OKWORI v. FRN (2020)

OKWORI v. FRN

(2020)LCN/15479(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/A/448C/2018

RATIO

CRIMINAL PROCEEDING: WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON THE CONFESSIONAL STATEMENT MADE BY HIM

An accused person can be convicted solely on the confessional statement made by him where as in this case, it has been proved to be voluntarily made. See USMAN SAMINU (AKA DANKO) VS. THE STATE (2019) 11 NWLR (PART 1683) 254 at 274 H – 275 A – G per ARIWOOLA JSC who said:
“There is no doubt that the above is a confessional statement of the appellant made to the Police on 417/1996. Ordinarily, a confessional statement of a suspect is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) 439; (1992) & SCNJ 22; (1992) LPELR- 381. And it is well settled that a confessional does not become inadmissible merely because it is subsequently retracted by the maker.
Generally, by virtue of Section 29(1) of the Evidence Act, 2011, Laws of the Federation, a confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the Police containing assertion of admission showing that he participated in the commission of the offence for which he stands accused. Therefore, once admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. When a confessional statement has been proved to have been made voluntarily and it is positive, direct and unequivocal, it amounts to an admission of guilt and it is enough to sustain the conviction of an accused. Any subsequent retraction; by the maker of such a statement, in the cause of the trial, does not affect the admissibility of such a confession. See; Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383; Bature v. The State (1994) 1 NWLR (Pt. 320) 267; Sotola v. The State (2014) 12 NWLR (Pt. 1422) 613 (2014) 8 SCM 34; (2014) 50-6 SC (Pt.2) 68.
And it is well settled that once the Court is satisfied with its truth, a proved confessional statement alone is sufficient to ground and support conviction, without corroboration. However, the test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, no matter how slight of circumstances which make it probable that the confession is true. See: Asimiyu Alarape & Ors v. The State (2001) LPELR – 412; (2001) 5 NWLR (Pt.705) 79; (2001) 3 SCM 1; (2001) 2 SC 114.” PER PETER OLABISI IGE, J.C.A.

CRIMINAL TRIAL: CHARGE: WHETHER an accused person raise an objection to any formal defect to a charge before he takes his plea

By Section 383 (supra), any objection to a charge for any formal defect (surely, an allegation bordering on the absence of the signature of a known legal practitioner is a formal defect) on the face thereof shall be taken immediately after the charge had been read over to the accused person and not later. Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea, Ogunye v. The State (1999) 5 NWLR (Pt.604) S48; Adeniji v. The State (2001) 13 NWLR (Pt.730) 37S; Okeke v. The State (2003) 5 SCM 131, 185-186, (2003) 15 NWLR (Pt. 842) 25; Solola and Anor v. The State (2005) 6 SCM 137, 147, (2005) 11 NWLR (Pt. 937) 460; Okewu v. F.R.N (2012) 9 NWLR (Pt. 1305) 237, 369.
Where he fails to do so, he is presumed to have understood the charge preferred against him. Ogunye v. The State (supra); Adeniji v. The State (supra); Okeke v. The State (supra); Solola and Anor v. The State (supra); Okewu v. FRN (supra). PER PETER OLABISI IGE, J.C.A.

CRIMINAL PROCEEDING: CHARGE: RELEVANCE OF A CHARGE

CRIMINAL PROCEEDINGS: WHETHER AN OFFENCE MAY COMPRISE OF MORE THAN ONE ELEMENT

The trite position of the law is that a Defendant can be tried for an offence in any of the forum where any of the elements or ingredients or acts relating to the alleged offence occurred or took place. See
1. JOSHUA CHIBI DARIYE VS FRN (2015) 10 NWLR (PART 1467) 325 AT 352 G – H TO 353 A C per NGWUTA, JSC who said:-
“An offence may comprise of more than one element and the constituent elements may take place in different jurisdictions. In such case, the appropriate means to determine in which jurisdiction to try the accused is to identify what element of the offence in the proof occurred where. See S. 4 of the Penal Code as interpreted in G. Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344 at 394-395, a case in which the facts are similar to the facts herein. See also Njovens v. The State (1973) NNLR 76 at 80.
The offence may consist of attempts at that life of the victim occurring in different jurisdictions. Any of the jurisdictions in which an element occurred has territorial jurisdiction to try the accused. This was the case inMbali v. The State(2014) 235 LRCN 1, (2014) 10 NWLR (Pt. 1415) 316 where the first attempt was carried out in 2003 at Aguru, Anambra State.
The Court held that the 2003 attempt on the life of the victim in Anambra State was continuation of the earlier attempt of 2001 in Abuja and the FCT High Court has territorial jurisdiction to try he accused. In his case, an element of the offence charged as disclosed in the proof of evidences the operation of an account in a bank in Abuja with State funds.
There is no appeal on the finding and is deemed conceded by the appellant. See Onibudo v. Akibu (1982) 7 5C 60 at 63.
The point is crucial to the issue of territorial jurisdiction of the FCT High Court. The two Courts below made specific findings that this essential events took place within the territorial jurisdiction of the FCT High Court. The appellant did not contest the findings but kept a studied but loud silence on the issue.”
2. JOSEPH MORAH VS FRN (2018) LPELR – 44054 SC 1 AT 25 – 26 per OKORO, JSC who said:-
“It has long been held by his Court that where an element of an offence is started, contained or concluded in of two States, both State High Courts have jurisdiction to try the offence committed. In the instant case, the initial contact of the first accused with PW1 in Abuja to negotiate the safe of Dollars was to the knowledge of the Appellant. That initial contact was when the foundation of the commission of offence was laid. Thus, although the payment of the money was made in Lagos, that did not rob the High Court of Federal Capital Territory of the jurisdiction to try the case. In other words, the offence was started in Abuja and concluded in Lagos. I agree that the High Court of the FCT had jurisdiction to try the convict the Appellant.” PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ITODO CLETUS OKWORI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant and two other persons were arraigned before the Federal High Court Abuja Nigeria on 1st day of August, 2013 on four (4) Count Charge as follows:-
“COUNT 1
That you Okwori Cletus Itodo (m) 36 years old of No: 21 J. S. Tarka Way Makurdi, Benue State, Friday Agbor (m) 28 years old of Aku Village, Mararaba, Nassarawa State and Idoga Innocent (m) 37 years old of Dutse Bukurna, Abuja or about 18th day of July 2013 at Abuja in FCT, within the jurisdiction of the Federal High Court did commit an offence to wit: conspire amongst yourselves and obtain various sums of money by false pretence from members of the public and promising them employment with Nigeria Security and Civil Defence Corps and thereby committed an offence contrary to Section 8(1)(a) of Advance Fee Fraud and Other Fraud Related offences Act 2006, CAP.A6 Laws of the Federation of Nigeria.
COUNT 2
That you Okwori Cletus Itodo (m) 36 years old of No. 21 J. S. Tarka Way Makurdi, Benue State, Friday Agbor (m) 28 years old of Aku Village, Mararaba, Nasarawa State and Idoga Innocent (m) 37 years old of Dutse Bukuma, Abuja on or about 18th day of July 2013 at Abuja in FCT, within the jurisdiction of the Federal High Court did commit an offence to wit: Obtain Various N100,000 (One Hundred Thousand Naira) by false pretence from Paulina Gospel through Her Husband and promise her employment with Nigeria Security and Civil Defence Corps and thereby committed an offence contrary to Section 1 (1)(a) of Advance Fee Fraud and Other Fraud Related offences Act 2006, CAP.A6 Laws of the Federation of Nigeria.
COUNT 3
That you Okwori Cletus Itodo (m) 36 years old of No. 21 J. S. Tarka Way Makurdi, Benue State, Friday Agbor (m) 28 years old of Aku Village, Mararaba, Nasarawa State and Idoga Innocent (m) 37 years old of Dutse Bukuma, Abuja on or about 18th day of July, 2013 at Abuja in FCT, within the jurisdiction of the Federal High Court did commit an offence to wit: obtain the sum of N150,000 (One Hundred and Fifty Thousand Naira) by false pretence from Patricia Jonathan and promise her employment with Nigeria Security and Civil Defence Corps and thereby committed an offence contrary to Section 1(1)(a) of Advance Fee Fraud and Other Fraud Related offences Act 2006, CAP 46 Laws of the Federation of Nigeria
COUNT 4
That you Okwori Cletus Itodo (m) 36 years old of No. 21 J. S. Tarka Way Makurdi, Benue State, Friday Agbor (m) 28 years old of Aku Village, Mararaba, Nasarawa State and Idoga Innocent (m) 37 years old of Dutse Bukuma, Abuja on or about 18th day of July, 2013 at Abuja in FCT, within the jurisdiction of the Federal High Court did commit an offence to wit: Forge Nigeria Security and Civil Defence Corps Appointment Letters with the aim to defraud and thereby committed an offence contrary to Section 473(1) of Criminal Code Act, CAP C28 Laws of the Federation of Nigeria.”

On 12th day of August, 2013 the plea of the Appellant and that of his Co-Accused were taken and each of them pleaded not guilty to all the Counts contained in the Charge against them. The Prosecution called five (5) witnesses. The Appellant testified in his own behalf.

At the end of the trial and adoption of Written Addresses of learned Counsel to the parties in this Criminal Proceedings, the learned trial CHIEF JUDGE – I. N. AUTA (OFR) RTD gave considered Judgment and found the Appellant and the other Accused persons guilty and were accordingly convicted and sentences imposed on them as follows:-
“In conclusion based on the exhibits before the Court, especially the confessional statements of the defendants the Court accordingly convicts all the three defendants as charged.
It is very sad that the Government, in the person of the NSCDC will detain a citizen in their cell for 21 days before charging the suspect to Court. This is a gross abuse of the fundamental rights of the Defendants. The other Defendant was kept in detention for 5 days before being charged to Court.
The Federal Government Agency NSCDC, should know that, we are operating a democratic and constitutional system in Nigeria, where the provisions of the Constitution is supreme. The laws of this country does not make provisions for such breach of a citizen’s right, without following due process. The authorities in the NSCDC should take note and not to repeat this gross abuse of the rights of any citizen.
The Defendants also, I find their conduct to be very bad, in the sense that they are taking advantage of the lack of employment in the country and defrauding unsuspecting jobs seekers.

The Court will like to send a signal to all persons in this type of syndicate to desist from doing it. It has been brought however to the notice of the Court, by their counsel the situation of the Defendants. I will also take the provisions of Section 416 (a)(d) of the ACJA into consideration by not giving them the maximum sentence of 20 years for advance fee fraud offenders. They are each now sentenced to 7 years imprisonment without option of fine for all the charges.
For the 2nd offence of forgery under Section 473 (1) of the Criminal Code the 1st, 2nd and 3rd Defendants are sentenced to 7 years imprisonment without option of fine.
The terms of imprisonment to run concurrently, from the time of detention of one year five days for the 2nd and 3rd Defendant.
The 1st Defendant the eleven months he spent in detention should also count. These are the orders of the court.”

The Appellant was dissatisfied with the aforesaid verdict and has now appealed to this Court vide his Amended Notice of Appeal dated and filed on 24th May, 2018 but deemed properly filed on 28th April, 2018 on nine (9) grounds which without their particulars are as follows:-
“GROUND 1
The trial Federal High Court Abuja erred in law in its assumption of jurisdiction over the charge against the Appellant in the face of clear provision of Section 45 of the Federal High Court Act.
GROUND 2
The trial Federal High Court erred in law and occasioned a miscarriage of justice when it proceeded to exercise jurisdiction over the Appellant on defective counts in the charge and convicted the Appellant in respect of the defective counts in the charge before it.
(j) Counts 1 and 2 against the appellant is ambiguous and vague
GROUND 3
The trial Federal High Court erred in law when it held that the respondent had proved count 1 against the appellant and convicted him of the said offence contained in count 1 .
GROUND 4
The trial Federal High Court erred in law when it held that the respondent had proved the offence contained in count 2 against the appellant and conviction the appellant for the said count 2.
GROUND 5
The trial Federal High Court erred in law when it held that the respondent had proved count 3 against the appellant and convicted the appellant for the offence in the said count 3.
GROUND 6
The trial Federal High Court erred in law when it held that the respondent had proved count 4 against the appellant and convicted the appellant for the offence in the said court 4.

GROUND 7
The trial Federal High Court erred in law when it held as follows: Court is convinced that the 3 Defendants forged the employment letters, and they are all convicted of count 4.
“In conclusion based on the exhibits before the Court, especially the confessional statement of the defendants, the count accordingly convicts all the defendants as charged.”
GROUND 8
The trial Federal High Court erred in law when it held that: “In conclusion, I find that the defendants conspired amongst themselves to obtain by false pretence and did obtain benefits by false pretence; I find the 1st and 3rd Defendants guilty of counts 1 – 3 -and are convicted accordingly.
GROUND 9
The judgment of the trial Court is unreasonable, unwarranted and cannot be supported by the weight of evidence.
PARTICULARS OF THE TRIAL AND CONVICTION
1. Date of trial/judgment: 8th day of February, 2017
2. In what Court: Federal High Court, Abuja.
3. Sentence: 14 years to run concurrently.
4. Whether questions of law were raised at the trial.
Yes, except the question of the jurisdiction of the trial court to entertain the charge.
RELIEFS SOUGHT FROM THE COURT
i. An order setting aside the convictions and sentences by the trial court.
ii. An order discharging and acquitting the Appellant.”

The Appellant’s Brief of Argument was dated and filed on the 8th May, 2020 while the Respondent’s Brief of Argument dated 22nd July, 2020 was filed on 24th July, 2020. It was deemed properly filed on 13th October, 2020 when the appeal was heard. The learned Counsel to the Appellant JACOB IFERE, ESQ. distilled three issue’s for determination of the appeal as follows:-
i. Whether the trial Court sitting at Abuja had the territorial jurisdiction to try the Appellant (1st accused) at the trial Court for the offences in the charge which evidence before the trial Court showed were allegedly committed in Makurdi, Benue State? (Ground 1).
ii. Whether counts. 1, 2 and 3 before the trial Court are competent? (Ground 2).
iii. Whether there was sufficient evidence adduced before the trial Court to justify the conviction of the appellant as charged in counts 1-4?
(Grounds 3, 4, 5, 6, 7 and 9).”

The learned Counsel to the Respondent EVERLYN CHARLES – INYANYA, ESQ adopted issues 1 and 2 as formulated by the Appellant but formulated an addition issue viz:-
“a. Whether having regard to the circumstances of the case and the totality of evidence on record, the lower Court was right when it convicted the Appellant for the offences listed the charge.”

I am of the opinion that this can be determined on the three issues distilled for determination by the Appellant’s learned Counsel and they will be treated together:
i. Whether the trial Court sitting at Abuja had the territorial jurisdiction to try the Appellant (1st accused) at the trial Court for the offences in the charge which evidence before the trial Court showed were allegedly committed in Makurdi, Benue State? (Ground 1)
ii. Whether counts 1, 2 and 3 before the trial Court are competent? (Ground 2).
iii. Whether there was sufficient evidence adduced before the trial Court to justify the conviction of the appellant as charged in counts 1-4? (Ground 3, 4, 5, 6, 7, 8 and 9).

RESOLUTION OF ISSUES
Under issue one relating to challenge to the jurisdiction of the lower Court to adjudicate on the Counts contained in the Charge having regard to Sections 9, 19 and 45 of the Federal High Court Act Cap F 12 LFN 2004 which learned Appellant Counsel submitted only vested jurisdiction in the Federal High Court to entertain or hear only criminal offences which are committed within its jurisdiction, and in this case within Federal Capital Territory Abuja.

The learned Counsel to the Respondent submitted the contrary and stated that the offences were committed both in Makurdi as well as in Abuja. He relied on the evidence of P W1 and PW6.

Now in order to determine whether or not a Court possesses or is endowed with jurisdiction to adjudicate on the cause or matter, civil or criminal, it is bound to -examine the charge or counts contained in a charge or information brought by the prosecution against offender(s). In the case of civil action or suit it is the reliefs indorsed on the writ of summons and statement of claim or where action is begun by originating summons, the questions and reliefs on the originating summons and the affidavit in support will be thoroughly examined or scrutinized in order to determine whether the Court seised of the action or suit has the jurisdiction to entertain the suit, claims or reliefs sought.
In other words in criminal trials, it is the charges or information that will determine the jurisdiction to hear or decline jurisdiction paying attention to the constitutional provisions or statute which bestows jurisdiction on the Court seised of the criminal case. Regard shall also be paid to the law creating the offence(s) charged and in particular the relevant provisions of the criminal code depending on which part of the country the offence was committed and the venue whereat the trial is being conducted. See:-
1. MATTARADONA V AHU (1995) 8 NWLR (PT. 412) 225 AT 235H to 236A where this Court, per OPENE, JCA held thus:-
“…It is the fundamental principle of that it is the claims of the plaintiff which determines the jurisdiction of a Court to entertain same. See Ajaka Zenkwe & Ors v. Nnadozie (1953) 14 WACA 361 AT 363, Adeyemi v Opeyori (1976) 9 – 10 SC 31 “In the instant case which is a criminal matter, it is the charge before the Court that determines the jurisdiction of the Court to entertain the matter and the charge.”
2. DR EDWIN U. ONWUDIWE V FRN (2006) 10 NWLR (PT. 988) 382 AT 425 B – C per NIKI TOBI, JSC who said:-
“Let me first take the issue of jurisdiction vehemently canvassed by learned counsel for the appellant. In criminal law and the administration of criminal justice, the determination of jurisdiction will be taken in the light of the enabling law setting out the jurisdiction of the Court vis-a-vis the charge preferred against the accused. In other words, in order to have jurisdiction, the Court must be satisfied that the offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law. Where the offence or crime is outside the enabling law, the Court cannot exercise jurisdiction because it lacks jurisdiction to do so.”

I have examined the counts contained in the Charge against the Appellant on pages 2 and 3 of the record of appeal and it is glaring that the Appellant and his co-accused were charged on Count 1 for conspiracy contrary to Section 8(1)(a) of Advance Fee Fraud and other Fraud Related Offences Act 2006, CAP A6 LFN. The offence is punishable under Section 1(3) of the same Act. The Appellant and his Co-accused were charged with offence(s) of obtaining by false pretences contrary to Section 1(1)(a) of Advance Fee Fraud and Other Fraud Related Offences Act, 2006, Cap A6 LFN in counts 2 and 3 of the said Charge while all the Accused including the Appellant were charged with forgery contrary to Section 473(1) of Criminal Code Act cap C28 LFN.
By Section 14 of the said Advance Fee Fraud and Other Fraud Related Offences Act, 2006, the Federal High Court or High Court of Federal Capital Territory and the High Court of a State has jurisdiction to try offence both under the Act, Penal Code Act, Criminal Code Act and under any other Penal Laws for various offences as are contained in the Counts against the Appellant.
The evidence of PW 1 and PW6 revealed that the victims of the offences are resident in Abuja and PW 1 and PW6 who are husband and wife reside in Abuja in the same neighborhood as 2nd Accused. PW1 and PW6 testified that he (2nd Accused) promised that could secure job for PW6’s wife (PW 1) at NSCDC. In effect, substantial process of consummating the offence largely took place in Abuja and the Headquarters of NSCDC. The victims and 2nd Accused were in Abuja. The evidence of PW 3 the Investigation Officer also disclosed that 2nd and 3rd Accused persons were resident in Abuja while 3rd Accused was resident in Makurdi.
The evidence of witnesses aforesaid show without doubt that 1st, 2nd and 3rd Accused persons were in close concert and coordinating the fraudulent acts of the three Defendants with their targets who were resident in Abuja with 2nd and 3rd Accused persons.
The pieces of evidence before the Court also make it clear that 1st Defendant who was resident in Makurdi at the material time was one printing appointment letters and ID Cards. The Defendants were carrying out their nefarious activities within and outside Abuja.
The trite position of the law is that a Defendant can be tried for an offence in any of the forum where any of the elements or ingredients or acts relating to the alleged offence occurred or took place. See
1. JOSHUA CHIBI DARIYE VS FRN (2015) 10 NWLR (PART 1467) 325 AT 352 G – H TO 353 A C per NGWUTA, JSC who said:-
“An offence may comprise of more than one element and the constituent elements may take place in different jurisdictions. In such case, the appropriate means to determine in which jurisdiction to try the accused is to identify what element of the offence in the proof occurred where. See S. 4 of the Penal Code as interpreted in G. Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344 at 394-395, a case in which the facts are similar to the facts herein. See also Njovens v. The State (1973) NNLR 76 at 80.
The offence may consist of attempts at that life of the victim occurring in different jurisdictions. Any of the jurisdictions in which an element occurred has territorial jurisdiction to try the accused. This was the case inMbali v. The State(2014) 235 LRCN 1, (2014) 10 NWLR (Pt. 1415) 316 where the first attempt was carried out in 2003 at Aguru, Anambra State.
The Court held that the 2003 attempt on the life of the victim in Anambra State was continuation of the earlier attempt of 2001 in Abuja and the FCT High Court has territorial jurisdiction to try he accused. In his case, an element of the offence charged as disclosed in the proof of evidences the operation of an account in a bank in Abuja with State funds.
There is no appeal on the finding and is deemed conceded by the appellant. See Onibudo v. Akibu (1982) 7 5C 60 at 63.
The point is crucial to the issue of territorial jurisdiction of the FCT High Court. The two Courts below made specific findings that this essential events took place within the territorial jurisdiction of the FCT High Court. The appellant did not contest the findings but kept a studied but loud silence on the issue.”
2. JOSEPH MORAH VS FRN (2018) LPELR – 44054 SC 1 AT 25 – 26 per OKORO, JSC who said:-
“It has long been held by his Court that where an element of an offence is started, contained or concluded in of two States, both State High Courts have jurisdiction to try the offence committed. In the instant case, the initial contact of the first accused with PW1 in Abuja to negotiate the safe of Dollars was to the knowledge of the Appellant. That initial contact was when the foundation of the commission of offence was laid. Thus, although the payment of the money was made in Lagos, that did not rob the High Court of Federal Capital Territory of the jurisdiction to try the case. In other words, the offence was started in Abuja and concluded in Lagos. I agree that the High Court of the FCT had jurisdiction to try the convict the Appellant.”
The lower Court legally and rightly entertained or adjudicated over the criminal proceedings.
The lower Court has the jurisdiction to try the Appellant.

Issue 1 is resolved against the Appellant.

In respect of issue 2, the contention of the Appellant is that Counts 1 , 2 and 3 before the trial Court are incompetent.

According to learned Counsel to the Appellant, Count 1 which accused the Appellant and Co-Defendants of conspiracy contained more than one offence. According to learned Counsel, the Charge offends Section 209 of ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015 and Section 156 of the Criminal Procedure Act making it incompetent and bad for duplicity. He made the same submissions in respect of Count 2. That Section 8(1)(a) does not create offence of conspiracy. That offences not created by the Advance Fee Fraud and Other Related Offences have been brought into Counts 1.

There is no doubt that the purpose of a charge is to inform an Accused person or a Defendant in a Criminal Proceedings the prosecution’s complaints against the Accused or a Defendant. It spelt out the particulars of offence committed and the Criminal Code Law or Penal Code Law or Act contravened. It must be concise and unambiguous for the Accused or Defendant to understand the charge. These are the prescriptions of the Constitution of the Federal Republic of Nigeria 1999 as amended Section 36 (6) thereof which provides:-
“36(6) Every person who is charged with a criminal offence shall be entitled to:
a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
However it is the duty of an Accused or a Defendant to a criminal proceeding to promptly object to any charge against him which is bad for duplicity, defective or which is unknown to law. This the Accused or Defendant must do before he pleads guilty or NOT guilty to the charge. He cannot afterwards after his plea had been taken to complain or object to defect in the charge. Such an Accused or Defendant will be taken to have understood the charge before pleading to it especially where he is represented by a Counsel. See:-
1. OBINNA JOHN VS. THE STATE (2019) 9 NWLR (PT. 1676) 160 AT 172B 173A where NWEZE, JSC held:
“It is this same impression that led to the extensive arguments in the appellant’s brief on the absence of signature in the charge. Now, just like Sections 166, 167 and 168 of the old Criminal Procedure Law; Section 382 of the Criminal Procedure Code, which was applicable in Plateau State, at the relevant time, dealt with the effect of errors, defects or omissions in charges at the trial Court, Okewu v. F.R.N. (2012) 9 NWLR (Pt. 1305) 237, 369; John Agbo v. State (2006) 1 SCNJ 332, 335-337, (2006) 6 NWLR (Pt. 977) 545; Uwaekweghinya v. State (2005) 3 SCNJ 32, 42; (2005) 9 NWLR (Pt. 930) 227.
Thus, in order to accentuate the irrelevance of the submissions of the appellant’s counsel, it is necessary to adumbrate on the import of this section of the Criminal Procedure Code (supra). By virtue of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with any offence shall be entitled to be informed promptly in the language he understands, and in detail of the nature of the offence.
Only one or two cases be cited here to illustrate this point. See Amala v. State (2004) 12 NWLR (Pt. 888) 520; Ezeze v. State (2004) 14 NWLR (Pt. 894) 491; Okeke v. The State (2003) 15 NWLR (Pt. 842) 25; Madu v. The state (2012) LPELR – 7867 (SC), (2012) 15 NWLR (Pt. 1324) -405; Solola v. The State (2005) 11 NWLR (Pt. 937) 460. Ostensibly therefore, the statutory prescription that every charge shall state the offence for which the accused person is standing trial stems from this constitutional mandate.
Occasionally however, charges so drafted may contravene any of the rules of drafting charges, such as the rules against ambiguity; duplicity; misjoinder of offenders and misjoinder of offences, see generally, Bob Osamor, Fundamentals of Criminal Procedure Law in Nigeria (Ojodu, Lagos: Dee-Sage Nigeria Limited, 2004) 188; O. Doherty, Criminal Procedure in Nigeria Law and Practice (London; Blackstone Press Limited, 1999) 227; O. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd, 1998). This is the context in which Section 383 (supra) has to be viewed.
By Section 383 (supra), any objection to a charge for any formal defect (surely, an allegation bordering on the absence of the signature of a known legal practitioner is a formal defect) on the face thereof shall be taken immediately after the charge had been read over to the accused person and not later. Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea, Ogunye v. The State (1999) 5 NWLR (Pt.604) S48; Adeniji v. The State (2001) 13 NWLR (Pt.730) 37S; Okeke v. The State (2003) 5 SCM 131, 185-186, (2003) 15 NWLR (Pt. 842) 25; Solola and Anor v. The State (2005) 6 SCM 137, 147, (2005) 11 NWLR (Pt. 937) 460; Okewu v. F.R.N (2012) 9 NWLR (Pt. 1305) 237, 369.
Where he fails to do so, he is presumed to have understood the charge preferred against him. Ogunye v. The State (supra); Adeniji v. The State (supra); Okeke v. The State (supra); Solola and Anor v. The State (supra); Okewu v. FRN (supra).
Simply put therefore, the learned DPP for the respondent was right in his submission that since counsel for the appellant did not raise any objection to the alleged defect in the charge, he cannot now canvass it here, Uwaekweghinya v. State (supra): Timothy v. F.R.N (2013) 4 NWLR (Pt. 1344) 213, 231-243; Agbo v. State (supra).”
2. CHUKWUDI OYEM VS. FRN (2019) 11 NWLR (PART 1683) 333 AT 347F – 348 A – B per ABUJL, JSC who said
“The appellant learned counsel weakly stated that the appellant was wrongly charged under Section 14(b) of the NDLEA Act instead of Section 11 (b). I think he is fully aware of the law that is why he did not make any issue or argument out of it nor is he asking this honourable Court to tamper with the lower Court’s judgment because of it. Nevertheless, without the risk of superfluity, the law is settled that it does not matter under which section of the law, the definition or the penal section, an appellant is charged and convicted. The conviction endures on appeal once is shown that the facts for which the appellant is convicted constitute on offence to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial been rectified by the trial Court. See Per Muhammad, J.S.C in Okpa v. State (2017) LPELR-42205 (SC), (2017) 15 NWLR (Pt. 1587) 1.”
At page 354 F H to 355 A per M. D. MUHAMMAD, JSC who said:
“Appellant counsel’s further contention that the concurrent conviction of the two Courts below are not sustainable because of their being placed under the wrong section of the law, learned respondent’s counsel is again right must equally be discountenanced.
In Akinola Olatunbosun v. The State (2013) LPELR – 20939 (SC), (2013) 17 NWLR (Pt. 1382) 167 this Court per Aka’ahs, JSC restated the principle thus-
“The bone of contention in the dissenting judgment by Denton – West JCA is anchored on the view that the appellant was charged under the punishment section and not the section that created the offence. That argument will hold water only if the offence for which the appellant was convicted is not known to law. If the facts which an appellant was convicted are known to law, the fact that the accused was charged under wrong law or section of the law, will not lead to his acquittal.”
There is nothing on record to show that the Appellant was misled by the charges or that he did not realize the offences to which he pleaded to. M. A. EJEH, ESQ., represented the Appellant at the lower Court and he was present when the Appellant pleaded to the four Count Charge without any objection.

The stance of the Appellant in this Court is an afterthought. Each of the Counts contained in the charge is competent, Counts 1, 2 and 3 are competently laid against the Appellant.
The Counts contained in the charge and the charge itself are known to law. Issue 2 is an afterthought orchestrated by the Appellant to have conviction against him under Counts 1, 2 and 3 set aside.

Issue 2 is hereby resolved against the Appellant.

ISSUE 3
This has to do with whether there was sufficient evidence adduced before the trial Court to justify the conviction of Appellant as charged in Counts 1 – 4.

The Learned Counsel to the Appellant had contended that the prosecution “did not lead any evidence at the trial Court to show that the Appellant and the other Accused in Court conspired and obtained any money not to talk of “various sums of money” from members of the public employment with Nigeria Security and Civil Defence Corps as alleged in Count 1.” That no such member of the Public was called.

On the charge of conspiracy contained in Count one, the Learned Counsel to the Respondent relied on the Appellant’s Statement made to the Police where he admitted his participation in the offences laid against the Appellant and his Co-Defendant.
Now ingredients of conspiracy to commit offence by criminals, can be gathered from evidence of surrounding circumstances. It takes two or more persons to commit the offence of conspiracy which can be proved from direct or circumstantial evidence in support of the charge. There must at all times be evidence of agreement to commit the alleged offence. There must be an overt act from which to infer the conspiracy.
The provision of the law under which the Appellant and other Defendants were charged reads:
“8a. A person who “conspires with aids abets or counsels any other to commit an offence.
b. …
c. …
Under this Act is guilty of the offence and liable on conviction to same punishment as is prescribed for that offence under this Act.”
Though conspiracy is not defined under the said Act, it must be acknowledged that conspiracy is not always provable by direct evidence and the Courts have from time immemorial resorted to drawing inferences from facts given in evidence by prosecution witnesses vide oral and documentary evidence. Thus more often circumstantial evidence is resorted to in order to find out or discern if truly the Defendants arraigned on charge of conspiracy were/are actually involved in conspiratorial venture alleged against the Defendants in criminal proceedings. The conspirators usually hatch their plan or agreement to commit offence of conspiracy in secrecy.
1. EMEGU ODEY VS. THE STATE (2019) 2 NWLR (PART 1655) 97 at 111 D F per KEKERE-EKUN JSC
2.DAVID OMOTOLA VS. THE STATE (2009) 7 NWLR (PART 1139) 148 AT 191 A – H TO 192 A – G. At page 192 H to 193 A of the report OGUNTADE, JSC.
3. IFEANYICHUKWU AKWUOBI VS. THE STATE (2017) 2 NWLR (PART 1550) 421 AT 444 G – H TO 455 A – D per SANUSI, JSC who said:
“It must be stressed here, that where persons are charged with criminal conspiracy, the elements of conspiracy as disclosed in the charge must be proved and it must be established against the person or persons so charge that he or they have engaged in it. However, it must be noted that it is not always easy to prove the actual agreement. The Court can however infer the agreement from the surrounding circumstance of each case and from those inferred circumstances, it can safely presume the conspiracy. See Gregory Godwin Daboh & Anor v. The State (1977) All NLR (Reprint) 146; (1977) LPELR 904.”
“Again, it is well settled law, that conspiracy may exist between persons who even had never or known or seen each other or had corresponded or communicated with each others. In criminal conspiracy, it is not always necessary that the co-conspirators must know each other or that the accused persons concerned had concocted the plan or modality of the execution of the subject matter of the plan or charge nor that they should have originated and organized it. If a conspiracy is planned and a person joins it at a later stage, he is equally qualifies as the original conspirators. See R. v. Simmonds (1969) 1 QB 685.”
As I said supra, the offence of conspiracy can be inferred from the facts and surrounding circumstances of a given case, I will also add that the conduct of the accused and/or his co-accused/conspirators often go a long way to suggest or establish that there had been implied or explicit agreement amongst them to commit a criminal offence on offences. Inferences can always be drawn by the trial Court to conclude that the offence of criminal conspiracy has been committed.”
I have read the record of appeal and the pieces of evidence given by the PW1, PW2 and PW6 and I am of the view that the Prosecution actually led evidence to show that the Defendants were fraud artists and are in conspiracy of duping unsuspecting persons on the promise that they will help them secure employments in form of fake letters like the one given to the PW1 Paulina M. Gospel and Patricia UDUEILE which were falsely presented as genuine letters of employment and which were actually printed in Appellant Office with the connivance or 3rd Defendant who was impersonating as a Staff or Officer in NS & CD CORPS in Abuja. 2nd Defendant was saddled with the job of looking for prospective victims for their employment scam.

The lower Court vividly captured the three Defendants as hearing involved conspiracy for which they were charged on pages 245 – 246 of the record as follows:
“I have carefully considered the evidence before the Court, I am convinced that the 1st, 2nd and 3rd Defendants had the intention to obtain, by false pretence. I believe this is a case of a syndicate group that specializes in defrauding people in the guise of giving them an employment. The 3rd Defendant Mr. Friday Agbor is the leader of the group with the master-plan and the one impersonating the Civil Defence.
The 2nd Defendant is however the conduit pipe that introduces unsuspecting victims to the 3rd Defendant. The 1st Defendant is the one that provides them with employment letters using, his business centre. The 3rd Defendant did not deny the allegations, while the 1st and 2nd Defendant only argued that they did not know the 3rd Defendant was not a Staff of NSCDC. Ignorance is not an excuse before the law the 1st Defendant cannot claim ignorance of the fact that employment letters are not printed in business centres.
In conclusion, I find that the Defendants conspired amongst themselves to obtain by false pretence and did obtain benefits by false pretence. I therefore find the 1st and 3rd Defendants guilty of counts 1 – 3 and are convicted accordingly.”

The above finding is fully supported by the oral and documentary evidence on record. It is also relevant and important to state that the Appellant whole heartedly admitted the commission of the offences for which he was charged in his statement Exhibit E pages 185 – 186 of the record which reads:
“I solemnly admit that around November, 2012, one Friday Agbo who claimed to be a staff with the Nigeria Security and Civil Defence Corp approached me in my office in the above address. He came with one John Okpali (as I later came to his name) they both said they were acting for a Superior boss who instructed them to print an, appointment letter for the Nigeria Security and Civil Defence Corp where they were both staff. All my fears I had nursed about the printing of the letter were dismissed by Friday Agbo who assure me that there won’t be any problem. I thereafter printed the work (letter). Friday had earlier approached me around October, 2012 to print an identification card with the same organization as a volunteer and I did the printing. Friday Agbo further sent one Innocent Idoga to my office from Abuja (as he claimed upon phone call from Friday Agbo. He said he had sent Innocent Idoga to do so, to reprint same letter or one Elizabeth and I did. That was a week and some days today. Same Innocent Idoga called me on the 28th July, 2013 at about 2.30pm or thereabout: when I was returning from a place of worship. He told me on phone that the last letter he was sent to come and print in my office had errors that needed to be corrected. I dismissed his appeal and told him that I was just returning from church and was already late for a community meeting, which I must go to Abuja unfailingly. I had to sacrifice the time and went to the business centre to print the letter. It was in the process of printing the said letter that a Team of Anti-fraud from the Nigeria Security and Civil Defence Corp came and took me to first, the Benue State Command in Makurdi and thereafter to Defence Headquarters, Abuja, same day. I never collected any money from Friday Agho or his agent (Innocent Idoga) in respect of the three (3) letter that were printed out, save for when he (Friday Agbo) lent me money when wife was delivered of a baby on 9th August, 2012 to offset the Hospital bill. The money was N20, 000.00 (Twenty Thousand Naira) and I was able to liquidate same to a balance of N7, 000.00. That was why he never sent any money to me and I never demanded any from him for the printing of the letters, save for the Three Hundred Naira (N300.00) he gave me for the first letter. The last two were not paid for. The above is my statement and testament as regards the issue on ground. I pray the Authority to temper livehood and married with a child – some months old. I promise to be law abiding and never to engage myself in similar act or any other contrary to the law of the Federal Republic of Nigeria.”
The above statement is a confessional statement encapsulating all the ingredients of the offences for which the Appellant was charged. There was trial within trial to test the voluntariness of Appellant’s Statement Exhibit E pages 185-186 of the record and his objection was overruled and the statement was admitted as Exhibit “E”.
An accused person can be convicted solely on the confessional statement made by him where as in this case, it has been proved to be voluntarily made. See USMAN SAMINU (AKA DANKO) VS. THE STATE (2019) 11 NWLR (PART 1683) 254 at 274 H – 275 A – G per ARIWOOLA JSC who said:
“There is no doubt that the above is a confessional statement of the appellant made to the Police on 417/1996. Ordinarily, a confessional statement of a suspect is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) 439; (1992) & SCNJ 22; (1992) LPELR- 381. And it is well settled that a confessional does not become inadmissible merely because it is subsequently retracted by the maker.
Generally, by virtue of Section 29(1) of the Evidence Act, 2011, Laws of the Federation, a confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the Police containing assertion of admission showing that he participated in the commission of the offence for which he stands accused. Therefore, once admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. When a confessional statement has been proved to have been made voluntarily and it is positive, direct and unequivocal, it amounts to an admission of guilt and it is enough to sustain the conviction of an accused. Any subsequent retraction; by the maker of such a statement, in the cause of the trial, does not affect the admissibility of such a confession. See; Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383; Bature v. The State (1994) 1 NWLR (Pt. 320) 267; Sotola v. The State (2014) 12 NWLR (Pt. 1422) 613 (2014) 8 SCM 34; (2014) 50-6 SC (Pt.2) 68.
And it is well settled that once the Court is satisfied with its truth, a proved confessional statement alone is sufficient to ground and support conviction, without corroboration. However, the test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, no matter how slight of circumstances which make it probable that the confession is true. See: Asimiyu Alarape & Ors v. The State (2001) LPELR – 412; (2001) 5 NWLR (Pt.705) 79; (2001) 3 SCM 1; (2001) 2 SC 114.”

The oral and documentary evidence before the lower Court and as are contained in the record of appeal fully supported the findings of the lower Court on all the counts against the Appellant. The lower Court meticulously evaluated the said pieces of evidence as given or proffered by the six prosecution witnesses. The ingredients of each of the Counts contained in the charge were proved and established against the Appellant. Issue 3 is hereby resolved against the Appellant.

Consequently, Appellant’s appeal fails as it is lacking in merit. The Appellant appeal is hereby dismissed in its entirely.

The judgment of the Federal High Court delivered 8th February, 2017 Coram AUTA, CJ (RTD) convicting and sentencing the Appellant on the four Count Charge is HEREBY AFFIRMED.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Peter OLABISI IGE, JCA.

I agree with the reasoning and conclusion contained therein. I therefore dismiss the appeal. I also affirm the judgment of the Federal High Court delivered on 8th February, 2017 (Coram Auta CJ (RTD) convicting and sentencing the Appellant on the four Count Charge.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

JACOB IFERE with him, I. O. ONOH For Appellant(s)

ABUBAKAR SADIQ YUSUF For Respondent(s)