OLOMOLA DAISI v. INSPECTOR GENERAL OF POLICE
(2019)LCN/13913(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2019
CA/EK/3C/2018
Before Their Lordships
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
OLOMOLA DAISI Appellant(s)
AND
INSPECTOR GENERAL OF POLICE Respondent(s)
RATIO
WHETHER THE COURT CAN INFER CONSPIRACY FROM CIRCUMSTANTIAL EVIDENCE
Conspiracy is a legal term which has been defined as the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means.For a conspiracy to exist there must be two or more persons involved, as one person cannot conspire with himself. The two or more persons must be found to have agreed in order to ground a conviction for conspiracy. Thus, to prove an offence of conspiracy, there must be an agreement which is an advancement of an intention conceived in the mind of each person secretly. The secret intention must have been translated into an overt act or omission or mutual consultation or agreement. It is trite that the Court can infer conspiracy from the circumstantial evidence or the facts of the case. In Tanko V State (2008) 16 NWLR (Pt. 1114) 597) 597 at 638, the Supreme Court held –
The Court can infer conspiracy and convict on it if it is satisfied from the evidence that the accused persons pursued by their acts the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. PER AKINBAMI, J.C.A.
THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY
The essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be express or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. The agreement between the parties must be proved beyond reasonable doubt, and an inference or circumstantial evidence of an agreement would do. See Smart v State (2016) LPELR – 40827 (SC) 27; & Yakubu v State (2014) LPELR ? 22401 (SC) 33.
Conspiracy is generally proved by inference deduced from the criminal acts of the culprits done in pursuance of the criminal or illegal purpose common to the conspirators. Proof of the actual agreement, which is the hub of the crime, is not always easy to establish since the agreement is almost always shrouded in secrecy. That being so, the facts of each case will determine whether or not a charge of conspiracy has been proved. See Rasaki v State (2011) LPELR ? 4859 (CA) 67; Omotola v State (2009) 4 NCC 89; Tanko v State (2008) 16 NWLR (Pt.1114) 591. PER AKINBAMI, J.C.A.
WHEN THE APPELLATE COURT WILL INTERFERE WITH THE DISCRETIONARY POWER OF A LOWER COURT
It is trite that, the Appellate Court will only interfere with the discretionary power of Court only in the following instances:
(A) lt has made an error of law
(B) It has made an error of legal principle
(C) It has made an error of fact
(D) It has mismanaged relevant and irrelevant matters
(E) It has arrived at unjust result.
SeeOdulana v Oladejo (2013) ALL FWLR (Pt 707) page 746, 761-762 para G-B. PER AKINBAMI, J.C.A.
INGREDIENTS FOR ESTABLISHING THE CHARGE OF OBTAINING BY FALSE PRETENCES
It is settled that the fundamental ingredients that are required to be proved to establish the charge of obtaining money or property by false pretences are as follows:
(a) That there was a pretence;
(b) That the pretence emanated from the accused person;
(c) That the pretence was false;
(d) That the accused person knew of the falsity of the pretence, did not believe its truth;
(e) That there was an intention to defraud;
(f) That the property or thing is capable of being stolen;
(g) That the accused person induced the owner to transfer his whole interest in the property.
See Odiawe V FRN All FWLR (Pt. 439) 436; Onwudiwe V FRN (2006) All FWLR (Pt. 319) 774 at 812 to 813, paras G-F, per Tobi, JSC. PER AKINBAMI, J.C.A.
WHETHER OR NOT FAIR HEARING AND FAIR TRIAL MEAN THE SAME THING
Fair hearing and fair trial mean the same thing. According to the provisions of Section 36 of Constitution a fair trial means that a Judge must ensure that the trial of the case is in accordance with the relevant law and rules of the Court. Anything short of the above the whole trial is vitiated and declared a nullity. See Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR pg.42; Unongo v. Aku 1983 2 SCNLR p.332; Adigun v. A.G. Oyo State 1987 1 NWLR Pt.53 pg.678. PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court sitting in Ado-Ekiti, in Charge No. FHC/AD/34C/2013, delivered on June 9th, 2014 by Adamu Hobon, J.
Briefly, the facts of the case leading to the Appeal are as follows:
The Appellant was arraigned with the 1st Accused person upon an amended charge before the Federal High Court as follows:
COUNT 1
That you Abayomi Adebinu, Olomola Daisi and others at large, between February and May 2013, at lfaki-Ekiti, within Ado-Ekiti Judicial Division, did conspire together to obtain under false pretence, and with intent to defraud, the sum of two million and fifty thousand naira (N2,050,000.00) from one Lydia Funmilayo Aluko and thereby committed an offence contrary to Section 8(a) and punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.
COUNT 2:
That you Abayomi Adebinu, Olomola Daisi and others still at large, between February and May 2013, at the same place and within the aforementioned Judicial Division, under false pretence and with intent to defraud, represent yourselves as having possession of papers worth twenty million naira (N20,000,000.00) that required chemicals to wash them to genuine naira notes and thereby obtained the sum of two million and fifty thousand naira (N2,050,000.00) from one Lydia Funmilayo Aluko, to buy the chemical. You thereby committed an offence punishable under Section 2 (a) of the Advance Fee Fraud and Other Related Offences, Act 2006.
In order to prove its case, the prosecution adduced evidence through two witnesses. In his defence, the Appellant testified for himself and called no other witness.
The evidence of PW1, ALUKO LYDIA FUNMILAYO was to the effect that sometimes in the month of February, 2013 she was going to Omu-Aran, and whilst standing by the road side, 2nd Accused picked her in his vehicle. She met three people in the car. The 1st Accused, 2nd Accused and another now at large. While going, 2nd Accused was quarreling with 1st Accused person, saying that he wanted to know what was the content of 1st Accused?s bag, otherwise he would take him to the Police Station.
The 1st Accused told the 2nd Accused, that he was having twenty million naira (N20,000,000) in his bag which was in the boot of the car. 1st Accused, brought out two samples of the money from his pocket. Five hundred and two hundred naira denominations. The money was painted, and written on it in white ?NPC?. The 1st Accused person, told the 2nd Accused person, that he was looking for money to buy chemicals to wash what was written on the money. The witness told the 2nd Accused to drop her there, because she was not interested in their discussions.
The 1st Accused then brought out a charm and made some incarcerations on it. Then the 2nd Accused person said he would not go further, and if the witness should leave them, she was going to die within 14 days.
The witness then left the 1st and 2nd Accused.
After, the 2nd Accused started calling the witness on her phone number which they requested from her, 2nd Accused person told her that she should remember the 14 days ultimatum, and that she should go and look for two million naira, and give them (1st and 2nd Accused) failure to do so the Incantations will kill her within the stipulated time.
That was how she withdrew the money and looked for more money to borrow, and in the first instant, the 2nd Accused person got N800,000 (Eight Hundred Thousand Naira) from her at IFAKI-EKITI, near the roundabout. Second time 2nd Accused received N700,000 at the same place.
Third time, 2nd Accused received N250,000. The 2nd Accused person then called and told the witness that he was about to complete the job. The 2nd Accused then sent to the witness account number and that the witness should send the balance of the money to him N300,000. 2nd Accused told the witness that the account was at the First Bank, and that witness should send the money through it. It was after the witness sent the money, that she reported the matter to the police before the police took up the matter. The money was paid into the account at the First Bank by transfer.
When the police took up the matter, it was found that the account belonged to a woman living at IDANRE, in ONDO STATE where the woman was found to be the wife of the 1st Accused person. The woman was arrested, and was through her that 1st Accused was gotten and arrested before 2nd Accused was also arrested.
The witness identified and produced in evidence the pay slip used for the transfer of money as Exhibit ?A?
Under cross examination the witness stated that 1st Accused was showing the money 500 & 200 naira notes marked, to the 2nd Accused inside the vehicle. She did not touch the money nor see the bag in the boot containing the twenty million naira.
The last payment of N300,000 was through bank on 8-5-2013 , but other dates she could not remember exact dates, but was in the month of March, 2013.
She met Accused persons towards the end of February. At first she did not report to the police because Accused persons were threatening her that she was going to die.
She paid these monies to the Accused persons, because of threats of death to her by the Accused persons. She was not in money doubling business.
Under re-examination the witness said KOLADE, is the 2nd Accused person?s name which he first gave her and after arrest he changed to the present name OLOMOLA DAISI.
First Accused gave his name as GBOYEGA before arrest and after arrest by police he gave his names as ABAYOMI ADEBINU.
The bank sent details of the account to the police. The account holder Mrs. Adebinu resides at Alade Ladner, Ondo State. She was arrested and at Ado Police Station she volunteered statement in which she confessed that her husband ADEBINU ABAYOMI instructed her to open bank account and equally that N300,000 would be paid into that account, and that MRS LYDIA ALUKO, used the Account at her husband?s instant and paid N300,000.
When she received the alert, she immediately informed her husband, and they went together with 1st Accused to withdraw the money N300,000 and gave to him. After her husband collected the money, the 2nd Accused person visited them, and both 1st and 2nd Accused left the house.
?The 1st Accused person volunteered statement confessing that he knew complainant Lydia and that himself and two others i.e 2nd Accused and another now at large accosted the victim and they actually defrauded her. 1st Accused named 2nd Accused, and another. 2nd Accused was later arrested and he volunteered statement at th
