OLABAMIJI MICHAEL KAYODE v. FEDERAL REPUBLIC OF NIGERIA (2014)

OLABAMIJI MICHAEL KAYODE v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7632(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of January, 2017

CA/L/372C/2016

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROVING THE COMMISSION OF AN OFFENCE AGAINST AN ACCUSED PERSON AND THE EFFECT OF THE FAILURE TO PROVE THE SAME

Therefore, to prove the commission of an offence against an Accused person, the Prosecution carries on it the onerous burden to prove by credible evidence that both the Mens rea, otherwise referred to as the mental physical element and actus reus, otherwise referred to as the physical element co-exist except for offences of strict liability in which the mens rea is presumed upon the occurrence of the actus reus. See Akawo V. The State (2011) ALL FWLR (Pt. 597) 624 @ p 631.
A failure therefore, on the part of the Respondent to prove any or all of the essential elements that constitute the offence with which the Appellant was charged would be fatal to the charge not proved as required by law. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EVIDENCE: PROVING THE GUILT OF AN ACCUSED PERSON; THE BASIC TYPES OF EVIDENCE OPENED TO THE PROSECUTION WITH WHICH TO PROVE THE GUILT O ACCUSED PERSON

However, it must be pointed out for once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to proves the guilt of accused person, namely; i: Confessional statement; ii: Circumstantial evidence and iii: Evidence of eye witness. See Godwin Igabete V. The State (2006) 6 NWLR (pt. 975) 103. See also Lori V. The State (1950) 1- 11 SC 81; Emeka V The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPEAL: INTERFERENCE; WHEN CAN AN APPELLATE COURT RE-EVALUATE THE EVIDENCE AND INTERFERE WITH THE CORRECT FINDINGS OF THE TRIAL COURT

My lords, in considering issue one, which in essence is a call on this Court to review and re-evaluate the evidence in the printed record to determine if indeed the Court below evaluated the evidence led and made the findings borne out by the evidence as led by the parties, it is my firm view that in law it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re-evaluation of evidence does not arise and thus it has no business re – evaluating the evidence and interfering with correct findings of the Court below. Happily both parties in their respective submissions are ad idem on this position of the law. See Adedara V. Arowolo (Supra) @ pp. 1560 – 1561, where it was pronounced succinctly inter alia thus:
“It is certainly trite law that a trial Court has a duty, after hearing evidence from parties to a suit and their witnesses evidence or issues before it, having regards to the pleadings of the parties. This is also called a ‘sacred’ duty of trial judges. In performing that sacred duty, the Court is bound to set out its appraisal and thoughts, showing how and why it came to its findings of facts and thus an appellate Court will intervene either to re-evaluate the evidence or send the case back for re-trial as the case may be, depending on whether or not the unevaluated evidence borders on credibility of witnesses.”
See also Williams V. Tinubu (2014) ALL FWLR (Pt. 755) 200; Amuneke V. The State (1992) NWLR (pt. 217) 347; Sule Asariyu V. The State (1987) 4 NWLR (Pt 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. v. Ekwalor & Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888) 520. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE LED AND THE DUTY OF AN APPELLATE COURT NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURT EXCEPT IS WAS PERVERSE
I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the Court below and once that Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reasons which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198.
It is thus the law that an appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse. See Sa’eed v Yakowa (2013) ALL FWLR (Pt. 692) 1650 @ P. 1681.
However, an Appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the Appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

Since it is now trite that a Defendant can be convicted solely on the strength of his confession and nothing more, I think that I can rightly convict the Defendant solely on the strength of his aforesaid confession see ONYENEYE v THE STATE (2012) LPELR-SC 306/2012, BRIGHT V STATE (2012) SUPREME COURT PART 2 PAGE 47, STATE V. ISHA & 2 ORS 2012 7 SUPREME COURT REPORT PART 3 PAGE 93. See also Section 28 of the Evidence Act 2011 which provides as follows, “a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime” as well as Section 29 (1) of the same Evidence Act which clearly makes such confessional statements relevant and admissible in law. The following cases are also apposite on this issue, JOSEPH IDOWU v THE STATE (2000) 7 SUPREME COURT REPORT PART 2 PAGE 50, SOLOLA & ANOR V STATE (2005) 5 SC PART 1 PAGE 135, OMOTOLA & ANOR V THE STATE (2009) 2-3 SUPREME COURT REPORT PAGE 148, RABI IIML V STATE (2011) 6 – 7 SUPREME COURT REPORT PART 5 PAGE 148, BELLO SHURUMO V THE STATE (2010) 12 SUPREME COURT REPORT PART 1 PAGE 73, and also the case of MOSES JUA v THE STATE 2010 1-2 SUPREME COURT REPORT PAGE 96. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CRIMINAL PROCEDURE: CONVICTION OF AN ACCUSED PERSON; WHEN CAN THE CONVICTION OF AN ACCUSED PERSON BE SET ASIDE

Thus, in law it is only when the conviction of an Accused person is not supported and founded on credible evidence, which must be cogent and must not create room for speculation or doubt, that such a conviction is liable to be set aside on Appeal. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWLR (Pt. 758) 241; Iko V. The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) 3216 (SC) 1; Having calmly reviewed and considered the entire evidence of the Respondent as in the record, on whom the unshifting burden to prove its case against the Appellant beyond reasonable doubt lies, I find that the Court below did properly evaluated the evidence of the parties as led before it and made proper findings of facts as to the guilt of the Appellant proved beyond reasonable doubt by the Respondent. Thus, the Court below having carried out the job of its sacred duty of evaluating the evidence and making proper findings of facts before arriving at its verdict and thereby no miscarriage of justice was occasioned and for which the judgment appealed against must be allowed to stand. I therefore, have no difficulty resolving issue one in favour of the Respondent as against the Appellant and hold strongly that the Court below rightly convicted the Appellant on all the 99 counts of obtaining by false pretences as alleged and proved against the Appellant beyond reasonable doubt by the Respondent and therefore, I see no justifiable reason made out by the Appellant for this Court to interfere with the sound and unimpeachable conclusions reached by the Court below. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Justice

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

OLABAMIJI MICHAEL KAYODE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, Ikeja Judicial Division, Coram: S. A. Onigbanjo J., in Charge No. ID/44c/2010: FRN V. Olabamiji Michael Kayode delivered on 18/11/2013, in which the Appellant as Accused person was convicted on a 99 count charge of obtaining by false pretenses and sentenced to 15 years imprisonment on each of the 99 counts to run concurrently from 1/4/2010, an order of forfeiture of the Appellant’s terms of years under the Development Agreement in respect of the subject property used in the commission of the crimes and an order authorizing the EFCC to manage the said property till 2025 when the Appellant term of years would expire.

The Appellant was thoroughly dissatisfied with the said conviction, sentence, forfeiture and authorization of the EFCC and had appealed against the judgment to this Court vide a Notice of Appeal filed on 7/3/2016 on four grounds of appeal at pages 316 – 324 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 5/3/2016. The Appellant’s brief was filed on

6/5/2016. The Respondent’s brief was filed on 25/11/2016 but deemed properly filed on 28/11/2016. The Appellant’s Reply brief was filed on 30/11/2016.

At the hearing of this appeal on 12/1/2017, Miss A. I, Okoye, learned counsel for the Appellant adopted the Appellant’s brief and Reply brief and urged the Court to allow the appeal and set aside the conviction, sentence, forfeiture and authorization of the EFCC and to acquit and discharge the Appellant. On his part, A. Ogunsina Esq, learned counsel for the Respondent adopted the Respondent’s brief and urged the Court to dismiss the appeal and affirm the conviction, sentence, forfeiture and authorization of the EFCC to manage the subject property.

By an Information dated 13/5/2010 and filed on 14/5/2010 before the Court below, the Appellant was charged in 99 counts with the offences of obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, Cap A6, Laws of the Federation 2006. The particulars of each of the 99 counts were stated therein. See pages 1-31 of the Record of Appeal.

At the trial, the Prosecution called 6 witnesses

who testified as PW1, PW2, PW3, PW4, PW5 and PW6 and tendered some documents admitted in evidence as Exhibits A – W and closed its case. In his defense, the Appellant testified as DW1 and closed his case. At the conclusion of trial on 13/3/2013, the Court below, in view of the non representation of the Appellant by counsel on that date, dispensed with final addresses and adjourned the matter to 9/5/2013 for judgment. However, on 28/3/2013, the matter came up before the Court below and the matter was re-adjourned to 9/5/2013 for judgment. On 8/7/2013, the Counsel for the Appellant as Accused person adopted his final written address and the Court below once again adjourned the matter to 10/10/2013 for judgment. On 10/10/2013, the Counsel for the Appellant, as Accused person, re-adopted his final written address and the matter was once again adjourned to 31/10/2013. Yet again, on 31/10/2013, the Court below adjourned the matter to 18/11/2013 for judgment. Finally, on 18/11/2013, the Court below delivered its judgment convicting the Appellant on all the 99 counts and sentenced him to fifteen (15) years imprisonment on each count to run concurrently commencing

from 1/4/2010 and making some consequential orders in respect of the property used by the Appellant in committing the offences for which he was convicted by directing the EFCC to take over its management till 2025 when the leasehold interest of the Appellant would expire and in the meantime to use the proceed to settle the various victims of the Appellant’s offences. See pages 163 – 165; 180 – 207; 253 – 258; 264 – 268; 283 – 284; 301- 307; 308- 315 of the Record of Appeal.

In brief, the case of the Respondent was that the Appellant had between May – December 2009 at Kirikiri Town with intent to defraud obtained from various persons, numbering about 99, various sum of money and falsely represented to them that he had various types of accommodation at a property situate at No. 2 Amuda Street, Kirikiri Town Lagos to rent to them and which representation he knew to be false and thus committed the offence of obtaining by false pretences for which he was charged before the Court below after investigation by both the Police and EFCC. On his part, the Appellant denied the allegations made against him and insisted that he had a property development agreement over

the said property which was under renovation and indeed received the various sums from the various persons with the intention to give them various types of accommodation as paid for to those who can have space in the said property and then to refund the rent paid by those who are unable to get their apartments in view of the limited number of types of accommodation available in the said property.

ISSUES FOR DETERMINATION
In the Appellant’s brief, Vincent Ikwunne Nwana Esq., learned counsel to the Appellant had distilled four issues as arising for determination in this appeal, namely;
1. Whether the Court below correctly interpreted the conduct, act and omission on the part of the appellant under Exhibits A-U and V-W to fall within the entire Section 1(1), (2) and (3) of the Advance Fee Fraud and Other Related Offences Act 2006 (Distilled from Ground one)
2. Whether the Court below by virtue of statutory provisions and case law authorities has power to impose terms of imprisonment far and above the maximum sentence imposed by the legislature (Distilled from Ground four)
3. Whether the judgment of the Court below delivered is perverse

and entered per incuriam (Distilled from Ground two).
4. Whether the Court below was right to appoint Economic and Financial Crimes Commission as Estate managers to take over and let and manage No 2 Amuda Street Kirikiri till 2025 when the Appellant’s terms of years will expire (Distilled from Ground three)

In the Respondent’s brief, Babatunde Sonoiki Esq., learned counsel to the Respondent had distilled a lone issue as arising for determination in this appeal, namely;
“Whether the appeal vis a vis the grounds and issues formulated therein is meritorious and not a mere academic exercise which will not warrant this Court’s interference and exercise of its appellate powers.”

My lords, from the onset it appears to me that the lone issue distilled by the Respondent’s counsel neither tied to nor arising from any of the grounds of appeal in this appeal is completely irrelevant and as rightly contended by the Appellant’s counsel incompetent and ought to be discountenanced so that the real issue arising from the grounds of appeal filed on this appeal can be considered and resolved one way or the other on the merit. The law is well settled that a

Respondent who had not filed a Cross appeal or a Respondent’s Notice is not at liberty to formulate issues for determination not arising from the competent grounds of appeal. In otherwise, he must navigate and nominate his issue(s) for determination strictly within the purview and ambit of and as circumscribed in the grounds of appeal. In the instant appeal, the Respondent who had neither file a Cross Appeal nor Respondent’s Notice had gone out of the ambit of the grounds of appeal to nominate a lone issue not in any way arising from the grounds of appeal. See EFCC V. Akingbola (2015) All FWLR (Pt. 794) 136 @ pp. 141 – 142. See also Abiola V. FRN (2015) All FWLR (Pt. 773) 1930 @ pp. 1932 – 1933; Gwede v INEC (2013) All FWLR (Pt. 767) 615 @ pp. 618 – 619; Agbogidi v. Okoh (2015) All FWLR (Pt. 789) 1107 @p. 1110.
I therefore, have no difficulty agreeing with the Appellant’s counsel that the said lone issue of the Respondent has no leg to stand upon in this appeal and it is hereby discountenanced.

I am aware that once an issue for determination is found to be incompetent, ordinarily in law all arguments canvassed under such an incompetent issue also ought to be

discountenanced. However, this being a criminal appeal, I shall in the interest of doing substantial justice to both parties, and since the Appellant had already joined issue with the Respondent by filling a Reply brief, consider the arguments canvassed in the Respondent’s brief in answer to the arguments canvassed in the Appellant’s brief. I hereby adopt the four issues for determination nominated by the Appellant’s counsel as the apt issues for determination in this appeal. I shall proceed anon to consider and resolve these four issues for determination ad seriatim.

ISSUE ONE
“Whether the Court below correctly interpreted the conduct, act and omission on the part of the appellant under Exhibits A-U and V-W to fall within the entire Section 1(1), (2) and (3) of the Advance Fee Fraud and Other Related Offences Act 2006″ (Distilled from Ground one)

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, the Appellant’s counsel had submitted that the Court below failed to correctly interpret the conduct, act and omission of the Appellant in the development of No. 2 Amuda Street Kirikiri Lagos in the light of the evidence of PW1 – PW6, DW1, Exhibits

A – V and W and contended that from the evidence before the Court the Appellant was shown to be clothed with legal capacity to collect rent, issue Notices and execute tenancy agreements in the capacity of Landlord until 2025 when his term of years granted in Exhibit U would expire and urged the Court to hold that the finding by the Court below that the evidence of the Appellant, in the absence of any evidence establishing the essential elements of the offence of obtaining by false pretences, amounted to admission and confession for which he was convicted was wrong and ought to be set aside. Counsel referred to Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act 2006 and relied on Alake V. The State (1991) 7 NWLR (Pt. 205) 591; Federal Republic of Nigeria V. Amah (2016) All FWLR (Pt. 818) 889 @ pp. 893 & 909.

The Appellant’s counsel further submitted that to sustain a charge of obtaining by false pretences under Section 1(3) of Advance Fee Fraud and Other Related Offences Act 2006 the Respondent must prove that there was a misrepresentation as to an existing fact made by the Appellant that it was false and false to the knowledge of the

Appellant and that it acted on the mind of PW1, PW2 and PW3 and others as alleged by the Respondent and contended that the Respondent had the duty to prove the ingredients of the offences beyond reasonable doubt as required by law. Counsel relied on FRN V. Usman (2012) All FWLR (Pt. 632) 1639; Olanipekun V. The State (2012) All FWLR (Pt. 607) 752; Alake V. The State (supra); FRN V. Amah (Supra) and INEC V. AC (2009) All FWLR (Pt. 480) 732; Adeleke V. Oyo State House of Assembly (2007) ALL FWLR (Pt. 345) 211 to contend that a Statute must be interpreted as a whole and not in isolation and that criminal trial are not based on analogies without establishing essential elements of the offences charged and urged the Court to hold that the Court below was in error convicting the Appellant when the Respondent failed to prove the offences charged beyond reasonable doubt as required by law. Counsel relied on Okoro V. The State (2013) All FWLR (Pt. 678) 979.

RESPONDENT’S COUNSEL SUBMISSIONS
The Respondent’s counsel had submitted that the Appellant’s final written address filed before the Court below in the name of non partes was incompetent and ought to have been

struck out by the Court below and urged this Court to strike out same for being incompetent. Counsel relied on Chief Olukayode Akindele V. Kayode Abiodun (2008) LPELR – 8557 (CA); Ehidimhen v. Musa (2000) 1 NWLR (Pt. 669) 540 @ p. 606; Madukolu V. Nkemdilim (1962) 2 SCNLR 341 @ p. 606; Best Vision Centre Ltd. vs. UAC NPDC Plc. (2003) 13 NWLR (Pt. 838) 594; Jadcom Ltd. v O-Quns Electricals (2004) 3 NWLR (Pt. 859) 153; Shitta-Bey V. AG. Fed. (1998) 10 NWLR (Pt. 570) 392; Ifedapo Comm. Bank Ltd v. C & S Church (2001) 7 NWLR (Pt. 712) 508; Ajayi V. Jolayemi (2001) 10 NWLR (Pt. 722) 516.

The Respondent’s counsel further submitted that on the evidence adduced and the weight attached to them by the Court below, the law is that an appellate Court does not interfere in the evaluation of evidence placed before the trial Court except where it is shown that such evaluation of evidence occasioned miscarriage of justice and contended that the Court below has dutifully done its due diligence in the conduct of the trial, without pushing the boundaries and painstakingly heard and evaluated the testimonies of the PW1 – PW6 and DW1, admitted Exhibits A-W and found rightly

that the Appellant claimed to be the landlord of a building with 16 apartments to let and after collecting rent from 16 tenants which is the total capacity of the apartment, went on to invite more unsuspecting individuals and kept on collecting rent from them when he fully knew that there was no more apartments to let and there was no way he could give value for their money, which facts the Appellant alluded to during his defense and which the Court below rightly held as amounting to admission of those and rightly convicted the Appellant. Counsel relied on Amunike V. The State (1992) NWLR (Pt. 217) 347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem v. Gudi (1981) 5 SC. 291; Enang V. Adu (1951) 11-12 SC. 25; Abisi & Ors. V. Ekwalor & Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala v. State (2004) 12 NWLR (Pt.. 888) 520.

The Respondent’s counsel also submitted that since there is nothing to show that the trial Court was perverse in his judgment, but rather that he acted judicially and judiciously the Court should discountenance the invitation

of the Appellant to carry out a re- evaluation of the evidence already adequately evaluated by the Court below and to dismiss the appeal and affirm the judgment of the Court below in order not to foster a clog on the wheel of justice.

The Respondent’s counsel further submitted that the Respondent led credible evidence to establish the mental elements of the offence of obtaining by false pretences under the Advance Fee Fraud and Other Related Offences Act 2006 through the evidence of PW2 who stated that when he wanted to take possession of the apartment he paid for but saw about 70 people fighting and when he located his own apartment he saw that 15 other people had paid for the same place and contended that by Exhibit F, the victims made several efforts to contact the Appellant to make inquiries about the situation of the property and or possibility of refund on his phones and at his last known address, but the Appellant was nowhere to be found which was a deliberate attempt to hold on to the proceed of his fraud and urged the Court to hold that the mental elements were sufficiently proved against the Appellant by the Respondent and the offences charged

proved beyond reasonable doubt as required by law. Counsel relied on Amala V. The State (Supra); Mufutau Bakare V. The State (1987) 3 SC 1 @ p. 32; Okere V. The State (2001) 2 NWLR (Pt. 697) 397 @ pp. 415-416; Nwaturuocha V. The State (2011) LPELR – 5119(SC); Woolmington V DPP (1935) AC 485; Miller V Minister of Pensions (1947) 3 All ER 373; Nasiru V. The State (1999) 2 NWLR (Pt. 589) 87 @ p 98; Alabi V. The State (1993) 7 NWLR (Pt. 307) 511 @ p. 523.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
The Appellant’s counsel had submitted in reply on law that the Court below failed completely to carry out a dispassionate review and evaluation of the evidence led by the parties and contended that this Court therefore is in a better position to set aside the findings of the Court below arrived at without proper evaluation of the evidence of the parties and to proceed to re-evaluate the evidence of the parties and make proper findings and to allow the appeal. Counsel relied on Williams V. Tinubu (2014) All FWLR (Pt. 755) 200; Adedara V. Arowolo (2014) All FWLR (Pt. 761) 1536 @ p.1539;

RESOLUTION OF ISSUE ONE
My lords, in considering issue one, it does appear

to me that it deals more with the duty of the Court below, being the trial Court to review, appraise and properly evaluate the evidence as led before it to make proper findings of facts while keeping in mind that in criminal trial the burden is squarely on the Prosecution to prove the offences alleged on Accused person beyond reasonable doubt. This burden is static in criminal trials and thus never shifts. There is therefore, no duty on the Accused person to prove his innocence save perhaps to lead credible evidence in support of whatever defence he may have to the charge as laid against him by the Prosecution. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWLR (Pt. 758) 241; Iko V. The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) LPELR 3216 (SC) 1;

By the Information dated 23/2/2015, the Appellant was charged with the offences of conspiracy and obtaining by false pretences contrary to Sections 1(1)(a); 1(3) & 8(a) of the Advance Fee Fraud and Other Related

Offences Act, Cap A6, Laws of the Federation 2004, which provides as follows:
Section 1: Obtaining property by false pretences etc.
Section 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 … is guilty of an offence under this Act…
Section 1(3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.
However, since offences are usually made up of the mental and physical elements, which must co-exist or meet to ground conviction, I intend to reproduce Sub-section 2 of Section 1 of the Act dealing with the mental elements of the offences created under Sub-section 1 of Section 1 of the Act as follows:
1(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 is guilty of an offence under this act.
Now, in a charge alleging obtaining by false pretences, the law is well settled that the Prosecution has the onus to prove the following essential elements of the offence charged, namely:
1. That there was a pretence
2. That the pretence emanated from the accused person;
3. That the pretence was false
4. That the accused person knew that it was false
5. That there was an intention to defraud
6. That the thing obtained is capable of being stolen
7. That the accused person induced the owner to transfer his whole interest in the property.”
See Alake V. The State (1991) 7 NWLR (Pt. 205) 591. See also Federal Republic of Nigeria V. Amah (2016) ALL FWLR (Pt. 818) 889 @ pp. 893 & 909; The State V. Fatai Azeez (2008) 35 NSCQR 426; Nwokedi V. COP (1977) All NLR 11; Odiawa V. FRN (2008) LPELR – 4230; Onwudiwe V. FRN (2006) ALL FWLR (Pt. 319) 774; Arije V. FRN (2013) LPELR-22125; Chukwuemeka Aguba V. FRN (2014) LPELR 23211.
My lords, to prove the offence of obtaining by false pretences

charged against the Appellant, the Respondent as the Prosecution is obligated to lead credible and cogent evidence to prove all the essential elements of the offences charged as outlined above in order to secure conviction of the Appellant.

Circumstantial evidence and iii: Evidence of eye witness. See Godwin Igabete V. The State (2006) 6 NWLR (pt. 975) 103. See also Lori V. The State (1950) 1- 11 SC 81; Emeka V The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

evaluating the evidence and interfering with correct findings of the Court below. Happily both parties in their respective submissions are ad idem on this position of the law. See Adedara V. Arowolo (Supra) @ pp. 1560 – 1561, where it was pronounced succinctly inter alia thus:
“It is certainly trite law that a trial Court has a duty, after hearing evidence from parties to a suit and their witnesses evidence or issues before it, having regards to the pleadings of the parties. This is also called a ‘sacred’ duty of trial judges. In performing that sacred duty, the Court is bound to set out its appraisal and thoughts, showing how and why it came to its findings of facts and thus an appellate Court will intervene either to re-evaluate the evidence or send the case back for re-trial as the case may be, depending on whether or not the unevaluated evidence borders on credibility of witnesses.”
See also Williams V. Tinubu (2014) ALL FWLR (Pt. 755) 200; Amuneke V. The State (1992) NWLR (pt. 217) 347; Sule Asariyu V. The State (1987) 4 NWLR (Pt 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981)

11-12 SC. 25; Abisi & Ors. v. Ekwalor & Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888) 520.
I shall therefore, first bring into focus the evidence as led before the Court below and the findings of the Court below and consider whether the Court below carried out a proper evaluation or any evaluation at all of the evidence as led by the parties and made finding of facts which are correct and supported by the evidence led before the Court below and thus should stand or are wrong and perverse as not supported or flowing from the evidence led before the Court below and thus should be set aside and proper findings made thereon by this Court.
I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the Court below and once that Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the

conclusions reached is correct, even if the reasons which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198.
It is thus the law that an appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse. See Sa’eed v Yakowa (2013) ALL FWLR (Pt. 692) 1650 @ P. 1681.
However, an Appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the Appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and

admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821.

What then are the pieces of evidence led by the parties on the pertinent questions encompassing and encapsulating the essential elements of the offence with which the Appellant was charged, whether they were properly evaluated or indeed evaluated at all and what are the findings and conclusions reached thereon by the Court below in its judgment? I shall proceed to a consideration of these anon!

In proof of their case, the Prosecution called six witnesses who testified as PW1 was one Azuka Chukwunonso Mobet at pp. 163 – 165 of the Record; PW2 was one Joseph Sunday Ogboji Igwe at pp. 180 – 183 of the Record; PW3 was one Christian Nwankwo at pp. 183 – 185 of the Record; PW4 was one Danladi at pp. 186 – 192 of the Record, not cross examined; PW5 was one A. Atinuke at pp. 201 – 202; PW6 was one

Ugbole Alex Ogbere at pp. 204-207 of the Record; and tendered Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N1 -N10, O, P, Q-Q2 (Extra judicial Statements of the Appellant), R, S, T – T88 (Original Receipts of Victims), U – U2 and W and closed its case. The Appellant testified in his defense as DW1 at pp. 264 -267 of the Record of Appeal and closed his case.

It was on the strength of the above pieces of evidence as led by the respective parties as in the record that the Court below in its judgment convicted and sentenced the Appellant. I shall for the purpose of truly appreciating the reasoning in the said judgment and the delays before its delivery on 18/11/2013 reproduce in extenso the said judgment as follows:
“For an expeditious disposition of this suit I am well aware that the Defendant must be proven beyond reasonable doubts to have committed the offences specified in each of the counts on the information herein filed against him to secure a conviction on each of those counts. It is also clear that it has now become trite in our case law that what would amount to proof beyond reasonable doubt is not necessarily proof to the hilt or proof

beyond the shadow of doubt and that if the evidence is so strong against a man as to leave only remote possibility in his favor which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt, see IGAELE V. STATE (2006) 6 NWLR PART 975 PAGE 100, MADU V THE SME (2012) LPELR-SC 12/2009. I therefore intend to determine the case against the Defendant on the single issue whether or not the prosecution has discharged the onus on it of proving its case against the Defendant beyond reasonable doubt. That being the case I shall now proceed to examine the prosecution’s case against the Defendant. The Defendant is alleged to have committed the offences charged at various times between May- December 2009 at Kirikiri town within the jurisdiction of this Court with intent to defraud by obtaining various sums of money and falsely representing to various persons PWs 1-3 inclusive that the said sums represent rent for various types of accommodation in the property known as No. 2, Amuda Street, Kirikiri, Lagos which representation the Defendant knew to be false. In evaluating the totality of evidence

before the Court, I note that although the Defendant pleaded not guilty to all the counts of the information upon arraignment, he never denied collecting money and issuing Exhibits “A-E, G, T-T83” to the various persons mentioned therein in his capacity as landlord of the premises as receipts for rent payments for various types of apartments in the house at No. 2, Amuda Street, Kirikiri, Lagos at all times relevant to the charges against him. He also never denied making Exhibits “Q-Q2 & V” being his statements to the Economic Financial Crimes Commission (EFCC) wherein he confirmed issuing the aforesaid exhibits as stated. I think that at that point in the proceedings and based on the Defendants’ aforesaid admissions, the prosecution could safely be said to have made out a prima facie case against the Defendant necessitating his defence. Now looking at the summary of the Defendant’s side of the story which is that he never had any fraudulent intention collecting money from so many people after running into financial difficulties in his efforts to redevelop the said property from a derelict old bungalow in a swampy area into a modern storey building consisting

of maximum sixteen (16) apartments and a mixture of two (2) bedroom flats, single room self contained apartments and single rooms. That despite knowing that upon completion the entire accommodation available in the property would be a maximum of sixteen (16) different apartments for a maximum of sixteen (16) different tenants, because of the Financial difficulties he ran into during construction he decided to collect money from as many people as possible with a view to raise sufficient funds to complete renovation works on the house, release possession of the sixteen (16) different apartments to a maximum of (16) different tenants who would have made sufficient advance it payments and then source further advance rent payments from those same tenants and use the proceeds thereof to refund rent paid by others from whom he collected rents but could not provide the accommodation for. It is instructive to note that the Defendant’s oral testimony during was pretty much the same and virtually corroborative of his earlier statements to the Economic and Financial Crimes Commission (EFCC) and contents of exhibits mentioned herein the authorship of which he never denied.

From the foregoing I then ask myself if in the circumstances the defence Counsel’s argument in his written address to the effect that the absence of any shred of evidence that the Defendant utilized monies collected from the various persons earlier refined to herein for any other purpose other than renovation of the property in question coupled with the Defendant’s stated intention to refund all monies collected from various person as rent but to whom he could not provide the accommodation paid for would amount to absence of the necessary Mens rea i.e the intention to defraud for the offences as charged and as such amount to failure of the prosecution to prove its case against the Defendant beyond reasonable doubt as required by law despite the Defendant’s admission that he collected monies as alleged. In answering this question in the negative, I am not in any doubt whatsoever that Learned counsel for the defence got it wrong in his reasoning regarding the issue of the requisite Mens Rea for the offence of obtaining by false pretences with the intention to defraud contrary to Section 1 (3) of the AFF Act 2006. This is because Section 1(3) of the law under

which the Defendant is charged provides as follows “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 option of a fine” while Subsection 1 of the Section provides as follows “notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intent to defraud. a. obtains, from any other person, in Nigeria or in any other country for himself or any other person; b. induces any other person, in Nigeria or in any other country, to deliver to any other 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. In the case of MIKE AMADI v FEDERAL REPUBLIC OF NIGERIA reported in 2008 12 SUPREME COURT REPORT PART 3 PAGE 55 the Supreme Court highlighted the provisions of Subsection 1 above as the essential ingredients of the offence of obtaining money by false pretence and each of which ingredients must be proved beyond reasonable doubt against

the Defendant for the prosecution to secure a conviction of the Defendant on those counts. In other words, the prosecution must prove the following: That there is a pretence; b. That the pretence emanated from the Defendant; c. That the pretence was false; d. That the Defendant knew of its falsity or did not believe in its truth; e. That there was an intention on the part of the Defendant to defraud; f. That the thing is capable of being stolen; g. That the Defendant induced the owner to transfer his whole interest in the property. Now looking at the entire case as presented by the prosecution vis-a-vis admissions made by the Defendant orally in Court and in exhibits tendered in these proceedings, a summary of which admissions I have earlier set out in this judgment, contrary to the defence Counsel’s rather misconceived submission regarding absence of the necessary Mens Rea on the part of the Defendant to commit the offences charged, the necessary Mens Rea for committing the offence of Obtaining Under False Pretences under Section 1 (3) of the AFF Act 2006 in the circumstances of this case are to be found in the deliberate misrepresentation by the Defendant to

various persons in excess of the sixteen (16) available units of accommodation he knew from the inception could ever be available in the property he was renovating at No. 2 Amuda Street, Kirikiri and collecting money from them as rent in his capacity as landlord with the full understanding that the rent payments were for apartments he knew he could not provide in that property whenever it was ready for occupation. With due respect to the defence counsel in those circumstances as admitted by the Defendant, all the necessary ingredients needing proof beyond reasonable doubts by the prosecution to secure a conviction against the Defendant on charges of obtaining by False pretences under Section 1 (3) of the AFF Act 2006 as highlighted in the FRN vs AMADI case above are present and clearly admitted/confessed to by the Defendant both in his oral testimony in Court and his statements to the Economic and Financial Crimes Commission (EFCC) i.e. Exhibits Q-Q2 & V. It is immaterial that the Defendant all the while had the intention to refund monies collected from persons he could not provide accommodation for at the end of the day because it is clear that those

people parted with their money to him with the full agreement and understanding of paying rent for apartments in the building when completed and not as loan to enable the Defendant complete renovation works on the building and thereafter make a refund of their money. I think therein lies the necessary Mens Rea to commit the offences as charged herein and the Defendant having admitted those facts both orally during trial and in his statements tendered as exhibits amounts to a confession of the crime he was charged with in law. One wonders therefore why despite this confession right from the word go, the Defendant and his legal team chose to take the Court through the whole rigours of trial from sometime in June 2010 till date. Since it is now trite that a Defendant can be convicted solely on the strength of his confession and nothing more, I think that I can rightly convict the Defendant solely on the strength of his aforesaid confession see ONYENEYE v THE STATE (2012) LPELR-SC 306/2012, BRIGHT V STATE (2012) SUPREME COURT PART 2 PAGE 47, STATE V. ISHA & 2 ORS 2012 7 SUPREME COURT REPORT PART 3 PAGE 93. See also Section 28 of the Evidence Act 2011 which

provides as follows, “a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime” as well as Section 29 (1) of the same Evidence Act which clearly makes such confessional statements relevant and admissible in law. The following cases are also apposite on this issue, JOSEPH IDOWU v THE STATE (2000) 7 SUPREME COURT REPORT PART 2 PAGE 50, SOLOLA & ANOR V STATE (2005) 5 SC PART 1 PAGE 135, OMOTOLA & ANOR V THE STATE (2009) 2-3 SUPREME COURT REPORT PAGE 148, RABI IIML V STATE (2011) 6 – 7 SUPREME COURT REPORT PART 5 PAGE 148, BELLO SHURUMO V THE STATE (2010) 12 SUPREME COURT REPORT PART 1 PAGE 73, and also the case of MOSES JUA v THE STATE 2010 1-2 SUPREME COURT REPORT PAGE 96. Consequently I find the Defendant guilty as charged in counts 1-99 in the information dated 13/5/10 and convict him accordingly.” See pages 309 – 315 of the Record of Appeal.

In law, a confessional statement is one which is direct and positive and relates to the accused person’s acts, knowledge or intention stating or suggesting the inference that he committed the offence with which he was charged. It

must be borne in mind by trial Courts that proof of crime charged being required to be beyond reasonable doubt presupposes that all the essential elements of the offence charged must be proved by credible evidence. Where therefore, the prosecution relies on the confessional statement, which is certainly not even the case in the instant appeal, the trial Court must still be careful to consider if both the confessional statement and other pieces of evidence placed before it by the Prosecution and the Accused person satisfied all the essential elements of the offence charged and if lacking in evidence, it cannot be cured or remedied by the ‘confession’ of an accused person, who ordinarily does not know what the essential elements of the offence alleged against him are. See Joseph Abusi V. The State (1992) 1 NWLR (Pt. 260) 383. See also Alabi Shittu V. The State (1970) All NLR 233; Solomon Akpan v. The State (1992) 1 NWLR (Pt. 248) 1;
In Jimoh Yesufu V. The State (1976) 6 SC 109., Obaseki JSC., had put this issue admirably in its proper context inter alia thus:
“There is a long line of judicial authorities …. that a free and voluntary

confession of guilt by a prisoner … if it direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence, so long as the Court is satisfied of the truth of the confession”

In the instant appeal, I have taken a look at the evidence of the Appellant as DW1 on 13/3/2013 at pages 264 – 267 of the Record of Appeal. I have also looked at the Appellant’s extra judicial statements to the Police as Exhibits Q – Q2 at pages 109 112, 113 – 114 of the Record of Appeal. I find that Exhibit Q2, the second extra judicial statements of the Appellant was in the nature of admission amounting to confession as rightly found by the by Court below and thus was rightly relied upon by the Court below to convict the Appellant, taking into consideration also the unchallenged credible oral and documentary evidence astutely led by the Respondent as Prosecution through PW1, PW2 and PW3, who are admittedly victims of the Appellant’s scam and PW4, PW5 and PW6 who had thoroughly investigated the commission of the offences charged against the Appellant and of whom PW4 was not even cross examined by

the Appellant. The law is and has always been that evidence which remained unchallenged and is credible is good evidence on which the Court should act.

The Court below was on firmer ground when it rightly held inter alia thus:
“I think therein lies the necessary Mens Rea to commit the offences as charged herein and the Defendant having admitted those facts both orally during trial and in his statements tendered as exhibits amounts to a confession of the crime he was charged with in law. One wonders therefore why despite this confession right from the word go, the Defendant and his legal team chose to take the Court through the whole rigors of trial from sometime in June 2010 till date. Since it is now trite that a Defendant can be convicted solely on the strength of his confession and nothing more, I think that I can rightly convict the Defendant solely on the strength of his aforesaid confession. See ONYENEYE V THE STATE (2012) LPELR-SC 306/2012, BRIGHT V STATE (2012) SUPREME COURT PART 2 PAGE 47, STATE V. ISHA & 2 ORS (2012) 7 SUPREME COURT REPORT PART 3 PAGE 93. See also Section 28 of the Evidence Act 2011 which provides as follows, “a confession is an

admission made at any time by a person charged with a crime, stating or suggestirg the inference that he committed that crime” as well as Section 29 (1) of the same Evidence Act which clearly makes such confessional statements relevant and admissible in law. The following cases are also apposite on this issue, JOSEPH IDOWU V THE STATE (2000) 7 SUPREME COURT REPORT PART 2 PAGE 50, SOLOLA & ANOR V STATE (2005) SC PART 1 PAGE 135, OMOTOLA & ANOR V THE STATE (2009) 2-3 SUPREME COURT REPORT PAGE 148, RABI IIML V STATE, (2011) 6-7 SUPREME COURT REPORT PART 5 PAGE 148, BELLO SHURL’MO V THE STATE (2010) 12 SUPREME COURT REPORT PART 1 PAGE 73, and also the case of MOSES JUA V THE STATE (2010) 1-2 SUPREME COURT REPORT PAGE 96. Consequently I find the Defendant guilty as charged in counts 1-99 in the information dated 13/5/10 and convict him accordingly.”

It thus appears certain to me that the Court below dispassionately reviewed, evaluated and appraised the evidence as led by the Respondent and the Appellant and came rightly to the finding that with the copious credible and mostly unchallenged oral and documentary, including Exhibits T – T88 amongst other

germane documentary Exhibits, coupled with the largely confessional extra judicial statement of the Appellant in Exhibit Q2, the guilt of the Appellant was proved beyond reasonable doubt as required by law by the Respondent, which had by the evidence marshaled out against the Appellant proved all the essential elements of the offences charged as set out in Section 1(2) and (3) of the AFF and proceeded in error to convict the Appellant.

In the judgment appealed against, it is clear to me and I so find that the evidence of PW1 Azuka chukwunonso Mobet at pp. 163 – 165, pw2 Joseph Sunday Ogboji Igwe at pp. 180 – 183; PW3 Christian Nwankwo at pp. 183 – 185; PW4 Danladi at pp. 186 – 192, not even cross examined; PW5 A. Atinuke at pp. 201 – 202; PW6 Ugbole Alex ogbere at pp. 204 -207 of the Record coupled with Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N1 – N10, O, P, Q – Q2 (statement of the Appellant), R, S, T – T88 (original Receipts of Victims), U – U2 and W, were unchallenged and thus being credible was good evidence on which a Court can act and thus the Court below acted quite rightly by relying on them to convict the Appellant.

In coming to the above

conclusion, I have borne in mind that in law it is the prerogative of a trial Court who sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. This is so because a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before him and therefore, if its findings once premised on the facts and evidence before it as led by the parties must be allowed to stand and cannot be interfered with by an appellate Court which had not seen, heard and watched the witnesses testify in Court.

195; The State V. Musa Danjuma (1997) 3216 (SC) 1;

Having calmly reviewed and considered the entire evidence of the Respondent as in the record, on whom the unshifting burden to prove its case against the Appellant beyond reasonable doubt lies, I find that the Court below did properly evaluated the evidence of the parties as led before it and made proper findings of facts as to the guilt of the Appellant proved beyond reasonable doubt by the Respondent. Thus, the Court below having carried out the job of its sacred duty of evaluating the evidence and making proper findings of facts before arriving at its verdict and thereby no miscarriage of justice was occasioned and for which the judgment appealed against must be allowed to stand. I therefore, have no difficulty resolving issue one in favour of the Respondent as against the Appellant and hold strongly that the Court below rightly convicted the Appellant on all the 99 counts of obtaining by false pretences as alleged and proved against the Appellant beyond reasonable doubt by the Respondent and therefore, I see no justifiable reason made out by the Appellant for this Court to interfere with the sound and

unimpeachable conclusions reached by the Court below.

ISSUES TWO, THREE AND FOUR (TAKEN TOGETHER)
2. Whether the Court below by virtue of statutory provisions and case law authorities has power to impose terms of imprisonment far and above the maximum sentence imposed by the legislature (Distilled from Ground four)
3. Whether the judgment of the Court below delivered is perverse and entered per incuriam (Distilled from Ground two).

The Appellant’s counsel had submitted that in law an appellate Court has the jurisdiction to reduce a sentence if it finds substantial evidence in the record of appeal mitigating circumstances in favor of the Appellant and contended that the instant appeal where the sentencing, which is an exercise of discretionary power, imposed by the trial Court was excessive, this Court has the power to interfere. Counsel referred to Section 17(1) and (3) of the Interpretation Act and relied on Eke V. FRN (2013) All FWLR (PT 702) 1748 @ p. 1756; Agbanyi V. State (1995) 1 NWLR (pt. 369) 1; Isang V. State (1996) 9 NWLR (Pt 473) 458; Igboanugo V. State (1992) 3 NWLR (Pt. 228) 176; Njoku V. State (2013) All FWLR (Pt 689) 1072 @ p. 1076;

Queen V. Eyo (1962) NJSCC 331; Udoye V. The State (1976) NMLR 197; Olanipekun V. The State (1979) 3 LRN 204 @ p. 207; Egwaba V. FRN (2004) ALL FWLR (Pt. 232) 1512 @ pp. 1513-1515; Afolabi V. State (2013) ALL FWLR (Pt. 702) 1690 @ pp. 1695 – 1696;

The Appellant’s counsel further submitted that the Court below in imposing the sentence of 15 years imprisonment on the Appellant did not take into account the mandatory and clear provisions of Section 315 of the Administration of Criminal Justice Law of Lagos State 2007 and 2011 and contended that the operative word under Section 315 of the Administration of Criminal Justice Law of Lagos State 2011 is “Shall”, which when employed in a Statute has been interpreted to mean mandatory and compulsory and urged the Court to hold that the maximum sentence imposed on the Appellant was perverse and arrived at per incuriam by the Court below and should be interfered with by this Court. Counsel relied on Lion Bank (Nig) Plc V. Amaikom (2008) All FWLR (Pt. 417) 85 @ p. 88; Anibi v. Sotimehin (1993) 3 NWLR (Pt. 282) 461; Adeyemi v. Governor of Oyo State (2003) FWLR (pt. 149) 1444 @ p. 1452; Egbe v. Alhaji (1959) 1 NWLR (Pt. 125)

546; Alabi v. State (2007) All FWLR (Pt. 376) 794 @ p. 796; Ogunseinde v. SGB Ltd (2005) 21 WRN 114; MISR Nig Ltd. V Ibrahim (1974) 5 SC 55;

RESPONDENT’S COUNSEL SUBMISSIONS
The Respondent’s counsel had submitted that the applicable law is Section 1 (3) of the Advanced Fee Fraud and Other Fraud Related Offences Act Cap. A6, Laws of the Federation of Nigeria, 2006 and contended that by that provision it is clear that “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 7 years without the option of fine”
and urged the Court to hold that the law prescribed both the lowest and maximum limit of the term of imprisonment upon conviction for obtaining property by false pretence, and thus the sentence of 15 years imprisonment imposed on the Appellant by the Court below was within its legal power to so order and thus valid and not liable to be set aside as erroneously submitted by the Appellant’s counsel and urged the Court not to interfere with the sentence imposed on the Appellant by the Court below.

APPELLANT’S COUNSEL REPLY SUBMISSIONS.
The Appellant’s counsel had in reply submitted that the two issues for determination formulated by the Respondent’s counsel were outside the ambit of the Grounds of appeal and thus incompetent and must be discountenanced by the Court on the authority of the decisions in Audu V. FRN (2013) All FWLR (Pt.676) 454; EFCC V. Akingbola (2015) ALL FWLR (Pt. 794) 136 @ pp. 141-142; Abiola v. FRN (2015) ALL FWLR (Pt. 773) 1930 @ pp. 1932-1933; Gwede V. INEC (2015) ALL FWLR (pt. 767) 615 @ pp. 618 – 619; Agbogidi v. Okoh (2015) ALL FWLR (pt. 759) 1107 @ p. 1110 and contended that it is clear that on the authority of the decision in Williams V. Tinubu (2014) All FWLR (Pt. 755) 200 and Section 75 of the Evidence Act 2011 the Court below misinterpreted, misconstrued and misapplied Section 1(a), (3) and 8 of the Advance Fee Fraud and Other Related Offences Act on the punishment upon conviction to be a maximum sentence of 20 years instead of maximum sentence of 10 years as provided by law and urged the Court to interfere with both the wrong sentencing of the Appellant and the orders of forfeiture of the subject property and authorization of EFCC to take over

the management of the subject property till the year 2025, which orders should be set aside.

RESOLUTION OF ISSUES TWO, THREE AND FOUR.
My lords, these issues are rather very straight forward issues but apparently made so tedious and seemingly complicated by the avalanche of submissions in the respective appellate briefs. The rather straight forward question begging for answer in this issue, the Court below having rightly convicted the Appellant, is whether the sentence of 15 years imposed on the Appellant on each of the 99 counts to run concurrently with effect from 1/4/2010 and the order of forfeiture of the unexpired term of years in the Development Agreement over the subject property used by the Appellant to perpetrate the offences on unsuspecting persons number 99 and also an order authorizing EFCC to manage the subject property for the unexpired term of years till 2025 to make refunds to the victims of the Appellant’s greed and fraud are correct or wrong. It is just as simple as that and nothing more.

Now, by Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006, it is provided thus:
“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 7 years without the option of fine”

The Court below relying on the above provision had proceeded to sentence the Appellant to 15 years on each of the 99 counts to serve as a deterrent to others who may be tempted to go the same way as the Appellant. The Court below then proceeded to order the concurrent running of the terms of 15 years imposed on each of the 99 counts commencing from 1/4/2010 and forfeiture of the subject property and authorization of EFCC to manage the subject property to settle the outstanding payments to the victims of the Appellant. See pages 315 – 316 of the Record.

So, was the sentencing right or wrong? Was the 15 years above or in excess of what the law prescribed as punishment for the offences created under Section 1 (1) & (3) of the 2006 Act under which the Appellant was tried and convicted? Or were the orders of forfeiture and management of the subject property till 2025 wrong in law and ought to be set aside by this Court in this appeal as contended by the Appellant?

Having

considered the provisions of Section 1(3) of the 2006 Act and all other law enabling the Court below to carry out its duty as a Court of law, including the Constitution of Federal Republic of Nigeria 1999 (as amended) and the High Court Laws of Lagos State 2004, I find that the sentence of 15 years imprisonment, in the grave circumstances of the acts of the Appellant in scamming and duping so numerous number of persons running into 99 persons in Lagos State, was lawful and adequate and not in any way shown to be oppressive or excessive as erroneously contended by the Appellant’s counsel.

My lords, in my finding therefore, the 15 year imprisonment considering the gravity and the circumstances of the commission of the offences for which the Appellant was convicted, was not excessive or oppressive on the Appellant, as it did not go beyond the 20 years maximum sentenced as prescribed by the Law. I see no reason or justification whatsoever in this appeal to interfere with such a lenient midway sentence imposed on the Appellant by the Court below. See Amoshima V. State (Supra) @ p. 553, where Onnoghen JSC (as he then was, now Ag. CJN) had pronounced succinctly

inter alia thus:
“It is settled law also that where a Statute prescribes a mandatory sentence in clear terms as in the instant case, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the manner. It is duty imposed by law. The above situation is different from, the one in which, the Statute provides for either the minimum sentence as in Section 1(1) of the Robbery and Firearms (Special Provisions) Act or the maximum sentence to be imposed. In either case, the Court is clothed with the discretion to either impose more than the minimum or less than the maximum sentence prescribed”

Now, the Appellant having been duly convicted and the victims of his crimes still left without the refund of their monies paid over to the Appellant, and having dispassionately considered the circumstances relied upon by the Respondent in the proof of its case against the Appellant and reviewed the submissions of counsel for the parties, it does appear to me that the consequential orders made by the Court below to ensure retribution in favor of the vast number of victims of the Appellant was in

order and cannot be interfered as otherwise the Appellant though duly convicted and sentenced would have been left with the proceeds of his crime to savor upon his eventual release from prison upon the completion of the sentence of 15 years imprisonment imposed on him by the Court below, and that in my finding would have been unjust and cause untold hardships on the numerous victims of the Appellant’s crimes, for which he has been duly convicted and appropriately sentenced by the Court below. The concurrent sentencing and the date of commencement of the 15 years term of imprisonment imposed on the Appellant as ordered by the Court below were all in order and thus valid in law and therefore cannot be interfered with by this Court but must be allowed to stand. This is in line, in my view, with the provisions of Section 315 of the Administration of Criminal Justice Law of Lagos State 2011, which succinctly provides as follows:
“A sentence of imprisonment takes effect from and includes the whole of the day of the date on which it was pronounced provided that in reckoning the length of imprisonment, the Court shall direct that any period of detention prior to

conviction shall be taken into consideration.”

I therefore, have no difficulty resolving issues two, three and four against the Appellant in favor of the Respondent. On the whole therefore, having resolved all the four issues for determination against the Appellant in favor of the Respondent, the appeal against the conviction, sentence of the Appellant and orders of forfeiture of the unexpired term of years of the Appellant in the subject property and management of the subject property by the EFCC till 2025 made by the Court below fails and it is hereby dismissed for lacking in merit.

In the result the judgment of the High Court of Lagos State, Ikeja judicial Division, Coram: S. A. Onigbanjo J., in Charge No. ID/44c/2010: FRN V Olabamiji Michael Kayode delivered on 18/11/2013, in which the Appellant as Accused person was convicted on a 99 count charge of obtaining by false pretenses and sentenced to 15 years imprisonment on each of the 99 counts to run concurrently from 1/4/2010, an order of forfeiture of the Appellant’s terms of years under the Development Agreement in respect of the subject property and an order authorizing the EFCC to manage the

said property till 2025 when the Appellant term of years would expire, is hereby affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the thorough judgment prepared by my learned brother, Biobele Abraham Georgewill, J.C.A., which I had the privilege of reading in draft.

TIJJANI ABUBAKAR. J.C.A.: I had the privilege of reading the lead Judgment in this appeal before now. My learned brother Georgewill, JCA comprehensively resolved the issues nominated for determination, I am in full agreement and therefore adopt the Judgment as my own with nothing extra to add. I agree.

Appearances

Miss A.I OkoyeFor Appellant

AND

A. Ogunsina, Esq.For Respondent