NURUDEEN ADEWALE ARIJE v. FEDERAL REPUBLIC OF NIGERIA (2014)

NURUDEEN ADEWALE ARIJE v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7507(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of November, 2014

CA/L/770/2009

RATIO

COURT: RAISING AN ISSUE SUO MOTU; WHETHER A COURT CAN RAISE AN ISSUE WHICH THE PARTIES DID NOT RAISE THEMSELVES WITHOUT HEARING THE PARTIES ON THE ISSUE BEFORE MAKING DECISIONS
Now I agree with the submission of learned counsel for the appellant as well as the authorities cited in support to the effect that the law does not allow or frowns at the process of a court raising an issue suo motu. By raising an issue suo motu and basing it’s decision on it without hearing arguments from the parties, it denies either of them the opportunity of being heard. lt is therefore not open to a court to raise an issue which the parties did not raise themselves during trial. Where a court feels inclined to raise such point for any reason, it should give the parties an opportunity of making their comments upon it before taking a decision on such issue. See OJE v. BABALOLA (1991) 5 SCNJ 110; NDIWE v. OKOCHA (1992) 7 SC NJ 355; BAYOL v. AHEMBA (1999) 10 NWLR (Pt. 623) 381 and BADMUS v. ABEGUNDE (1999) 11 NWLR (Pt. 493). per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: FALLIBILITY OF THE COURT; WHETHER THE COURT IS INFALLIBLE

I indeed find the appellant’s counsel’s contention, puerile if not bizarre. Judges are human and so are their secretaries and as such they are not immune to slips, errors or omissions in the course of producing their judgments. Hence the Rules made provisions for correction of such accidental slips, errors or omissions. For instance Order 24 of the High Court of Lagos State (Civil Procedure) Rules 2012 provides that:- “A judge may at any time correct clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission upon application, without an appeal being filed.”
Authorities also abound on the principle that infallibility is never the virtue of any human being, hence errors can be made at anytime by any human being, and where such errors come within the “Slip Rule”, the courts should be willing to effect correction upon being invited to do so by an application whether in civil or criminal matters. See TANKO v. THE STATE (2009) 14 WRN 1 or (2009) 4 NWLR (Pt. 1131) 430; ODOFIN v. ONI (2001) 3 NWLR (Pt. 101) 488 and BERLIET (NIG) LTD v. KACHALLA (1995) 9 NWLR (Pt. 420) 47. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

CRIMINAL LAW: OFFENCE OF OBTAINING GOODS BY FALSE PRETENCE; THE PUNISHMENT FOR THE OFFENCE OF OBTAINING GOODS BY FALSE PRETENCE UNDER THE ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCE ACT
The charge against the appellant as shown in page 1 of the Record is for obtaining goods by false pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999. Section 1 (3) is the punishment section. Section 1(1) which prescribes the offence reads thus:-
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud:-
(a) Obtains from any person, in Nigeria or in any other country, for himself or any other person;
(b) Induces any other person, in Nigeria or in any country, to deliver to any person, or
(c) Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under the Act.” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

CRIMINAL PROCEDURE: CHARGING AN ACCUSED UNDER A WRONG LAW; WHETHER AN ACCUSED CAN BE ACQUITTED BECAUSE HE WAS CHARGED UNDER A WRONG LAW
In EGUNJOBI v. FRN (Supra) the Supreme Court in considering the Appellant’s complaint that he was charged and convicted in counts 1 and 2 under enactments not in existence at the time of the commission of the offence, held inter alia at page 579 per Mary Peter-Odili, JSC thus:-
“For emphasis, no matter how defective the Section of law or even the legislation itself is, an accused cannot be heard to say that because he was charged under a wrong law, the infraction upon which he is held is covered by an existing law, the prosecution and conviction will stand based on the proper law different from that under which he has taken plea. That is the law and the appellant is not in a position to change it.”
(Underlining for emphasis)
Similarly in OLATUBOSUN v. STATE (2013) 34 WRN 1 the Apex court held that:-
“If the facts on which an appellant was convicted are known to law, the fact that the accused was charged under a wrong law or section of the law will not lead to his acquittal See: ALHAJI MUJAHID DOKUBO – ASARI v. FRN (2007) 30 WRN 1; (2007) ALL FWLR (Pt. 375) 558, (2007) 5-6 SC 150; and AMINU MOHAMMED v. STATE (2007) 7 NWLR (Pt. 1032) 152”
In OGBOMOR v. STATE (1985) 1 NWLR (Pt. 2) 223 at 233 the Supreme Court expounded the law as follows:-
“A combined reading of the provisions of Section 33(8) and 33(12) of the Constitution 1979 suggest that whereas – no person can be tried and convicted of an offence which did not exist at the time of his commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence, which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus it is clear that a mere misdescription of the law under which a charge has been brought, does not necessarily render the offence charged not known to law at the time of it’s commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any misdescription of the law under which the charge is laid.”
See also the decision of this court in OKOH v. THE STATE (2013) LPELR-21009 CA. I am however not unmindful of the fact that the appellant was sentenced to 10 years imprisonment which punishment was fixed under Section 1(3) of the 1995 Act. Section 1 (3) of the 2006 Act provides for sentence to imprisonment for a period of not less than 7 year and not more than 20 years. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CRIMINAL MATTERS AND WHETHER THE PROSECUTION IS UNDER THE OBLIGATION TO CALL EVERY AVAILABLE PIECE OF EVIDENCE TO PROVE HIS CASE

It is trite law that in criminal matters the burden of proof rest on the prosecution and the proof must be beyond reasonable doubt in order to secure a conviction. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge are proved in evidence. See WILLIAMS v. THE STATE (1992) 10 SCNJ 74; YONGO v. C.O.P. (1992) 4 SCNJ 113; OGUNDIYAN v. STATE (1991) 3 NWLR (Pt. 1818) 519; BAUGA v. THE STATE (1996) 7 NWLR (Pt. 460) 279.
The prosecution is however not under obligation to call every available piece of evidence to prove it’s case. It suffices if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. In other words, the duty of the prosecution is only to call such number of witnesses sufficient to prove their case. They are not obliged to call all the witnesses named in the proof of evidence. See ODILI v. THE STATE (1977) 4 SC. 1; ALONGE v. POLICE (1959) 4 FSC 203; AKPAN v. THE STATE (1991) 3 NWLR (Pt. 182) 646. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND THE GUIDING PRINCIPLES FOR THE TRIAL COURT IN THE EVALUATION OF EVIDENCE

In the evaluation of evidence, the guiding principles for the trial courts are:-
(a) whether the evidence is admissible
(b) whether the evidence is relevant
(c) whether the evidence is conclusive, and
(d) whether the evidence is more probable than that given by the other party.
See MOGAJI v. ODOFIN (1978) a SC 91

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A CONFESSIONAL STATEMENT BECOMES INADMISSIBLE BECAUSE THERE IS A SUBSEQUENT RETRACTION OF THE CONFESSION BY IT’S MAKER
It is settled law that a confessional statement does not become inadmissible merely because there is a subsequent retraction of the confession by it’s maker. See AKPAN v. STATE (1992) 9 SCNJ 22; AREMU v. STATE (1991) 7 NWLR (Pt. 201) 1; ALARAFE v. STATE (2001) 5 NWLR (Pt. 705) 79, SHITTU v. STATE (1970) 1 ALL NLR 228.
The point to be made here is that once a confessional statement is admitted in evidence it becomes part of the case of the prosecution. Having so become part of the prosecution’s case the judge is bound to consider the retraction made subsequently. See EKPE v. THE STATE (1994) 9 NWLR (Pt. 368) 263 and NWANGHOMU v. THE STATE (1994) 2 NWLR (Pt. 32) 380. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

NURUDEEN ADEWALE ARIJE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This as an appeal against the judgment of the High Court of Justice, Lagos State delivered on the 25th May 2009 by M. O. Obadina J, in charge No: ID/78C/2007 wherein the defendant, (now appellant) was convicted on count one of the two count charge and sentenced to ten years imprisonment.
The said appellant was arraigned before the High Court hereinafter referred to as (The trial court) on the 11th July 2007 on a two count information which reads thus:-
“STATEMENT OF OFFENCE – 1ST COUNT
Obtaining goods be false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Adewale Nurudeen Arije (Alias Ola Rhodes) on or about the 29th December, 2006 at Ikeja within the Ikeja Judicial Division with intent to defraud, obtained three (3) cartons containing forty nine (49) packets of Kingston Technology Value RAM with each packet containing twenty five (25) piece each worth about N16 million which goods were earlier fraudulently ordered by you from WESCO a United States of America based company and shipped on your behalf by Morocargo UK Limited through Basmak Cargo Service Nigeria Limited and which goods were collected by you from Basmak Cargo Services Nigeria Limited, Ikeja by false representation that you are Ola Rhodes, the consignee.
STATEMENT OF OFFENCE – 2ND COUNT
Attempt to obtain goods by false pretences contrary to Sections 8(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No.13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Adewale Nurudeen Arije (Alias Ola Rhodes) on or about the 29th December, 2006 at Ikeja within the Ikeja Judicial Division with intent to defraud, attempted to obtain 22 pieces of inkjet print cartridges valued at about US$45,000 which goods were earlier ordered and fraudulently procured by you from Communications Supply Corporation, 909 Ventures Way, Chesapeake Virginia, United States of America which goods were shipped on your behalf by Morocargo U.K. Limited through their Nigeria affiliate, Basmak Cargo Services Nigeria Limited.”
The Respondents case was that the Appellant posing as one Mr. Ola Rhodes, obtained 3 cartons containing 49 packets of Kingston Technology value RAM, with each packet containing 25 pieces and worth about N16 million each.
The Appellant was said to have ordered the said goods from WESCO, a United States based company and the said goods were shipped to MOROCARGO U.K. Limited in England and from there they were finally reshipped to the Appellant under a false identify through Basmak Cargo Services Nigeria Limited, Lagos.
The Appellant collected the goods from Basmak Cargo Services Nigeria Limited, which goods were subsequently recovered from his residence in the course of investigation.
At the trial, the Appellant pleaded “not guilty” to the charged. He was at the conclusion of the trial discharged and acquitted on count 2 but convicted on count land sentenced to 10 years imprisonment.
Being aggrieved with the outcome of the judgment the appellant filed a notice of Appeal dated 25-6-2009. The said Notice of Appeal was amended with the leave of this court on 2-4-2012. A further amended Notice of Appeal containing eleven grounds of appeal was filed on 14-11-13 with further leave granted by this court.
Parties subsequently filed and served their respective briefs of argument which were later amended.
The Appellant’s amended Brief of argument is dated and filed on 14-11-13 and his reply to the Respondent’s brief is dated and filed on 13-12-13. The briefs were settled by U. K. Ikegbule Esq.
The Respondent’s brief of argument is dated 28-11-13 but filed on 2-12-13. It was settled by E. A. Jackson Esq.
In the Appellants amended brief of argument 8 issues were formulated for determination as follows:-
“The issues for determination in this appeal are:
1. Whether the learned trial Judge was right in law to have relied on Exhibits P31-P33 as similar offences evidence showing that the Appellant had the intention to commit the offence in the circumstances of this case? This issue is formulated from ground 5 of the Appeal.
2. Whether exhibit P10 and the evidence of PW3 as it pertains to the purported fraud committed against WESCO, were admissible in law so as to justify the use made of the evidence by the learned trial Judge in convicting the Appellant of the offence in count 1 of the information? This issue is based on grounds 4 and 10 of the grounds of Appeal.
3. Whether it was proper in law for the learned trial Judge to have suo-motu amended the charge against the Appellant in her Judgment without affording the Appellant a hearing on the amendment and calling on him to plead to the charge as amended before he was convicted of the charge? This issue is formulated from ground 2 of the grounds of Appeal.
4. Whether the trial, conviction and sentence of the Appellant by the trial Court with respect to count 1 of the information in this case based on a repealed Act was not unlawful, null, void and liable to be set aside in the circumstances? This issue is based on ground 7 of the grounds of Appeal.
5. Whether it was right and proper in law for the learned trial Judge to have refused to accept the Appellant’s defence showing that WESCO, the named victim of the alleged crime in this case, was not into computer accessories business in the circumstances of this case? This issue is based on ground 9 of the grounds of Appeal.
6. Whether the Learned trial Judge was right in her finding that Exhibits P53-P55 were the confessional statements of the Appellant alias “Ola Rhodes” and thus an admission by the Appellant that he committed the offence for which he was charged in the circumstances of this case? This issues is distilled from ground 3 of the grounds of Appeal.
7. Whether the learned trial Judge did not err in law when she held that the monetary value of the goods in this case is not an essential element to be proved by the prosecution? This is based on ground eleven of the grounds of appeal.
8. Whether the Prosecution proved count 1 of the charge against the Appellant beyond reasonable doubt to warrant his conviction by the learned trial Judge in the circumstances of this case? This issue is based on grounds 1, 6 and 8 of the grounds of Appeal.”
The Respondent adopted the 8 issues as raised on the appellants amended brief but with slight modifications. In the circumstance it will be appropriate to hinge on the said appellant’ 8 issues in the consideration of the appeal.
On issue(1), it was submitted by learned counsel for the appellant that the learned trial judge was wrong in law to have relied on Exhibits P31-P33 as constituting similar offences evidence that the appellant had the intention to commit the offence in the circumstances of the case. He added that the evidence as to the commission of similar offences by the appellant was not made out by the prosecution and exhibits P31-P33 constituted prejudicial evidence as to bad character contrary to Section 69 of the Evidence Act 2004 and ought not to have been admitted in evidence or used against the Appellant. The following authorities were cited in support of his contention. MAKIN v. ATTORNEY-GENERAL OF NEW SOUTHWALES (1894) AC 57 at 55, R v. THOMAS (1958) 3 FSC 8; WILSON v. THE QUEEN (1959) 4 FSC 175; NAPARO BRUIMA AL HASSAN v. C.O.P (1944) 10 WACA 238. He argue that the cases of AMACHREE v. NIGERIAN ARMY (2003) 3 NWLR (Pt. 807) 256 and R v. ABUAH (1951) 2 SC NLR 283 relied upon by the trial judge were inapplicable in the circumstances of this case.
For the respondent, it was submitted that exhibits P31-P33 were documents printed from the Flash drive belonging to the Appellant and which content, if read in conjunction with the appellant’s extra judicial statements where he admitted that Exhibits P31-P33 were (scammails) prepared by him but he did not put his real name and rather used fake names of Larry Smith of Voyager Electronics Corporation and Chris Arison of Summit Electronic, with computer generated signatures. He further argued that the learned trial judge was right to have treated exhibits P31-P33 read in conjunction with the Appellants extra judicial statements as similar facts evidence to the case because the appellant also under a fake name “Ola Rhodes”, ordered for computer units from WESCO USA and collected same from Basmak Services Nigeria Limited.
Learned counsel added that the learned trial judge treated exhibits P31-P33 as evidence of similar facts and not “Similar offences as contended by the Appellant’s counsel. Moreso that the cases of MAKIN v. A-G NEWSOUTHNACES cited supra can be distinguished from the facts of this case while the exception therein supports the prosecution’s case. The issues as addressed in the Appellants reply brief will be visited as the need arises.
Indeed the general Rule on the evidence of similar facts was aptly enunciated by Lord Herschel in the said case of MAKIN v. ATTORNEY-GENERAL OF NEWSOUTH WALES Supra at page 67 where his Lordship stated that:-
“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand the were fact that the evidence trials to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury and it may be relevant if it bears upon the question whether the facts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”
The whole essence of excluding evidence of an accused person’s previous disposition is premised on the principle that, if admitted, would be prejudicial to him in the actual trial he is currently facing. There are however exceptions to the Rule in MAKIN v. A.G. (Supra) which are found under the English law as well as several provisions of the Evidence Act and the courts have relied on the exceptions to hold that such evidence of previous similar facts was admissible.
In ISHOLA v. THE STATE (1978) 2 LRN 111, the Appellant was charged for murder and the prosecution adduced evidence of the Appellants previous similar conducts towards the deceased, such as previous assaults, previous stabbing of the deceased and destruction by the Appellant of economic trees belonging to the witnesses and the deceased. The Supreme Court in rejecting the argument that evidence of such previous acts of the appellant was prejudicial to him, and ought not to have been admitted held that such evidence of previous similar facts was admissible both under Section 9 of the Evidence Act and under the general rule enunciated in Makin’s case. Also in AKERELE v. THE KING (1940) 8 W.A.C.A. 5 where the appellant was convicted for manslaughter the prosecution tendered similar evidence concerning the symptoms, ill health and death of other children attended to by the appellant using the same drug. It was held by the Privy Council that the similar negative evidence adduced by the prosecution was properly received in evidence. Also in POPOOLA v. C.O.P (1959) WNLR 111 it was held by IRWIN J. that such similar fact evidence complained of by the appellant was rightly admitted.
In the instant case, the learned trial judge in addressing the issue of similar fact evidence held in the judgment at page 375 of the Record as follows:-
“Exhibits P31-P33 are documents recovered from the flash drive of the defendant which he acknowledged authorship of. The documents composed by the defendant have a computer generated signature of foreign names which the defendant admitted was generated by him.
In his defence, he tried to retract his statement Exhibit P53 by saying that he wrote it under an atmosphere of intimidation by EFCC officials. At the time the statement was tendered, he raised no objection to the voluntariness.
The relevance of Exhibit P31-P33 to this case is that it shows similar facts. It is the law that evidence of previous similar offence is admissible to prove intent to commit an instant offence. Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 256; R v. Abuah (1961) 2 SCNLR 283.
If he generated the signature of Larry Smith of Voyager Electronics using the computer, it is safe to conclude that he generated also the signature of Ola Rhodes in Exhibit P43.”
Exhibits P58-P55 are the extra judicial statements of the appellant. They were duly tendered and admitted in evidence without any objection whatsoever. In the said statement, the appellant stated that his USB Flash drive was opened in his presence and some scam mails were printed out and the said scam mails were composed by him with fake names and address. He also agreed that the transactions were fraudulent and dubious. He also detailed the procedures through which they use such deceitful mails to lure unsuspecting foreign companies to ship goods without payment. According to him:-
“The whole idea behind this transaction is that it is a fraudulent business transaction. There is no plan to fulfill (your) the pay back obligation right from the beginning of the transaction. The business ends when you receive the goods.”
There is no doubt that the appellant presents himself as an expert in internet scam and whose antecedents correlate with the facts in issue in the charge against him in the lower court. What is more, I cannot but agree with the learned counsel for the Respondent that the issue does not pertain to evidence of similar offences as alluded to by counsel for the Appellant but as rightly pointed out by the learned trial judge they are similar facts evidence which I do not hesitate to hold to have been rightly admitted in evidence. This issue is therefore resolved against the appellant.
On issue No. 2, Herein it was submitted that exhibit P10 and the testimony of PW3 as it pertains to the purported fraud committed against WESCO were inadmissible in law and therefore do not justify the use made of them by the learned trial judge in convicting the appellant of the offence in count one of the information. He added that Exhibit P10 constitutes a documentary hearsay in the absence of its maker and PW3 not having knowledge of the facts constituting the fraud against WESCO is an incompetent witness on those facts. He cited a number of authorities in support of his contention.
For the Respondent, it was submitted that being a public document, exhibit P10 can even be tendered from the Bar without the maker, relying on ISIBOR v. STATE (1970) 1 ALL NLE 248; NEC v. WODI (1989) 2 NWLR (Pt. 104) 444 and OGBUN JINYE v. OKUDO (1976) 6 SC 32. He added that learned trial judge relied on exhibits P53 and P17 as well as the Appellants extra judicial statements to reach a finding that the goods recovered from him were those stated in exhibit P10. In other words without Exhibit P10 there are other independent evidence to show that the goods recovered from the Appellant were shipped from the USA through Morocargo UK Limited and ultimately received at Basmark Cargo Services by the Appellant who posed as Ola Rhodes.
The starting point here is the content and purport of exhibit P10. The said Exhibit P10 speaks for itself as a letter emanating from the United States Secret Service to the Economic and Financial Crimes Commission (EFCC) requesting the assistance of the latter in an on going investigation into some fraudulent activities being perpetrated by some persons in Nigeria. For purposes of clarity the content of the said exhibit P10 is herein-below reproduced.
“Ibrahim Lamorde
Nigerian EFCC
To Mr. Lamorde:
I am Special Agent Benjamin Full, United States Secret Service. Since October 2006, I have been investigating a large “reshipping” case that has a Nigerian connection.
A prominent United States company named WESCO reported that persons (suspects) posing as employees of WESCO, have ordered ink cartridges, RAM, projectors, etc. through other companies in the United States. These companies complete the orders and then bill WESCO for the merchandise ordered believing the orders are legitimate. After the orders are completed, these suspects request the merchandise to be shipped to many different locations within the United States.
The persons that receive the merchandise within the United States are instructed by individuals from Nigeria to reship the merchandise to London, England. The individuals in London, England are then instructed by individuals from Nigeria to reship the merchandise to BASMAK (Lagos Office 1 Modupe Street, Amfowoshe, Ikeja 234-1-8112055).
I have tracked the IP addresses of the emails that were sent from the person posing as employees of WESCO and have tracked them back to an Internet Service Provider in Lagos, Nigeria INET-MILTL 231 Adeola Odeku Street, Victoria Island, Lagos Nigeria 234-1-77511039. I have discovered that at least 75 different United States companies have been affected by this fraud. These United States companies have currently sustained a loss of approximately $2 million US Dollars from this fraud. During this investigation, I have discovered that other very large companies located in the United States are also targeted.
I am attempting to discover who is picking up and transporting the merchandise from this BASMAK (Lagos, Nigeria) location. I am also attempting to determine where this merchandise is being taken once it is received in Lagos. I appreciate any assistance you could provide concerning this investigation.”
To my mind the content of Exhibit P10 relates to an official communication from one security agency to another over the matter under investigation. It does not seem to fall under the category of documents requiring the personal presence of the maker before it can be admissible. Any other officer such as the PW3 can have it tendered in evidence through him, more so that no objection was raised to it’s being tendered. Objection to the admissibility of a document on appeal can only be entertained if it is a document which is inadmissible in any event. This failure to object to the admissibility of such a document at the trial court does not debar a person from raising the objection on appeal.
See RAIMI v. AKINTOYE (1986) 3NWLR (Pt. 26) 97 and ALADE v. OKULADE (1976) 2 SC 183.
In the instant case Exhibit P10 does not fall into that category but can be admissible under certain conditions such as explaining away the absence of the officer who signed it, the failure of the Appellant to object to the admissibility of the said Exhibit P10 at the trial can as such no longer be challenged on appeal. See OWENA BANK (NIG) PLC v. PUNJAB NATIONAL BANK (2000) 5 NWLR (Pt. 658) 635.
What is more,PW3 is also a special agent in the United States Secret Service and Benjamin Full who signed Exhibit P10 is his colleague from whom he took over the investigation of the case and followed up with phone calls and Emails to the EFCC. He visited Nigeria and worked hand in hand with the EFCC in every stage of the investigation leading to the eventual arrest of the appellant and recovery of the goods Exhibits P22-P24 complained of, from his residence. The PW3 gave evidence relating to the outcome of the investigation of internet fraud carried out on behalf of the United States Secret Service in collaboration with the EFCC. The learned trial judge adequately addressed this issue in the judgment at page 381 of the Record and it reads thus:-
“I now go to the submission on WESCO. WESCO is the victim company but it is not the complainant. The complainant from Exhibit P10 is the United States Secret Service. Benjamin full the Special Agent who wrote the petition did not come to testify. His colleague Robert Fortner did. The issue is whether the testimony of Robert Fortner regarding WESCO is hearsay evidence.
Exhibit P10 and Exhibit P17 stating the chain of shipment from WESCO to Moro Cargo and to Basmak was confirmed by the defendant in his statement Exhibit P53. The goods ordered by suspects stated in Exhibit P10 and P17 included ink cartridges, RAM, projectors etc. The goods recovered from the defendant were Kingston Memory RAM admitted by him in his statement.”
I agree entirely with the above finding of the learned trial judge and that the evidence of PW3 does not constitute hearsay because he is not a stranger to the process of the whole investigation which commenced from the office of the United States Secret. Service down to the goods being traced to the Appellant. This is supported by Exhibits P11-P20.
I therefore resolve this issue against the appellant.
On issue 3, it was the submission of learned counsel for the Appellant that it was improper in law for the learned trial judge to have suo motu amended the charge against the appellant in her judgment without affording the appellant a hearing on the amendment or calling him to plead to the amended charge before he was convicted. On the principle that it is not open to a court to raise an issue suo motu and decide on it without affording the parties opportunity of being heard he cited the following cases:- ADONRI v. OJO OSAGIE (1994) 6 SCNJ 192; ONIAH v. ONYIA (1989) 1 NWLR (Pt. 99) 514; THE STATE v. FEKERUO (2001) 53 WEN 185; JUWO v. SHEHU (1992) 3 NSCC 113; NDIWE v. OKOCHA (1992) 2 NSCC 614 and OWOSO v. ADELEKE (2004) 30 WRN 93 at 109.
It was his further submission that the learned trial judge failed to call on the appellant to plead to the charge as amended before proceeding to convict him. He cited the case of PRINCENT v. STATE (2003) 7 WRN 54 where the Supreme Court considered the provisions of Section 162 and 208-211 of the Criminal Procedure Code which is similar to Sections 154-157 of the Administration of Criminal Justice Law of Lagos State 2007. He then concluded that the failure occasioned miscarriage of justice to the appellant.
The Respondent in this regard submitted inter alia that the Appellant was tried on the information dated 19-6-2007 as shown in page 1 of the Record of Appeal and also alluded to in page 356 therein. He added that the omission of the monetary value of the goods in the judgment of the learned trial judge was a typographic error and does not amount to amending the charge suo motu as alleged by the appellants who also has not shown what miscarriage of justice he suffered as a result of the omission, he therefore urged this court to discountenance the appellant’s counsel submissions as mere technical arguments built around the omission of the monetary value of goods in the judgment of the learned trial judge.
Now I agree with the submission of learned counsel for the appellant as well as the authorities cited in support to the effect that the law does not allow or frowns at the process of a court raising an issue suo motu. By raising an issue suo motu and basing it’s decision on it without hearing arguments from the parties, it denies either of them the opportunity of being heard. lt is therefore not open to a court to raise an issue which the parties did not raise themselves during trial. Where a court feels inclined to raise such point for any reason, it should give the parties an opportunity of making their comments upon it before taking a decision on such issue. See OJE v. BABALOLA (1991) 5 SCNJ 110; NDIWE v. OKOCHA (1992) 7 SC NJ 355; BAYOL v. AHEMBA (1999) 10 NWLR (Pt. 623) 381 and BADMUS v. ABEGUNDE (1999) 11 NWLR (Pt. 493).
But in the instant case, can it be successfully argued that the learned trial judge raised an issue suo motu merely by omitting the words “worth about N16 million which goods were” in the course of reproducing the charge in the judgment? This is given the fact that the original information read over to the appellant and on which he entered his plea and trial proceeded to conclusion thereon as shown in the Records, was complete. I indeed find the appellant’s counsel’s contention, puerile if not bizarre. Judges are human and so are their secretaries and as such they are not immune to slips, errors or omissions in the course of producing their judgments. Hence the Rules made provisions for correction of such accidental slips, errors or omissions. For instance Order 24 of the High Court of Lagos State (Civil Procedure) Rules 2012 provides that:-
“A judge may at any time correct clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission upon application, without an appeal being filed.”
Authorities also abound on the principle that infallibility is never the virtue of any human being, hence errors can be made at anytime by any human being, and where such errors come within the “Slip Rule”, the courts should be willing to effect correction upon being invited to do so by an application whether in civil or criminal matters. See TANKO v. THE STATE (2009) 14 WRN 1 or (2009) 4 NWLR (Pt. 1131) 430; ODOFIN v. ONI (2001) 3 NWLR (Pt. 101) 488 and BERLIET (NIG) LTD v. KACHALLA (1995) 9 NWLR (Pt. 420) 47.
The much the appellant should have done in the circumstance was to have applied to the lower court to correct the error or omission in the judgment and not to make it a ground of appeal. It was also argued that the act or omission constitutes an amendment to the charge and failure to invite the appellant to enter a fresh plea occasioned a denial of fair hearing. This argument also to my mind amounts to building a mountain out of a mole hill. The omission of the aforementioned words in the charge reproduced in the judgment of the lower court does not constitute an amendment to the charge and as such does not warrant or necessitate the requirement for the appellant to enter a fresh plea. The said error or omission as shown in the judgment of the lower court at page 356 of the record did not in any way constitute a breach of the appellants right to fair hearing neither did it occasion a miscarriage of justice and ! so hold. This issue is also resolved against the appellant.
On issue 4, it was contended by learned counsel for the appellant that the trial, conviction and sentence of the appellant based on the advanced fee fraud and other Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999 which has been repealed by the Act of 2006, and in force as at the time of the commission of the offence was prejudicial to the Appellant and also null and void.
Reference was made to the case of ABUBAKAR v. BEBEJI & ALLIED PRODUCTS LTD (2008) 15 WRN 1 at 33 where it was held that when a Act is repealed, it is taken as though it never existed except the actions which were commenced, executed and concluded at the time the Act was in existence. The following cases were also cited. EZEOKAFOR v. EZEILO (1999) 9 NWLR (Pt. 619) 513; MADUMERE v. ONUOHA (1999) 8 NWLR (Pt. 615) 422; ONAGORUWA v. I.G.P. (1991) 5 NWLR (Pt. 193) 593 and F.R.N. v. IFEGWU (2003) 45 WRN 27.
It was further submitted that the circumstances stated in section 159 of the Administration of Criminal Justice Law of Lagos State, 2007 as precluding an objection to a charge that was not raised in the course of trial do not cover the circumstances of the instant case on appeal, See FRN v. IFEGWU Supra at 96-98 and 109-111; MADUKOLU v. NKEMDILIM (2001) 46 WRN? And FADIRA v. GBADEBO (1978) 3 SC 219.
For the Respondent, it was submitted that the current position of the Law on the issue is that where a person was tried and convicted under a wrong law for an existing offence or for an offence covered by an existing law, such as the Advanced Fee Fraud and Other Related Offences Act No. 14 of 2006, his prosecution and conviction will stand based on the existing law which is different from the wrong law under which he was tried and convicted.
The following authorities were cited in support:- EGUNJOBI v. FRN (2013) 3 NWLR (Pt. 1342) 534, TIMOTHY v. FRN (2013) 4 NWLR (Pt. 1344) 213 at 220 and OGBOMOR v. STATE (Supra) at 224.
It was further argued that the act of charging the appellant under a wrong law did not raise the issue of jurisdiction as contended by the Appellant but purely a case of defective charge and by Section 159 of the Administration of Criminal Justice Law of Lagos State 2007 he ought to have objected to it before taking his plea and not thereafter on appeal. See EGUNJOBI v. FRN Supra it 543 and TIMOTHY v. FRN supra at 218.
He added that the authorities cited by he learned counsel for the appellant do not apply to the facts of the instant case because they only dealt with the effect of repealed law and not whether the prosecution and conviction of a person under a wrong law for an offence covered by an existing law could stand.
In the appellant’s reply brief it was submitted that none of the cases relied upon by the Respondent supports their stance because the issues involved in them had nothing to do with repealed laws, rather the facts shows that the courts in those cases were concerned with mistake in stating the existing laws in a charge and besides, the Dicta by Mary Peter Odili, JSC in Egunjobi case was embellished and quoted out of con by the Respondent’s counsel.
The charge against the appellant as shown in page 1 of the Record is for obtaining goods by false pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999. Section 1 (3) is the punishment section. Section 1(1) which prescribes the offence reads thus:-
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud:-
(a) Obtains from any person, in Nigeria or in any other country, for himself or any other person;
(b) Induces any other person, in Nigeria or in any country, to deliver to any person, or
(c) Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under the Act.”
The above provision is in every ramification similar to Section 1(1) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 which in its Section 21 repealed both the 1995 Act as well as the Amended Act of 2005.
The contention of the appellant is that he was charged tried and convicted under a repealed law and this renders the trial and conviction a nullity given the fact that the offence he was alleged to have committed was in 2007 in which case he ought to have been charged under the Advances Fee Fraud and Other Fraud related offence Act of 2006 and not the Act of 1995 which has been repealed.
I am however inclined to agree with the submission of learned counsel for the Respondent that the authorities relied on by the Appellant can be distinguished from the present case given the fact that in those cases the courts dealt with charges not covered by any existing law and did not decide on whether the prosecution and conviction of a person under a wrong law for an offence covered by an existing law could stand. For instance, in the case of IFEGWU v. FRN (Supra) heavily relied on by the appellant, it was held by the Supreme Court that an accused person can only be charged with an offence created by a penal statute and that a court of law only has jurisdiction to punish for an offence provided for in a statute.
The provisions of Section 166, 167 and 168 of the Criminal Procedure Act was also considered wherein it was stated that the aforesaid sections presuppose a situation where an offence known to law is preferred. However, that is not the situation in the instant case where there is an existing law covering the offence for which the appellant was charge and as earlier stated, the provisions of Section 1(1) of the 1995 Act is similar in content with the present Act of 2006. The counts in the information were read to the appellant who was duly represented by a counsel and he duly entered his plea. Trial was commenced wherein both parties gave evidence at the conclusion of which a judgment was delivered. At no time in the whole trial process did the appellant complain or object to the charge or show any indication that he was misled on the nature and ingredients of the offence he was alleged to have committed. In this regard Section 158 of the Administration of Criminal Justice Law of Lagos State becomes relevant. It provides thus:-
“158. No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the defendant was in fact misled by such error or omission.”
The above provision is in pari materia with Section 166 of the Criminal Procedure Act. In FRN v. IFEGWU Supra. The stance of the Supreme Court is that where no offence known to law is preferred, Section 166 of the Criminal Procedure Act cannot be invoked to cure any error or omission arising from the offence, since there will be no offence. In the instant case the offence alleged to have been committed by the appellant is very well known to Section 1(1) of the Advance Fee Fraud and other Fraud Related Offences Act of 2006. The snag here is that the charge referred to the Act of 1995 instead of 2006. To my mind, where a person is charged for an offence under a wrong or non existent law and there is an extant law which adequately covers that offence, a trial and conviction therefrom shall not be vitiated by such error or omission as this will amount to standing on the pedestal of technicality to kick justice on the face. Fortunately, I have the support of some authorities.
In EGUNJOBI v. FRN (Supra) the Supreme Court in considering the Appellant’s complaint that he was charged and convicted in counts 1 and 2 under enactments not in existence at the time of the commission of the offence, held inter alia at page 579 per Mary Peter-Odili, JSC thus:-
“For emphasis, no matter how defective the Section of law or even the legislation itself is, an accused cannot be heard to say that because he was charged under a wrong law, the infraction upon which he is held is covered by an existing law, the prosecution and conviction will stand based on the proper law different from that under which he has taken plea. That is the law and the appellant is not in a position to change it.”
(Underlining for emphasis)
Similarly in OLATUBOSUN v. STATE (2013) 34 WRN 1 the Apex court held that:-
“If the facts on which an appellant was convicted are known to law, the fact that the accused was charged under a wrong law or section of the law will not lead to his acquittal See: ALHAJI MUJAHID DOKUBO – ASARI v. FRN (2007) 30 WRN 1; (2007) ALL FWLR (Pt. 375) 558, (2007) 5-6 SC 150; and AMINU MOHAMMED v. STATE (2007) 7 NWLR (Pt. 1032) 152”
In OGBOMOR v. STATE (1985) 1 NWLR (Pt. 2) 223 at 233 the Supreme Court expounded the law as follows:-
“A combined reading of the provisions of Section 33(8) and 33(12) of the Constitution 1979 suggest that whereas – no person can be tried and convicted of an offence which did not exist at the time of his commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence, which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus it is clear that a mere misdescription of the law under which a charge has been brought, does not necessarily render the offence charged not known to law at the time of it’s commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any misdescription of the law under which the charge is laid.”
See also the decision of this court in OKOH v. THE STATE (2013) LPELR-21009 CA. I am however not unmindful of the fact that the appellant was sentenced to 10 years imprisonment which punishment was fixed under Section 1(3) of the 1995 Act. Section 1 (3) of the 2006 Act provides for sentence to imprisonment for a period of not less than 7 year and not more than 20 years.
I am however of the view that the sentence of 10 years imposed on the appellant cannot vitiate the charge as it is still within the range of sentence prescribed by the existing law and there is nothing to show that he would have been sentenced to a lesser term by the lower court neither is there any evidence of miscarriage of justice.
On the whole, though the appellant was wrongly charged under the Repealed Act of 1995 but the offence with which he was charged was covered buy an existing law which was in force at the time he allegedly committed the said offence that is to say Section 1(1) of the Advanced Fee Fraud and Other Fraud Related Offences Act of 2006. His trial, conviction and sentence is to my mind proper in the circumstance. This issue is therefore resolved against the appellant.
On issue No 5. It was submitted by learned counsel for the appellant that it was wrong and improper in law for the learned trial judge to have refused to accept the appellant’s defence showing that WESCO, the victim of the alleged crime was not engaged in the business of computer accessories at the time the offence was said to have been committed. This is because the prosecution did not lead evidence to rebut the appellant’s defence which the learned trial judge rejected wrongly given the nature of the evidence adduced. Some authorities were cited in support of the submissions.
For the respondent, it was submitted that the learned trial judge rightly rejected the evidence on the type of goods sold by WESCO buy noting that the search engine used to get the result was not shown on Exhibits D8 – D11. He referred to page 316 of the record to contend that the prosecution proved through the appellant that the list of WESCO goods he printed out were the goods as at 26th November 2008 and not goods or stock in trade as at 2006 when the appellant obtained the computer accessories and the appellant clearly admitted that he did not know the kind of goods WESCO was dealing in as at 2006, thus rendering the printed list of goods irrelevant,given the fact that computer parts are stock in trade which the company may decide to discontinue at any point in time.
He further argued that even if the ownership of the goods is found not to have been proved; it does not exonerate the appellant because the position of the law is that in cases of this nature, the count charging the offence may contain the name of the owner or simply state that the owner is unknown provided it is shown that the good is not that of the accused person. See SPIFF v. C.O.P. (1950) 19 NLR 81 and R v. BURTON 23 LJMC 52.
In the Appellants reply brief it was submitted that the prosecution has the burden to prove the guilt of the accused beyond reasonable doubt and burden never shifts. It is therefore the Respondents duty to prove by rebuttal that as at 2006, WESCO was actually dealing in computer accessories and had subsequently moved away from that line of business. Reference was then made to Section 245 of the Administration of Criminal Justice Law of Lagos State, 2007.
It is trite law that in criminal matters the burden of proof rest on the prosecution and the proof must be beyond reasonable doubt in order to secure a conviction. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge are proved in evidence. See WILLIAMS v. THE STATE (1992) 10 SCNJ 74; YONGO v. C.O.P. (1992) 4 SCNJ 113; OGUNDIYAN v. STATE (1991) 3 NWLR (Pt. 1818) 519; BAUGA v. THE STATE (1996) 7 NWLR (Pt. 460) 279.
The prosecution is however not under obligation to call every available piece of evidence to prove it’s case. It suffices if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. In other words, the duty of the prosecution is only to call such number of witnesses sufficient to prove their case. They are not obliged to call all the witnesses named in the proof of evidence. See ODILI v. THE STATE (1977) 4 SC. 1; ALONGE v. POLICE (1959) 4 FSC 203; AKPAN v. THE STATE (1991) 3 NWLR (Pt. 182) 646.
The appellant’s grouse herein is that the learned trial judge refused to accept his defence showing that WESCO, the named victim of the alleged crime was not into computer accessories business in the circumstances of this case.
In the judgment at page 382 of the Record, the learned trial judge had made the following findings.
“Exhibit P10 and Exhibit P17 stating the chain of shipment from WESCO to Moro
Cargo and to Basmak was confirmed by the defendant in his statement Exhibit P53. The goods ordered by suspects stated in Exhibit P10 and P17 included ink cartridges, RAM, projectors etc. The goods recovered from the defendant were Kingston Memory RAM admitted by him in his statement.
The attempt by the defendant to show that WESCO is not into computer accessories business through a website said to have been assessed the morning of defendant’s defence cannot be accepted as a good defence. The search Engine used to get the results is not shown on Exhibits D8-D11. How the search was done is not clear and whether this was the only result for WESCO is not stated. I cannot attach weight to this evidence.
Also, the fact that the type of computer RAM recovered is available in the open market in Nigeria is of no moment. The RAM were meant for sale in the Nigerian Market. The particular Computer RAM in this case were not recovered from the open market but from the defendant.
It is true that the details of the credit card application process are not before this court. In Exhibit P17, Robert Fortner stated the modus operandi of the fraudsters. It was a scheme of fraudulent credit application that resulted in the shipment. This lapse is however not fatal because the fraudulent shipment was indeed traced to Basmak as investigations revealed and some of the goods fraudulently shipped were found in the possession of the defendant. He supplied all the details of the processes that led to the shipment, the fraudulent credit application etc in his statements which is part of prosecution’s case.
Also, the fact that he was found in possession of fraudulent documents in his flash drive Exhibit P31 P33 further corroborate his confessional statement that he is experienced in the art of preparing fraudulent online documents.”
From the above, there is no doubt that the learned trial judge duly considered the evidence before him regarding the place of WESCO in the whole saga and based his findings not only because the search engine used to get the result is not shown in Exhibits D8-D11 and it was not clear whether that was the only result from WESCO website. Hence she refused to attach weight to that piece of evidence. She also traced the chain of shipment of the goods from WESCO to MOROCARGO in UK and then to Basmak from whom the appellant signed for and collected the goods eventually found in his residence during a search conducted by EFCC officials. The insistence by the appellant that it must be shown that WESCO dealt with that type of computer accessories as at the time of commission of the offences is of no moment. What matters here is whether there is proof that there was shipment of such goods from WESCO which final destination was Basmak Cargo Services and duly signed for and collected by the appellant.
This finding of fact and evaluation of evidence by the learned trial judge does not to my mind deserve any interference by this court. In the evaluation of evidence, the guiding principles for the trial courts are:-
(a) whether the evidence is admissible
(b) whether the evidence is relevant
(c) whether the evidence is conclusive, and
(d) whether the evidence is more probable than that given by the other party.
See MOGAJI v. ODOFIN (1978) a SC 91

It is also trite law that evaluation of relevant material evidence before the court and ascription of probative value to such evidence are the primary functions of the trial court, which saw, heard and assessed the witnesses while they testified. Thus, where the trial court rightly evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate court to substitute it’s own views for those of the trial court. See STATE v. AJIE (2000) 7 SC (Pt. 1) 24. OJOKOLOBA v. ALAMU (1988) NWLR (Pt. 565) 226; FAGBENRO v. AROBADI (2005) 7 NWLR (Pt. 978) 174 and BASHAYA v. STATE (1998) 5 NWLR (Pt 500) 351.
Consequently, I resolved this issue against the appellant.
On the issue 6, learned counsel for the appellant submitted that Exhibits P53-P55 do not amount to confessional statement but that assuming it is, he contended that the appellant having retracted them during the trial, the learned trial judge could not have properly convicted appellant based on the purported confessions without probative corroborative evidence outside the alleged confessions showing that the facts contained in the statements were true as far as can be tested and that the appellant had the opportunity to commit the offence charged. He relied on the cases of:- AKPAN v. THE STATE (200) 53 WRN 1, KAREEM v. FRN (2003) WRN 1; R v. SYKES (1913) 8 CAR 233; R v KANU 14 WALA 30 and DAWA v. STATE (1980) 8-11 SC 236.
He further argued that the learned trial judge relied on inadmissible evidence lacking in probative value to find corroboration for the confessional statements by resorting to Exhibits P10, P11-P20, P31-P33 and evidence of PW3, to justify the conclusion that the confessions by the appellant in Exhibits P53-P55 were true.
For the Respondent it was submitted that the learned trial judge rightly treated Exhibits P53-P55 as confessional statements having regard to Section 27 of the Evidence Act. Reference was made to page 25 of the record where the appellant explained in details, the procedures for ordering for the fraudulent goods and the said disclosure qualified him as a principal offender for the offence of obtaining goods by false pretences under Section 7(b) & (c) of the criminal code. Vide ONYENYE v. STATE (2012) 12 NWLR (Pt. 1324) 586; CLARK v. STATE (1986) 4 NWLR (Pt. 35) 381 and GEORGE v. FRN (2011) 10 NWLR (Pt. 1254) 1 at 27.
He added that since there is a finding by the trial court that the Appellant was the Ola Rhodes, it logically follows that Exhibits P53-P55 containing graphic detail of how the goods were fraudulently obtained are confessions of the Appellant on the transaction. It was further submitted that there is no evidence on record to show that the appellant raised or retracted exhibits P53-P55 but only shifted responsibility for the crime to Ola Rhodes whom the trial judge found upon available evidence to be the appellant. Now Section 27 of the Evidence Act 2004 provides:-
27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Subsection (2) further provides that:-
(2) “Confession if voluntary, are deem to be relevant facts as against the persons who make them only.”
I have carefully perused the contents of the said Exhibits P53-P55 and I am inclined to agree with the finding of the learned trial judge that they qualify as confessional statements. For instance the appellant gave a vivid detail of the process of using the internet to fraudulently order for goods on credit with no intention of paying the supplier for the value of the goods. Exhibit P54 is quite instructive on their modus operandi. A portion of the extra judicial statement of the Appellant in the said Exhibit P54 reads thus:-
“… you make use of search engines to find companies that have trade references. You then act as that company or falsely claim to be that company for the purpose of buying goods from other companies on credit. The whole idea behind the transaction is that it is fraudulent business transaction. There is no plan to fulfill (your) the pay back obligation right from the beginning of the transaction. The business ends when you receive the goods. The RAM memory that was recovered from me was obtained through the some credit application process as explained above. The summary of this transaction is that it is fraudulent and dubious. The goods that were recovered from me were fraudulently obtained by my friend Ola Rhodes. The part played was that I gave the contact that enabled the goods to reach Nigeria through the Cargo company – Morocargo Cargo Limited. I am also in this kind of fraudulent transaction.”
The above reproduced portion is definitely not a denial of the allegation but a clear admission by the appellant on the commission of the offence either as the main actor or as participae criminis under Section 7(b) and (c) of the criminal code in which case he is deemed to be a principal offender having confessed to aiding and abetting the commission of the offence of obtaining by false pretence. I say this without prejudice to the finding and conclusion of the learned trial judge that the appellant was actually acting under the pseudonym of Ola Rhodes which indeed is a common trend in the world of internet scam.
Learned counsel had also contended that even if exhibits P53-P55 are confessional statements. The appellant retracted them at the trial in which case the trial judge ought not to have properly convicted the appellant based on the confessional statements without any probative corroborative evidence outside the confessions. The judgment of the learned trial judge on this issue of confessional statement is very clear at page 382 of the record, part of which reads as follows:-
“Exhibit P10 and Exhibit P17 stating the chain of shipment from WESCO to Moro Cargo and to Basmak was confirmed by the defendant in his statement Exhibit P53. The goods ordered by suspects stated in Exhibit P10 and P17 included ink cartridges, RAM, projectors etc. The goods recovered by him in his statement.
The attempt by the defendant to show that WESCO is not into computer accessories business through a website said to have been assessed the morning of defendant’s defence cannot be accepted is a good defence. The search Engine used to get the results is not shown on Exhibits D8-D11. How the search was done is not clear and whether this was the only result for WESCO is not stated. I cannot attach weight to this evidence.
Also, the fact that the type of computer RAM recovered is available in the open market in Nigeria is of no moment. The RAM were meant for sale in the Nigerian Market. The particular computer RAM in this case were not recovered from the open market but from the defendant.
In is true that the details of the credit card application process are not before this court. In Exhibit P17, Robert Fortner stated the modus operandi of the fraudsters. It was a scheme of fraudulent credit application that resulted in the shipment. This lapse is however not fatal because the fraudulent shipment was indeed traced to Basmak as investigations revealed and some of the goods fraudulently shipped were found in the possession of the defendant. He supplied all the details of the processes that led to the shipment, the fraudulent credit application etc in his statements which is part of prosecution’s case.
Also the fact that he was found in possession of fraudulent documents in his flash drive Exhibit P31-P33 further corroborate his confessional statement that he is experienced in the art of preparing fraudulent online documents.”
The above finding no doubt provides enough corroboration for the extrajudicial statements of the appellant and ought not be discredited as the appellants counsel sought to do. Besides the said statements exhibits P53-P55 were tendered in evidence during trial and admitted without any objection by the defence. Even if there was a retraction of the contents of exhibits P53-P55 (which I find very weak if any) the learned trial judge found corroboration in other evidence before the court to justify reliance on the said statements in the consideration of whether there is proof of the offence against the appellant according to the requirements of the law.
It is settled law that a confessional statement does not become inadmissible merely because there is a subsequent retraction of the confession by it’s maker. See AKPAN v. STATE (1992) 9 SCNJ 22; AREMU v. STATE (1991) 7 NWLR (Pt. 201) 1; ALARAFE v. STATE (2001) 5 NWLR (Pt. 705) 79, SHITTU v. STATE (1970) 1 ALL NLR 228.
The point to be made here is that once a confessional statement is admitted in evidence it becomes part of the case of the prosecution. Having so become part of the prosecution’s case the judge is bound to consider the retraction made subsequently. See EKPE v. THE STATE (1994) 9 NWLR (Pt. 368) 263 and NWANGHOMU v. THE STATE (1994) 2 NWLR (Pt. 32) 380.
The learned trial did exactly that in the judgment at page 382 to 383 and I have no cause to upstage the reasoning and conclusion reached therein. This issue is also resolved against the appellant.
On issue No. 7 learned counsel for the appellant submitted that the learned trial judge erred in law to have held that the monetary value of the goods is not an essential element to be proved by the prosecution when there is an obligation on the prosecution to prove the elements of the offence as laid in the charge. He referred to the case of ONAGORUWA v. STATE (1993) NWLR (Pt. 303) 49 where the Court of Appeal held that if an accused person is charged with stealing a particular amount, the prosecution must prove the particular amount. See also GBOLARUMI v. COP. (1971) 69.
For the Respondent it was submitted that it is not a requirement of the law that monetary value of goods obtained by false pretences must be proved by the prosecution. He added that one of the elements is proving that the property must be capable of being stolen, that is to say that it must have value and this does not connote monetary value alone. See ALAKE v. STATE (1992) NWLR (Pt. 265) 260; R v KELLY (1999) 2 WLR 384; NWANKWO v. FRN (2003) 4 NWLR (Pt. 809) 1 and NIGERIAN CRIMINAL CODE COMPANION BY HON. JUSTICE F. O. FANIKAYODE. (1ST EDITION) page 27.
Now Section 1 (1) of the Advanced Fee Fraud and other Fraud Related Offence Act 1995 as amended under which is in pari material with Section 1(1) of the 2006 Act provides that:-
1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intent to defraud –
(a) Obtains from any other person, in Nigeria or in any other country, for himself or any other person;
(b) Induces any other person, in Nigeria or in any country to deliver to any person; or
(c) Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence is guilty of an offence under this Act.
I believe and strongly too that the above provision is crystal clear and unambiguous as to the necessary ingredients of the offence of obtaining by false pretence with intent to defraud. The emphasis is obtaining or inducing any other person in Nigeria or any country to deliver, or obtains any property by the false pretence.
It seems to me therefore that the monetary value of the property concerned is secondary and has no direct bearing with the fact of obtaining or inducing another to obtain any property whether in Nigeria or any other country. In other words evidence could be led to prove the offence under Section 1(1) without necessarily showing or proving the monetary value of the property fraudulently obtained. The case of ONAGORUWA v. STATE Supra relied on by the appellant is distinguishable because it involves the stealing of a specified amount of money and not goods as in the instant case.
In ONWUDIWE v. FRN (2006) ALL FWLR (Pt. 319) 774 AT 812 the Supreme Court per NIKI TOBI, JSC held that:-
“For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make the victim deliver a thing capable of beings stolen will expose the accused to imprisonment for the offence.”
The instant case falls entirely within the ambit of the above decision of the Supreme Court in cases or obtaining by false pretences. Herein the respondent was able to lead evidence to prove that there was an inducement on the part of the appellant to make his victims part with the goods exhibits P22, P23 and P24 which are items capable of being stolen and caused his victims to deliver same to him through Morocargo UK Limited and Basmak Cargo Services Nigeria Limited Ikeja. The issue of the monetary value of the said goods or failure to show or prove same does not affect the substance of the prosecution’s case. I therefore resolve this issue against the appellant.
Issue No. 8 has been adequately dealt with while considering issues Nos. 1, 2, 5, 6 and 7 and as such will amount to unwarranted academic exercise to embark on the consideration of the said issue.
On the whole therefore, I hold that this appeal lacks merit and it is accordingly dismissed. The judgment of the High court of Lagos State delivered by Justice M. O. Obadina (Mrs.) on the 25th day of May, 2009 is hereby affirmed.

AMINA ADAMU AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Oseji, JCA, and I agree with his reasoning and conclusion. It is trite law that the Prosecution does not have to call any number of witnesses to prove its case; the evidence of even a single witness can seal the case for the Prosecution as long as his evidence is credible and acceptable – see Adelumola v. The State (1938) 1 NWLR (Pt. 73) 683, Akpabio v. The State (1994) 7 NWLR (Pt. 359) 635, and Onafowakan v. The State (1987) 3 NWLR (Pt. 61) 538, wherein Oputa, JSC, aptly observed that –
“- – The Court can act on the evidence of one single witness if that witness can be believed given all the surrounding circumstances. Truth is not discovered by a majority vote. One solitary credible witness can establish a case beyond reasonable doubt. But if the evidence of that solitary witness is either incredible or doubtful given all the surrounding circumstances then the appellate Court should either hold that the case was not proved beyond reasonable doubt or that it will be unsafe to convict on the evidence and either way the appeal should be allowed”.
In this case, the lower Court had enough evidence before it to arrive at its findings. Besides, there is a rebuttable presumption that the findings and conclusions of a trial Court on facts are correct.
The duty of this Court to interfere with improper findings or correct erroneous conclusions would only arise where it fails to properly examine and evaluate the evidence before the Court – see Sanni v. State (1993) 4 NWLR (Pt. 285) 99 & Nwankwoala v. State (2005) 12 NWLR (Pt. 940) 657. In this case, the lower Court did a good job of evaluating the evidence before it, and the presumption that its findings and conclusions are correct have not been rebutted in any way by the Appellant. Consequently, I also dismiss the Appeal and affirm the decision of the lower Court. I also abide by the consequential orders in the lead Judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading the draft copy of judgment of my brother Hon. Justice SAMUEL CHUKWUDUMEBI OSEJI, J.C.A and I entirely agree with his reasoning and conclusions, and I add a few words thus;
Whenever a judgment is entered or a conviction on a repealed law or wrong law, once that act/offence complained of is known to law it will not lead to reversal or an acquittal on appeal.
In OGBOMO v. STATE 1985 1 NWLR (Pt. 2223) AT 233 the Supreme Court settled this issue beyond reasonable doubt:
“… Hence as long as the offence charged discloses an offence in written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid and is merely defective if there is any misdescription of the law under which the charge is laid”.
It was even put clearer by the Supreme Court in GROSVENOR CASINO LTD v. HALAONI 2009 10 NWLR 309 @ 352 PAR H-C
“What an appeal court has to declare is whether the decision of the lower court was or is right. If the judgment of a court is correct, it is not liable to reversal merely because it was anchored on a wrong reason or law. In other words a mistake or error in judgment is immaterial provided it has not occasioned a miscarriage of justice. It is not every mistake or error in judgment that necessarily determines an appeal in favour of an appellant.”
See also VICTOR ONYEMAECHI OKOH v. THE STATE (2013) LPELR-21009 (CA) @ PG 14 to the effect that conviction under a wrong law is not fatal if there is the provision of another law under which the conviction can stand.
The Appellant was charged under the Advance Fee Fraud and other Related Offences Act 2006 instead of 1995 Act, but on a closer look at both Acts it would be observed both the 1995 Act and the 2006 Act contain similar provisions even though the latter repealed the former. In fact, Section 21 of the 2006 Act provides that:
“1. The Advance Fee Fraud and Other Related Offences Act No. 13 of 1995 and the Advance Fee Fraud and Other Related Offences (Amendment) Act 2005 are repealed.
2. The repeal of the Acts specified in subsection (1) of this section shall not affect anything done or purported to be done under or pursuant to the Acts.”
More so, the Interpretation Act in sec 6 (1) paragraph E provides that
“1. The repeal of an enactment shall not ….
A.
B.
C.
D.
E. Affect any investigation, legal proceeding or remedy in respect of any such rights, privilege, obligation, liability, penalty, forfeiture, punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment has not been repealed.”
In the case at hand, the error of convicting under the then repealed Act of
1995 instead of Section 1(1) of Advance Fee Fraud and Other Fraud Related Offences Act 2006 did not alter or affect the conviction and as no miscarriage of justice was occasioned.
In line with the above and for the reasoning in the main judgment I too dismiss the appeal and affirm the judgment of Justice M. O. OBADINA on 25th day of May, 2009.