard, the learned counsel for the appellant, Aliens Agbaka Esq identified the brief of the appellant and adopted same as their argument in this appeal. It was filed on 14th November, 2016 but deemed properly filed on 8th November, 2017. The six issues as contained in the said brief are as follows:-
1. Whether the Court of Appeal erred in law when it dismissed the Appellant’s Appeal and affirmed the judgment of the Trial Court which lacked the requisite Jurisdiction to have entertained the Information/Amended Information that prompted the instant Appeal.
2. Whether the Court of Appeal erred in law, when it dismissed the Appellant’s appeal and affirmed the Trial Court’s decision without having due regard to the binding Supreme Court decision in Michael Ijuaka vs Commissioner of Police (1976) 6 & 7 SC and consequently wrongly construed and misapplied the operative influence that operated on the mind of the alleged victim (PW2).
3. Whether the Court of Appeal was wrong in dismissing the Appellant’s appeal without having due regard to the fact that the circumstantial evidence relied upon in establishing the offences of forgery and uttering did not point directly, irresistibly and conclusively to the Appellant which is persuasive and consequently led to miscarriage of Justice.
4. Whether the Court of Appeal was wrong when it affirmed the decision of the Trial Court notwithstanding improper evaluation of evidence by the Trial Court which ultimately led to pervasive decision and miscarriage of justice.
5. Whether having regards to the peculiar nature of the facts that gave rise to this appeal, the sentence of the Appellant is hash and excessive in the circumstance.
6. Whether the Court of Appeal was wrong when it dismissed the Appellant’s appeal and affirmed the decision of the Trial court, notwithstanding the fact that the judgment was unreasonable, unwarranted and cannot be supported having regards to the weight of evidence.
Also, in the brief of the Respondent settled by Chile Okoroma Esq leading other counsel, filed on 8th November, 2017 but deemed properly filed on same date, three issues are however distilled for the determination of this appeal. The three issues are as follows:-
1. Whether the Amended Information signed by M. S. Hassan on behalf of the Executive Chairman of the Economic and Financial Crimes Commission robbed the trial court of the jurisdiction to try this matter.
2. Whether the Court of Appeal was not right in upholding the conviction of the Appellant
3. Whether the Court of Appeal was not right in affirming sentence of the appellant
Having regard to the real or main issue in contention in this appeal, bearing in mind the facts of the case, the judgment of the lower court and the grounds of appeal, I shall adopt the three issues formulated by the respondent for the determination of this appeal. Prolixity or proliferation of issues is not ideal as it tends to obscure the core issue to be determined. It creates the impression that the appellant is shopping for issues to aid his case thus reducing the issues to trifles. Appeals are not won on large or quantity of grounds appeal but on the quality of the content of the grounds of appeal and issues decoded therefrom. See Olaide Ibrahim v S. A. Ojomo & ors (2004) 4 NWLR (pt 862) 89.
The six issues formulated by the appellant are too many. In Ogunjade v Oshinkeye & anor (2007) 15 NWLR (pt.1057) 218, (2007) LPELR – 2355 (SC) this court, per Tobi, JSC (of blessed memory) warned that:-
“It is elementary law that an appellant does not win an appeal by the quantity of issues but by their quality. While an appellant can win an appeal by a properly formulated single issue for determination, the appeal could fail even if the issues are many, such as the four packaged by the appellant. An appellant should not parade before an appellate court a proliferation of issues which serve no useful purpose.” (at P. 19 paragraphs A – C)
A word, they say, is enough for the wise. Accordingly, I shall treat issue one in appellant’s brief together with issue one in the respondent’s brief. Issue 2, 3, 4 and 6 in appellant’s brief shall be taken together with issue 2 in the Respondent’s brief and finally, issue six (6) in appellant’s brief shall be taken together with issue three (3) in the Respondent’s brief.
Appellant’s counsel submits on this issue that the pertinent question to be answered is whether the Trial court had the requisite jurisdiction to have entertained the Information that gave rise to this appeal having regards to the incurable vice that is inherent in the initiating process and the amended Information. That although issue of jurisdiction was not raised at the two courts below, it can be raised in this court for the first time, relying on Ugwu v The State (2013) All FWLR (pt. 694) 1. It is submitted that a court must be competent before it can assume jurisdiction, relying on Madukolu v Nkemdilim (1962) All NLR 581 at 583, Egwumi vs The State (2013) ALL FWLR (pt.678) 824 at 830.
Learned counsel submitted that the Amended Information signed for the “Executive Chairman” of the Economic and Financial Crimes Commission by one M. S. Hassan and not for and/or on behalf of the “Economic and Financial Crimes Commission,” which is the competent statutory body that can initiate a criminal action and also issue a legal process to that effect, whether in its corporate name or any name recognized by law as a legal personality, in that it is only the Commission that is a juristic person. According to him, the Chairman of the Commission is at best a Juridical Person, and an action initiated on his behalf as in the instant appeal, is a nullity and consequently vests no jurisdiction on the court. He drew the attention of the court to sections 6 (m), 7 (2) and 13 (2) of the Economic and Financial Crimes Commission Act 2004 which confer statutory powers on the Commission and not its Executive Chairman to initiate criminal proceedings in any court in Nigeria for nay offence bordering on Economic and Financial Crimes.
Further, learned counsel submitted that the entire legal process that led to the conviction and affirmation of the Appellant’s conviction by the lower court was premised on an incompetent Amended Information which was signed “for and on behalf of the Executive Chairman of the Commission by one M. S. Hassan”. It is his view that the Chairman of the Commission has no statutory power to initiate Criminal
Proceedings or issue Legal Process in his capacity as the Executive Chairman of the Commission. Referring to sections 1 (2) (b) and 2 (a) (i) of the Economic and Financial Crimes Commission Act, he submitted that a community reading of the two sections show glaringly that the Information signed by M. S. Hassan was grossly incompetent, null and void.
Learned counsel submitted further that M. S. Hassan is not recognized as a Legal Practitioner within the meaning ascribed to a Legal Practitioner under the Legal Practitioner’s Act because initials are not found in the Rolls but full names. He referred to section 2 (1) of the Legal Practitioners Act. He cited the case of Okafor v Nweke (2007) All FWLR (pt 368) 1016. He urged the court to resolve this issue in favour of the appellant.
In response, the learned counsel for the Respondent, apart from stating the importance of jurisdiction as was also made by the appellant, submitted that by section 1 of the Economic and Financial Crimes Commission Act, the Commission is a body corporate with the power to sue or be sued. Also, that the Chairman of the Commission is the Chief Executive and Accounting Officer by virtue of section 2 (1) (a) of the Act. According to him, this means that the Chairman is vested with the power to execute the functions of the Economic and Financial Crimes Commission which includes initiating criminal proceedings. That in the discharge of its functions, the Chairman of the Economic and Financial Crimes Commission works with agents. That by section 8 (3) of the Act, the Commission may, from time to time, appoint such other staff or seconded officers from government security or law enforcement agencies etc to assist in the performance of its functions. He relies on the case of Sebastian Adigwe v FRN (2013) 1 BFLR P. 326 at 343, Amadi v FRN (2008) LPELR – 441 (SC), (2008) 12 SC (pt 111) 55.
On the allegation that M. S. Hassan Esq is not a lawyer, learned counsel submitted that, the law is trite that he who asserts must prove, relying on sections 131 and 132 of the Evidence Act 2011. It is his submission that the appellant failed to prove his allegation. He opined that there is presumption of authority where a legal practitioner announces appearance in favour of a party, relying on Saraki v FRN (2016) All FWLR (pt 836) 395 at 480, Nnakwe v State (2013) 18 NWLR (pt 1385) 1 at 27.
It is his further submission that the appellant lacks locus standi to challenge the authority of M. S. Hassan Esq. that it is only the EFCC that can do so but which it has not done. That the case of Okafor v Nweke (supra), relied upon by the appellant is not applicable in this appeal.
On the argument of the appellant’s counsel that the appellant was tried and convicted under a repealed law, the learned counsel for the Respondent submitted that it is the substantive law in force at the time the event or crime or cause of action arose that governs the case at the trial of the action, relying on section 6 (1) of the Interpretation Act and the case of The Queen v Bukar (1961) ALL NLR (pt 4) 646 at 650. He urged the court to resolve this issue in favour of the Respondent.
Let me say without much ado that I am in agreement with the views expressed by both counsel in their brief of argument as touches the importance of the jurisdiction of courts to entertain matters. Issue of jurisdiction is very important and fundamental and is the life wire of every matter requiring adjudication which when rose, the court ought to ensure that it deals with it one way or the other. This is because any proceedings or appeal made or heard without jurisdiction, no matter how well conducted is invalid, null, void and of no effect as it touches on the competence of the court.
The law on this matter is well settled that before a court can be said to be competent or have jurisdiction to entertain any matter, it must satisfy itself of the following conditions:-
1.it must be properly constituted with respect to the number and qualification of its members.
2.the subject matter of the action must be within its jurisdiction.
3.the action is initiated by due process of law, and
4.any condition precedent to the exercise of its jurisdiction must have been fulfilled.
See Madukolu v Nkemdilim (1962) 1 All NLR 587, Egwumi v The State (2013) All FWLR (pt 678) 824, Nwanzie v Idris & anor (1993) 3 NWLR (pt 279) 1, Ajayi v Adebiyi & ors (2012) 11 NWLR (pt 1310) 137.
In this appeal, the main grouse of the appellant’s counsel against the trial of the appellant is that the Information and the amended Information which gave rise to this appeal is patently and incurably bad in law because of the defective endorsement on the Information and the Amended Information. It was argued that the action was not initiated by due process of law.
May I state that by section 1 of the EFCC Act, the Commission is a body corporate with the power to sue and/or be sued. Its Chairman is the Chief Executive and Accounting officer by virtue of section 2 (1) (a) thereof. The Chairman is imbued with power to execute the functions of the EFCC which includes initiating criminal proceedings. It is commonsense that in the discharge of its functions, the Chairman of the Economic and Financial Crimes Commission does not work alone, he works with agents and that is why it is provided in section 8 (3) of the EFCC Act that-
“The Commission may, from time to time, appoint such other staff or second officers from government security or law enforcement agencies or such other private or public service as it may deem necessary to assist the Commission in the performance of its functions under the Act”
From the above provision, it is crystal clear that the staff of the Commission can assist the Chairman in performing its functions.
In furtherance of the above position, M. S. Hassan Esq signed both the Information and the Amended Information on behalf of the Chairman of the Commission. Learned counsel for the appellant argued that it was the Commission that ought to have signed the Information and not the Chairman or M. S. Hassan on its behalf. I do not agree to such proposition. Although the Commission has legal personality, it has to perform its functions through human agents as it has no hand to sign documents. There is absolutely nothing wrong with the Amended Information signed by M. S. Hassan on behalf of the Chairman of the EFCC.
In Amadi v FRN (2008) LPELR – 441 (SC), this court, faced with a similar issue at hand, held as follow:-
“That being the case, Mr. Hassan being a staff of the EFCC who signed the charge was competent to do so. Any staff of the EFCC can exercise_the power delegated to the EFCC in Exhibit A.” at page 17 per Aloma Mariam Mukhtar, JSC (as he then was). Also reported in (2008) 12 SC (pt 111) 55.
As was pointed out by the learned counsel for the Respondent, the same M. S. Hassan (now a Judge of the Federal High Court) who signed the Information in Amadi’s case (supra) also signed the Amended Information on behalf of the Chairman of the EFCC in the instant case. I need to add that where the Supreme Court has taken a position in a matter and decides the matter based on the position it has taken, counsel should, in similar situation abide by the decision of the Supreme Court. It is unfair to this court for counsel to come before it to litigate a matter which has to been firmly settled.
On the allegation that M. S. Hassan is not a legal Practitioner, I do not intend to waste the time of this court on it as learned counsel did not provide evidence to that effect. The law is well settled that he who asserts must prove. See sections 131 and 132 of the Evidence Act 2011, Onyenge & ors v Ebere (2004) 13 NWLR (pt 889) 20, Adake & anor v Akun (2003) 14 NWLR (pt 840) 418.
In this case, there is nothing to show that either the trial court or the appellant demanded for the authority or capacity of M. S. Hassan to sign the charge. It is settled that there is a presumption of authority where a legal Practitioner announces appearance in favour of a party in court. It is not usual for the court to cross check the Register of legal practitioners before allowing him to appear. See Saraki v FRN (2016) All FWLR (pt 836) 395 at 480, Nnakwe v The State (2013) 18 NWLR (pt 1385) 1 at 27. The case of Okafor v Nweke (supra) cited and relied upon by the learned counsel for the Respondent does not apply in this case as the facts and circumstances are diametrically opposed.
The learned counsel for the Appellant had submitted that the Appellant was tried and convicted under a repealed law, because as at the time the Information was filed, the relevant sections of the Advance Fee Fraud and other Fraud related offences Act No. 13 of 1995 had been repealed, consequently, it was no longer an existing law within the purview of section 315 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
As was rightly pointed out by the learned counsel for the Respondent to which I agree, the law is settled that it is the substantive law in force at the time of the Commission of crime or cause of action arose that governs the case at the trial of the action. Thus, the liability of an offender for a statutory offence committed while the statute was in force is preserved, notwithstanding the repeal of the statute after the commission of the offence and before the charge. See section 6 (1) of the Interpretation Act and the case of The Queen v Bukar (1961) All NLR (pt 4) 646 at 650.
The offences for which the appellant faced trial at the High Court occurred in 1996, 1997 and 1998 (see the charges) when the 1995 version of the Advance Fee Fraud and other Fraud related offences Act was in force. I agree that the appellant was therefore validly charged, tried and convicted under that law. Having said that, I am of the view that issue one does not avail the appellant at all. It is accordingly resolved against him.
ISSUES 2, 3, 4 and 6
I shall now consider appellant’s issues 2, 3, 4 and 6 together with issue 2 of the Respondent.
In his issue 2, learned counsel for the appellant submitted that the court below failed and/or refused to apply the decision of this court in Michael Ijuaka v Commissioner of Police (1976) 6 & 7 SC, 285. That the Respondent failed to establish the essential elements or the ingredients of the offences as laid in the amended Information having regard to the Operative Influence that operated on the mind of PW2 in that the Operative Influence or Inducement must be shown as one and, the same as laid in the Information before the trial Court. He submitted further that Exhibit 7 which is the written narration of what transpired between the victim (PW2) and supposed fraudsters, clearly shows that the funds allegedly paid by the alleged victim (PW2) to the supposed fraudsters was meant for the remittance of funds due and payable for a completed and/or already executed contract and not to facilitate the award of a fresh contract.
On his issue three (3), he submitted that in affirming the Appellant’s conviction for the offences of forgery and uttering as contained on counts 31 and 32 of the Amended Information the court below relied solely and strongly on circumstantial evidence which did not point directly, irresistibly and conclusively to the Appellant, because the circumstantial evidence did not sufficiently link the Appellant with the commission of the offences. On when circumstantial evidence will ground a conviction, learned counsel referred to the cases of Odogwu vs The State (2014) All FWLR (pt 719) 997, Usman vs The State (2014) All FWLR (pt 746) 412.
Learned counsel submitted further that the documents said to have been forged did not sufficiently and directly link the Appellant to the commission of the offence in counts 6 and 16 having regards to the fact that counts 31 and 32 were not established beyond reasonable doubt and that counts 31 and 32 cannot be dealt with in isolation of counts 6 and 16. Learned counsel also faulted the shoddy investigation of the ownership of the land Telephone line used in the transaction.
On issue 4, the learned counsel for the Appellant submitted that the Court of Appeal wrongly affirmed the judgment of the Trial Court because the learned Trial Judge did not properly evaluate the evidence adduced at the trial before convicting the Appellant for the offences set out in counts 1, 5, 6, 16, 31 and 32 of the Amended Information having regards to the contents of Exhibits P7 – P7xxx and the testimony of PW2 (the victim). Again, learned counsel submitted that the fraudulent transaction that prompted the victim (PW2) to part with funds was based on Telephone and Electronic Fax Messages and as at that material time, Nigeria only had NITEL as the sole operator of the system and yet the Telephone line and the Fax messages were not traced to the Appellant. It is his view that the trial court failed to make reference to the specific acts adduced in evidence that sufficiently linked the Appellant to the offence.
Learned counsel further submitted that in the evaluation of the evidence as affirmed by the lower court, consideration was not given to the testimony of PW8 who did not disclose the actual Bank commission charged on the transaction which the court did not only fill the gap, but indeed made out a case for the Respondent which amounts to improper evaluation of Evidence.
The next issue is No. 6 which more or less is a recap of the other issues already summarized. In paragraph 3.10 of appellant’s brief, learned council adopts the arguments made in issues 1 to 5 and goes ahead to reargue them. In all, he urged the court to resolve these issues in favour of the appellant.
In response, the learned counsel for the Respondent, after a careful appraisal of the evidence led by the Respondent, which was also accepted by the court below, submitted that with respect to counts 1,5 and 15, conspiracy can be referred to exist between the appellant on the one hand and Dr. Victor Odozie and Jubril Bello on the other. That there was agreement between the parties which led to the use of appellant’s account in Ecobank for the receipt of the sums of US $12,000 and US $20,000= paid by PW2 in furtherance of the false supply contract at the Ministry of Mines and Power. He opined that the meetings of the Appellant with PW2 and PW3 in Abijan and Ghana in furtherance of the fraudulent transaction shows the active participation of the appellant in the scheme of fraud. On what constitutes conspiracy, learned counsel cited the cases of Obiakor v The State (2002) 6 SC (pt 11) 33 at 39 – 4, Oduneye v The State (2001) 1 SC (pt 1) 1 at 6 – 7.
On the issue of misrepresentation in counts 6 and 16, learned counsel responded that the counts in the charge did not refer to a contract to be awarded or a fresh contract but an existing contract which is reflected as contract No. FMMEP/131/FCN/94 by the Federal Ministry of Mines and Power. That the reference number clearly suggests that the contract was a 1994 contract while the representation to PW2 was made in 1996. It is his view that the existence of the contract operated in the mind of the PW2, referring to the case of Awobotu v The State (1976) NSCC 211 at 227. Learned counsel submitted that the case of Michael Ijuaka v COP [supra) was properly considered by the trial court and the court below. It is his contention that the principle stated therein was applied.
On the issues concerning counts 31 and 32 which relate to forgery and uttering Exhibit P7 (xxi) to PW2 by the appellant and his confederates, learned counsel listed the ingredients of the offence of forgery and submitted that where a document like Exhibit P7 (xxi) was used as an intermediate step in the scheme of fraud in which the accused is involved, then if it is shown that such document was false, and was presented or uttered by an accused person in order to gain advantage, an irresistible inference exists that either the accused forged the document with his own hand or procured someone to commit forgery, relying on Osondu v FRN (2000) 12 NWLR (pt 682) 483, Hassan v Queen (1959) SCNR 520 at 522, Agwuna v Attorney General of the Federation (1995) 5 NWLR (pt 396) 418.
Learned counsel further submitted that the count of uttering was established since the document was forwarded to PW2. He relies on Akinbisade v The State (2006) 17 NWLR (pt 1007) 184.
On the issue of non-investigation of owners of the land line phone used, learned counsel submitted that it is diversionary as the fraudsters used fake names and fake identity cards including the appellant who even used fake name on his bank account. He stressed that the case was proved beyond reasonable doubt, relying on Egharevba v The State (2016) LPELR – 40029 (SC).
Learned counsel also submitted that both the trial and lower court effectively evaluated the evidence as evinced from the record of appeal. He opined that the fact that Lecon Pharmacy Nig. Ltd. was acquitted and discharged does not mean that the appellant ought to have been let off the hook as each party’s case is decided on its peculiar facts, relying on Idiok v The State (2008) 13 NWLR (pt 1104) 225. That the evidence shows that the appellant using a false name – Emmanuel Obieze participated in the receipts of the illicit funds.
On the submission that where a person is charged with obtaining or stealing a particular money and evidence shows a lesser amount was proved, he opined that the court is entitled to convict on the amount established, relying on Sagoe v Queen (1963) 2 SCNLR 210, Atano & anor v Attorney General Bendel State (1988) 1NSCC P. 643, R v Tyson 11WACA 90. According to him, the appellant caused PW2 to part with his $12,000 and $20,000= in counts 6 and 16, it is material that part of the money fell off to Bank charges.
Learned counsel concluded that when the appellant failed to lead evidence in his defense but rested his case on that of the Respondent, although it is his constitutional right to do so, it leaves the court free to accept the unchallenged and uncontradicted evidence of the Respondent, relying on Ajibade v The State (2012) LPELR – 15531 (SC). Being concurrent finding of the two lower courts, learned counsel submitted that where there is sufficient evidence in support, this court should not interfere, relying on Enang & ors v Adu (1981) 11 – 12 SC 16 at 41 – 42. _He urged the court to resolve the issue in favour of the Respondent.
Let me say by way of introduction in this issue that the appellant herein was convicted in counts 1, 5, 6, 15, 16, 31 and 32 of the charge. Now, counts 1, 5 and 15 relate to conspiracy to obtain money by false pretense contrary to sections 8 (a) and 1 (3) of the Advance Fee Fraud Act. Counts 6 and 16 relate to obtaining money by false pretense contrary to section 1 (3) of the Advance Fee Fraud Act while counts 31 and 32 are on Forgery and Uttering contrary to sections 467 (1) (b) and 468 of the Criminal Code Cap C17 Vol. 2, Laws of Lagos State of Nigeria respectively. The evidence at the trial court was one sided as the appellant rested his case on that of the Respondent. It will be recalled that appellant’s issues 2, 3, 4 and 6 are being resolved together with respondent’s issue 2. In order to be able to resolve these issues, a brief summary of the evidence led against the appellant will suffice.
The evidence adduced by the Respondent against the Appellant is that PW2, Hartmart Puchstein knew the appellant in Abidjan, Ivory Coast and Accra, Ghana where the appellant received dollars from him. PW2 narrated how in March 1996 he received a telephone call from one Dr. Jubril Bello of the Federal Ministry of Mines and Power to continue a contract for the supply and installation of computers, Printers and office equipment valued for US $ 13.1m, and he agreed. Thereafter Dr. Bello phoned him that all documents were ready and forwarded some documents from Federal Ministry of Mines and Power, Finance and Central Bank of Nigeria in relation to the contract. Consequent upon this, he was informed that he needed to pay money for contract reviews, foreign exchange control, risk insurance etc. Those Bank accounts of Barclays Bank, Habib Bank, Korea Exchange Bank and Ecobank were given to him. To actualize the contract, PW2 testified that he was requested to make several payments which he made. Among these payments were the sums of US $92,000= made to the Korea Exchange Bank in London and US $12,000 to Ecobank. The beneficiary of these payments is Emmanuel Obieze.
Similarly, PW2 testified that he was introduced to one Dr. Victor Odozie by Dr. Bello. That Dr. Odozie was introduced to him as Deputy Governor of the Central Bank of Nigeria on phone. That Dr. Edozie informed him that the contract had been reviewed upwards and as a result, there was need for him (PW2) to pay more money for review and accreditation charges. That out of the sum of US $330,000 demanded by Dr. Odozie, he paid US $110,000 in five (5) installments between February and March 1997. He stated that four (4) of the payments went to Equity Bank with Lecon Pharmacy as beneficiary while the remaining went to Eco Bank with Emmanuel Obieze as the beneficiary. After all the numerous payments which PW2 and PW3 testified that they made towards the realization of the contract, PW2 testified that he discovered that it was all fraud.
PW4 is an operative of the EFCC who testified that EFCC wrote to Ecobank for the account details of Emmanuel Obieze and the response shows that the appellant is the owner of the account. PW4 tendered exhibit P51 being account opening package of Emmanuel Obieze which incidentally is the appellant with his picture and copy of his International Passport. The trial court rightly found at page 625 of the record of appeal that by procuring an International Passport and opening an account in the name of Emmanuel Obieze when the appellant’s name is Leonard Duru, the inference is that the account was opened with intent to defraud and to conceal his identity. As further found by the trial court, the narration in Exhibit P63 which is the account statement of Emmanuel Obieze shows that the appellant withdrew or transferred the funds from the account such that the sum of US $7,160 was the balance in the account as at 5th November, 1998.
Again, as was found by the trial court and rightly affirmed by the lower court, the said bank account was nominated to PW2 by Dr. Victor Odozie and Jubril Bello, the main actors in the scam. And for the account to have been nominated, it means that the appellant, also known as Emmanuel Obieze was part and parcel of the scheme to defraud PW2 and co-conspirator.
There is no doubt from the facts and/or evidence stated above that the appellant was deeply involved in the inglorious scam which led the PW2 losing huge sums of money to these base fellows. His fraudulent acquisition of International Passport in a name Emmanuel Obieze and opening an account in the same name which PW2 paid these monies into clearly put him squarely in the crime. The learned counsel for the appellant did not touch this area even with the least of his forgers. But why? Could this be the reason the appellant refused and/or failed to lead evidence in rebuttal of such damaging evidence against him?
The offence of obtaining by false pretenses denotes the crime of knowingly obtaining title to another person’s property by misrepresenting a fact with the intent to defraud that person. Section 20 of the Advance Fee Fraud and Other Fraud Related Offences Act defines “false pretence” as follows:-
“20. In this Act – “false pretense” means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true;”
And by section one of the said law, the offence of obtaining by false pretense is created. It states:-
“1. (1) notwithstanding anything contained in any other enactment or law, any person who by any false pretense, 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)Obtain any property, whether or not the property is obtained or its delivery is induced through the medium of a contract by the false pretense, commits an offence under this Act”
From the above provision of the law under which the appellant was charged, the prosecution, irrespective of the fact that the appellant did not lead evidence, must prove its essential ingredients which include the following:-
1. That there was a pretense.
2.That the pretense emanated from the accused person
3.That it was false,
4.That the accused person knew of its falsity or did not believe in its truth
5.That there was an intention to defraud,
6.That the thing is capable of being stolen
7.That the accused person induced the owner to transfer his whole interest in the property.
See Onwudiwe v FRN (2006) LPELR 2715 (SC), (2006) 10 NWLR (pt 988) 382, Ikpa v The State (2017) LPELR -42590 (SC), Smart v The State (1974) LPELR- 3076 (SC), Ijuaka v COP LPELR -1466 (SC), (1976) 6 SC (Reprint) P. 99, Omotosho v COP (1961) LPELR – 24986 (SC).
Having considered the evidence led at the trial against the appellant and the ingredients of the offence of obtaining by false pretense, I have nothing to fault the decision of both the trial court and the court below in their respective judgments. As was held by this court in Agwuna v Attorney General of the Federation (1995) 5 NWLR (pt 396) 418, the law is settled that all persons who are participes criminis, whether as principals’ in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the offence. Parties i.e. Participes criminis to a crime, include inter alia, every person who actually does the act, or makes the omission which constitutes the offence, person who aids, abets or assists them in the commission of the offence or who counsels or procures others to commit the offence or knowingly gives succor or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence. See section 7 of the Criminal Code.
The misrepresentation by the appellant and his cohorts to the PW2 was with respect to the non-existing contract but which was represented to exist. The existence of this contract certainly operated in the mind of the PW2 which made him to part with various sums of money in furtherance thereof. Both the trial court and the court below considered the case of Michael Ijuaku v COP [supra] and acted on the principle therein. I agree that the operative false representation was the 1994 contract which did not exist to the knowledge of the appellant and his group. See Awobulu v The State (supra).
Now as regards forgery, for which appellant was charged in counts 31 and 32, the law is trite that the essential ingredients of forgery are as follows:-
(i)That there is document or writing
(ii)That the document or writing is forged
(iii)That the forgery is by the accused person
(iv) That the accused person knows that the document or writing is false
(v)That the accused intends that the forged document or writing be acted upon to the prejudice of any person in the belief that it is genuine.
See Babalola v The State (1989) LPELR – 695 (SC), (1989) 4 NWLR (pt 115) 264, The Nigerian Air Force v Kamaldeen (2007) LPELR – 2010 (SC) (2007) 7 NWLR (pt 1032) 164, Smart v The State (1974) LPELR – 3076 (SC).
Exhibit P7 (xxi) was purported to have emanated from the Federal Debt Reconciliation Committee of the Presidency. PW6 is a staff of the office of the State House Counsel, Presidential Villa, Abuja and testified at the trial court that the document did not emanate from the Presidency. According to him, the only body empowered by law to administer Federal Government debts is the Debt Management Office of the Presidency. He gave evidence of his investigation and finding which confirms that Exhibit P7 (xxi) was forged. There is no evidence to the contrary. And as I said earlier, the position of the law is that all persons who are participes criminis whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime. See Agwuna v Attorney General of the Federation (supra).
In Akinbisade v The State (2006) 17 NWLR (pt 1007) 184, this court held the offence of uttering to include using or dealing with and attempting to use, deal with, and attempting to induce any person to use, deal with or act upon the thing in question. In the instant case, the moment the forged documents were forwarded to the PW2, the offence was established because the appellant and his co -travelers intended the PW2 to act upon it to his detriment.
I now turn to the issue of conspiracy which the appellant was also convicted of.
Conspiracy has been defined in the 8th Edition of Black’s Law Dictionary at page 329 as “an agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective.” Put differently, it means an agreement by two or more persons to do or cause to be done an illegal act or a legal act by an illegal means. See Patrick Ikemson v The State (1989) 3 NWLR (pt 110) 455 at 477, Ajayi v The State (2013) LPELR -19941 (SC), (2013) 9 NWLR (pt 1360) 589.
From the facts of this case, and in relation to the offence of conspiracy which the appellant was charged with in counts 1, 5 and 15,1 hold the view that it can be inferred to exist between the appellant on the one hand and Dr. Victor Odozie and Jubril Bello on the other. An agreement can be inferred between them which led to the use of the appellant’s account in Ecobank for the receipt of the sums of US $12,000 and US $20,000 paid by PW2 in furtherance of the false supply contract at the Ministry of Mines and Power.
Finally on this issue, I hold a strong view that from the totality of evidence and surrounding circumstances, the Respondent proved the charge beyond reasonable doubt against the appellant. In circumstance thereof, I resolve issues 2, 3, 4 and 6 against the appellant.
I am now left with issue 5 of the appellant which is issue 3 of the Respondent. The issue is whether having regards to the peculiar nature of the facts that gave rise to this appeal, the sentence on the Appellant is hash and excessive in the circumstance. Learned counsel’s concern is whether 10 years imprisonment for a first offender is not rather excessive. That the appellant is elderly was seriously ill throughout the duration of the trial. It is his view that the trial court failed to take into consideration the good conduct of the appellant throughout the duration of the trial. He urged the court to resolve this issue in favour of the appellant.
In response, the learned counsel for the Respondent submitted that the appellant was tried, convicted and sentenced under the Advance Fee Fraud and other Fraud Related Offences Act No. 13 of 1995 which was the law in force when the appellant committed the offences. That by the provisions of section 1 (3) of the said Act, the minimum sentence that can be imposed is ten (10) years imprisonment without an option of fine. That the trial court has no discretion to go below this mandatory minimum, relying on Yusuf v FRN (2016) LPELR – 41811 (CA), Isang v State (1996) 9 NWLR (pt 473) 458 at 471. He urged the court to resolve this issue against the appellant.
May I state clearly that the reason advanced by the learned counsel for the appellant for the plea to reduce the sentence imposed on the appellant does not apply in this case? The reason is that the sentence is mandatory for which the court has no discretion to exercise. Section 1 (3) of the Advance Fee Fraud and other Related Offences Act No. 13 of 1995 under which the Appellant was charged, tried, convicted and sentenced imposes a minimum of 10 years imprisonment without an option of a fine. In this kind of situation neither the trial court nor an appellate court has the discretion to go below this mandatory minimum. In Joseph Amoshima v The State (2011) LPELR – 471 (SC), this court held that the law is firmly settled that a court has no power to reduce a sentence specifically and mandatorily imposed and prescribed for an offence by the statute creating and providing punishment for the offence. It was further held that the duty of the court is to declare and apply the law as it is and not to make or amend the law. Should there be a need to amend such a law, the duty to do so rest on the legislature which has so far not acted to the contrary.
The sentence of 10 years imprisonment imposed on the appellant by the trial court and affirmed by the lower court is, by the law in force, appropriate and not excessive as argued by the learned counsel for the appellant. This court can only interfere where the correct principles were not followed in awarding the sentence. That is not the case here. See Adeyeye v The State (1968) 1 All NLR 239 at 241; Afolabi v The State (2013) LPELR – 20700 (SC), (2013) 13 NWLR (pt 1371) 292; Lucky v The State (2016) LPELR – 4054 (SC), Tanko v The State (2009) LPELR – 3136 (SC), (2009) 4 NWLR (pt 1131) 430. As it stands, this issue does not avail the appellant. I accordingly resolve it against the appellant.
Having resolved all the issues against the appellant, I hold that this appeal is devoid of merit and is accordingly dismissed. I affirm the judgment of the Court of Appeal in Appeal No. CA/L/749C/2015 which upheld the conviction and sentence of the appellant to ten (10) years imprisonment without an option of a fine. Appeal Dismissed.
EJEMBI EKO, JSC: I had the privilege of reading in draft the judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC. It represents my views in the appeal, and I hereby adopt it.
I wish, however to add just a few comments. Issue 1, posing the question:
Whether the Amended Information signed by M S. Hassan on behalf of the Executive Chairman of the Economic and Financial Crimes Commission robbed the trial Court of the jurisdiction to try the matter;
appears to me to raise an issue of procedural jurisdiction on the basis of the alleged defect in the Amended Information signed by M. S. Hassan on behalf of the Executive Chairman of the Economic and Financial Crimes Commission (E.F.C.C). The issue was neither raised at the trial Court nor before the Court of Appeal. It is a fresh issue.
There are two types of jurisdiction:
i. Jurisdiction as a matter of procedural law, and
ii. Jurisdiction as a matter of substantive law.
The latter is extrinsic to the proceedings. The former is intrinsic and it usually confers a beneficial right of the litigant. The litigant can always waive his right as regards the former. He cannot, however, waive compliance with the latter. See A.G. KWARA STATE & ANOR. v. ALHAJI SAKA ADEYEMO & ANOR. (2016) L.P.E.L.R – 41147 (S.C).
Jurisdiction, whether procedural or substantive, affects the competence of the Court to adjudicate. That is why it is stated in MADUKOLU v. NKEMDILIM (1962) 2 S.C.N.L.R. 341 that a Court is competent when-
i. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other;
ii. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
iii. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Brett, JSC delivering the judgment of the court in MADUKOLU v. NKEMDILIM (supra) made it clear that a defect in the procedure is not always fatal.
In my firm view that the defect the Appellant is complaining of in this court for the first time is a defect in procedure, which is not always fatal. The Appellant in the trial Court and the Court of Appeal was represented by counsel. Every legal practitioner knows the law, the practice and procedure of the courts he appears to advocate the case of the client.
In the instant case there was no protest against the allegedly defective information until this Court. I should think, on the concept of waiver, that the Appellant herein had waived his right to challenge the competence of the Amended Information. The concept of waiver, ably stated in ARIORI v. ELEMO (1983) NSCC 1, presupposes that the person who is to enjoy a benefit or who has a choice of two benefits who fully aware of his right to the benefit or benefits, but neglects either to exercise his right to the benefit, or where he has a choice of two, he decides or elects to take one but not the two, or none at all. A beneficiary of a right(s) under the statute has the full competence to waive those rights conferred for his benefit, unless the statute forbids such waiver. We have not been shown any such statutory provision and I know of none that forbids or prohibits the Appellant from waiving his right to protest procedurally defective information, as the instant Amended Information.
On this concept of waiver, and estoppel by virtue of Section 169 of the Evidence Act, 2011, I should think and I so hold, that the Appellant is estopped from complaining belatedly that he was tried on the defective Amended Information.
Issues 3, 4 and 6 canvassed in this appeal by the Appellant are all issues of facts or mixed law and facts. The attitude of this Court to findings of fact, which has antiquated history, is that the Apex Court will not lightly interfere with the concurrent findings of fact; OMETA v. NUMA (1934) 11 N.L.R. 18. It will not, unless under special circumstances, hear, a third time, arguments to disturb the concurrent judgments on questions of fact: SERBEH v. KAR1KARI (1939) 5 W.A.C.A. 34. Unless it appears that there has been a miscarriage of justice, this Court will not interfere with concurrent findings of fact: ADANSI v. THE STOOL OF BRENASE P.C No. 53 of 1953. Bearing in mind the history of the judicial policy of this Court that on concurrent findings of fact; the Respondent is prima facie entitled to a dismissal of the appeal, unless the Appellant shows exceptional circumstances warranting the interference of this Court to disturb such concurrent findings of fact in favour of the Respondent. I find myself in concurrence, and hereby align myself, with my learned brother JOHN INYANG OKORO, JSC, that this appeal lacks substance.
The Appellant was charged and tried for offences under Advance Free Fraud and other Fraud Related Offences Act, 1995, as amended. Section 1(3) of the Act prescribes the penalty for the offences thus:
1.(3) A person who is guilty of an offence under sub-section (1) or (2) of this section is liable on conviction to imprisonment for a term of NOT LESS THAN TEN YEARS WITHOUT OPTION OF A FINE. (Emphasis supplied)
The judex, whose only job is to declare and or enforce the law as it is, has no power to act in gross violation of the law by imposing sentences for offence(s) less than the prescribed minimum. It would be ultra vires his powers under the Statute to arbitrarily and capriciously impose sentences in violation of the express provisions of the statute.
The Appellant’s Counsel, in submitting that “sentencing is not channeled towards punishment, but ought to be corrective and not punitive” and that
“the trial Court failed to exercise its discretion judiciary (sic: judicially) and judiciously when it imposed mandatory 10 years imprisonment;”
Completely failed to appreciate that what he calls the “mandatory 10 years imprisonment” is the irreducible minimum of the prison sentence the trial Court was permitted or obligated by law to impose as punishment for any person adjudged as an offender under the Advance Free Fraud and other Fraud Related Offences Act, 1995, as amended. The word punitive used by the learned Counsel is an adjective of the verb “punish” and the noun “punishment.” The clear intent of the legislature for enacting Section 1(3) of the Advance Free Fraud and other Related Fraud Offences Act, 1995, as amended, is to punish those who commit advance free fraud offences. The sentence imposed on the Appellant by the trial Court may appear punitive, it is however not excessive.
The learned trial Judge had the discretion to impose between minimum sentence and the sentence under the Act. He elected to impose the minimum, the irreducible minimum. I will not interfere with his exercise of this discretion under the Act.
There is no substance in this appeal. I dismiss it in its entirety. The decision of the Court of Appeal affirming the conviction and sentence imposed on the Appellant by the trial Court is hereby affirmed. Appeal dismissed.
CHIMA CENTUS NWEZE, JSC: My Lord, Okoro, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with His Lordship that this appeal is devoid of merit. Accordingly, I enter an order dismissing it. I abide by the consequential orders in the said leading judgment.
AMINA ADAMU AUGIE. JSC: I had a preview of the lead Judgment delivered by my learned brother, Okoro, JSC, and I agree with him that the Appeal lacks merit and should be dismissed. He pointedly addressed all the salient Issues arising in the Appeal, and has covered the field. I have nothing useful to add except a few words on conspiracy.
Conspiracy, which is an agreement between two or more persons to do an unlawful act, is usually hatched with secrecy, and the law recognizes that it might not always be easy to lead direct and distinct evidence to prove the meeting of at least two criminal minds with the common intention and purpose to commit a particular offence. So, direct and distinct evidence, though desirable, is not invariably indispensable to prove same.
As Tobi, JCA (as he then was) observed in Gbadamosi V. State (1991) 6 NWLR (Pt. 196) 182 at 204, in law, it takes at least two minds to meet and the two minds must really meet with a common intention and common purpose. He also said –
In determining whether the minds of the Accused Persons really met to commit an offence, the Court should not only consider the physical meeting of the minds In a known and Identifiable place or spot as the crime hatching or planning base or ground, but the totality of the conduct of the Parties In what I may unguardedly refer to as “campaign efforts” of the minds towards the commission of the crime. Therefore, the offence of conspiracy could be committed through either written communication by way of letter or oral communication by way of message. Once the Court comes to the conclusion that the Prosecution has established some community effort on the part of the Accused Persons aimed at committing a crime, there should be no difficulty in convicting them of conspiracy, unless there exist other mitigating circumstances.
In this case, an agreement can be inferred between Appellant and his co-conspirators, which led to the use of his account in Ecobank for the receipt of the sums of $12, 000 and $20, 000 paid by PW2 in furtherance of the said false supply contract; the offence of conspiracy was clearly established against him.
I focused on conspiracy, but I adopt the reasoning and conclusions of my learned brother on other offences charged. The appeal clearly lacks merit, and it is also dismissed by me.
Allens Agbaka, Esq., For the Appellant|Chile Okoroma, Esq., with E. E. Iheanacho, Esq., and I. Diribe, Esq., For the Respondent|