MUSA YUSUF v. FEDERAL REPUBLIC OF NIGERIA(2017)

MUSA YUSUF v. FEDERAL REPUBLIC OF NIGERIA

In The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.124/2017

RATIO

POSITION OF THE LAW AS REGARDS THE BURDEN OF PROOF AND STANDARD OF PROOF REQUIRED IN CRIMINAL CASES

It is to be noted that the Appellant places reliance on Sections 131 and 132 of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, to contend that prosecution always bears the burden of proof. Appellant would appear to assume that the burden is static even where the prosecution has deployed credible evidence to prove its case. Sections 131 and 132 of the Evidence Act relied upon by the Appellant is herein re-produced: “BURDEN AND STANDARD OF PROOF: 131. BURDEN OF PROOF. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a Person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 132. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” Section 138 further complements the above. It provides for the burden of proving fact necessary to be proved to make evidence admissible. “138(1) The burden of proving any fact necessary to be proved in order to: (a) enable a person to adduce evidence of some other fact; or (b) prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the adduction of such evidence, respectively. (2) The existence or non – existence of facts relating to the admissibility of evidence under this Section is to be determined by the Court.” Proof in criminal trial is attained against the background of the burden enshrined in Section 135(1) of the Evidence Act, 2011 which states thus:- “135. Standard of proof where commission of crime in issue; and burden where guilt of crime etc. asserted. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” It is acknowledged that the above section imposes only a burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Section 36(5) of the Constitution stipulates that:- “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts. PER SIDI DAUDA BAGE, J.S.C.

WHEN IS THE OFFENCE OF CONSPIRACY ESTABLISHED

However, it needs to be appreciated that, by its nature, the offence of conspiracy is established once the prosecution adduces credible evidence, which is not debunked by the accused, to show criminal design and intent. See ODUNEYE VS THE STATE and DABOH VS THE STATE (1977) 5 SC 197. PER SIDI DAUDA BAGE, J.S.C.

WHETHER THE PROVISION OF SECTION 1(3) OF THE ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT 2006 GIVES THE COURT ANY DISCRETION TO IMPOSE A SENTENCE BELOW SEVEN (7) YEARS IMPRISONMENT

I am also of the view, like the Court below that Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006 does not give the Court any discretion to impose a sentence below seven (7) years imprisonment. The statutory range is a maximum of twenty (20) and a minimum of seven (7) years imprisonment. For clarity, I reproduce the exact provisions of Section 1(3) of the Act: “1(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. See also the case of AMOSHIMA VS THE STATE (2011) All FWLR (P.597) at 601. It is my considered view that, in view of the above provisions, the Lower Court was right to have invoked the provisions of Section 15 of the Court of Appeal Act in revisiting the issue of the punishment imposed with a view to effecting the appropriate punishment envisaged under the law. It is for this reason that I re-affirm the imposition of seven (7) years imprisonment imposed by the Lower Court as against the six (6) months imprisonment imposed by the trial Court. PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

MUSA YUSUF Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Sokoto Division delivered on 8th December, 2016, wherein the Lower Court affirmed the conviction of the Appellant and reviewed the sentence from six months imprisonment to seven years imprisonment for committing offences provided for under Section 8(a) of the Offences of Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same law.

SUMMARY OF FACTS
Based on a charge dated 8th August, 2014, the Appellant herein (the 2nd Accused person at the trial Court) and one Alhaji Mohammed Arzika Dakingari (as the 1st Accused person at the trial Court). Both of them were arraigned before the High Court of Kebbi State sitting in Birnin Kebbi on a 20 counts charge for offences relating to fraud, contrary to Section 8(a) of the Advance Fee and Other Fraud Related Offences Act.

On May 20, 2016, the trial Court found the Appellant guilty on the 1st and 2nd counts of the charges and sentenced him to six months imprisonment.

Dissatisfied by the Judgment of the trial

Court, Appellant lodged an appeal at the Court of Appeal in Sokoto Division. The Respondent, also expressed his dissatisfaction with the judgment of the trial Court, particularly the six month imprisonment, filed a Cross Appeal in the same Court.

On 8th December, 2016, the Court below affirmed the conviction of the Appellant and reviewed the sentence from six months imprisonment to seven year imprisonment for the offences for which he was charged under Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act still dissatisfied, the Appellant preceded to this Court to lodge this appeal.

ISSUES FOR DETERMINATION:
The Appellant formulated four (4) issues for determination at page 3 of its Appellant’s Brief filed on 10th March, 2017.
1. Was the Court below right in law when it affirmed the conviction of the Appellant for the offence of Criminal Conspiracy contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and punishable under Section 1(3) of the same Act the appellant’s co-accused having been discharged in relation to the same offence (This is decoded from ground 2 of the grounds of

appeal)
2. Was the Court below right in law when it affirmed the conviction of the Appellant for the offence of aiding contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and Punishable under Section 1(3) of the same Act, the appellant’s co-accused having been discharged in relation to the same offence (This is decoded from ground 3 of the grounds of appeal)
3. Did the Court below not impute its personal evidence in the consideration of the appeal before it (This is decoded from ground 4 of the grounds of appeal).
4. Was the Court below on the totality of the evidence adduced on the records justified in affirming the conviction of the appellant for the offences of criminal conspiracy and aiding contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and punishable under Section 1(3) of the same Act. (This is decoded from ground 1, 5 & 6 of the grounds of appeal).”

The Respondent however, formulated three (3) issues at pages 2-3 of the Respondent brief.
ISSUE ONE
Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for conspiracy

to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act even though it discharged and acquitted the co-accused Alhaji Mohammed Arzika Dakingari who was charged together with the Appellant in the same count one of the charge for the same offence. (Distilled from ground 2 of the Grounds of Appeal).
ISSUE TWO
Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for aiding the obtained of property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act even though it discharged and acquitted the co-accused Alhaji Mohammed Arzika Dakingari who was charged together the Appellant in the same count two of the charge for the same offence. (Distilled from ground 3 of the Grounds of Appeal).
ISSUE THREE
Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence and aiding one Alhaji Ibrahim Abdullahi to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act,

2006, on the grounds that the Respondent had proved its case against the Appellant beyond reasonable doubt on both allegations. (Distilled from grounds 1, 4, 5 and 6 of the Notice of Appeal).

I observed that all the issues formulated by the Appellant and Respondent touched and concern the fact that the Court below affirmed the conviction of the Appellant for the offences for which he was charged. Thus, it is my considered view that all the issues could be summed-up and sufficiently answered under one issue for determination. Therefore, for the purpose of determining this appeal, I have formulated the sole issue for determination, thus:
“Whether the Court below was right when it affirmed the conviction of the Appellant for the offence of obtaining by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act.”

CONSIDERATION AND RESOLUTION OF THE ISSUE:
The contention of the Appellant is that, he was alleged to have conspired with Alhaji Mohammed Arzika Dakingari, the Accountant General of Kebbi State and one Ibrahim Usman to fraudulently obtain 25 units of Iveco Trucks, properties of Karimat

Global Trade Inks Limited valued at N175,000,000.00 (One Hundred and Seventy Five Million Naira) by false pretence. Therefore, by virtue of Sections 131 and 132 of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, as well as decisions in MOSES VS THE STATE (2006) 6 QCCR, page 1 at 23 Ratio 2; AMAREMOR v. THE STATE (2010) 7 NWLR (Pt.1193) page 317 at 329, paragraphs G-H among others cases cited at pages 4-5 of the Appellant’s brief, the prosecution always bears the burden of proof.

Counsel contended that, by the decisions in ODEN v. FRN (2005) 1 NCC 303 at 327-328 which Counsel quoted extensively, proof of an offence beyond reasonable doubt in turn means proof of all essential elements of an offence. Counsel contended that since the 1st accused person with whom the Appellant was alleged to have committed the offence has been discharged and acquitted, and also one Ibrahim Usman who was mentioned in count one of the charges was never arraigned, the Court below glossed over same and convicted the Appellant. Counsel submitted that this, in effect, meant that the Court below rejected the evidence of the

criminal conspiracy but nonetheless used the same discredited evidence to convict the Appellant. On this contention, the learned Counsel relied on the case of IDIOK vs. THE STATE (2010) 8 LRCNN 96 at 110 paras EE.

The Appellant further contended that having discharged the charges, the 1st accused person on count 2 of the charges, the Appellant also ought to be left of the hook since the evidence relied upon by the prosecution was like Siamese twins that cannot be separated. Counsel relied on the case of EMMANUEL EBRI VS THE STATE (2005) 1 NCC 1, at 18 and submitted that the Court relied on the same evidence to arrive at different conclusion.

The learned Counsel contended that, the learned justice of the Court below, in interpreting the evidence of the PW6 imported their personal views or evidence into the case before the Court thereby arriving at a verdict detrimental to the Appellant thus occasioning a miscarriage of justice. Counsel contended that the duty of Court is to consider all available evidence and not to manufacture one which does not exist. He relied on the case of AWOPEJO v. THE STATE (2002) FWLR (Pt.87) 772 at 781 Ratio 3.

The

learned counsel for the Appellant contended that although a total of 20 exhibits were tendered, the prosecution was unable to prove that the Appellant is the maker of all the purported fraudulent documents. He contended that all the trial Court did was to pitch the Appellant documents that were never procured by him as justification for his conviction thereby leading to a miscarriage of justice. Counsel cited the case of AGBOMEJI VS. BAKARE (1998) 9 NWLR (Pt.564) 1, STATE V. AJIE (2000) 7 SC (Pt.1) at 24.

Counsel contended further that there was no evidence before the trial Court that the Appellant benefitted even in a minimal proportion from the transaction leading to his conviction. The conviction of the Appellant, in the view of the Appellant, in the view of Counsel, was based on mere suspicion and that the law is settled that suspicion, no matter how strong, cannot occasion criminal responsibility. Counsel relied on the case of COP V. UDE (2011) 17 WRN 120 at 126, Ratio 4.

In the final submission, the learned counsel for the Appellant argued that his client ought not to have been convicted and that such lingering doubt had been

casted in the prosecutions case and that such doubts by law, ought to be resolved in favour of the Appellant. Based on his arguments and submission, the learned counsel for the Appellant urged this Court to acquit and discharge the Appellant.

In his response, the learned counsel for the Respondent contended that Section 8(a) of the Advance Free Fraud provides that:
“A person who conspires with, aids, abets, or counsels any other person to commit an offence ………. under this Act commits an offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.

Counsel proceeded to list out the elements of criminal conspiracy which the prosecution must establish to ground conviction. Counsel submitted that contrary to the argument of the learned counsel for the Appellant, the count on conspiracy also had other accused persons as co-conspirators and the discharge of one Alhaji Muhammed Arzika Dakingari could not have resulted in the discharge of the Appellant.

The learned counsel clarified that contrary to the submission of the Appellant, the evidence of conspiracy against the Appellant

was not discredited as there was concurrent findings of fact by both the trial Court and the Court below. Counsel submitted that the Court below rightly affirmed the inference of conspiracy against the Appellant by the trial Court. Counsel relied on the cases of ARABAMBI VS. ADVANCE BEVERAGES INDUSTRIES LIMITED (2005) 19 NWLR (Pt.959) 1 at 43; NWADIKE v. IBEKWE (1987) 4 NWLR (Pt.67) at 718; OGUGU vs. THE STATE (1990) 2 NWLR (Pt.134), 539 at 553; and ODUNEYE VS THE STATE (2001) 2 NWLR (Part 697) 311 at 325, Paras.A-B, 332-333, Paras. H-C.

The learned counsel for the Respondent submitted that the contention of the Appellant’s counsel that the discharge of the co-accused should have led to the discharge of the Appellant cannot stand. This is because the Appellant does not qualify as a person who acted innocently without the intention to commit any of the offences. Counsel relied on the case of ARABAMEN VS THE STATE (1972) 7 NSCC 194 at 200, Lines 15-20. The Learned Counsel also relied on the case of NWANKWOALA VS THE STATE (2006) 15 NWLR (Pt.1000) 663 at 683 at APARS C D.

In his final submission, the learned Respondent’s Counsel argued

that it is not the duty of the appellate Court to state whether or not it believed or did not believe the Appellant as a witness as contended by counsel to the Appellant. On this contention, Counsel relied on the case ONUOHA V. THE STATE (1989) NWLR (Pt.101) 23 at 34 G-H. Counsel concluded by stating that there was abundance of credible, direct and circumstantial evidence to warrant the Lower Court to affirm the conviction of the Appellant by the trial Court. The learned Respondent’s Counsel therefore urged this Court to dismiss the appeal and affirm the conviction of the Appellant by the Court below.

The basis of the Appellants appeal is largely based on his submission that the conspiracy charge involved Alhaji Mohammed Arzika Dakingari, the Accountant General of Kebbi State and one Ibrahim Usman. Therefore, having discharged the 1st accused person on count 2 of the charges, the Appellant also ought to be left off the hook since the evidence relied upon by the prosecution was like Siamese twins that cannot be separated.
To all intent and purposes, this is misplaced. Certainly, there cannot be conspiracy unless two or more persons are involved.

However, the most important thing is for the accused to have the intention and be in the know as to the purpose of the criminal conspiracy. To this extent, the Courts are allowed to draw reasonable inferences from the overt acts of the conspirators to establish reasonable conspiracy.

burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
Section 138 further complements the above. It provides for the burden of proving fact necessary to be proved to make evidence admissible.
“138(1) The burden of proving any fact necessary to be proved in order to:
(a) enable a person to adduce evidence of some other fact; or
(b) prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the adduction of such evidence, respectively.
(2) The existence or non existence of facts relating to the admissibility of evidence under this Section is to be determined by the Court.”
Proof in criminal trial is attained against the background of the burden enshrined in Section 135(1) of the Evidence Act, 2011 which states thus:-
135. Standard of proof where commission of crime in issue; and burden where guilt of crime etc. asserted. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

It is acknowledged that the above section imposes only a burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Section 36(5) of the Constitution stipulates that:-
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”

On the issue of respective burdens of proofs imposed on the Accused and prosecution, the learned Counsel for the Respondent cited the case of BELLO v. THE STATE (2007) 10 NWLR (Pt.1043) 564; OLADELE VS NIGERIAN ARMY (2004) 6 NWLR (Pt.868) at 166 and OBIAKO VS THE STATE (2002) 10 NWLR (Pt.776) at 612.

involvements of the Appellant as 2nd accused person, his role which culminated in the defrauding of the PW.1 literally shouts to the high heavens. It was he who played very active roles in procuring all the fraudulent documentations with which the PW.1 was defrauded even when he knew that there was no contract for the supply of rice anywhere. See page 999 of the Record of Appeal.”
I also share the views of the Court below to the effect that:
“The most important disclosure in this case is the fact that the Appellant, despite knowing that there was no contract anywhere for the supply of rice still went ahead and procured Exhibits 17 and 18 with which they easily convinced the PW1 and ended up defrauding him.
PW.5 in his evidence, testified that the supply of rice was procured when the appellant handed him a document and instructed that the contents be transferred to the official letter-headed paper. In addition, the appellant is not unaware that the so called supply of rice contract was not genuine, and yet he still went about its procurement.
The appellant, however, at page 452 of the records while under cross-examination,

admitted that he knew that there was no such thing as a contract for the supply of rice when he said:-
“Yes, I requested an ISPO from the office of the Accountant-General in respect of supply of rice to Kebbi State Civil Servants. I submitted the ISPO to ECO BANK. There was no contract between us and Kebbi State Civil Servants: there was also no contract for the supply of rice.
The learned trial judge in his Judgment at page 530 of the records stated that.-
In relation to the 2nd accused the evidence against him was that he was the one that came to PW.5 with a handwritten draft of the ISPO with instructions from the 1st accused to transfer the content of the handwritten draft unto the official letter-headed paper of the office of the Accountant-General. He took this ISPO with him to PW6 who was then the branch manager of ECO BANK 1 Birnin-Kebbi. He was accompanied to the office of the Accountant-General where the ISPO was made and to the office of the manager ECO BANK 1 Birnin-Kebbi by one Ibrahim Abdullahi Usman (now at large). On the strength of the standing order PW6 issued a confirmation letter to Cigale Finance S.A. (Exhibit

7). It was the ISPO (Exhibit 17) and the letter of domiciliation of account issued by ECO BANK that were used to defraud PW1…
In the instant case, there is no direct evidence of conspiracy to defraud in the sense that the 2nd accused conspired with Malami Galadirna, Ibrahim Abdullahi Usman and Abdulrazak to defraud PW1. There is however enough circumstantial evidence to that effect. There was a meeting at a Hotel between 2nd accused and Ibrahim Abdullahi Usman and Malami Galadima Birnin-Kebbi. The 2nd accused obtained Exhibit 17 from the office of the Accountant-General, Kebbi State. When the said Ibrahim Abdullahi Usman brought same trucks to Birnin-Kebbi (Presumably Part of the 22 IVECO TRUCKS he defrauded PW1) the 2nd accused went to the place where they were parked and saw them. In the circumstances of this case, I find the 2nd accused person, YUSUF MUSA guilty of the offence of conspiracy and I convict him accordingly.”
The main thrust of the prosecution’s case is that the appellant despite knowing that there were no contracts anywhere for the supply of rice still went ahead and procured Exhibits 17 and 18 with which he convinced the

PW.1 and ended up defrauding him.

I am also of the view, like the Court below that Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006 does not give the Court any discretion to impose a sentence below seven (7) years imprisonment. The statutory range is a maximum of twenty (20) and a minimum of seven (7) years imprisonment. For clarity, I reproduce the exact provisions of Section 1(3) of the Act:
“1(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.
See also the case of AMOSHIMA VS THE STATE (2011) All FWLR (P.597) at 601.
It is my considered view that, in view of the above provisions, the Lower Court was right to have invoked the provisions of Section 15 of the Court of Appeal Act in revisiting the issue of the punishment imposed with a view to effecting the appropriate punishment envisaged under the law. It is for this reason that I re-affirm the imposition of seven (7) years imprisonment imposed by the Lower Court as against the six (6) months

imprisonment imposed by the trial Court.

In concluding, it is my view that the Lower Court was right when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Related Offences Act, 2006 irrespective of the discharge and acquittal of the co-accused person. It does not lie in the mouth of the Appellant to complain that whatever consideration that led to the acquittal or discharge of the Mohammed Arzika must necessarily lead to his acquittal irrespective of the overwhelming evidence against him. The imposition of higher punishment of seven (7) years imprisonment imposed is also well justified.

In view of the foregoing, this sole issue is resolved against the Appellant. The appeal is consequently dismissed as lacking in merit. The judgment of the Court below is hereby affirmed.

OLABODE RHODES-VIVOUR, J.S.C.: I had a preview of the leading judgment just delivered by my leanred brother Bage, JSC. I agree with his lordship reasons leading to the conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment and reasons from which the decision was reached by my learned brother, Sidi Dauda Bage JSC and to register my support I shall make some comments.

This is an appeal against the judgment of the Court of Appeal or Court below or Lower Court of Sokoto delivered on the 8th day of December, 2016 wherein the learned justices affirmed the conviction of the appellant and reviewed the sentence from six months imprisonment to seven years imprisonment for the offences contrary to Section 8 (a) of the Advance Fee Fraud and Other Related Offences Act and punishable under Section 1(3) of the same Act.

The facts of the case are well set out in the lead judgment and so no need repeating them save for when the occasion warrants a reference to any of the background features.

On the 11th day of October, 2017 date of hearing, learned counsel for the appellant, Ibrahim Abdullahi Esq. adopted his Brief of Argument filed on 16/3/2017 and in it were identified four issues for the determination of the appeal thus:
1. Was the Court below right in law

when it affirmed the conviction of the Appellant for the offence of Criminal Conspiracy contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and punishable under Section 1(3) of the same Act, the appellant’s co-accused having been discharged in relation to the same offence (This is decoded from Ground 2 of the Grounds of Appeal).
2. Was the Court below right in law when it affirmed the conviction of the Appellant for the offence of aiding contrary Section 8(a) of the Advance Fee Fraud and other Fraud Relate Offences Act and Punishable under Section 1(3) of the same Act, the appellant’s co-accused having been discharged in relation to the same offence (This is decoded from ground 3 of the Grounds of Appeal).
3. Did the Court below not impute its personal evidence in the consideration of the appeal before it (This is decoded from Ground 4 of the Grounds of Appeal).
4. Was the Court below on the totality of the evidence adduced on the records justified in affirming the conviction of the appellant for the offences of criminal conspiracy and aiding contrary Section 8(a) of the Advance Fee Fraud and other Fraud

Related Offences Act and punishable under Section 1(3) of the same Act. (Ground 1, 5 & 6).

Chile Okoroma of counsel for the respondent adopted its brief of argument filed on the 23/3/17 and it formulated three issues for determination which are as follows:
1. Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act even though it discharged and acquitted the co-accused. Alhaji Mohammed Arzika Dakingari who was charged together with the Appellant in the same count one of the charge for the same offence. (Distilled from Ground 2 of the Grounds of Appeal).
2. Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for aiding the obtained of property by false pretence under Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act even though it discharged and acquitted the co-accused, Alhaji Mohammed Arzika Dakingari who was charged together the Appellant in the same count two of the charge for the same offence. (Distilled from

Ground 3 of the Grounds of Appeal).
3. Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence and aiding one Alhaji Ibrahim Abdullahi to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, on the grounds that the Respondent had proved its case against the Appellant beyond reasonable doubt on both allegations. (Distilled from Grounds 1, 4, 5 and 6 of the Notice of Appeal).

I shall make use of the issues as raised by the appellant for ease of reference.

ISSUE NO. 1
Was the Court below right in law when it affirmed the conviction of the appellant for the offence of criminal conspiracy contrary Section 8(a) of the Advance Fee Fraud and other Related offences Act and punishable under Section 1(3) of the same Act, the appellant’s co-accused having been discharged in relation to the same offence.

Learned counsel for the appellant submitted that by Sections 131 (1) of the Evidence Act, 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (CFRN) and

numerous decided cases, the prosecution always bears the burden of proof beyond reasonable doubt which burden never shifts. That proof beyond reasonable doubt means proof of all the essential elements of on offence. He referred to Oden v FRN (2005) 1. NCC 303 at 327 328 (CA).

That agreement forms the core of the offence of criminal conspiracy and so when the 1st accused person at the trial Court in the person of Alhaji Mohammed Arzika Dakingari, the Accountant General of Kebbi State was discharged and acquitted. He stated further that one Ibrahim Abdullahi Usman who was mentioned in count one of the charge was never arraigned before the trial but yet the Court below held that there was evidence to convict the appellant notwithstanding the discharge of the appellant’s co-accused, Mohammed Arzika Dakingari, the Court below agreed that Beal Construction Nigeria Limited was a family company of Alhaji Mohammed Arzika Dankingari.

Learned counsel for the appellant contended that it takes two to conspire and since Alhaji Mohammed Arzika Dankingari, Accountant General of Kebbi State and as 1st accused person was discharged of the offence of

criminal conspiracy, it was wrong for the Court below to affirm the conviction of the appellant of the offence of criminal conspiracy as the appellant ought equally to be discharged. That a single person cannot be convicted of the offence of criminal conspiracy and so the discharge of 1st accused shows there was no common intent or purpose to germinate the offence of criminal conspiracy. He cited Ikemson v State (1989) 3 NWLR (Pt.110) 455 at 477: Sule v State (2009) 7 LRCNCC 1 at 27 etc.

In response, learned counsel for the respondent submitted that the appellant was not in count 1 of the charge stated to have conspired with the said Alhaji Mohammed Arzika Dakingari only and so the discharge of the said Dakingari could not have resulted in the discharge of the appellant.

He stated that the evidence of conspiracy against the appellant was not discredited. That there were concurrent findings of facts by both the Lower Court and the trial Court in the count of conspiracy against the appellant which the Supreme Court cannot disturb or interfere with unless they are shown to be perverse or are not supported by the evidence or as a result of a wrong

application of evidence or as a result of a wrong application of any principle of substantive law or procedure. He cited Arabambi .v Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 at 43; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Ogugu v State (1990) 2 NWLR (Pt.134) 539 at 553; Oduneye v State (2001) 2 NWLR (Pt.697) 311 at 325, 332 – 333.

The thrust of the appellant’s case is that with the discharge and acquittal of the appellant’s co-accused of the offence of criminal conspiracy the appellant ought to enjoy the same fate of a discharge and acquittal.

The respondent disagreed with the posture of the appellant contending that the Court below was right when it affirmed the conviction of the appellant for conspiracy to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and Other Related Offences Act even though it discharged and acquitted the co-accused, Alhaji Mohammed Arzika Dakingari who was charged together with the appellant in the some count one of the charge for the same offence.

For the offence of criminal conspiracy, the prosecution has the bounden duty to prove the following ingredients:

(a) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(b) Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the defendants individually participated in the conspiracy. See State v. Salawu (2012) ALL FWLR (Pt.614) 30 – 31.

The Court below had held thus:
“In relation to the 2nd accused the evidence against him was that he was the one that came to PW5 with a hand written draft of the ISPO with instructions from the 1st accused to transfer the content of the hand written draft onto the official letter-headed paper of the office of Accountant-General where the ISPO was made and to the office of the Manager Ecobank 1 Birnin Kebbi by one Ibrahim Abdullahi Usman (now at large). On the strength of the standing order, PW6 issued a confirmation letter to Cigale Finance S. A (Exhibit 7). It was the ISPO (Exhibit 17) and the letter of domiciliation of account issued by Ecobank that were used to defraud PW1.

In the instant case, there is no direct evidence of conspiracy to defraud in the sense that the 2nd accused conspired with Malami Galadima, Ibrahim Abdullahi Usman and Abdulrazak to defraud PW1. There is however enough circumstantial evidence to that effect. There was a meeting at a hotel between 2nd accused and Ibrahim Abdullahi Usman and Malam Galadima Birnin Kebbi. The 2nd accused obtained Exhibit 17 from the office of Accountant General, Kebbi State. When the said Ibrahim Abdullahi Usman brought some trucks to Birnin Kebbi (presumably part of the 23 IVECO Trucks he defrauded PW1) the 2nd accused went to the place where they were parked and saw then… In the circumstances of this case I find the 2nd accused person, Yusuf Musa, guilty of the offence of conspiracy and I convict him accordingly.”

From the piece of the judgment of the Court below, it is clear that the appellant was not convicted for conspiring with the said co-accused but was convicted with the said Ibrahim Abdullahi Usman whose name appeared in Count 1 but was stated to be at large and so the appellant’s submission that he ought to have been discharged and acquitted since the

co-accused in the charge was discharged, was a misconception. That a person can be convicted of conspiring with a co-conspirator who is at large as all that is required is evidence on record in support of the conviction. See Ogugu v State (1990) 2 NWLR (Pt.134) 539 or 553.

It has to be reiterated that conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of a criminal purpose in common between them and in proof of conspiracy the acts or omission of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. In short, conspiracy is an offence inferentially deducted from the acts of the parties thereto which are focused towards the realization of their common or mutual purpose. It is not an offence that is usually established by direct evidence since the conspiracy or agreements thereto are usually contrived in secret. I rely on Oduneye v. State (2001) 2 NWLR (Pt.697) 311 or 325.

In answer to the question herein posed, the concurrent findings of facts by the two Lower Court are not to be trifled with or

interfered with or disturbed as they came from solid findings and supported by the evidence and since there is no seen wrong approach to the evidence or wrong application of evidence or the law, those findings stand. See Arabambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt.959) 1 at 43; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.

The issue is answered against appellant from the foregoing.

ISSUES 2, 3 AND 4
1. Was the Court below right in law when it affirmed the conviction of the appellant for the offence of aiding contrary Section 8(a) of the Advance Fee Fraud and Other Related Offences Act and punishable under Section 1(3) of the same Act, the appellant’s co-accused having been in relation to the same offence.
2. Did the Court below not impute its personal evidence in the consideration of the appeal before it.
3. Was the Court below on the totality of the evidence, adduced on the records justified in affirming the conviction of the appellant for the offences of criminal conspiracy and aiding contrary Section 8(a) of the Advance Fee Fraud and Other Related Offences Act and Punishable under Section 1(3) of the same Act.<br< p=””

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Learned counsel for the appellant noted that the appellant and his co-accused person, Alhaji Mohammed Arzika Dakingari were jointly charged for the offence of aiding contrary to Section 8(a) of the Advance Fee Fraud and Other Related Offences Act and punishable under Section 1(3) of the same Act. That the 1st accused was discharged of count 2 of the charge inspite of the fact and evidence relied upon by the prosecution in proof of the case against the appellant and co-accused being similar and tied together. That when the co-accused was discharged, the same fate ought to have followed the appellant for the same offence. He cited Emmanuel Ebri v. State (2005) 1 NCC 1 at 18.

That the Court below did not act upon the facts available rather, they acted on presumption and a miscarriage of justice occurred on account thereof. It was relied upon the following cases thus:
Awopejo v. State (2002) FWLR (Pt.87) 772 at 781:
Adeniran v. Olagunju (2002) FWLR (Pt.87) 825 at 886:
Agbomeji v. Bakare (1998) 9 NWLR (Pt.564) 1:
State v. Ajie (2002) 7 SC (Pt.1) 24.

It was submitted for the appellant that appellant did not intend to commit any of the offences charged and did not

take any benefit from the transaction leading to his conviction either. That the Court below acted on suspicion which cannot sustain criminal responsibility. The cases of COP v. Ude (2011) 17 WRN 120 at 126; Adeniyi v. Governing Council Yabatech (1993) 6 NWLR (Pt.300) 426 at 432: Clark v. State (1986) 4 NWLR (Pt.35) 381 at 394 relied on.

Learned counsel for the respondent stated in response that it is not in every case where an accused is tried jointly with another that the discharge of one must lead to the discharge of the other, particularly when the evidence against one accused is different from that against the other and that was what happened in the case at hand. He cited Idiok v. State (2006) 12 NWLR (Pt.993) 1 at 32.

That there was circumstantial evidence before the Lower Court that the said “Abubakar” and Ibrahim Abdullahi Usman were one and the same was very mathematical, inescapable and irresistible. That the appellant was not a person who acted innocently without intention to commit any of the offences as the facts showed that the two Court below found evidence of appellant’s complicity in the whole scam. He cited Arebomen v. State (1972)

7 NSCC 194 at 200: Nwankwoala v. State (2006) 15 NWLR (Pt.1000) 663 at 683.

The stance of the appellant is that since his co-accused was discharged and acquitted, he too should be so favoured. Such a posture was handled by this Court in Emmanuel Ebri v. State (2005) 1 NCC 1 at 18 where Belgore JSC (as he then was) stated as follows:
The same set of evidence that linked the appellant with the crime tried linked the other accused persons already discharged and acquitted. There is no extra evidence to make the purported role of the appellant different from those the Court below held found no proved. The doubt in the proof availing the other accused discharged and acquitted ought to extend to the appellant.
Tobi JSC in the same Ebri v. State (supra) had this to say:
“The position of the law is that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar, to the extent that the evidence is extricably woven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of others. This is because if one or more

of the accused persons is discharged for want of convicting evidence, that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together like Siamese twins at the umbilical cord with their mother.

The learned trial judge after summarizing the evidence of the witnesses and exhibits and evaluating them stated as follows:
I have carefully perused the evidence adduced at the trial. The prosecution has not led evidence in proof of the charge of aiding the commission of the offence against the 1st accused.
On the second accused person, Yusuf Musa, the evidence against him was that he was one day approached by one Malami Galadima Birnin Kebbi. He informed him there was a man that came with rice business. He took the 2nd accused to meet the rice man at a hotel in Birnin Kebbi. When he met him he confirmed that he had rice to sell to them but that before he does that he needed a bank guarantee or an ISPO. The second accused went to the bank which refused issuing the bank guarantee unless an ISPO is obtained. The second accused approached the

office of the Accountant General Kebbi State which eventually made an ISPO for them. The 2nd accused took it back to the bank which accepted it and based on it issued letter of confirmation of domiciliation of account.
After getting the ISPO and the letter of confirmation of domiciliation of account, the said Ibrahim Abdullhi Usman left the 2nd accused. He later returned with ten trucks (presumably part of the trucks he defrauded PW1).
He requested for N2,000,000.00 from the 2nd accused to fuel the trucks. The money was said to be a loan (see Exhibit 13A, 19(H), 19(i) and the evidence of PW1 in Court. It is very clear from the evidence that the documents presented to PW1 i.e. the ISPO and the letter of domiciliation of account from Ecobank convinced PW1 to agree to the proposal by Ibrahim Abdullahi Usman which resulted in the MOU signed between them as contained in Exhibit 1. It is also clear from the evidence that the 2nd accused provided 2,000,000.00 loan to Ibrahim Abdullahi Usman to fuel the ten trucks be brought to Birnin Kebbi.

The Court of Appeal towed the line of the trial Court. It has to be noted that it is not in every case

where an accused is tried jointly with another that the discharge of the one must lead to the discharge of the other as the appellant is pushing forward, as it is the law that when the evidence against one accused is different from that against the other, a different conclusion will certainly arise at which one may be discharged and the other convicted. Each case is considered on its own merits and as happened in this particular case, the appellant seemed to have been soul of the fraudulent transaction and he was well tied up by overwhelming evidence which cannot be said to be the case with the co-accused that was discharged.
It followed therefore that where there were some extenuating circumstances which inured to the advantage of the co-accused, the appellant could not be so considered as his circumstances had made a distinct peculiar presentation. See Idiok v. State (2006) 12 NWLR (Pt.993) 1 at 32.

From the foregoing and the better and fuller reasoning in the lead judgment I also answer the questions herein against the appellant. I find the appeal unmeritorious and I dismiss the appeal.

I abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment just delivered by my learned brother Bage, JSC. I agree that the appeal lacks merit and should be dismissed.

The facts of this case are spelt out clearly by my brother in the lead judgment. I will not repeat same.

The lone issue raised by my brother is a culmination of all the related issues formulated by the parties.

Conspiracy is a matter of inference from certain criminal acts of parties concerned and done in pursuance of their common criminal intention. See Oduneye v. State (2001) A NWLR (Pt.697) 311 at 325.

As rightly submitted by the learned counsel representing the respondent therefore, I hold the view that the Court of Appeal rightly affirmed the inference of conspiracy against the appellant by the trial Court. The issue was rightly resolved against the appellant therefore. I seek to say further that the two Lower Courts were concurrent in their findings of facts on the count of conspiracy against the appellant. The law is trite and well settled that this Court cannot disturb or interfere with such findings unless they

are shown to be perverse: or are not supported by the evidence, or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence, or as a result of a wrong application of any principle of substantive law or procedure. See the cases of Arabambi V. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt.959) 1 at 43 and Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718.

On the totality of this case, the appellant has not shown or given any reason why this Court should upset the judgment of the Lower Court in affirming that of the trial High Court.

My learned brother Bage, JSC has dealt adequately with the lone issue he formulated and I also endorse his conclusion that the appeal lacks merit and is hereby dismissed in terms of the lead judgment.

AMIRU SANUSI, J.S.C.: I read before now, the Judgment just delivered by learned brother Bage JSC. I entirely agree with his reasoning and the conclusion arrived at that this appeal is devoid of any merit and must be dismissed. I however wish to chip in few comments particularly on the sentence passed on the appellant by the trial Court for

the offence under Section 1 of the Advance Fee Fraud and Other Related Offences Act of 2000. For case of reference and purpose of clarity, I shall set out the provisions here under Section 1 (3) of the Act reads:
“A person who commits an offence under Sub-section (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 option of fine” (emphasis supplied).
In this instant case, the appellant when convicted, was sentenced to six months imprisonment. The wordings of Section 1 (3) of the Act are clear and unequivocal, in that it provides a mandatory minimum sentence of 7 years without option of fine or 20 years without option of five. Where in a provision of law, a mandatory sentence of a term of imprisonment is provided, a trial Court upon conviction of the offender, must hand down such mandatory sentence as no discretion is allowed to be exercised in passing a sentence lower than the mandatory minimum sentence as provided by the law. The trial Court was therefore wrong to have reduced such mandatory sentence provided by Section 1(3) of the Act. The Lower Court

therefore rightly increased the sentence passed by the trial Court to the mandatory minimum sentence of seven years imprisonment on the appellant.

Therefore with there few remarks and for the fuller and more detailed reasons given in the lead judgment, I shall also dismiss this appeal and affirm the decision of the Lower Court.

Appearances: