OGBU v. FRN (2020)

OGBU v. FRN

(2020)LCN/15311(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/L/614C/2018

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

IKECHUKWU MICHAEL OGBU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE PRINCIPLE OF JURISDICTION OF THE COURT

WHETHER OR NOT THE ISSUE OF JURISDICTION MUST BE DETERMINED FIRST

The issue of jurisdiction is not a trivial matter, it is very serious. Where one is raised, it must be taken very seriously and determined first. In APGA vs. Anyanwu & Ors (2014) LPELR-22182 (SC) the apex Court had this to say:
“The importance of a resolution of the issue of jurisdiction one way or the other cannot be over emphasized. The jurisdiction of the lower Court to entertain the appeal was dependent upon the jurisdiction of the trial Court to hear and determine the suit before it in the first instance. The importance of this issue was well illustrated in a recent decision of this Court in: SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (1252) 317. In that case an objection was raised at the hearing of the appeal before this Court that the originating processes at the trial Court were incompetent, having been signed by a law firm instead of a qualified legal practitioner as required by the Rules of Practice of the Federal High Court and the decision of this Court in Okafor V. Nweke (2007) 3 SC (Part II) 55 @ 62 – 63. PER TOBI, J.C.A.

WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF THE COURT PROCEEDINGS

In PDP & Ors vs. Ezeonwuka & Anor (2017) LPELR-42563 (SC) the Supreme Court while stating this trite position of law had this to say:
“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See Omokhafe v Esekhomo (1993) LPELR-2649 (SC), Ukaegbu v. Ugoji (1991) 6 NWLR (Pt 196) 127, Omomeji & Ors v. Kolawole & Ors (2008) LPELR-2650 (SC).”
One more case on this point will not do anyone harm. I will refer to the case of Oni vs. Cadbury (Nig) Plc (2016) LPELR-26061 (SC) where the apex Court per Nweze, JSC said:
“…a jurisdictional issue, such as the one now canvassed by the respondent, could be raised at any time, even in this Court for the first time. As this Court held in Wema Securities and Finance Plc v. NAIC (2015) LPELR-24833 (SC), per Nweze JSC: “Of course, it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out, AG Oyo State v. Fairlakes Hotel Ltd (1988) 12 SC (pt. 1) 1; (1968) 5 NWLR (pt. 92) 1; Uor v. Loko (1988) 2 NWLR (pt 77) 430. However, the issue of jurisdiction constitutes an exception to this general principle for it (such an issue of jurisdiction) could be raised for the first time before an appellate Court, with or without leave, Obiakor and Anor v. The State (2002) 10 NWLR (pt 776), 625 G; Gaji v. Paye (2003) 8 NWLR (pt 823) 583; Oyakhire v. The State (2006) 7 SCNJ 319, 327-328; (2006) 15 NWLR (pt 1001) 157; Okoro v. Nigerian Army Council (2000) 8 NWLR (pt 647) 77, 90-91; Ajakaiye v. Military Governor Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (pt 359) 676. …The reason is not far to seek. Due to its fundamental nature, it is exempted from the disability and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd and Anor v. Iron Steel Workers Ltd (1987) 2 NWLR (pt 179) 188. In effect, such an issue of jurisdiction could always be raised without leave, Aderibigbe v. Abidoye (2009) 10 NWLR (pt 1150) 592, 615 paragraphs C-G; Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt 790) 332; Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt 450) 531; Management Enterprises Ltd v. Otunsanya (1987) 2 NWLR (pt 179) 188. In consequence, it can never be too late to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration, Magaji v. Matari (2000) 8 NWLR (pt 670) 722, 735; Akegbe v. Ataga (1998) 1 NWLR (pt 534) 459, 465; State v. Onagoruwa (1992) 2 SCNJ 1; AG Lagos v. Dosunmu (1989) 3 NWLR (pt 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so, Obikoya v. The Registrar of Companies (1975) 4 SC 31, 35; NNPC v. Orhiowasele and Ors (2013) LPELR-20341 (SC); Elabanjo v. Dawodu (2006) 15 NWLR (pt 1001) 76; Ndaeyo v. Ogunaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd (1988) 1 NWLR (pt 68) 88; Bakare v. AG Federation (1990) 5 NWLR (pt 152) 516; Oyakhire v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (pt 2) 193; Akegbeja v. Ataga (1998) 1 NWLR (pt 134) 459, 468, 469; Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158; Senate President v. Nzeribe (2004) 41 WRN 60; Odiase v. Agho (1972) 1 All NLR (pt 1) 170; Dickson Moses v. The State (2006) 7 SCM 137; 169. PER TOBI, J.C.A.

WHETHER OR NOT A MERE DEFECT IN A CHARGE WILL ENTITLE THE ACCUSED PERSON TO AN ACQUITTAL

I will also like to point out that the mere fact that there is a defect in a charge will by no means entitle the Appellant to an acquittal, except he can prove to this Court that by reason of the defect on the charge, he has suffered a miscarriage of justice in his trial. In Ogbomor vs. State (1985) LPELR-2286 (SC) the apex Court per Oputa, JSC had this to say:
“The important thing about “the charge” in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case” – Section 151(4) of the Criminal Procedure Act Cap.43 of 1958. The charge must not therefore have defects or errors which could mislead the accused. The emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact mislead the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known an offence: see R. v. Ijoma & Ors (1962) All N.L.R. 402; Mgbemene v. I.G. of Police (1963) 1 All N.L.R. 321; Omisade & Ors v. R (1964) 1 All N.L.R. 233.”
See also John vs. State (2019) LPELR-46936 (SC); Awusa vs. Nigerian Army (2013) LPELR-22618 (CA). PER TOBI, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The burden of proof in criminal cases is clearly and squarely on the prosecution (the Respondent in this appeal) and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369; Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457; Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254; State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416. Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would have been said to have proved the case beyond reasonable doubt. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The appeal before this Court is from the judgment of Hon. Justice Lateefa Abisola Okunnu of the High Court of Lagos State sitting at Ikeja delivered on 2/5/2017 in Charge No. ID/60C/2011 – Federal Republic of Nigeria vs. Ikechukwu Michael Ogbu & Anor. The Appellant (1st Defendant at the lower Court) was arraigned and tried with one Chuks Ibebugwu (2nd Defendant at the lower Court) on a ten (10) counts information, for offences ranging from conspiracy to obtain money by false pretences and obtaining money by false pretences. The charge relevant to this appeal is the third amended information. At the end of the trial wherein the Respondent called six witnesses and the Appellant testified for himself, the 2nd Defendant was discharged and acquitted on all charges while the Appellant was convicted and sentenced to 18 years each for counts two to ten (which bothers on the offences of obtaining money by false pretences) and 8 years for count one (which offence bothers on conspiracy). Worthy of note is the fact that during the pendency of the trial at the lower Court, the Appellant was in custody serving a jail term for a previous crime he had committed and was convicted for.

The lower Court in its judgment found on pages 588-631 of the records of appeal (pages 1-45 of the judgment) in convicting the Appellant at pages 630-631 of the records (pages 44-45 of the judgment) held thus:
“As for the case against the 1st Defendant on this first Count, I consider it proved from the evidence before me that he and other persons at large conspired to defraud PW1. Some of those persons impersonated officers of the Economic and Financial Crimes Commission in the course of playing out the script that reflected that grand conspiracy. It is certain that from the confines of the prison walls, the 1st Defendant made use of stooges on the outside, and like his puppets on a string, he directed operations in accordance with their premeditated script.
Indeed, it stands to reason to believe that some of his stooges were on the inside; they were officers of the Nigeria Prisons Service who, obviously, were willing, pliant tools (most probably for a “fee”) in allowing the 1st Defendant- and indeed, making it possible for him – to open a bank account, and to freely make use of telephones (including the continued use of telephones even after the EFCC had started its investigation into a crime suspected to have been committed from inside the prison, to the knowledge of the prison authorities). They also helped the 1st Defendant carry out his deception of PW1 by allowing him to be in mufti whenever PW1 visited the prisons. In other words, by breaking fundamental laws and rules concerning inmates, certain officers of the Maximum Security Prison, Kirikiri facilitated the commission of crimes.
And so, in the final analysis, and by reason of all of the foregoing, I hereby find the 1st Defendant guilty of the offences charged in each and every Count of the Charge in the “3rd Amended Information”. He is accordingly, convicted for each of the said offences.
With respect to the case made out against the 2nd Defendant, I pronounce him not guilty on each and every Count of the Charge and he is, therefore, hereby acquitted and discharged on all Counts.
This is the judgment of the Court.”

In sentencing the Appellant, therefore, the lower Court on page 633 of the records of appeal held:
“I have listened to the pleas of counsel – both in mitigation of sentence and in aggravation of sentence.
The manner of commission of the crimes in this case were particularly exceptional – the names, reputations and careers of public officers serving their country diligently, were put on the line just because the 1st Defendant wanted to extort money from his victim. The fact that he remained unrepentant and continued with his history of criminal conduct is also telling.
Because of all these, I hereby sentence him to a term of eighteen years each for each of Counts two to ten of the Charge contained in the 3rd Amended Information. And with respect to Count One, I hereby sentence him to a term of eight years in prison custody.
I so rule.”

The Appellant dissatisfied with the judgment of the lower Court has filed an appeal vide a notice of appeal dated 19/6/2017 found on pages 634-648 of the records of appeal. The notice of appeal contains twelve grounds of appeal which are reproduced hereunder.
Ground One:
The judgment of the Lagos State High Court (the Trial Court) is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence.
Ground Two:
The Learned Trial Judge erred in law in assuming jurisdiction, that it lacked when it tried, convicted and sentenced the Appellant to cumulative 165 years mandatory terms of imprisonment having regards to the incurable vice inherent in the Information/Amended Information.
Ground Three:
The learned trial Judge erred in law when she wrongly assumed jurisdiction, tried and convicted the Appellant, notwithstanding the fact that the Information was laid under a repealed law, by a Federal Agency (EFCC) without obtaining the fiat of Attorney General of Lagos, and also the offences in the Information contain Federal Enactments.
Ground Four:
The learned trial Judge erred in law in relying solely on the evidence of the Respondent’s witnesses particularly the evidence of PW1 (the alleged victim) which is inconsistent with the proof of evidence to convict the Appellant without having regards to the operative influence or inducement under which the PW1 operated at the material time the false intention was initiated, which was therefore not in tandem with the false pretence contained in counts 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the Information/Amended Information.
Ground Five:
The learned trial Judge misdirected herself when she held at pages 38-39 paragraphs 1-3 of the judgment as follows;
…I believe, from his evidence before me, that PW1 who, at the time, was looking for any way which he could to secure the 1st Defendant’s release from custody, would indeed have helped the 1st Defendant get a lawyer if the 1st Defendant was amenable to the idea of obtaining the services of one, and if, as he claimed, he had asked PW1 for his help in getting one. This is very clear to me, not just because PW1 had bent over backwards to render all manner of help to the 1st Defendant, legitimate and illegitimate, but also because PW1 is a lawyer himself and should have known what to do to help. I, therefore, do not accept the 1st Defendant’s testimony in this regard. I prefer, instead, that of PW1 that the 1st Defendant, when the offer for help was made, rejected that offer. Thus, the money paid to Mr. Ejike Daniel was part and parcel of the sums advanced to the 1st Defendant under the false pretence that it was to be used for the purpose of the 1st Defendant’s release from custody…”
Ground Six:
The learned trial Judge erred in law, when she held at pages 39-40, paragraph 4-5 of the judgment as follows;
“…Although the 1st Defendant denied having ever been involved in the hoax, the evidence has come to be clear that he was the central figure in the scheming, and in the scheme itself. In this particular regard, PW1 had said that the monies he had paid to the so called “Olatona” and Hassan, both supposedly of the EFCC’s Legal Department, were paid into bank accounts opened in the name of Sonia Omate Murphy and one Abdul Karim. He also said that money meant for a Judge was paid into the account of one Christopher Ogar. The investigation officers, by their testimony, have however, shown that all those monies ended up eventually with the 1st Defendant, or were spent under the direction of the 1st Defendant. It is clear, from what they said, that the 1st Defendant had set up a network of avenues through which the funds were channeled to him.
And so, when the evidential burden shifted onto the 1st Defendant, he did not in my considered opinion, succeed in discharging the same. He was unable to cast any form of doubt at all on the iron-caste case of the Prosecution.
I should say here that the law is certain the investigation officers can properly give evidence on their findings; on their investigation activities and the outcome of the same. Such evidence is a first-hand account by them of events that came to their knowledge by direct means. It is evidence about what they were told, and what they themselves saw or discovered whilst working on a case. Such evidence, being direct evidence from the source is not, therefore, hearsay evidence, being direct evidence, most especially as the said officers were subjected to cross-examination so that the value of their evidence was properly tested…”
Ground Seven:
The learned trial Judge misdirected herself when she held at pages 41 of the judgment as follows;
The officers who investigated this case at the EFCC have all told the Court that PW1 did not make any payment he said he made. This was their finding after his petition, Exhibit PW1, was received and the allegations he made in it were investigated. There is no evidence at all that contradicts this. I therefore, accept the uncontested evidence before me as true that PW1 did pay out the said sum of N12.3 Million in the course of being duped.
I therefore believe PW1 when he testified that the “Mr. Olatona” he met in Port Harcourt was a very different man from the “Mr. Olatona” he later came to meet when, on his friend’s prompting, he went to report the matter to the EFCC. In proof of this, he gave a graphic description of both men, pointing out the differences in their appearances. He also testified that the man who described himself as Mr. Hassan and said he was the Head of the Legal Department of the EFCC was unable to spell the word “judge”. He said this particular “Hassan” the fraudster, had spelt it as “gudge”. He testified as to how the so-called Mr. Smith who was to hand over the fictitious sum of $2.5 million did not do so after all and instead ostensibly made away with the sum of N700,000.00 from him, and went into hiding when he arrived with Police Officers to receive the money. Clearly, all these men were part of the ring of extortion. They, like the persons whose bank accounts were used to channel the money, were very much involved in the 1st Defendant’s game of deceit.
Ground Eight:
The learned trial Judge erred in law when she held at pages 42 & 43 of the judgment as follows;
There is one element of the offence that I must point out so that I make it very clear. This is the intent to defraud. Here, the 1st Defendant fooled PW1 into believing that he was not serving sentences after having been convicted in two separate cases. He had grudgingly and reluctantly admitted under cross-examination that he had been convicted twice by this Honourable Justice Oyewole, and was (and, indeed, still is) serving term for them. the sentences, as counsel put to him, were ten-year terms in each case. The 1st Defendant, instead, told PW1 that he was merely in detention and was soon to be released. He said to PW1 that as he was to be released shortly, he would pay back to PW1 all that PW1 had paid to the different persons to whom he had given PW1’s telephone number and caused to extort money from PW1 under the pretext of using those monies for the purpose of securing his release. He made this false representation to PW1 whenever PW1 balked and expressed reluctance to make any of the payments he would eventually turn around to make. The 1st Defendant, however, always knew that he would not be released anytime soon but was instead, serving terms or years that were non-negotiable and which he had to serve out.
Added to this, he deliberately created the impression in PW1’s mind that he was a person of affluence who moved in highly influential circles. And so, he went about the business of dropping names in his conversations with PW1. He did this in order to play on PW1’s mind and make him think that he would, as he pretended, pay back all of the money once he had been released from detention as he had the capability to pay all of it and more.
It is my considered view that it is the combination of those two forms of deception, primarily, that one sees the 1st Defendant’s intention to defraud.
Ground Nine:
The learned trial Judge erred in law when she held at page 42 of the judgment as follows;
“…In the event, I find that there is overwhelming evidence that proves to the requisite standing that the 1st Defendant did commit the offences narrated in each of Counts two to ten of the charge – the count that pertain to him obtaining money by false pretences. I find that each and every element of that offence was proved against him beyond reasonable doubt in the said counts…”
Ground Ten:
The learned trial Judge erred in law when she held at pages 44-45 of the judgment as follows;
And with the first count of the charge, although a charge of conspiracy can properly stand independent of the main offence in issue (this is trite law), the circumstances before me here show that offence can only be proven by way of drawing a necessary inference. This is because there is no direct evidence of an overt act of conspiracy. But even at that, because there is nothing that shows that the 2nd Defendant was aware of the fact that a crime was being committed (even though he was made use of in committing that crime), it follows that I cannot draw any such inference of a conspiracy where he is concerned.
As for the case against the 1st Defendant on this first Count, I consider it proved from the evidence before me that he and other persons at large conspired to defraud PW1. Some of those persons impersonated officers of the Economic and Financial Crimes Commission in the course of playing out the script that reflected that grand conspiracy. It is certain that from the confines of the prison walls, the 1st Defendant made use of stooges on the outside, and like his puppets on a string, he directed operations in accordance with their premeditated script.
Indeed, it stands to reason to believe that some of his stooges were on the inside; they were officers of the Nigeria Prisons Service who obviously, were willing, pliant tools (most probably for a “fee”) in allowing the 1st Defendant- and indeed, making it possible for him – to open a bank account, and to freely make use of telephones (including the continued use of telephones even after the EFCC had started its investigation into a crime suspected to have been committed from inside the prison, to the knowledge of the prison authorities). They also helped the 1st Defendant carry out his deception of PW1 by allowing him to be in mufti whenever PW1 visited the prisons. In other words, by breaking fundamental laws and rules concerning inmates, certain officers of the Maximum Security Prison, Kirikiri facilitated the commission of crimes.
And so, in the final analysis, and by reason of all of the foregoing, I hereby find the 1st Defendant guilty of the offences charged in each and every Count of the Charge in the “3rd Amended Information”. He is, accordingly, convicted for each of the said offences.
Ground Eleven:
The trial Court erred in law in coming to its findings and conclusions failed and/or refused to carry out a proper evaluation of the evidence before convicting the Appellant for the entire counts contained in the Amended Information which is pervasive and consequently led to miscarriage of justice.
Ground Twelve:
The sentence of the Appellant by the trial Court is excessive in the circumstance.

The Appellant brief dated and filed 11/10/2018 was settled by Allens Abaka Esq. In its brief, Appellant’s counsel raised five issues for determination before this honourable Court viz:
1. Whether having regards to the incurable vice inherent in the Information, and inclusive of the subsequent Amended Information, the trial Court was wrong when it convicted the Appellant based on defective Information that was not capable of vesting the requisite jurisdiction on the trial Court. (Issue 1 (one) above is distilled from Grounds 2 and 3)
2. Whether the trial Court was wrong, when it convicted the Appellant without having due regards and/or without applying the principle of law enunciated in the Supreme Court’s decision in Michael Ijuaka vs. COP (1976) 6 S.C and consequently misconstrued and misapplied the operative influence, that actually operated on the mind of the alleged victim (PW1) contained in PW1 petition written to EFCC (Exhibit P1) as at the material time the PW1 entered into the transaction. (Issue 3 (three) above is distilled from Grounds 1, 6, 7, 9 & 10)
3. Whether the trial Court was not wrong when it convicted the Appellant based on evidence that is unreasonable, unwarranted and not supported, having regards to the weight of evidence and the inability of the Respondent to prove the essential elements of the 10 counts charges beyond reasonable doubt. (Issue 3 (three) above is distilled from Grounds 1, 6, 7,9 & 10)
4. Whether the trial was not wrong when it refused to carry out a proper appraisal and evaluation of the evidence adduced by the parties before convicting the Appellant for the 10 counts charges which led to pervasion and miscarriage of justice (Issue 4 (four) above is distilled from Grounds 5 & 11)
5. Whether or not the non inclusion of the duration of time the Appellant spent in the prison custody during his trial, and the fact that the trial Court did not consider and/or impose the minimum terms of imprisonment prescribed by law, when the trial Court sentenced the Appellant to 165 and/or 170 years mandatory terms of imprisonment, is not excessive and harsh in the circumstance. (Issue 5 (five) above is distilled from Ground 12)

On issue one, it is the contention of the Appellant counsel that the pertinent question which is strongly begging for an answer is whether or not the trial Court had the requisite jurisdiction to have entertained the Information having regards to the incurable vice inherent in all the initiating Court processes particularly the signature column. On this point, counsel laid the foundation that though the issue of jurisdiction was not raised at the trial Court and being raised for the first time before this Court, statutory and judicial authorities grant permission for it to be raised at any time. He relied on Ugwu vs. State (2013) All FWLR (Pt. 694) 1 @ 5. It is the further contention of counsel that the Information and the subsequent amended Information are patently and incurably bad in law, because of the defective endorsement on the signing column of the Information, and consequently, the action was not initiated by due process of law.

It is the submission of counsel that the real issue in contention is whether the Respondent validly invoked the criminal jurisdiction of the trial Court having regard to the fact that the endorsement was defective in that it was signed on behalf of the Chairman of the EFCC instead of signing the processes on behalf of the EFCC. It is further submitted by counsel that the trial Court did not consider the fact that it lacked the requisite jurisdiction to have entertained and/or tried the Appellant based on a defective initiating Court process. It was argued by learned counsel to the Appellant that the statute that established the Economic and Financial Crimes Commission (EFCC) did not vest the power to initiate a criminal action on the Executive Chairman in his capacity as the Chief Executive Chairman and Accounting Officer of the EFCC and that the competent statutory body that can validly sue and can delegate its power to initiate criminal actions to any of its officers is the EFCC itself. He referred to Sections 6(m), 7(2) and 13(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 on the powers of the commission to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crimes.

Learned counsel made reference to Sections 1 and 2 of the EFCC Act, 2004 in submitting that by a community reading of the sections, it is obvious that an information wrongly signed and/or filed “For and/or behalf” of the Executive Chairman and Accounting Officer of the EFCC who is not a juristic person is grossly incompetent. He cited Madukolu Gabriel & Ors vs. Johnson Nkemdilim (1962) All NLR 581 @ 583; Egwumi vs. State (2013) All FWLR (Pt. 678) 824 @ 830; EFCC vs. Odigie (2013) All FWLR (Pt. 692) 1737 @ 1800-1801; Egunjobi vs. FRN (2013) All FWLR (Pt. 670) 1135 @ 1198-1199; Salisu vs. Mobolaji (2014) All FWLR (Pt. 728) 939 @ 941. It is the further submission of counsel that in assuming jurisdiction, the trial Court failed to consider the fact that the Respondent laid the Information under a repealed enactment. It is the contention of Appellant counsel that the trial Court did not consider the fact that the Prosecution/Respondent failed and/or did not obtain the fiat and/or consent of the Attorney General of Lagos State, before initiating the criminal charge against the Appellant in a Lagos State High Court; the offence being a federal offence. Counsel submitted that the trial Court failed and/or refused to consider the combined effects of Sections 150(1), 211, 195(1) and 174 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 69 and 70 of the Administration of Criminal Justice Law of Lagos State 2011 when it wrongly assumed jurisdiction and entertained the Information/Amended Information and convicted the Appellant.

On issue two, it is submitted by counsel that the evidence of the Respondent’s witnesses upon which the Appellant was convicted was not juxtaposed with the operative influence under which PW1 (the victim) made Exhibit P1 (the petition against the Appellant) and that the evidence on record did not support the charge in that the Respondent failed to establish the essential elements or the ingredients of the offences as laid down in the Amended Information. It is further submitted by counsel that the trial Court, in consideration of counts 2-10 of the Amended Information did not apply the principle enunciated by the Supreme Court in the case of Michael Ijuaka vs. COP (1976) 6 & 7 SC 99 because the operative influence according to the oral testimony of PW1 is materially and substantially different and distinct from the contents of Exhibit P1. It is the contention of counsel that the question as gleaned from the evidence of PW1 and Exhibit P1 is what was operating on the mind of PW1 as a lawyer and a high ranking banker when he made the alleged payments of the funds? Counsel further contends that it is glaring that the testimony of the PW1 is ridiculed with inconsistencies because the testimony of the prosecution witness at the lower Court was seriously contradictory and unbelievable. It is submitted by Appellant counsel that in construing and applying the operative influence that was working on the mind of PW1, the trial Court relied heavily on irrelevancy, speculations, hypothetical conclusions and suspicion because the evidence before the trial Court did not support the proof of evidence particularly the content of the letter written by PW1 (Exhibit P1). For this position, he cited Akinbami vs. State (2017) All FWLR (Pt. 897) 2018 @ 2022-2023. It is further submitted by learned counsel that contrary to the principle enunciated by the Supreme Court in Michael Ijuaka vs. COP (supra) the trial Court failed to consider the fact that there were material differences in the operative inducement in the testimony of PW1, PW1 extra-judicial statement and the content of Exhibit P1 which contradicted the oral testimony of PW1.

Going further, it is submitted by counsel that the legal consequence or failure to establish a charge of obtaining money by false pretence beyond reasonable doubt in line with the operative influence on the mind of the victim which must be in tandem with the information, is fatal to the Respondent’s case. He relied on Michael Ijuaka vs. COP (supra). It is the contention of counsel that the false pretence laid in each of the counts (count 2-10) of the Amended Information for which the Appellant was convicted, the particulars of the offences when juxtaposed with the evidence led by the Respondent at the trial, it becomes obvious that the operative influence under which PW1 acted at the time the offence was allegedly committed and the witnesses testimonies were not the same as that set out in the Amended Information. Relying on the case of Michael Ijuaka vs. COP (supra) it is the submission of learned counsel that to actually determine the active operative influence or real inducement that acted on the mind of PW1, recourse must be had to the documents tendered by the Prosecution/Respondent, counsel, therefore, urge this Court to resolve issue two in favour of the Appellant.

On issue three, it was submitted by learned counsel that there was no admissible evidence and valid materials placed before the trial Court adduced by the Respondent that established the fact that the ten counts charges were proved beyond reasonable doubt for the following reasons:
i. Having regard to the fact that count one was not proved beyond reasonable doubt in consonance with the essential elements of the offence of conspiracy and also the fact that the 2nd Defendant was discharged and acquitted of the offence of conspiracy among others in a joint criminal trial, the Appellant ought to have been discharged and acquitted of the ten counts charges particularly count one.
ii. The Appellant is not capable of conspiring solely by himself because the wrong inference drawn by the trial Court to the effect that count one was proved beyond reasonable doubt is not supported by any admissible evidence but was borne out of suspicion and sentiments which has no place in law.
iii. That the testimonies of the police investigators (EFCC) remain hearsay evidence, because the particular person that gave the police (EFCC) the information with respect to the real custodian of the information was not called to testify in Court. He called in aid the case of Olagesia vs. State (2013) All FWLR (Pt. 670) 1357 @ 1382; Usman vs. State (2014) All FWLR (PT 746) 412 @ 415

It was argued by counsel that there was no admissible evidence that the funds allegedly paid by PW1 to Mr. Olatona and Mr. Hassan or into their respective bank accounts which were not under the control of the Appellant was traced to the Appellant and as such, it leaves a serious doubt that ought to have been resolved in favour of the Appellant. Counsel placed reliance on Oladotun vs. State (2010) All FWLR (Pt. 537) 1685 @ 1705-1706. It is submitted by counsel that the contents of the petition (Exhibit P1) written by PW1 upon which investigation of the case was predicated do not support the proof of evidence and the evidence adduced by the Respondent witnesses at the trial. Counsel argued that there was no documentary evidence tendered at the trial Court which contained the instruction or directives of the Appellant requesting PW1 to pay monies into any bank accounts which PW1 claimed that he allegedly paid some funds into. Counsel went further to argue that the learned trial Judge took into consideration isolated inadmissible and extraneous factors that were properly before the trial Court when it held that the Appellant was the central figure in the scheming without considering the inconsistencies in the PW1 testimony. Counsel submits that the inference drawn by the trial Court to the effect that though the Appellant did not conspire with the 2nd Defendant, but did conspire with other persons said to be at large is not supported by any admissible evidence.

On issue four, counsel contends that the learned trial Judge failed to properly appraise and evaluate the totality of the evidence before convicting the Appellant. He further contends that if there is poor evaluation of evidence or improper evaluation of evidence which led to the pervasive decision of a trial Court or miscarriage of justice as in this instant appeal, this Court can be called upon to re-evaluate the evidence. He referred to Usman vs. State (2014) All FWLR (Pt. 746) 412 @ 414. It is submitted by learned counsel that the essential elements or the ingredients of the offences for which the Appellant was convicted and sentenced were not proved beyond reasonable doubt through admissible evidence, because of the failure of the trial Court to properly evaluate the evidence before coming to the wrong conclusion that the Appellant was guilty of counts 1-10 of the Amended Information. It is further submitted by counsel that if there had been a proper evaluation of the evidence before the trial Court, the trial Court would have discovered that the PW1 in his documentary and oral testimony made copious admission to the effect that he never made payments directly to the Appellant apart from the cost of the recharge cards or cost of airtime he claimed to have sent to the Appellant. He cited the case of Odogwu vs. State (2014) All FWLR (Pt. 719) 1997 @ 1003 in positing that the onus of proof in criminal trial rests on the Prosecution (Respondent herein). On the whole, counsel contends that the evidence at the trial Court adduced by the Respondent did not sufficiently link the Appellant with the actual commission of the offences contained in the Amended Information and the Court whose primary duty is to evaluate evidence, has no business filling gaps created by the weakness of the Respondent’s witnesses’ testimonies. He therefore, urged this Court to resolve issue four in favour of the Appellant.

On issue five, it is the contention of learned counsel that the time spent by the Appellant in Kirikiri Maximum Security Prison Custody from the first day of arraignment till the time of conviction was not considered and/or included in the sentence because no reference of it was made in the judgment. Counsel made reference to Section 315 of the Administration of Criminal Justice Law of Lagos State, 2015, Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act 14, 2006 in submitting that the trial Court has the power and the discretion under the enabling Act to sentence the Appellant to the minimum term of imprisonment and to include the duration of time the Appellant spent in prison custody from the date of his first arraignment till the date of his conviction. It is further submitted that the sentencing of the Appellant to mandatory 170 years terms of imprisonment is not only harsh but very excessive because sentencing is meant to correct and not to punish an offender. He relied on Adeleye vs. FRN (2016) All FWLR (Pt. 856); Famoroti vs. FRN (2016) All FWLR (Pt. 856) 366 @ 377.

Counsel also contends that the trial Court did not passionately consider the Appellant’s plea of allocutus when it sentenced the Appellant to cumulative 165 and/or 170 years mandatory terms of imprisonment, notwithstanding the evidence of the Appellant’s old age ailment, marriage and family life. In conclusion, counsel urged this Court to allow the Appellant’s appeal, set aside the judgment of the lower Court and where this Court upholds the conviction of the lower Court and this appeal allowed in part, counsel urged this Court to review and reduce the terms of imprisonment of the Appellant and also include the duration of time the Appellant spent in prison custody.

The Respondent did not file any brief. The implication of this is that this appeal will be determined on the merit of the Appellant’s brief alone. The fact that a Respondent has decided not to file a Respondent’s brief does not of its own amount to the Appellant gaining total victory or success as the appeal will be determined on its merit. See Kosoko & Anor vs. Tiamiyu (2019) LPELR-47320 (CA); Skye Bank & Anor vs. Akinpelu (2010) LPELR-3073 (SC); Ogbu & Anor vs. State (2007) LPELR-2289 (SC); Akintola vs. Agoro (2019) LPELR-49438.

The Appellant in his brief formulated five issues for determination. Being that there is no Respondent’s brief, this appeal shall be resolved on the issues formulated by the Appellant. I am permitted by law to adopt any of the issues formulated in so far it disposes of the appeal effectively. See Adelekan vs. Ecu-Line NV (2006) 12 NWLR (Pt.993) 3; Isaac vs. Imasuen (2016) 7 NWLR (Pt. 1511) 250. In adopting the issues formulated by the Appellant, I must take note of the principle that more than one issue cannot be formulated from a ground of appeal. See Mrs Gankon vs. Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (Pt. 297) 55; Inogha Mfa vs. Mfa Inongha (2014) ALL FWLR (Pt. 727) 628. Taking that into consideration, I am comfortable in adopting the issues formulated by the Appellant. In the light of the foregoing, this appeal will be determined on the five issues formulated by the Appellant. The issues have been reproduced above, I will therefore not repeat them. I will however mention them one after the other as I discuss them in this judgment.

I will now address the issues one after the other. I will start with issue 1 which reads thus:
Whether having regards to the incurable vice inherent in the Information, and inclusive of the subsequent Amended Information, the trial Court was wrong when it convicted the Appellant based on defective Information that was not capable of vesting the requisite jurisdiction on the trial Court.

On issue one of the Appellant brief, it was argued by learned counsel that though the Information was titled or headed Federal Republic of Nigeria vs. Ikechukwu Michael Ogbu, same was signed on behalf of the Chairman of the EFCC. Counsel contends that what ought to obtain is for the Information to be signed on behalf of the EFCC and not on behalf of the Chairman of the EFCC; thus making the Information incompetent. It is the submission of counsel that such an incompetent initiating process, could not have invoked the criminal jurisdiction of the lower Court.

I need not go over and over about the trite principle of law that jurisdiction is the lifeblood of every Court and where a Court lacks jurisdiction, every proceeding conducted, no matter how well conducted becomes a nullity and goes into thin air. See Kurma vs. Sauwa (2018) LPELR-46317 (SC). The Appellant counsel has hinged his argument on issue one on jurisdiction. What this means is that if counsel’s argument on this point is correct, the appeal succeeds in its entirety without more and the lower Court would have wasted time and resources as its proceedings will be declared a nullity. The issue of jurisdiction is not a trivial matter, it is very serious. Where one is raised, it must be taken very seriously and determined first. In APGA vs. Anyanwu & Ors (2014) LPELR-22182 (SC) the apex Court had this to say:
“The importance of a resolution of the issue of jurisdiction one way or the other cannot be over emphasized. The jurisdiction of the lower Court to entertain the appeal was dependent upon the jurisdiction of the trial Court to hear and determine the suit before it in the first instance. The importance of this issue was well illustrated in a recent decision of this Court in: SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (1252) 317. In that case an objection was raised at the hearing of the appeal before this Court that the originating processes at the trial Court were incompetent, having been signed by a law firm instead of a qualified legal practitioner as required by the Rules of Practice of the Federal High Court and the decision of this Court in Okafor V. Nweke (2007) 3 SC (Part II) 55 @ 62 – 63. It was argued on behalf of the respondent that the appellant was deemed to have waived his right to complain not having raised the objection before the trial Court and having taken steps in the proceeding after becoming aware of the defect. This Court held at pages 332 – 333 G – B: “The argument that the objection ought to have been taken before the trial Court and that it is rather too late in the day to raise same in this Court particularly as the respondents had taken steps in the proceedings after becoming aware of the defect or irregularities is erroneous because the issue involved in the objection is not a matter of irregularity in procedure but of substantive law – an issue of jurisdiction of the Courts to hear and determine the matter as constituted and it is settled law, which has been conceded by both counsel in this proceedings – that an issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings, even for the first time in the Supreme Court. In the circumstance I find merit in the preliminary objection which is accordingly upheld by me. I hold that the originating processes in this case having been found to be fundamentally defective are hereby struck out for being incompetent and incapable of initiating the proceedings thereby robbing the Courts of the jurisdiction to hear and determine the action as initiated. In the final analysis, the appeal arising from the proceedings initiated and conducted without jurisdiction is hereby struck out for want of jurisdiction.”
Similarly, in Oriorio & Ors vs. Osain & Ors (2012) LPELR-7809 (SC) the above principle of law was reiterated thus:
“Appellants’ issue three is on jurisdiction and being a threshold matter, it will be resolved before any more steps is taken in the appeal. This is because jurisdiction is the spinal cord of every litigation and, once raised, it must be resolved before further step is taken in the matter. See Charles Chinwendu Odedo v. INEC & Anor (2008) 17 NWLR (Pt. 1117) 554 at 595.”
Though the Appellant did not raise this issue at the lower Court, it suffices to say that an issue of jurisdiction can be raised at any time, even for the first time on appeal. In PDP & Ors vs. Ezeonwuka & Anor (2017) LPELR-42563 (SC) the Supreme Court while stating this trite position of law had this to say:
“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See Omokhafe v Esekhomo (1993) LPELR-2649 (SC), Ukaegbu v. Ugoji (1991) 6 NWLR (Pt 196) 127, Omomeji & Ors v. Kolawole & Ors (2008) LPELR-2650 (SC).”
One more case on this point will not do anyone harm. I will refer to the case of Oni vs. Cadbury (Nig) Plc (2016) LPELR-26061 (SC) where the apex Court per Nweze, JSC said:
“…a jurisdictional issue, such as the one now canvassed by the respondent, could be raised at any time, even in this Court for the first time. As this Court held in Wema Securities and Finance Plc v. NAIC (2015) LPELR-24833 (SC), per Nweze JSC: “Of course, it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out, AG Oyo State v. Fairlakes Hotel Ltd (1988) 12 SC (pt. 1) 1; (1968) 5 NWLR (pt. 92) 1; Uor v. Loko (1988) 2 NWLR (pt 77) 430. However, the issue of jurisdiction constitutes an exception to this general principle for it (such an issue of jurisdiction) could be raised for the first time before an appellate Court, with or without leave, Obiakor and Anor v. The State (2002) 10 NWLR (pt 776), 625 G; Gaji v. Paye (2003) 8 NWLR (pt 823) 583; Oyakhire v. The State (2006) 7 SCNJ 319, 327-328; (2006) 15 NWLR (pt 1001) 157; Okoro v. Nigerian Army Council (2000) 8 NWLR (pt 647) 77, 90-91; Ajakaiye v. Military Governor Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (pt 359) 676. …The reason is not far to seek. Due to its fundamental nature, it is exempted from the disability and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd and Anor v. Iron Steel Workers Ltd (1987) 2 NWLR (pt 179) 188. In effect, such an issue of jurisdiction could always be raised without leave, Aderibigbe v. Abidoye (2009) 10 NWLR (pt 1150) 592, 615 paragraphs C-G; Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt 790) 332; Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt 450) 531; Management Enterprises Ltd v. Otunsanya (1987) 2 NWLR (pt 179) 188. In consequence, it can never be too late to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration, Magaji v. Matari (2000) 8 NWLR (pt 670) 722, 735; Akegbe v. Ataga (1998) 1 NWLR (pt 534) 459, 465; State v. Onagoruwa (1992) 2 SCNJ 1; AG Lagos v. Dosunmu (1989) 3 NWLR (pt 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so, Obikoya v. The Registrar of Companies (1975) 4 SC 31, 35; NNPC v. Orhiowasele and Ors (2013) LPELR-20341 (SC); Elabanjo v. Dawodu (2006) 15 NWLR (pt 1001) 76; Ndaeyo v. Ogunaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd (1988) 1 NWLR (pt 68) 88; Bakare v. AG Federation (1990) 5 NWLR (pt 152) 516; Oyakhire v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (pt 2) 193; Akegbeja v. Ataga (1998) 1 NWLR (pt 134) 459, 468, 469; Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158; Senate President v. Nzeribe (2004) 41 WRN 60; Odiase v. Agho (1972) 1 All NLR (pt 1) 170; Dickson Moses v. The State (2006) 7 SCM 137; 169. Thus, although it is desirable that preliminary objection on issues of jurisdiction be raised early, once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice where necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial which may ultimately amount to a nullity. Osadebay v. AG Bendel State (1991) 1 NWLR 11 (pt.169) 525; Owoniboys Tech. Services Ltd v. John Holt Ltd (1991) 6 NWLR (pt.199) 550; Okesuji v. Lawal (1991) 1 NWLR (pt.170) 661; Katto v. Central Bank of Nigeria (1991) 1 NWLR (pt. 214) 126; Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 166.”

Now, to the issue of focus, which is on jurisdiction? Can the submission of learned counsel be correct? For clarity, I will refer to the signature column of the Information for a proper appreciation of the argument of counsel. Before then I will like to say for record purposes that the Appellant was charged on the 3rd Amended Information dated 8/9/2014. The signature section of the Information reads:
“DATED THIS 26TH DAY OF SEPTEMBER 2011
A.M. YUSUF, ESQ
FOR: EXECUTIVE CHAIRMAN
ECONOMIC AND FINANCIAL CRIMES COMMISSION”
As far as the contention of counsel is concerned, his argument is not misplaced as A.M. Yusuf Esq signed for the Executive Chairman, EFCC. Suffice to also state that in the signature column of all the other processes filed by the Respondent, they were all signed same way. So the real question that begs for an answer in solving this quagmire is, can a process/Information be signed on behalf of the Chairman of the EFCC rather than on behalf of the Commission, EFCC being a creation of Statute? However, the answer to this question will determine whether the submission of Appellant counsel is right or wrong and whether same goes to the jurisdiction of the lower Court.
This Court per Pemu JCA lent its voice to answer this question when his lordship held in the case of Adigwe vs. Federal Republic of Nigeria (2013) LPELR-20288 (CA) thus:
“The EFCC is a creation of Statute and therefore enjoys juristic personality (Section 1 of the EFCC Act). For purposes of elucidation I find it pertinent to reproduce Section 1 of the EFCC (Establishment) Act 2004. (1) “There is established body to be known as the Economic and Financial Crimes Commission (in this Act referred to as “the Commission”) which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act. (2). The Commission (a) shall be a body corporate with perpetual succession and a common seal; (b) may sue and be sued in its corporate name and may, for the purposes of its functions, acquire, hold or dispose of property (whether moveable or immovable); (c) is the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.” The argument of the Appellant that the information was not competent because it was signed on behalf of the Chairman EFCC holds no water. This is because, a body such as the office of the Chairman, EFCC must of necessity work through agents. Section 2 of the Act says “The Commission shall consist of the following members:- a Chairman who shall be the Chief Executive and Accounting Officer of the Commission.” Section 8 (3) of the Act stipulates that “The Commission may, from time to time, appoint such other staff or second officers from Government Security or law enforcement agencies or such other private or public service as it may deem necessary to assist the Commission in the performance of its functions under this Act.” The connotation of these provisions is clear. The staff of the commission can serve, in assisting the function of the commission’s Chairman in the performance of its functions. At page 17, Vol. 1 of the Record of Appeal, the information before the High Court of Lagos State was signed by one A. M. YUSUF [Chief State Counsel] for the Honourable Attorney General of the Federation/Minister of Justice and Chairman, Economic and Financial Crimes Commission. A “Chief State Counsel” is a public servant, within the meaning and contemplation of the provisions in Section 8 (3) of the Economic and Financial Crimes Commission (Establishment) Act 2004. I agree with the learned counsel for the Appellant’s argument that there is no better person to sign a document for the commission than the Chairman of it, who by Section 2 is the Chief Executive Officer of the Commission. If he decides that a document be signed by some other members of the Commission, so be it. The information at the Lower Court was initiated in the name of the Chairman of Economic and Financial Crimes Commission but only signed “on behalf of the Chairman of EFCC.” The argument that the non-juristic personality of the Chairman of EFCC affects the validity of the information filed is grossly misconceived and I so hold. In AMADI V. FRN (2008) 18 NWLR (Part 1119) 259 at 276, the Apex Court had reaffirmed the law that officers of a prosecuting agency, such as the EFCC, can sign charges on behalf of the Commission. Indeed this has been held to extend to private legal practitioners, to whom has been delegated powers to prosecute – FRN V. ADEWUNMI (2007) 10 NWLR (Pt. 1042) 399.”
I have gone through the argument of the counsel and I make bold to say that learned counsel for the Appellant made a big fuss of the whole issue of the incompetence of the Information and how it goes to the root of the jurisdiction of the lower Court. I will like to state here and as conceded by learned counsel that EFCC is a statutory and an artificial body that can only carry out its functions and duties through its authorized agents and officers. What this means is that being an artificial body, it cannot sign a process and as such any process it wished to sign must be signed by an officer from that department. Also, it follows that the office of the Chairman of the EFCC is a permanent office; as occupants of the office will come and go and the office will remain. It is only logical then that any process to be signed is either signed by the Chairman of the EFCC or anyone delegated by him to do so on his behalf. In the light of the foregoing, I do not agree with the Appellant counsel on his submission that for the very fact that the initiating process before the lower Court was signed on behalf of the Chairman of the EFCC as against it being signed on behalf of EFCC, renders it incompetent and as such divest the lower Court of its jurisdiction. This in my view is a technical issue which has no relevance as to the competence of the charge against the Appellant.

Counsel also contended that the Amended information was also incompetent by the very fact that the Information was brought under a repealed enactment. This argument of counsel was not substantiated as counsel did not argue it in depth to portray the point he is trying to establish. The law still stands that submission of counsel cannot take the place of evidence, but even as at that learned counsel ought to supply cogent argument on his submission to assist the Court in resolving issues presented for determination. I have gone through the charge sheet, and I can boldly say that I cannot appreciate the argument of counsel on this point as the law on which the Appellant was charged under remains the extant law. For clarity, the Appellant was arraigned under a ten count charge. I will reproduce counts one that deals on conspiracy and count two that deals on the substantive offence. I will not reproduce count 3-10 of the Information as they are substantially the same with count 2, save for the amount involved. The said counts read:
“STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to obtain money by false pretences contrary to Sections 8(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act 14, 2006
STATEMENT OF OFFENCE – 2ND COUNT
Obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act 14, 2006.”
From the above, it is obvious that the Appellant was charged under Sections 8(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act 14, 2006 which remains the extant law.
Assuming the Appellant was charged under a repealed enactment, the law on the effect of a repealed legislation/enactment on legal proceedings was stated by the Supreme Court in Goldmark (Nig) Ltd & Ors vs. Ibafon Co Ltd &Ors (2012) LPELR-9349 (SC) when it held thus:
“…Section 6(1) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria 2004 makes provision for the effect of repealed enactments which reads – Section 6(1). The repeal of an enactment shall not: – a. Revive anything not in force or existing at the time when the repeal takes effect. b. Affect the previous operation of the enactment or anything duly done or suffered under the enactment. c. Affect any right, privilege, obligation or inability accrued or incurred under the enactment. d. Affect any penalty forfeiture or punishment incurred in respect of any offence committed under the enactment. e. Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or 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 had not been repealed. It is clear from the foregoing provision that legal proceedings may be continued as if the enactment has not been repealed.”
I therefore, stand on good footing to say that the argument of learned counsel for the Appellant cannot stand as it is watery.

In concluding this issue, I will refer to the last of counsel’s submission to the effect that failure of the Respondent to obtain the Fiat and/or consent of the Attorney General of Lagos State before initiating the criminal charge against the Appellant in the Lagos State High Court is fatal. In essence, what the Appellant is saying is that the offences for which he was charged were federal offences and since the Respondent instituted the charge in the State High Court, it ought to have obtained the fiat and/or consent of the Attorney General of Lagos State. In resolving this, I must refer to Section 19 of the Economic and Financial Crimes Commission (Establishment) Act. The said section reads:
“19. (1) The Federal High Court or High Court of a State or the Federal Capital Territory has jurisdiction to try offenders under this Act.”
By a literal interpretation of the said section, it means that the EFCC can prosecute a crime that falls under the purview of its mandate, in either the Federal High Court, State High Court or the High Court of the Federal Capital Territory with or without the fiat of the Attorney General. The general rule in interpretation is that words should be given their plain and ordinary meaning unless doing so will lead to absurdity and injustice. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC); Suswam vs. FRN & Anor (2020) LPELR-49524 (CA).
I will also refer to the case of Adigwe vs. FRN (2013) LPELR-20288 (CA) where this Court per Pemu, JCA held:
“…It is the issue of whether the Lower Court was wrong in holding that the Respondent does not require the fiat of the Attorney-General of Lagos State to prosecute the Appellant. That the Court relied on the fiat dated 17th May, 2004 in dismissing the Preliminary Objection of the Appellant. As the learned trial judge rightly observed, Sections 6(m); 7 (2)(f); 13(2) and 19(1) respectively of the Economic and Financial Crimes Commission (Establishment) Act 2004 authorized the EFCC to prosecute cases in any Court in Nigeria. The necessary implication is that with or without a fiat, the Economic and Financial Crimes Commission (EFCC) are at liberty to prosecute criminal matters in any Court in Nigeria for any offence which has the complexion or colouration of Economic and Financial Crimes. It can be safely said that the Commission, is the co-ordinating agency, for the enforcement of the provisions of any other law or regulation to Economic and Financial Crimes, including the Criminal Code and the Penal Code. “Financial Crimes” come within the jurisdiction of the Commission, who can prosecute cases such as the ones in question before any Court in Nigeria. It is a Constitutional requirement and not merely one under the provisions of the Criminal Procedure Law and for the Criminal Code Law AMADI v. FEDERAL REPUBLIC OF NIGERIA (2008) 18 NWLR Pt.1119. 259. The learned trial judge had observed thus at page 21 of his judgment – page 2586 of the Record of Appeal. “Furthermore it is the opinion of the Court that the said fiat applies NOT only to the repealed Criminal Procedure Law but also the Criminal Code which is still very much in existence and which is even the law under which the Defendants are charged. Therefore, it is my view that as long as the fiat which delegates prosecutorial powers to the Economic and Financial Crimes Commission (EFCC) and the Attorney General of the Federation to prosecute cases that fall under the Criminal Code has not been expressly revoked, terminated or withdrawn by the Attorney General of Lagos State, the fiat is still very much in existence and remains valid.” Section 211 of the 1999 Constitution, stipulates that any other authority/persons can initiate criminal proceedings in the State, apart from the Attorney General of Lagos State. I shall reproduce same verbatim with particular reference to Section 211(2). Section 211 (1) “The Attorney-General of a State shall have power – (a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court martial in respect of any offence created by or under any law of the House of Assembly. (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) to discontinue at any stage before Judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” 5 (2) “The powers conferred upon the Attorney-General of a State under subsection (1) of this section may be exercised by him in person or through officers of his department.” (3) “In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest the interest of justice and the need to prevent abuse of legal process” The learned trial judge was not wrong, in holding that the Respondent does not require the fiat of the Attorney General of Lagos State to prosecute the Appellant even when she then proceeded to rely on the fiat dated 12th May, 2004 in dismissing the Preliminary Objection of the Appellant.”
Lastly, on this point, I would like to say that the Economic and Financial Crimes Commission is a common agency for both the Federal and the State economic and financial crimes and as such does not require a fiat to prosecute criminal offences in any Court in Nigeria. I refer to the case of Nospetco Oil & Gas Ltd vs. FRN (2018) LPELR-45355 (CA) where this Court per Obaseki-Adejumo, JCA held:
“The crux of this issue is one of jurisdiction not been vested in the Court based on counts 1-5 because the Information was not properly initiated; that there was no fiat/consent of the Attorney General of the Federation to prosecute. This position has since been settled by the apex Court in several decisions. Most importantly no objection has been raised at the arraignment till the no case submission. The Appellant is raising same on appeal. See FRN v ADEWUNMI (2007) LPELR – 1273 (SC) (PT.111) 30. In AMADI v FRN [2008] 18 NWLR (PT 119) 259 at 276 the Court held that the EFCC is a common agency for both the Federal and the State economic and financial crimes, as such, it qualified as any other authority to institute criminal proceedings under Section 211(1)(b) of the 1999 Constitution. See also NYAMEN v FRN (2013) LPELR – 20288 (CA) where the Court held that the implication that the EFCC does not require the fiat of the Attorney General of Lagos State to prosecute the Appellant means that by virtue of the powers conferred on the commission it authorizes them to prosecute cases in any Court in Nigeria. The necessary implication is that with or without fiat, the EFCC are at liberty to prosecute criminal matters in any Court in Nigeria for any offence which has the complexion or coloration of economic and financial crimes, including the criminal or penal code. In AKINGBOLA v FRN (2012) LPELR-8402 (CA) this Court clearly held that it is only the Attorney General of Lagos State that can complain about the exercise of power by EFCC, but definitely not the Appellant herein. Furthermore it held that the EFCC is expressly conferred with power under Sections 6(m), 7(2) (f), 13(2) & 19(1) of the EFCC Act to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crime even under the criminal code. The prosecutorial power of the EFCC to institute criminal proceedings is a delegated power which in my candid opinion cannot be sub-delegated based on the principle expressed in the Latin maxim “Delegatus Non Potest Delegare” meaning no delegated power can further be delegated. In SARAKI v FRN (2016) LPELR – 40013 (SC) the apex Court reasoned reiterating its earlier decision in COMPTROLLER NPS v. ADEKANYE (infra), the Supreme Court per MUHAMMAD, JSC held thus: “In any event, it is not the usual practice of the Courts to demand letters of authority authorising a counsel such as Mr. Hassan to sign the charge before the tribunal. In fact, there is no statutory duty imposed on the person filing a charge to produce any evidence of his authority at the time of filing the charge or at arraignment…In NNAKWE v STATE [2013] 18 NWLR (PT 1385) 1 at 27, this Court observed: “The same principle was earlier applied by this Court in the case of COMPTROLLER NPS v ADEKANYE (NO.1) (2002) 15 NWLR (PT.790) 318….. “My Lords, the presumption of regularity is sacrosanct. Where a legal practitioner informs the Court that he was authorized (as did Mr. Hassan), the Court/tribunal must believe the counsel, it is left for the party challenging him to prove otherwise…” Even if conceded that the Respondent did not obtain a written consent of the Attorney General of the Federation, the questions that come to mind is whether the Appellant can challenge the authority of the Respondent. The answer lies in the case of NNAKWE VS STATE (2013) LPELR 20941 (SC) where OGUNBIYI, JSC held that: “Decided authorities of this Court have also held out that where a counsel announces appearance on behalf of a party in any matter, the authority to challenge such representation only lies with the same party. Furthermore, it has also been sufficiently emphasised by this Court that the competence or otherwise of a private legal practitioner and his authority to prefer a charge on behalf of the Attorney General of the Federation cannot be questioned by any other person.” In the light of the above it also follows that it does not lie in the mouth of the Appellant to query the presence/absence of the written fiat of the Attorney General of the Federation. It is the duty and prerogative of the Attorney General of the Federation. In the light of the above stand of the apex Court, I am unable to agree with the submissions of the Appellant’s counsel.”
After consideration of the submission of counsel on this point, I am unable to agree with learned counsel for the Appellant.

I will now proceed by addressing issues two and four together. I will reproduce them here for ease of reference:
2. Whether the trial Court was wrong, when it convicted the Appellant without having due regards and/or without applying the principle of law enunciated in the Supreme Court’s decision in Michael Ijuaka vs. COP (1976) 6 S.C and consequently misconstrued and misapplied the operative influence, that actually operated on the mind of the alleged victim (PW1) contained in PW1 petition written to EFCC (Exhibit P1) as at the material time the PW1 entered into the transaction.
4. Whether the trial Court was not wrong when it convicted the Appellant based on evidence that is unreasonable, unwarranted and not supported, having regards to the weight of evidence and the inability of the Respondent to prove the essential elements of the 10 counts charges beyond reasonable doubt.

It is the argument of learned counsel that the Respondent was not able to prove the offences against the Appellant beyond reasonable doubt, taking into cognizance the operative influence on the mind of PW1 (the victim of the offence). These issues deal with, in summary, whether the lower Court properly evaluated the evidence before it and therefore was right in convicting the Appellant on the premise that the Respondent has proved its case beyond reasonable doubt. The Appellant’s challenge here is that the Respondent did not prove its case against the Appellant for conspiracy and obtaining by false pretence as required by law, that is beyond reasonable doubt and so the conviction was wrong.

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would have been said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here.

In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable, the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held:
“Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”

Having established the burden and standard of proof required, it is now appropriate to look at the ingredients of the offence the Appellant was charged with and determine whether the Respondent has proved the ingredients beyond reasonable doubt. The offence of obtaining property by false pretence is stated in Section 1 and 2 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 thus:
“1. (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or
(b) induces any other person, in Nigeria or in any other- country, to deliver to any person; or
(c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.”
In the Supreme Court case of Onwudiwe vs. FRN (2006) LPELR-2715 (SC) the Court in defining the offence of obtaining by false pretence held:
“I move to the offence of false pretences. It means knowingly obtaining another person’s property by means of a misrepresentation of fact with intent to defraud. See Bryan A. Gamer, A Dictionary of Modem Legal Usage, Second Edition, page 348. Section 419 of the Criminal Code provides for the offence of obtaining by false pretences. The section provides in part: “Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years.”
The Supreme Court also in the case of Ikpa vs. State (2017) 4 NWLR (pt 1609) 175 stated the ingredients of the offence of obtaining by false pretence and what the prosecution is expected to prove beyond reasonable doubt before it secures conviction for the offence. The apex Court held:
“In resolving this issue, I must point out that the trial Court found that the Prosecution proved all the ingredients of the said offence of obtaining property by false pretence, which is that – (a) A pretence was made by the Accused person; (b) The pretence was false; (c) The Accused knew the pretence to be false or did not believe it to be true. (d) The pretence operated on the mind of the person from whom the property was obtained; and (e) Some property must have been obtained as a result of the pretence.”
One or two more cases in this regard will not be harmful. In Darlinton vs. FRN (2018) LPELR-43850 (SC) per Eko, JSC held:
“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts I. A pretence is made by way of representation. II. From the accused person. III. To the person defrauded. IV. The representation is a pretence. IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the to the accused or some other person. VIII. The property transferred is capable of being stolen i.e. is as portable. These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.”

At the lower Court, the trial Judge found the Appellant guilty of all the offences charged, which means the lower Court found that the Respondent was able to prove all the ingredients of the offence against the Appellant. The main duty this Court is saddled with is to find out whether the Respondent was able to prove all the ingredients of the offences the Appellant was charged with. Where this Court finds that the Respondent was not able to prove one or more of the ingredient of the offences the Appellant was charged with, the case against the Appellant fails and the decision of the lower Court will be set aside as the appeal will be said to succeed and will be allowed. If on the other hand, this Court agrees with the lower Court, the appeal will fail in the main, subject to the decision of this Court on whether the sentence imposed is too harsh. Counsel for the Appellant has argued that the lower Court did not properly appraise the evidence of the Appellant and only considered the evidence of the Respondent in arriving at its decision. I must state at this juncture that is not the duty of the Appellate Court to evaluate evidence. That is the sole duty of the trial Court which had the opportunity of analyzing and evaluating the demeanor of the witnesses. The Appellate Court will only assume the position of the lower Court where the lower Court has failed to do a proper job at evaluating the evidence before it. See Okonkwo & Ors vs. Okonkwo & Ors (2010) LPELR-9357 (SC); Oyewole vs. Akande & Anor (2009) LPELR-2879 (SC). I cannot interfere with the finding of fact of the lower Court except if the finding of the lower Court is perverse, that is, it does not correspond with the evidence before the Court. See Okoye & Anor vs Obiaso & Ors (2010) S.C (Pt. 11) 69; Alioke vs. Dr Oye & Ors (2018) LPELR-45153 (SC).
From the proceedings before the lower Court, it seems clear that the Appellant defrauded someone of so much money by false pretence. The PW1, at the lower Court, that is the victim has shown how he parted with some money at various times based on the representation made of some persons to him. Among these persons, the chief of them according to the PW1 is the Appellant. From the evidence of the Respondent’s witnesses at the lower Court, the following facts were revealed which the Court agreed with which informed the conviction of the Appellant:
1. There was a pretence made by the Appellant;
2. The pretence was false;
3. The person who made the pretence knew that the pretence was false or did not believe it to be true;
4. Some property was obtained as a result of the pretence. The property in this respect is money which is capable of being stolen.
5. The person who made the pretence has the intention to defraud.
What however is in contention in this appeal is whether all the above ingredients of the offence were proved by the Respondent against the Appellant. The lower Court relied so much on the evidence of PW1, the victim himself. The Appellant counsel had a problem with the lower Court reliance on the evidence of PW1 in convicting the Appellant. This should not be a problem as the law is settled that a Court can convict on the evidence of a single witness provided the evidence is cogent, compelling and reliable. See Salau vs. State (2019) LPELR- 48114 (SC); Ikenne vs. The State (2018) LPELR- 44695; Obidike vs. State (2014) All FWLR (Pt. 733) 1899. Once the evidence of PW1 is cogent and specifically proves all the ingredients of the offence, the lower Court can convict on that evidence alone. The issue, therefore, is not about the number of witnesses but whether the evidence established the guilt of the Appellant.
Before I go into the evidence before the Court in determining whether the lower Court was right in coming to the conclusion that the facts were properly proved, I must say that it is not every contradiction or inconsistency in the evidence of a party that will lead to the acquittal of the Appellant. In Aiyeola vs. Pedro (2014) LPELR-22915 (SC) the apex Court had this to say:
“…this Court or others have held ad infinitum that it is not every contradiction in evidence that would affect the credibility or testimonies of the witnesses. This is so because for testimonies to be affected, I dare say adversely, the contradictions must be substantial or weighty and material. Therefore, it is not every contradiction however minute that would suffice. I rely on Esangbedo v The State (1989) 7 SC (Pt.1) 36 at 43 – 44.”
The contradiction or the inconsistency must be material, that is to say, the contradiction must relate to the ingredient of the offence in such a way that it must create doubt in the mind of any reasonable person as to the fact that the Appellant committed the offence. See Adeyemo Abiodun vs. FRN (2018) 1-2 S.C (Pt. I) 1; Godwin Igabele vs. State (2006) 2 ANLR 221.
Now back to the issue on ground which is whether there is sufficient evidence before the lower Court that connects the Appellant to the offence. The Appellant counsel made heavy weather of the fact that no money was paid into the account of the Appellant by PW1 apart from the N500,000 paid to him. Looking at the provision of the law, the offence does not necessarily require to prove that the money must be paid to the Appellant before he can be found guilty. The law defining the offence in Section 1 of the Advance Fee Fraud Act, 2006 shows that if a person induces someone to part with property to another under false pretence he will be liable for the offence. See Nwabu vs. IGP (2019) LPELR-47604 (CA). The point, therefore, is whether there is sufficient evidence before the lower Court to come to the conclusion. The lower Court has made as a finding that the Appellant was using a telephone while in prison to contact the PW1 and that he was the kingpin in the defrauding of the PW1. Do I have any reason to interfere with the finding of the lower Court? I do not have any as the evidence of PW1 is clear that in almost all the transfer made, it was based on discussions and directives from the Appellant. The evidence of PW1 was in detail as to the various calls he received from the Appellant asking him to deal with some of the people whom he transferred money to. There is evidence that if the Appellant does not call the PW1 directly, after the person who calls PW1 for money, PW1 would call the Appellant. For instance, on pages 309-310 of the records when the so-called Barrister Olatona called the PW1 to bring some money in conjunction with Hassan and the other fraudsters at large, the PW1 called the Appellant who confirmed that payment should be made. The Appellant could not dislodge the efficacy of those evidence in cross-examination. All the Appellant did was to deny making those calls. The lower Court did not believe the Appellant and I do not see reasons not to agree with the lower Court. The Respondent in my opinion has proved beyond all doubt that the Appellant while serving sentence for another offence in the kirikiri prisons masterminded the defrauding of the PW1 using people outside to make representations which are false to his knowledge to make the PW1 part with monies which he did. The lower Court evaluated the evidence before it and came to the conclusion that the Appellant was liable.
The Appellant counsel submitted that the operative influence which caused the PW1 to part with monies is not the representation made by the Appellant, rather the PW1 parted with those sums of money in a bid to assist the Appellant to facilitate the remittance of funds from United Kingdom to Nigeria and that the issue of payment of monies to influence the operatives of EFCC and judicial officers only arose at the advanced stage of the proceedings. Counsel placed heavy reliance on the case of Michael Ijuaka vs. COP (supra). Is this true? Where I find that the argument of learned counsel is true, this Court will have no option than to discharge the Appellant. This view is supported by the case of Faro vs. IGP (1964) LPELR-25223 (SC) where the apex Court held:
“It is well established that if there is a difference in substance between the pretence alleged in the charge and the pretence by means of which the property was obtained an accused person is entitled to be acquitted, and in deciding whether such a difference exists, what the Courts have to do is to compare the substance of the pretence alleged with that of the operative pretence.”
Appellant’s counsel argued that the evidence of the Respondent’s witnesses was not juxtaposed with the operative influence under which PW1 made (Exhibit P1), his written narration to the EFCC of what happened and that the evidence on record did not support the charge. Counsel went further to argue that the operative influence was specifically payment for the purpose of facilitating the remittance of funds from United Kingdom and to domicile the funds in a bank where the PW1 is the Manager.

I have gone through the Exhibit P1 found on pages 11-14 of the records, the relevant portion that seems to carry the operative influence is found specifically on page 11. It reads:
“Sometime in the month of May, 2009, my sister-in-law told my elder sister in Lagos that a gentleman known as IK Ogbu who she intended to get married to was being detained by EFCC for some weeks. He was expecting some of his funds from his debtors totaling $2.5million and he wanted a banker to handle the money for him to enable him settle the EFCC since money was the thing holding him behind.”Underlined for emphasis.
From the wording of P1, it is clear that the PW1 was misled into believing that the Appellant was expecting a large influx of cash, which representation made him part with the first sum of N700,000 and which representation was known to the Appellant to be untrue as in fact, he was not expecting any money at all. To my mind, the expectation of PW1 that the Appellant is expecting a large sum of money which he wishes to deposit in his bank, and which according to learned counsel, would boost his bank, was what the PW1 acted on. It was on this representation that led to PW1 parting with monies running from hundreds of thousands into millions. Even after the first false representation, the Appellant made other false representations such as being detained by the officers of EFCC when actually he is serving prison term. All the monies that were paid out were principally for the purpose of the Appellant to be released so that the PW1 can get a deposit of the funds expected. The operative influence on the PW1 was to get the Appellant as a customer who would deposit large sums of money. All he did was for that purpose. The said purpose in the petition Exhibit P1 is the same as shown in the evidence before the Court. It is therefore not correct for the Appellant to submit that the lower Court did not consider the principle in Michael Ijuaka vs C.O.P (supra).
Assuming I am to agree with the contention of the Appellant counsel that the operative influence on PW1 was specifically payment for the purpose of facilitating the remittance of funds from United Kingdom and to domicile the funds in a bank where the PW1 is the Manager, the fact still remains that the reason stated by the Appellant why he wished to deposit the money in the bank of PW1 was to enable him to settle the EFCC since that was what was keeping him behind. This, in and of itself is a false representation. All other monies spent by the PW1 were to facilitate the release of the Appellant as he claimed to be detained by the EFCC.
After considering Exhibit P1, the evidence before the lower Court, and the records of appeal, I am unable to agree with learned counsel on his argument and do not see my way clear in resolving issues 2 and 4 in favour of the Appellant. Issues 2 and 4 are hereby resolved against the Appellant.
The third issue raised by the Appellant reads thus:
Whether the trial Court was not wrong when it convicted the Appellant based on evidence that is unreasonable, unwarranted and not supported, having regards to the weight of evidence and the inability of the Respondent to prove the essential elements of the 10 counts charges beyond reasonable doubt.
The lower Court convicted the Appellant for the offences he was charged as contained in the 3rd amended information. These are for the offences of conspiracy and obtaining by false pretence. I had while addressing issues 2 & 4 above had come to the conclusion that the lower Court was in order in convicting the Appellant for counts 2-10 having held that the Respondent particularly through the evidence of the PW1 has linked or connected the Appellant to the offence of obtaining by false pretence. Though the monies were not paid directly to the Appellant he was actively involved in the payment as he was the person who directed or induced the PW1 to pay money over to the people the Appellant introduced to him or asked him to call. There is evidence that the N700,000 in count 2 paid to Mr. Ibe was asked to be paid by Mr. Willaims whom the Appellant asked the PW1 to call. The money was paid with the knowledge and consent of the Appellant for logistics to bring in the $3.5 million Dollars. For counts 3 & 4, the total sum of N2,200,000 was paid into Sonia Murphy’s account as directed by Barrister Olatona, a person who the Appellant asked the PW1 to contact as being a staff of the EFCC. Count 5 deals with monies paid to get sureties for the bail of the Appellant. Here again, the said Barrister Olatona was involved in this payment with the knowledge and consent of the Appellant. The payment in count 6 was made after the Appellant called PW1 asking to help and assist him. Counts 7 & 8 again Olatona was involved and payment was made after the Appellant asked for assistance and specifically called the PW1 to pay. Counts 9 & 10 involve one Hassan purportedly from EFCC, again the payments were made with the knowledge and the call from the Appellant for the PW1 to pay the said sums therein. From counts 2-10, we can see that the Appellant smartly made sure no money was paid to him but was masterminding all the payments by using people outside the prison where he was serving sentence to collect money from the PW1 for his release, so as to enable him (Appellant) give a deposit of large sums of money to the bank of the PW1. The Appellant knew when he was making the representations that he was telling lies and all he was doing was to defraud the PW1. The Respondent in my view in the lower Court has proved beyond reasonable doubt all the ingredients of the offence of obtaining by false pretence. Counts 2-10 were therefore proved.

For the offence of conspiracy, the law is settled that the ingredients of the offence of conspiracy are the agreement of two or more persons to do an unlawful act or a lawful act by unlawful means. This offence is mostly proved by circumstantial evidence which is one of the ways of proving criminal liability. See Martins vs. The State (2019) LPELR- 48889 (SC); Omotola & Ors vs. State (2009) 7 NWLR (Pt. 1139) 148; Osetola & Anor vs. State (2012) 17 NWLR (Pt. 1329) 251; Afolabi vs. State (2013) 6-7 S.C (pt II) 1.

The legal position as stated by Appellant counsel to the effect that if two persons are charged for conspiracy, the discharge and acquittal of one should automatically lead to the discharge and acquittal of the other is generally correct if the evidence is similar. See Hassan vs. FRN (2018) LPELR-44574 (CA); Ebri vs. State (2004) 11 NWLR (Pt. 885) 589; Okoro vs. State (2012) 1 S.C. (Pt. 1)1.
A man cannot conspire with himself but however, a man who stands trial alone for conspiracy can be convicted if there is enough evidence that he conspired with people unknown or who are at large. In Yusuf vs. FRN (2018) 8 NWLR (Pt. 1622) 502, the apex Court held:
“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.”
In the circumstance and the position of the law and the evidence before the lower Court, there is enough evidence that the plan to defraud the PW1 had not only the Appellant involved but also involves Olatona, Hassan and Sonia Murphy. The Appellant was charged along with Ibe Daniel, Mr. Williams, Sonia, Alhaji Adeoye Abdulazeez, Chinaso, and Christopher Ogar for conspiracy. Those are people who the PW1 paid money to on the demand, instruction, and directive of the Appellant. These people are at large but there is sufficient evidence of those payments made to them. This is the evidence of PW1, PW7, PW8& PW9. There is therefore enough evidence before the lower Court to establish the offence of conspiracy against the Appellant. In the circumstance of the case, the fact that the 2nd Defendant in the lower Court was discharged and acquitted does not mean that the Appellant will be automatically discharged and acquitted. I resolve the 3rd issue also against the Appellant.

The last issue is the issue of the sentence of the Court on the Appellant after conviction. The Appellant counsel submitted that the sentence placed on the Appellant is excessive and harsh. I reproduce the fifth issue as formulated by the Appellant;
Whether or not the non inclusion of the duration of time the Appellant spent in the prison custody during his trial, and the fact that the trial Court did not consider and/or impose the minimum terms of imprisonment prescribed by law, when the trial Court sentenced the Appellant to 165 and/or 170 years mandatory terms of imprisonment, is not excessive and harsh in the circumstance.

On the last issue, issue 5, it is the contention of counsel that the duration the Appellant spent in custody during the period of his trial was not put into consideration during his sentencing.

The law is trite to the effect that sentencing is at the discretion of the Court and an appellate Court will not interfere with the discretion of the lower Court except same is tainted with manifest injustice. In Eromosele vs. FRN (2018) LPELR-43851 (SC) the apex Court held:
“Learned counsel insists that the discharge of the Appellant by the trial Court and the Court of Appeal from more serious charges of manufacturing the drug My Pikin and causing death, is enough mitigating factor that would have brought about the reduction in the number of years of imprisonment the appellant is sentenced to. In Omokuwajo vs FRN (2013) LPELR 20184 which was cited and relied upon by learned counsel for the Respondent, this Court said:- “…the general rule is that sentencing is a matter completely at the discretion of the trial Court provided the discretion is exercised judicially and judiciously within the law. An appellate Court consequently will not interfere with the exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle.” The charge for which the Appellant was convicted carries a sentence of not more than 10 years. The trial Court imposed a sentence that is less than 10 years imprisonment. This sentence is surely within the provision of the law. It is on the basis of the fact that the sentence is within the law, that the lower Court upheld same in the following words: – “Learned counsel for the Appellant has raised no valid point as to why we should interfere with the lower Court’s discretion in imposing a sentence of seven years on count 4. The fact that the Appellant is a first offender may be one of the reasons taken into consideration by the lower Court in the exercise of its discretion to impose the sentence of seven years instead of the maximum ten years. I find no reasons whatsoever to interfere with the lower Court’s exercise of discretion in imposing a sentence of seven years with respect to count 4.” The law is settled that where the decision of a trial Court is substantially based on the exercise of discretion, an appellate Court will not interfere with the discretion unless the trial Court failed to exercise its discretion judiciously or judicially. In the instant case, the exercise of trial Court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary. Since discretion is always unfettered, this Court cannot take steps to fetter such discretion, except for good and substantial reasons. See ACME Builders Ltd vs. K.S.W.B (1999) 2 NWLR (Pt.590) 288; Chigbu vs Tonimas (Nig) Ltd (1999) 3 NWLR (Pt.593) 115; University of Lagos vs Olaniyan (No.1) (1985) 1 NWLR (Pt.1) 156; Hamza vs Kure (2010) 10 NWLR (Pt.1203) 630.”
Similarly, in Adeyeye & Anor vs. State(1968) LPELR-25500 (SC) this principle was restated thus:
“Having regard to the facts of this case, we deem it appropriate to restate the principles which must guide a Court of Appeal in deciding to interfere with the sentence passed by a lower Court. These principles appear to be laid down in 1912 by Mr. Justice Coleridge (as he then was) in R. v. Lewis Shershewsky 28 TLR 364, and also in 1926 by Lord Hewart, L.C.J. in R. v. Gumbs (1926) 19 Cr App R 74. The principles can be briefly put under three heads- 1. That an Appeal Court should not interfere with a sentence which is the subject of an appeal merely because judges of the Court of Appeal might have passed a different sentence if they tried a case. 2. To consider the facts of a case. 3. To review only a sentence which is manifestly excessive or inadequate or wrong in principle. In the case of R. v. Ball (1951) 35 Cr App R 164 Hilbery J. (as he then was) reviewed the general principles on which sentences should be passed. He restated the principles thus- “In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial judge has seen the prisoner and heard his history and any witness to character he may have chosen to call. It is only when a sentence appears to err in principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene.”
Before I go into the consideration of the submission of counsel, I need not stress on the fact that as at the time of Appellant’s arraignment and during the period of his trial, the Appellant was still serving term for a previous offence he had been convicted for. Counsel arguing on this point contends that the learned trial Judge ought to have read Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences, 2006 in line with Section 315 of the Administration of Criminal Justice Law of Lagos State, 2015 to the effect that the Court ought to have taken cognizance of the period the Appellant was in custody during the period of his trial, in sentencing the Appellant. I do not agree with this submission. As was stated earlier, the Appellant was already and was still serving term in prison as at the time he was arraigned for the offence for which he was convicted. The lower Court could not have possibly taken into account the period spent in custody as the term he was serving was for a different offence.
Counsel also argued that the lower Court did not consider the Appellant’s plea of allocutus. It must be stated that the Court merely calling for an allocutus is enough. Whether it is considered or not in the mitigation of the sentence of the Appellant is within the exercise of the discretion of the learned trial Judge and this Court cannot interfere with the exercise of such discretion. In Omokuwajo vs. FRN (2013) 9 NWLR (Pt. 1359) 300, the apex Court held:
“As observed by the appellant’s counsel, this Court has held, a long time ago, that to permit an appellate Court to increase a sentence of a person who submitted to summary trial is to set the right of appeal as a trap for an unwary convict as held in Aremu v. IGP (supra) at page 218. Such will be giving the appellant an unsolicited ‘Greek Love or Offer.’ Equally, an appellate Court would not be justified to substitute a sentence it would consider right to pass on an accused were it to have tried the accused at first instance. This is because an appellate Court is not at liberty to merely substitute its own exercise of discretion for the discretion already exercised by the trial Court.”
Similarly in the recent case of Eyong Idam vs. FRN (2020) LPELR-49564 (SC), the apex Court per Galumje, JSC held:
“On the issue of the sentences, I agree with the learned counsel for the Respondent that the imposition of sentence on the Appellant was purely a matter of discretion. The Law is settled that the discretion of a Court must at all times be exercised not only judicially, but also judiciously on sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt.817) 545 at 558 para B; Ogbuehi v. Governor, Imo State (1995) 9 NWLR (Pt.417) 53; University of Lagos v. M.I. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148.
It is equally settled that where judicial discretion has been exercised bona fide uninfluenced by irrelevant consideration and not arbitrarily or illegally by the Court, the general rule is that the Appellate Court will not interfere.”
It is also the contention of learned counsel that the sentence imposed on the Appellant by the lower Court is excessive and harsh. The Court in various decided cases, has stated the essence of sentencing. In Usman vs. State (2015) LPELR-40855 (CA) this Court held thus:
“Sentencing can be defined as the judicial determination of a legal sanction to be imposed on a person found guilty of an offence. It means the prescription of a particular punishment by a Court to someone convicted of a crime. Sentencing generally aims at the protection of the society through prevention of crime or reform of the offender which may be achieved by the means of deterrence, elimination or reformation/rehabilitation of the offender. The justification is that imposing the penalty will reduce the future incidence of such offences, by preventing the offender from re-offending or correcting the offender so that the criminal motivation or inclination is removed or by discouraging or educating other potential offenders. These are known as reductive justification.”
Also, in Yakubu vs. State (2015) LPELR-40867 (CA) this Court per Abiru, JCA stated the considerations a Court must bear in mind in sentencing. It held thus:
“Now, one of the basic rules that a trial Court must consider in exercising its discretion in imposing a sentence on a convicted offender is that the age of the offender, his being a first offender and his pleading guilty to a charge may sustain a plea in mitigation of sentences, and conversely, the fact of previous conviction, the prevalence of the offence, the seriousness of the offence, the non repentant attitude of the offender and the adverse effect of the offence on the victim are all factors that aggravate sentence – R Vs Olagbaiye (1956) 3 WACA 81, Adeyeye Vs The State (1968) NMLR 87, Kuriakos Vs Board of Customs and Excise (1967) FNLR 1, Odidika Vs State (1977) 2 SC 1, Alake Vs State (1991) 7 NWLR (Pt 205) 567, Aminu Tanko Vs State (2009) 4 NWLR (Pt 1137) 430, Zacheous Vs People of Lagos State (2015) LPELR-CA/L/593/2012.”
In determining the appropriate sentence a Court should impose after conviction, the Court is required to balance the need for the reformation of the convicted person and the protection of the society which requires that such a person be put away from decent society not to pollute others with his criminal and devilish actions. In these days where people are becoming so greedy and serving the god of mammon, a Court should impose strict sentences on people found guilty of offences under the Advance Fee Fraud Act so that it makes it unattractive to others. A situation where people are made to part with their hard-earned money to a person who deliberately defrauds such a person, the sentence should not be one that gives a tap on the back of the criminal. The sentence must be severe and such that makes it very unattractive for anyone to commit that offence. I am therefore not in support of any suggestion that the sentence in offences involving Advance Fee Fraud should be light. The punishment must be severe. That is my general position. I must however warn myself that each case must be considered on its own fact.
Looking at the facts of this case, the starting point in determining whether the sentence is harsh and excessive, we need to look at the law as to the punishment imposed for such offence. Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences, 2006 which is the punishment section for the offence under which the Appellant was charged provides thus:
(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.
The implication of the aforementioned section is that where an accused is found guilty of an offence under the section that provides for the substantive offence, the Court is to sentence the accused on each of the counts he is found guilty of to a term ranging from 7 years to 20 years and no more. The lower Court in sentencing the Appellant after calling for allocutus held on page 633 of the records of appeal thus:
“I have listened to the pleas of counsel – both in mitigation of sentence and in aggravation of sentence.
The manner of commission of the crimes in this case were particularly exceptional – the names, reputations and careers of public officers serving their country diligently, were put on the line just because the 1st Defendant wanted to extort money from his victim. The fact that he remained unrepentant and continued with his history of criminal conduct is also telling.
Because of all these, I hereby sentence him to a term of eighteen years each for each of Counts two to ten of the Charge contained in the 3rd Amended Information. And with respect to Count One, I hereby sentence him to a term of eight years in prison custody.
I so rule.”
The lower Court in sentencing the Appellant considered all the factors listed out in Yakubu vs. State (supra) and moreso pronounced on all the counts the Appellant was charged with; which said counts cumulatively amounted to 170 years imprisonment. The lower Court appears to me to have considered very seriously the fact that the Appellant is serving a prison term already for another offence and while in prison masterminded the commission of another offence. This obviously is not the disposition of a repentant person, indeed it is the disposition of a crook. He is still serving sentence and while there masterminded the commission of another offence. He did not just defraud the PW1 once but on 9 different occasions masterminded his criminal plot in inducing the PW1 into parting with his hard earned money and some of which he borrowed. The Appellant is hardened and releasing him to society quickly will expose society to this kind of person. It is therefore safer for the society to leave him imprisoned for a reasonably long time. The Appellant deserves no pity at all. Taking into cognizance the whole facts, I do not see my way clear to interfere with the sentence passed by the lower Court.
As has been stated by judicial authorities, an Appellant who is complaining of the wrong exercise of discretion by the lower Court must show in what way the lower Court has wrongly exercised the discretion. I will refer to only one case on this trite principle of law. In David vs. CP, Plateau State Command (2018) LPELR-44911 (SC) the apex Court held:
“The sentence imposed on the Appellant for the offence under Section 222(1) of the Penal Code is life imprisonment. The Penal Code, in Section 224 thereof, gives the Court the discretion to punish the Appellant “with imprisonment for life or for any less term or with fine or with both.” Section 224 of the Penal Code has thus given the Court, upon convicting an accused person for an offence under Section 222 of the Penal Code the liberty to impose one of the four options provided in Section 224 of the Penal Code. Provocation under Section 222(1) of the Penal Code mitigates the rather serious or harsh punishment for culpable homicide punishable under Section 221 of the same Penal Code. It is not totally exculpatory unlike the defence of the right to self-defence under Section 59 of the Penal Code. The maximum sentence the Court can impose on the convict upon conviction for culpable homicide not punishable with death under Section 224 of the Penal Code is life imprisonment. It connotes, or implies that the prisoner so sentenced shall remain in custodial imprisonment for life, though the prisoner may become eligible for release on good behaviour, rehabilitation, or the like – Black’s Law Dictionary 9th Ed. Under this issue 3, it is not the contention of the Appellant that the life imprisonment he was sentenced to serve is excessive. That is not his case, and it could not have been also, because excessive sentence connotes that the Court had imposed a sentence more than, or in excess of the term allowed by law. If it is ultra vires the sentencing power of the Court. The Appellant, from the manner the issue is couched or phrased, seems to suggest that the sentence he was ordered to suffer or undergo is “too harsh, given the options provided by Section 224 of the Penal Code.” The word “harsh,” shorn of the prefix too (an adverb), is an adjective meaning or conveying the meaning of the sentence being cruel, severe and unkind. It is also suggestive of the feeling that the sentence is severe, unfeeling, brutal etc: Geddes &Grosset – English Thesarus. Both Counsel, M/S Okoro and Shaseet, respectively for the Appellant and the Respondent, are idem that Section 224 of the Penal Code gives the lower Court some discretion in the sentence to impose. They are also idem that this Court can only vary the exercise of the discretion by the lower Court if it is shown as my Lord, Rhodes-Vivour, JSC, stated in OGUNSANYA v. THE STATE (2011) 12 N.W.L.R. (Pt. 1261) 401 at 438: An appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion but would be compelled to do so if – a. the discretion was wrongly exercised; b. the exercise of the discretion was tainted with some illegality or substantial irregularity; c. there is miscarriage of justice, or d. it is in the interest of justice to interfere. It behoves the Appellant, complaining that the discretion was wrongly exercised, to show or establish in what ways or manner the discretion exercised in his regard was wrongly exercised. It is not enough for him to loudly whine and whimper, and submit rather sentimentally that the ends of justice demand that the sentence of life imprisonment be reduced to a lesser term of imprisonment. This is a Court of law, and also of justice. It is trite that sentiments command no place in judicial deliberations: EZEUGO v. OHANYERE (1978) 6 S.C. 17;

MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 N.W.L.R. (Pt. 884) 396 at 409. Fabiyi, JSC said it all in STATE v. JOHN (2013) L.P.E.L.R. that “a judex should avoid sentimental adjudication” and must call a spade a spade. On this note, without the Appellant, showing in what respects the lower Court had wrongly exercised its discretion when; upon finding that the Appellant ought to have been convicted for the offence under Section 222(1) of the Penal Code, punishable under Section 224 of the same Penal Code; and upon convicting the Appellant for culpable homicide not punishable with death and setting aside the conviction for culpable homicide punishable with death and substituting therefore the sentence of life imprisonment, is asking us to further interfere with the discretion thus exercised in his favour. The facts of OKORO AMEH v. THE QUEEN (supra) are almost on all fours with the facts of this case. In that case, this Court, upon finding that the defence of self-defence does not avail an accused person who vengefully killed his attacker, after disarming the attacker, with the same weapon seized from him (the attacker), affirmed the conviction and sentence imposed by the trial Court. The same scenario had played out in this case. The lower Court in this case, however convicted the Appellant for a lesser offence and thereafter reduced the sentence in its discretion exercised under Section 15 of the Court of Appeal Act, 2004 read together with Section 224 of the Penal Code. If any person should complain about the manner the lower Court exercised this discretion, it should not be the Appellant, but the Respondent, as the prosecutor. The two principles regarding the exercise of discretion by the Courts, below which have been mentioned and applied in the appellate Courts in this realm, as formulated by Heward, LCJ, in SAMUEL v. GUMBS 19 C.A.R. 74 at 75, are: 1. That the appellate Court never interferes with the discretion of the Court below merely on the ground that the appellate might have passed a somewhat different sentence, and/or 2. For the appellate Court to interfere with sentence and revise it, there must be some error in principle. Taylor, J cited with approval the above authority in I.G.P. v. AKANO & ORS (1957) W.N.L.R 103. These principles are very much now part of our jurisprudence. And I ask: what error in principle has this appellant laid before us in this appeal to warrant any interference with the sentence imposed on him by the lower Court in exercise of its discretion? None! This issue is accordingly resolved against the Appellant.”
In the light of the foregoing, this issue is therefore resolved against the Appellant.

Having resolved all issues against the Appellant it only follows that this appeal lacks merit and same is hereby dismissed. The judgment of Hon. Justice Lateefa Abisola Okunnu of the High Court of Lagos State sitting at Ikeja delivered on 2/5/2017 in Charge No. ID/60C/2011 – Federal Republic of Nigeria vs. Ikechukwu Michael Ogbu & Anor is hereby affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in draft the Judgment prepared by my learned brother Ebiowei Tobi, J.C.A., with which I agree with nothing extra to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Ebiowei Tobi, JCA, made available to me the draft of the leading judgment which has just been rendered.

The manner of resolution of the issues thrust up for determination in the appeal are in accordance with my views. Having also read the Records of Appeal and the Appellant’s Brief, the Respondent having failed to file any brief; I avow my concurrence that the appeal is bereft of any merit.

Based on the same reasoning and conclusion lucidly articulated in the leading judgment, I join in dismissing the appeal. The decision of the lower Court embodying the conviction and sentence imposed on the Appellant is hereby affirmed.

Appearances:

…For Appellant(s)

…For Respondent(s)