IMA-OBONG NWABU v. INSPECTOR GENERAL OF POLICE
(2019)LCN/13271(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/C/68C/2018
RATIO
CONSPIRACY: DEFINITION
Conspiracy has received judicial attention in a plethora of cases and one of such is in the case of BALOGUN VS. STATE (2018) LPELR- 44 215 (SC) which held thus:
“Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act, by unlawful means.”
It could also be an agreement to do a lawful act by unlawful means. A more explanatory statement on the nature of conspiracy was given in the case of ODUNEYE VS. STATE (2001) LPELR 2245(SC) as follows:
“How then does one identify the offence of conspiracy Willes, J. in the House of Lords’ decision offered the generally accepted definition of the offence of conspiracy in Mulcahy vs. R (1868) 3 H.L. at 317 where he stated as follows: “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do all unlawful act, or to do a lawful act, by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.” (The emphasis is mine). See also Patrick Njovens & Ors. vs. The State (1973) 5 SC 17; Daboh & Anor vs. The State (1977) 5 SC. 197 and Erim vs. State (1994) 5 NWLR (Pt. 346) 522.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
CRIMINAL LAW: BURDEN OF PROOF IN CRIMINAL LAW
The burden of proof generally in a criminal trial is on the Respondent from beginning to end of trial and for all the counts named in the charge sheet, see ANKPEGHER VS. STATE (2018) LPELR-43906(SC) wherein it held thus:
“There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington Vs D.P.P (1935) AC 462. As rightly stated in the lead judgment, the evidence adduced by the prosecution must be so strong as to leave only a remote possibility in favour of the accused. See: Miller Vs. Minister of Pensions (1947) 2 ER 372; Bakare Vs. The State (1987) 1 NWLR (Pt. 52) 579.” Per KEKERE-EKUN, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.
CONSPIRACY: ESSENTIAL INGREDIENTS TO PROVE THE OFFENCE
The apex Court in the case of ABDULLAHI VS. STATE (2008) LPELR-28(SC) listed the ingredients of the offence of conspiracy thus:
“It is therefore the duty of the prosecution, in order to discharge the burden of proof placed on it by law to adduce evidence to establish the following ingredients of the offences:- (a) an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; and (b) that illegal act was done in a furtherance of the agreement and that each of the accused persons participated in the illegality – conspiracy. The above is as relates to the offence of conspiracy.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
CONSPIRACY: ESTABLISHED MAINLY BY INFERENCE FROM FACTS ESTABLISHED BY PROSECUTION
Conspiracy is usually not established by direct evidence but by inference from the facts established by the respondent, see ADEPOJU VS. STATE (2018) LPELR 44355(SC) wherein EKO, JSC said:
“Proof of existence of a conspiracy, at common law, is generally a matter of inference deducible from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them: Archbold – Criminal Pleading, Evidence and Practice; 40th ed., Paragraph 4076 at page 1875.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
IMA-OBONG NWABU Appellant(s)
AND
INSPECTOR GENERAL OF POLICE Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Uyo delivered by Hon. Justice F. O. Riman on the 21st day of June, 2017 wherein the Court below found the Appellant and one other (his wife) guilty of the offences of conspiracy and obtaining by false pretence the sum of Forty Two Million Naira (N42,000,000.00) and sentenced them accordingly. Dissatisfied with the conviction and sentence, the Appellant with leave of Court filed an Amended Notice of Appeal dated 6th March, 2018 setting out 4 grounds of Appeal.
Facts leading to the appeal are that the Appellant?s husband company (Berecha Projects Ltd.) had a contract financing arrangement with another company named Vilaan Ventures Ltd. complainant. There was an agreement duly signed between the parties. The Vilaan company advanced money for the execution of a road construction company which could not be executed within the time specified leading to the complaint to the Police and prosecution. The agreement was witnessed by the Appellant and she was made the second accused in the complaint that
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they obtained money from the complainant by false pretences. In the course of trial the prosecution tendered several documents in evidence and called 3 witnesses while the defence called a sole witness, one Emmanuel Nwabu, the husband of the Appellant and owner of the company in issue.
The Appellant?s Brief of Arguments settled by Dr. Sam C. Eboh Esq., dated 17th day of May, 2018 filed on the 18th May, 2018. It distilled 4 issues for determination as follows:
i. Whether the offence of conspiracy to obtain by false pretence was established against the Appellant at the trial Court in view of the evidence before the Court.
ii. Whether the contract was a failed consideration and whether there was any nexus linking the Appellant to the failed contract.
iii. Whether, in view of the evidence adduced at the trial Court, prosecution has successfully proved the allegation of obtaining money by false pretence preferred against the Appellant beyond reasonable doubt.
iv. Whether denial of adequate facilities against the Appellant did not amount to denial of fair hearing which ipso facto occasioned miscarriage of justice.
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The Respondent?s brief of Arguments settled by F. E. Okoi Esq., is dated 2nd July, 2018 filed on the 5th July, 2018 and it adopted the issues for determination as formulated by the Appellant. The Court shall also adopt those issues for the determination of this appeal. The first issue shall be resolved first and separately while the remaining issues two, three and four shall be resolved seamlessly and together.
?The Appellant in arguing issue one commenced with a review of the case of the Respondent and exhibits tendered to submit that the prosecution did not prove its case beyond reasonable doubt. It also adopted the definition of conspiracy in the case of SHURUMO VS. THE STATE (2010) 19 NWLR (Pt. 1226) 73 and AL-MUSTAPHA VS. STATE (2013) 17 NWLR (PT. 1383) 350 at 399. Counsel contended that the evidence of PW1 and PW2 is hearsay evidence and therefore inadmissible relying on KACHI VS. STATE (2015) NWLR (PT. 1464) 213; OSOHA VS. STATE (2010) 16 NWLR (PT. 1219) 364; ODOGWU VS. STATE (2013) 14 NWLR (PT.1373) 74 at 81. Appellant argued that PW3 did not investigate anything about the case and challenged the quality of investigations conducted when the IPO
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did not investigate the existence of the company called E.T. Dicks and did not visit the site of the project to verify the claims. The Appellant submitted that there were contradictions in the evidence of the prosecution, because in Exhibit 1, Naomi Ekpo was alleged to have said she was fronting for MD of NDDC and that the Bitumen requirement for the road construction was to be given to her while PW1 in her evidence in chief said a different thing therefore creating uncertainty with regards to who is fronting for the MD of NDDC. Another area of the contradiction is that PW1 said when she came to Uyo, it was Naomi and the Appellant with her husband that received her while in her evidence in chief she named another person and excluded the Appellant. He submitted that the evidence of PW1 is full of lies.
Appellant also said she is not a director in the company, BERECHA Projects Limited and this was not investigated. Another aspect highlighted was the fact that the Appellant made it clear that they were husband and wife and therefore conspiracy cannot be established between them as per Section 34 of the Criminal Code but the Court below rejected it, she
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relied on IRENE NGUMA VS. A.G. IMO STATE (2014) NSCQR 1281 to submit that there is evidence even from the prosecution that the 1st accused is the wife of the Appellant who both lived at Shelter Afrique Estate and as stated in the statement of the Appellant to the police that they are married with five children without any dispute from the Respondent. That it was therefore inequitable for the trial judge to reject the defence of being a couple to hold that there was no evidence and therefore the defence of conspiracy cannot be alleged against the Appellant and the 1st accused. He urged the Court to find for the Appellant under issue one. The Respondent in response submitted that the prosecution proved the offence of conspiracy against the Appellant. He listed the ingredient of the offence of conspiracy and submitted that an offence must be committed in pursuance of the agreement, relied onAKINKUNMI VS. THE STATE (1987) 3 SC (REPRINT) 99 and NGUMA VS. A.G. IMO (2014) 7 NWLR (PT. 1405) 147 to submit that all that is required is the consensus of the minds whether implied or express to complete the offence and the Court below was right to find Appellant guilty.
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Learned counsel for the Respondent submitted that the evidence of PW1 that on arrival at Uyo she was received by Naomi, the Appellant and her husband was not disputed. Furthermore, that the Appellant and her husband signed Exhibit 7 even though the Appellant signed as witness it is to confirm they were in agreement.
On the alleged contradictions, the Respondent submitted that they are not material so as to affect the findings of the trial Court, citing EKE VS. STATE (2011) 2KLR (sic) (PT. 291) 417.
Responding to the contention that the Appellant and 2nd Accused are a couple, the Respondent said Section 34 of the Criminal Code provided that husband and wife of a Christian marriage are not criminally responsible for a conspiracy between themselves alone which means that when no other person is involved unlike here where one Naomi Ekpo is involved. And that the question of their being husband and wife of a Christian marriage does not ipso facto mean they are a couple without more. He relied on AJAYI VS. STATE (2014) 14 NWLR (PT. 1426) to submit that Courts do not fish or speculate on defences available to a person accused of a crime and
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therefore the defence is not available to the Appellant.
RESOLUTION OF ISSUE ONE
The issue here is whether conspiracy was established against the Appellant and her husband the 2nd Defendant/Accused person. Conspiracy has received judicial attention in a plethora of cases and one of such is in the case of BALOGUN VS. STATE (2018) LPELR- 44 215 (SC) which held thus:
“Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act, by unlawful means.”
It could also be an agreement to do a lawful act by unlawful means. A more explanatory statement on the nature of conspiracy was given in the case of ODUNEYE VS. STATE (2001) LPELR 2245(SC) as follows:
“How then does one identify the offence of conspiracy Willes, J. in the House of Lords’ decision offered the generally accepted definition of the offence of conspiracy in Mulcahy vs. R (1868) 3 H.L. at 317 where he stated as follows: “A conspiracy consists not merely in
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the intention of two or more but in the agreement of two or more to do all unlawful act, or to do a lawful act
