PINNACLE COMMUNICATIONS LTD v. FRN & ORS
(2020)LCN/15422(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, November 30, 2020
CA/ABJ/CR/480/2020
RATIO
CRIMINAL LAW: FACTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF CONSPIRACY
The offence of conspiracy is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with, or among themselves is not necessary. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. The offence of conspiracy is not specifically defined in criminal or penal code. Consequently, a direct positive evidence of the plot among the conspirators is hardly provable. The Courts deduce the offence of conspiracy by inference from certain acts or omissions of the parties concerned; to arrive at the conclusion that there is an agreement by two or more persons to do an unlawful act or a lawful act by an unlawful means; See ODUNEYE V. THE STATE (2001) 13 WRN 88; NWOSU V. THE STATE (2004) 15 NWLR (PT. 897) 466; OBIAKOR V. THE STATE (2002) 10 NWLR (PT. 776) 612; GBADAMOSI V. STATE (1991) 6 NWLR (PT. 196) 182; USUFU V. STATE (2007) 3 NWLR (PT. 1020) 94 and NWANKWO V. FRN (2003) 4 NWLR (PT. 809) 1.
It is also trite that the conspirators need not know each other and need not have agreed to commit the offence at the same time, but conspiracy can be inferred from the facts of doing things towards a common goal where there is no direct evidence in support of an agreement between the accused persons; See NWOSU V. THE STATE (supra); DABOH V. THE STATE (1977) SC 197 and AITUMA V. STATE (2006) 10 NWLR (PT. 989) 452. PER MOHAMMED MUSTAPHA, J.C.A.
EVIDENCE: CIRCUMSTANCES IN WHICH EVIDENCE IN A CASE IS SAID TO HAVE DISCLOSED A PRIMA FACIE CASE
The law is settled that a no case to answer may be properly made and upheld:
(a) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially, or
(b) When evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it; see ADEYEMI V. THE STATE 1991 6 NWLR Pt 195 1; OYEBOLA V. STATE 1995 8 NWLR Pt 414 at 412; ABOGEDE V. STATE 1996 5 NWLR Pt 448; 270.
A decision to discharge a defendant on the ground that a prima facie case had not been made against him must be based on a careful analysis of the whole evidence put forth by the prosecution. Having said that, a prima facie case should not be confused with proof which comes at a later stage, when the Court is now saddled with finding the actual guilt or otherwise of a defendant.
Evidence in a case is said to have disclosed a prima facie case when it is such that, if un-contradicted, and if believed, it will be sufficient to establish the guilt of the defendant, to the satisfaction of the Court. A prima facie case is said to have been established when sufficient ground for proceeding with the case arises or put differently, there is some evidence in support of the charge which will stand unless it is displaced. See EKPO V. STATE (2001) 7 NWLR Pt 712, 292 and UBANATU V. COP (2000) 2 NWLR Pt 643.
When a submission of no case is made on behalf of an accused person, the trial Court is not thereby called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly, that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence such discredit must be apparent on the face of the record. If such is not the case then the submission must fail; see IBEZIAKO V. C.O.P. (1963) 1 SCNLR P9 99, EMEDO V. THE STATE (2002) 15 NWLR (Pt. 789) P.9. OKORO V. THE STATE (1988) 5 NWLR (Pt. 94) P9 255, UBANATU V. C.O.P. (1977) 5 SC 197, AJIDAGBA V. I.G.P. (1958) SCNLR Pg 60, ONAGORUWA V. STATE (1993) 7 NWLR (Pt. 303). PER MOHAMMED MUSTAPHA, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
PINNACLE COMMUNICATIONS LIMITED APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. IS’HAQ MODIBBO KAWU 3. DIPO ONIFADE RESPONDENT(S)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory decision of the Federal High Court, Coram Hon Justice F.O. Giwa Ogunbanjo, delivered on the 3rd of June, 2020 dismissing the no case submission of the appellant, and calling the appellant to enter his defence. Dissatisfied with the ruling, the appellant now appealed to this Court by a notice of appeal dated and filed on the 9th day of June, 2020; the ruling is at pages 1080 – 1106 of the record of appeal, while the notice and grounds of appeal is at pages 1126 – 1132 of the record of appeal.
The Grounds of Appeal are as follows:
1. The learned trial judge erred in law when she dismissed the Appellant’s no-case submission.
2. The learned trial judge erred in law when she called upon the appellant to enter its defence when there was no prima facie case made out by the 1st Respondent against the Appellant.
From these grounds, the following issues were formulated for determination on behalf of the appellant by Ama Etuwewe; SAN of counsel dated the 13th July, 2020 and filed on the 15th of July, 2020:
1. Whether the lower Court was right when it dismissed the appellant’s No Case Submission, on the ground that a prima facie case has been established against the appellant by the prosecution.
2. Whether from the evidence on record, the appellant has a case to answer.
Henry Emore Esq., of counsel for the 1st respondent formulated a sole issue of his own in the brief filed on the 29th day of July, 2020 but filed on the 27th of July, 2020 as follows:
1. Whether the evidence adduced by the prosecution at the trial of this matter establishes a prima facie case against the 3rd Defendant/Appellant requiring an explanation from it.
The appellant also filed an appellant’s reply brief to the 1st respondent’s argument dated the 4th day of September, 2020, filed on 7th of September, 2020 and deemed properly filed on the 24th of September, 2020.
The issues formulated by the appellant are apt and therefore suffice for the determination of this appeal. They are taken together.
ISSUES ONE AND TWO:
1. Whether the lower Court was right when it dismissed the appellant’s No Case Submission, on the ground that a prima facie case has been established against the appellant by the prosecution.
2. Whether from the evidence on record, the appellant has a case to answer.
Learned counsel for the appellant submitted that the lower Court was wrong to have held that the appellant has a case to answer when from the evidence adduced by the prosecution, a prima facie case was not established. He noted that it is trite that in criminal trials questions are determined based on evidence before the Court, and proceedings initiated along the bounds of the charge or information; while referring to BLAISE V. FRN (2017) 6 NWLR (PT. 1560) PAGE 90 AT PAGE 129 – 130, PARAS H – A, learned senior counsel submitted that before a case is said to have been made out, the prosecution must link the cogent evidence adduced to the accused person, by proving the essential elements of the alleged offense; NJOKU V. STATE (2013) 2 NWLR (PT. 1339) PAGE 548 AT PAGE 571 PARAS F – H.
That it is only when the Court properly, without sentiments, resolves the questions raised by proof of overwhelming evidence against the appellant that the Court could resolve the no case submission.
It is also the submission of learned senior counsel for the appellant that Section 303(3) of the Administration of Criminal Justice Act, 2015, gives a Court direction as to what it must find to exist in and by the prosecution’s case as disclosed by the evidence adduced, before it can dismiss an accused person’s no case submission and then call upon him to enter his defence.
That when the particulars and elements of the offence in the count of the charge under which the appellant is required to enter a defence is juxtaposed with the provision of Section 15(2)(d) of the Money Laundering (Prohibition) Act, 2011 (as amended), alleged to be breached by the appellant, and considered vis-a-vis the requirement of mens rea, all that is required by the prosecution is to then establish a prima facie case against the appellant.
That the prosecution needed to prove by credible evidence that the appellant had knowledge that the funds it received as seed grant from the Federal Government was a direct proceed of the unlawful acts of conspiracy, false information to a public officer and abuse of office and the funds were actually illegally and unlawfully disbursed by the minister.
That clearly from the evidence adduced by the prosecution there was no proof of the appellant’s culpability, or the disclosure of any form of knowledge by the appellant that the funds were direct proceeds of unlawful acts of conspiracy, false information to a public officer and abuse of office.
Learned senior Counsel further submitted that the evidence adduced by the prosecution did not meet the requirement of the law to necessitate calling upon the appellant to enter a defence; that there was no petition or complaint against the appellant concerning the N2.5 Billion paid by the NBC.
That since only count 5 of the Charge is directed at the appellant, the prosecution should have proved intent and knowledge before the appellant could be asked to enter a defence. He noted that for there to be conspiracy, there must be an agreement or a meeting of the minds to carry out an unlawful act or to carry out a lawful act using an unlawful means; AGUGUA V. STATE (2017) 10 NWLR (PT. 1573) PAGE 254 AT 278 PARA A.
Learned senior Counsel to the appellant further argued that although the appellant is alleged to have unlawfully received the sum of N2.5 Billion, the prosecution however did not lead any evidence to show that the appellant agreed with Sir Lucky Omoluwa (deceased) and the 2nd and 3rd respondents to carry out any unlawful act so as to input knowledge to it by writing Exhibit 1.
That the content of the letter written by the appellant to the NBC as well as the content of the letter written by the 2nd respondent to the Honourable Minister of Information and Culture for approval of the N2.5 Billion payment was never investigated by the Independent Corrupt Practices and Related Offences Commission (ICPC) to confirm if they are true or not as admitted by PW4; as per page 832 record of appeal. He argued that the lower Court also failed to investigate the contents of the letters, in a bid to unravel the necessary element of guilty knowledge of crime or irregularity on the appellant, and proceeded to speculate that the prosecution made a prima facie case; ATIKU V. STATE (2010) 9 NWLR (PT. 1199) PAGE 241 AT 280, PARAS A – C.
That on the whole, there is no evidence before the lower Court and this Court to infer that there was conspiracy and intention to commit an unlawful act between the appellant and the 2nd and 3rd respondents to confer illegal and unlawful advantage on the appellant which the appellant had knowledge of, especially as there is nowhere in the investigation where it is shown that the 2nd respondent and the appellant are friends or associates or even gained an unfair advantage; BABABE V. FRN (2019) 1 NWLR (PT. 1652) PAGE 126 PARA D.
That also there is nothing to show that the appellant enjoyed unfair advantage or came under the contemplation of Section 19 of the Corrupt Practices and Other Related Offences Act, 2000.
It is further submitted that counts 1, 2 and 3 show no prima facie case had been made by the prosecution as no evidence was proffered against the appellant under the Money Laundering (Prohibition) Act, 2011; as the vital elements of the offence were not established, since the prosecution has not shown how its letters, Exhibits 1, 1 – 20 amounted to a crime or how N2.5 Billion was obtained by false information or pretence, except that the payment was made to the appellant against the Federal Government White Paper on the Digital Switch Over, even though it is not shown where the White Paper prohibited such payment.
That since it is not stated anywhere in the white paper that the appellant is not entitled to seed grant, it is undeniable that the second signal distributor whether privately owned or not was permitted under the circumstances to enjoy the seed grant or any other grant. See paragraph 11(2)(b) of the white paper (Exhibit 2, 1 – 31).
That also the issue of whether the appellant is entitled to the N2.5 Billion as seed grant or not is a civil matter which needs the interpretation of the Court in a civil action, since the opinion of the ICPC that the appellant is not entitled to the N2.5 Billion is a mere allegation and suspicion which cannot ground an offence; ADENIYI V. GOV. COUNCIL, YABATECH (1993) 6 NWLR (PT. 300) PAGE 453 PARA F.
That the minister of information who is in charge of the digital switch over has till date neither withdrawn his approval for the grant of the N2.5 Billion paid to the appellant as seed grant nor complained of being misled in giving his approval for the grant of same; See pages 845 – 854 of the record of appeal.
Learned senior counsel referred the Court to ABDULLAHI V. HASHIDU (1999) 4 NWLR (PT. 600) PAGE 646, PARAS C – D for a definition of white paper, and contended that a breach of a white paper cannot be said to be a crime but at best if the Government has any complaints, may sue to recover the N2.5 Billion in a civil action, assuming it erroneously paid.
Learned senior counsel urged this Court to set aside the ruling of the lower Court, allow this appeal and accordingly discharge the appellant.
It is submitted for the 1st respondent in response that contrary to the appellant’s argument, it made a prima facie case against the appellant from the totality of evidence adduced at the trial requiring the appellant to enter its defence; OHWOVORIOLE V. F.R.N (2003) 2 NWLR (PT. 803) 176.
That contrary to learned senior counsel’s contention, the prosecution’s case has not been so discredited as a result of cross-examination that no reasonable Tribunal would convict on it to warrant this appeal to succeed; EMEDO & ORS V. THE STATE (2002) LPELR 1123 (SC).
That in the case at hand, the scenario is that there is a legally admissible evidence linking the appellant to the commission of the offence he is being charged with and that evidence has not been discredited or contradicted even during cross- examination; DABOH & ANOR V. THE STATE (1977) LPELR – 904 (SC).
That the prosecution in proof of its case, led evidence to show that the sum of N2.5 Billion was paid into the Zenith bank account of the appellant which the 4th defendant at the trial Court took possession of and retained; evidence which has been unchallenged and uncontroverted, and it is trite that the evidence of the prosecution which has not been contradicted or disputed by a defendant is deemed admitted.
On the argument that the appellant being a body corporate lacks the ability to possess the mens rea requisite for satisfying the contravention of the Money Laundering (Prohibition) Act, 2011, learned counsel to the respondent noted that this argument is misconceived as natural persons run companies and the Courts see such persons as the alter ego of the companies and therefore the guilty mind of the natural persons are ascribed to the companies; F.R.N V. SA’ADU AYINLA ALANAMU, SALMAN SULEIMAN, DEF NAMYLAS NIGERIA LTD CA/IL/C.89/2019 (UNREPORTED); ALHAJI MOHAMMED ABACHA & ANOR V. THE ATTORNEY GENERAL OF THE FEDERATION & 4 ORS (2014) NWLR (PT. 1438) 31 PAGE 50 PARAS E – F.
That it is difficult to get an eyewitness to testify to a conspiracy since it is always hatched in secrecy, hence circumstantial evidence can be used to prove the offence of conspiracy. That the white paper at Section 13.2 did not permit seed grant for privately owned broadcast organisations, as such, the contents of the white paper should be given its ordinary meaning; CHIEF GANIFAWEHINMI V. INSPECTOR GENERAL OF POLICE & ORS (2002) 5 SC (PT. 1) 63 AT 80; (2007) 7 NWLR (PT 767) 606 AT 680; UPAHAR V. STATE (2003) 6 NWLR (PT. 816) PAGE 230; PAUL ONOCHIE V. THE REPUBLIC (1966) NMLR 307 AT 308.
In emphasizing the conspiracy, it is submitted for the 1st respondent that in addition to the testimonies of the 1st respondent’s witnesses establishing same, the 2nd respondent did not disclose to the management meeting that seed grant was to be paid to the appellant, even when he knew that payment of the seed grant to the appellant was an illegal act.
It is also the submission of counsel that the 2nd respondent used his position, then as a Director-General of the National Broadcasting Commission, to confer corrupt advantage on the appellant contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000. Evidence in proof of this, was led by PW1, PW2, PW3, PW4, PW6 and PW9 to establish that the 2nd respondent was a public officer in the position of Director-General, National Broadcasting Commission.
That the 1st respondent at the trial led evidence through PW1, PW4 and PW9 to establish that the 2nd respondent made a statement via a memo dated 11th May, 2017 to a public officer, Hon. Minister of Information and Culture recommending payment of N2.5 Billion to the appellant as seed grant. That in proof of the mental element, the 1st respondent led evidence to show that the appellant was not entitled to the seed grant going by the discussions at the Emergency Board Management Meeting which the 2nd respondent was part of and the 2nd respondent kept mute about actions already taken by him to secure payment of seed grant to the appellant which can be inferred as intent to mislead the Hon. Minister; ORISA V. STATE (2018) 11 NWLR (PT. 1631) 453 AT 457(P.478, PARAS. B – C).
That the “white paper” did not contemplate seed grant for the appellant, a private broadcast organisation but rather sought to give reliefs to the government owned broadcast organisations. Learned Counsel further submitted that the appellant being an existing broadcast company not owned by the government did not fall within the contemplation of the white paper. – see pages 856 – 878 of the record of appeal.
Learned Counsel to the 1st respondent contended that the process leading to the approval of the alleged seed grant was tainted with corruption. He concluded that the 1st respondent made a prima facie case against the appellant, requiring it to, at the very least offer an explanation to the allegations of money laundering and urged this Court to so hold.
In reply, it is submitted that the prosecution failed to satisfy the provisions of Section 131(2) and 135(2) of the Evidence Act, 2011 by its inability to prove that the receipt of the N2.5 Billion was unlawful.
Learned senior counsel maintained that the prosecution has not made a prima facie case against the appellant. That it is not the law, as interpreted by the 1st respondent that the two conditions upon which a no case submission may be upheld by the Court must coexist in every case before the Court can uphold the submission.
That it is not the position of the law that the Court cannot, when called to decide whether an accused person has a case to answer ipso facto consider the facts and circumstances of the case as the Court can, and ought at that stage of the proceedings look into the facts and circumstances of each case.
That for a crime to be said to have been committed, there must be both mental and physical elements of the crime and if a corporate body is said to be capable of having the required mens rea, it is then the appellant’s submission that the 1st respondent failed to establish a prima facie case against the directors of the appellant. He urged this Court to allow the appeal.
RESOLUTION:
The law is settled that a no case to answer may be properly made and upheld:
(a) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially, or
(b) When evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable Tribunal can safely convict on it; see ADEYEMI V. THE STATE 1991 6 NWLR Pt 195 1; OYEBOLA V. STATE 1995 8 NWLR Pt 414 at 412; ABOGEDE V. STATE 1996 5 NWLR Pt 448; 270.
A decision to discharge a defendant on the ground that a prima facie case had not been made against him must be based on a careful analysis of the whole evidence put forth by the prosecution. Having said that, a prima facie case should not be confused with proof which comes at a later stage, when the Court is now saddled with finding the actual guilt or otherwise of a defendant.
Evidence in a case is said to have disclosed a prima facie case when it is such that, if un-contradicted, and if believed, it will be sufficient to establish the guilt of the defendant, to the satisfaction of the Court. A prima facie case is said to have been established when sufficient ground for proceeding with the case arises or put differently, there is some evidence in support of the charge which will stand unless it is displaced. See EKPO V. STATE (2001) 7 NWLR Pt 712, 292 and UBANATU V. COP (2000) 2 NWLR Pt 643.
When a submission of no case is made on behalf of an accused person, the trial Court is not thereby called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly, that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence such discredit must be apparent on the face of the record. If such is not the case then the submission must fail; see IBEZIAKO V. C.O.P. (1963) 1 SCNLR P9 99, EMEDO V. THE STATE (2002) 15 NWLR (Pt. 789) P.9. OKORO V. THE STATE (1988) 5 NWLR (Pt. 94) P9 255, UBANATU V. C.O.P. (1977) 5 SC 197, AJIDAGBA V. I.G.P. (1958) SCNLR Pg 60, ONAGORUWA V. STATE (1993) 7 NWLR (Pt. 303) Pg
Contrary to the contention of learned senior counsel Section 13.2 of the white paper does indeed throw light on those entitled to the provision of seed grant by the federal government; for the avoidance of doubt it provides:
13.2(i) the Broadcasting signal distributor should wholly be wholly owned by the Federal Government and operated on commercial basis;
(ii) seed grant should be provided by the federal government for the broadcasting signal distributor for the establishment of the new company.”
In establishing conspiracy the 1st respondent led evidence to prove that the appellant caused Exhibit 1 to be written, as a consequence of which the seed grant was paid to the appellant unjustly; see pages 72 to 87 of the record of appeal.
It is crystal clear from Section 13.2 of the white paper that a privately owned broadcast organization is not entitled to seed grant, and if the prosecution alleges the appellant was unjustly paid what it was not entitled to, that in itself will require the Court to overrule a case of no case submission, thus paving way for the defendants, particularly the appellant, to now disentangle itself in defence.
On the contention that there was no testimony from any of the prosecution witnesses to establish that the recommendation made by the appellant was intended to mislead, as there was nothing to demonstrate either by direct or circumstantial evidence that the necessary intent was established by the prosecution.
It is clear that Exhibit 1 is a letter written by 3rd respondent on behalf of the appellant requesting payment of seed grant, see pages 407 – 408 of the record of appeal; the 2nd respondent also wrote a letter dated the 11th of May, 2017 to the minister requesting that seed grant be paid to the appellant, ostensibly to create a level play ground in the spirit of Section 13.2 of the white paper, see pages 397 – 402 of the record of appeal. The striking thing is that both letters were written with full knowledge of Section 13.2 of the white paper, which clearly and unambiguously stated that seed grant is not meant for privately owned broadcast organizations.
The 2nd respondent’s letter for payment to the appellant cannot by any stretch of imagination be said to be request for payment of carriage fees as discussed in the meeting of the 11th of May, 2017; see page 201 of the record of appeal as well as 832 – 1059 of the record of appeal.
In view of these, conspiracy is clearly discernible, especially in view of the evidence of PWS 1, 2, 3, and 6 stating that the board meeting of the 11th of May, 2017 did not discuss payment of seed grant to the appellant.
The 2nd respondent is the only public officer in the charge; he was alleged to have conspired with the appellant to confer corrupt advantage on himself, friends or associates. If the appellant was not entitled to the seed grant, by reason at least of being a private corporation, then the fact of payment of the seed grant, with full knowledge that it is not entitled to same is corrupt by any stretch of imagination.
Evidence was led through PWS 1, 4, 7, and 9 to establish that the sum of N2.5 Billion was directly paid into the account of the appellant. The argument that the appellant is a corporate body, and therefore not capable of forming the necessary mens rea for consummation of the offence is not supported by law, because natural persons run the appellant as a company, those persons are the alter ego of the appellant, and therefore their state of mind is that of the appellant ipso facto; see FRN V SAADU AYINLA ALANAMU & 2 ORS CA/IL/C89/2019 unreported and ALHAJI MOHAMMED ABACHA & ANR V THE ATT. GEN OF THE FED & 4 ORS (2014) NWLR part 1438 page 31.
For the same reason, the contention that the appellant being a corporate person is incapable of committing the offence of conspiracy falls flat on its face, because the state of mind of the alter egos is also that of the appellant; and Section 26 (1) (c) of the ICPC Act, 2000 is clearly to the effect that conspiracy is consummated by the agreement to do an illegal act or a legal act by legal means, by two or more persons.
As rightly submitted for the 1st respondent, the 1st 2nd, and 3rd defendants at trial were charged with conspiracy to use the position of the 1st defendant to confer corrupt advantage, see page 446 of the record of appeal.
This Court is also unconvinced by the argument that the issue of whether the appellant is entitled to seed grant or not is a civil matter, not least because money laundering and conspiracy, the offenses in issue, are criminal in nature, and cannot be termed ‘civil’ by any stretch of imagination, to warrant the institution of a civil action in that regard.
Learned senior counsel’s contention that the fact that the minister has not withdrawn the approval for the payment of the N2.5 Billion paid to the appellant as seed grant means he stands by the approval begs the question, why would the minister cancel the approval when the appellant is being prosecuted?
The 2nd respondent is undeniably the Director – General of the National Broadcasting Commission, and therefore a public officer, this is a fact admitted, which requires no proof, and once it is established that the 2nd respondent, a public officer, and the 3rd respondent played a role in paying the appellant the N2.5 Billion without justification; it matters very little whether they were proved to be actual friends for the purpose of conspiracy. Conspiracy is dependent more on the meeting of minds than relationships.
The offence of conspiracy is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with, or among themselves is not necessary. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. The offence of conspiracy is not specifically defined in criminal or penal code. Consequently, a direct positive evidence of the plot among the conspirators is hardly provable. The Courts deduce the offence of conspiracy by inference from certain acts or omissions of the parties concerned; to arrive at the conclusion that there is an agreement by two or more persons to do an unlawful act or a lawful act by an unlawful means; See ODUNEYE V. THE STATE (2001) 13 WRN 88; NWOSU V. THE STATE (2004) 15 NWLR (PT. 897) 466; OBIAKOR V. THE STATE (2002) 10 NWLR (PT. 776) 612; GBADAMOSI V. STATE (1991) 6 NWLR (PT. 196) 182; USUFU V. STATE (2007) 3 NWLR (PT. 1020) 94 and NWANKWO V. FRN (2003) 4 NWLR (PT. 809) 1.
It is also trite that the conspirators need not know each other and need not have agreed to commit the offence at the same time, but conspiracy can be inferred from the facts of doing things towards a common goal where there is no direct evidence in support of an agreement between the accused persons; See NWOSU V. THE STATE (supra); DABOH V. THE STATE (1977) SC 197 and AITUMA V. STATE (2006) 10 NWLR (PT. 989) 452.
The payment of N127 Million to the 3rd respondent is not so much in dispute, what may be in dispute is the reason for the payment to an employee of the appellant. Now in the circumstance, it would be ridiculous to say giving the appellant an opportunity to establish its bona fide by way of asking it to open its defence is a miscarriage of justice.
If the seed grant to the appellant is unjustified, how can the payment of N127 million to the 3rd respondent, an employee of the appellant who is all tangled up in the request that led to the grant not be an issue, especially where there is an allegation of conspiracy.
In corroboration of the evidence of PWS 4 and 9, PW1 clearly stated in evidence that while the payments were being processed, it was observed that some documents were missing, as a result of which the 2nd respondent summoned the 3rd respondent, leading to the calling of an emergency meeting on the 31st of May, 2017; there is no evidence, whatsoever, that the emergency meeting when held discussed the payment of seed grant to the appellant; from the evidence of PWS 3 and 6 the meeting only agreed to pay the appellant ‘carriage fees’ for services rendered; Exhibit 1(10) i.e. the minutes of the emergency meeting not disclose any decision to pay the ‘seed grant’ of N2.5 Billion paid to the appellant. The 2nd respondent single headedly appeared to have taken the decision.
It is for these reasons that this Court is satisfied that the trial Court was right to have arrived at the unassailable conclusion that a prima facie case exists against the appellant, to warrant calling upon it to offer an explanation to the allegation of conspiracy and money laundering. For the same reasons, I now resolve the two issues for determination in favour of the 1st respondent, against the appellant.
Accordingly, this appeal is dismissed for lack of merit. Judgment of the Federal High Court, Abuja, delivered on the 3rd day of June, 2020, by Hon Justice F.O. Giwa Ogunbanjo in charge No FHC/ABJ/CR/15/2019 is hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I agree with the reasoning and conclusion that the appeal be dismissed. I therefore dismiss this appeal for lacking in merit.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mohammed Mustapha, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
A. U. ETUMWEWE, SAN, with him, S. E. GBOGIDI, ESQ. and S. A. YAKUBU ESQ. For Appellant(s)
H. EMENE, ESQ. – for 1st Respondent
A. U. MUSTAPHA, SAN – for 2nd Respondent
ALEX IZINYON, SAN, with him, A. O. OYELOLA, E. OGHOGHA and Y. R. E. AHONENROMEGHO – for 3rd Respondent For Respondent(s)
