SANI GWANDU v. FEDERAL REPUBLIC OF NIGERIA (2014)

SANI GWANDU v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7455(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of September, 2014

CA/K/487/2013

RATIO

EVIDENCE: CONTRADICTORY EVIDENCE; WHAT MUST BE SHOWN FOR THE PRINCIPAL OF INCONSISTENCY OF EVIDENCE OF WITNESS TO APPLY AND WHEN CAN CONTRADICTION BE FATAL

It is trite law that it is not every minor inconsistency or contradiction that will result in a judgment being reversed, or will affect the merit of the case. For the principal of inconsistency of evidence of witness to apply, it must be shown;
1. That the inconsistency is material
2. That the trial judge failed to advert to the inconsistency in his judgment and
3. That the inconsistency led to a miscarriage of justice.
See: JOHN AGBO VS STATE (2007) 2 NCC PG.158 AT 170.
Also in Ogbu & Anor Vs State (2007) 2 S.C 32 the Court held that it is not enough to warrant a reversal of judgment merely because the Appellant show the existence of contradictions, those contradiction must be shown to amount to substantial disparagement of the witness concern, making it dangerous or likely to resulting a miscarriage of justice to rely on the evidence of the witness.
It is now established that contradiction to be fatal, in the prosecution’s case it must material and go to the substance of the case and not to be of minor nature which has not led to a miscarriage of justice. If every contradiction however trivial to the overwhelming evidence before the Court will vitiate a trial nearly all prosecution will fail as human faculty may miss some minor details due to lapse of time and error in narration in order of sequence. See; JOHN AGBO VS STATE AT 169. per. ABDU ABOKI, J.C.A.

COURT: DUTY OF THE COURT; WHAT THE COURT MUST LOOK AT IN CONSIDERATION OF ANY MATTER BEFORE IT

It is trite law that a Court is entitled to look at the contents of its file or record and refer to it in consideration of any matter before it. See: AGBAREH VS MIMRA (2008) 2 NWLR (PT.1071) PG.378 SC. per. ABDU ABOKI, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; THE WEIGHT TO BE ATTACHED TO A CONFESSIONAL STATEMENT AND WHEN CAN THE STATEMENT OF AN ACCUSED BE TERMED CONFESSIONAL STATEMENT

It is settled that the guilt of an accused person can be establish by his confessional statement of the accused among others. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. See: Saidu Vs State (1982) 3 S.C. 41. It is stronger than the evidence of an eye witness because the evidence comes out from the horse’s mouth, who is the accused person. In such statement there is no need for further proof since what is admitted needs no further proof. See; Akpa Vs State 2008 14 NWLR (Pt.1106) Pg.72 at 100-101.
A free and voluntary confession of guilt which is direct, positive, and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence so long as the Court is satisfied as to the truth of the confession. It is not any voluntary statement of an accused that makes it a confessional statement to warrant conviction, but its purpose and contents. In other word a statement may be voluntary made but does not necessary qualifies as a confessional statement of guilt, for it to be a confessional statement of guilt to warrant conviction, it must be an admission made by the accused charged with a crime, stating or suggesting the inference that he committed the crime charged. per. ABDU ABOKI, J.C.A.

CRIMINAL LAW; THE OFFENCE OF CONSPIRACY; THE MEANING OF CONSPIRACY AND WHEN IS THE OFFENCE OF CONSPIRACY SAID TO HAVE BEEN COMMITTED

Legally, conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. The purpose of the meeting of the two or more minds is to commit an offence. The prosecution must establish that the criminal minds really met somewhere to hatch a crime. Also conspiracy can be establish where the agreement is other than agreement to commit offence, but that same criminal act besides the agreement was done by one or more of the parties in furtherance of the agreement. See: STATE VS OLASHEHU SALAWU (2012) ALL FWLR (PT.614) PG.1.
Also for the offence of conspiracy to have been said to be committed, positive and affirmative action’s of the parties must be proved. He referred the Court to the cases of; OMOTOLA VS. STATE (2009) 7 NWLR (PT.1139) 151. YAKUBU VS FRN (2009) 14 NWLR (PT.1160) AT 151. per. ABDU ABOKI, J.C.A.

EVIDENCE: PROOF OF CONSPIRACY; FROM WHAT CAN THE PROOF OF CONSPIRACY BE INFERRED

It is trite law that proof of conspiracy can be inferred from the circumstances of the case. Once the prosecution succeed in proving the existence of conspiracy, evidence against one conspirator is admissible against the other. See; MUSA YARO VS STATE (2008) 3 NCC PG.250 AT 262. per. ABDU ABOKI, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

SANI GWANDU Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

ABDU ABOKI, J.C.A. (Delivering The Leading Judgment): This an appeal against the Judgment of Federal High Court sitting in Kaduna State delivered on 05/11/2013 by M. I. Awokulehin J. whereby the Appellant was convicted and sentence to seven 7 years imprisonment on each of the two counts charge of Conspiracy and Obtaining Money Under False pretence contrary to Section 8 (a) and 1 (1) (b) of the Advance Fee Fraud & other Related offences Act.

The two (2) counts charge against the Appellant reads as follows;

THE CHARGED:

“COUNT ONE”
That you Sani Gwandu and others now at large sometimes between May 2008 at Kaduna within the jurisdiction of the Federal High Court did conspired to commit an offence to wit: Obtaining Money under False pretence and thereby committed an offence contrary to Section 8 (a) of the Advance Fee Fraud and Other Related offences Act 2006 and punishable under Section 1 (3) of the same Act.

“COUNT TWO”
That you Sani Gwandu and others now at large sometimes between May 2008 at Kaduna within the jurisdiction of the Federal High Court, with intent to defraud obtained the sum of N13,504,940.00 (Thirteen million five hundred and four thousand nine hundred and forty naira only) from one Alhaji Isa Adamu Gada under the pretence that you were going to sell some consignment of rice contraband about to be auctioned by the Nigerian Custom service at TIN-CAN Island Lagos for him which you knew to be false and thereby committed an offence contrary to Section 1 (1) (b) of the Advance Fee Fraud and Other Related offences Act, and punishable under Section 1(3) of the same Act”.

The Appellant pleaded not guilty to the 2 counts charge. To prove its case the prosecution called 2 witnesses and tendered Exhibits (A-A17, B-B1 and C). The Appellant testified in his defence and called two other witnesses and tendered 4 exhibits. At the close of the case parties filed and adopted their respective final written addresses.

In convicting and sentencing the Appellant, the trial Court in its judgment held inter alia thus;

“Flowing from all my findings above, I am of the view and I so hold that the accused person SANI GWAMU is hereby found guilty of the two counts as charged. He is hereby convicted as charged.

The convict having been found guilty of the two counts charge, is hereby sentenced in accordance with Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act to seven (7) years imprisonment on each of the two counts. The sentence shall however run concurrently with effect from the date of this judgment.

Aggrieved by this decision of the Lower Court the Appellant filed a notice of appeal dated 13th November, 2013. The said notice of appeal contained eleven grounds of appeal.
Parties to this appeal exchange their respective brief in accordance with the rules of the Court.

The Appellant’s brief of argument prepared by Maxwell Kyon Esq. was dated and filed 12th December, 2013. Learned counsel for the Appellant adopted the said brief as the Appellant’s argument in this appeal and urged the Court to find that the appeal succeeds and in consequence urge the Court to set aside the finding of guilt against the Appellant and in its place enter judgment discharging and acquitting the Appellant of all the offences upon which he was charged and convicted.

The Respondent’s brief of argument prepared by Shata Jamila Mamman Esq. was dated 11th February, 2014 and file on 18th February, 2014. Learned counsel to the Respondent adopted the said brief as the Respondent’s argument in this appeal and urged the Court to dismiss the appeal.

The Appellant in his brief of argument formulated five issues from the eleven grounds of appeal contained in the notice of appeal and same are reproduced as follows;

“1. Whether the learned trial judge properly considered all the evidence before him before coming to the conclusion that there were no contradictions apparent from the evidence of the PW1 vis a vis his earlier statements in Exhibits C D, E, and F and whether the said contradictions were material enough to have warranted that Court to have questioned the credibility of the said PW1.
2. Whether the trial Court’s consideration of evidence not placed before him by any of the parties amounted to his stepping into the arena and hence occasioning Miscarriage of Justice.
3. Whether the statement of the Appellant before the Economic & Financial Crimes Commission amounts to a confessional statement which ought to have worked in the trial Court’s mind as such to arrive at a finding of guilt against the Appellant.
4. Whether the learned trial judge was justified to have allowed himself to make deductions as to the manner of operation of criminals in concluding that the Appellant could well have conspired with others to commit the offences charged when nothing was placed before him to suggest any such manner of operation of fraudsters.
5. Whether from the entire evidence place before the trial Court the Respondent was able to establish the offence of conspiracy against the Appellant.”

The Respondent on the other hand distilled alone issue for determination in this appeal as follows;

1. Whether the prosecution has proved the two counts of conspiracy and obtaining money under false pretence against the Appellant beyond reasonable doubt.

Taking a considered view of the circumstances of this case, the sole issue identified by the learned counsel for Respondent is more articulate and brings out more clearly the correct issue for determination. This sole issue is adopted in preference to those identified by the Appellant and it reads:

“Whether the prosecution has proved the two counts of conspiracy and obtaining money under false pretence against the Appellant beyond reasonable doubt”.

Learned Appellant’s counsel contended that PW1 in his letter of complaint to the police informed the police that the Appellant had told him (PW1) of the availability of rice to be auctioned by the Customs and this statement was made exactly in the PW1’s petition to the EFCC (Exhibit C). In his evidence in Court PW1 stated on page 64 lines 11 to 13 of the printed record as follows;

“On 1st May, 2008 the accused called me to his house and said he has 3 containers of rice.”

Learned counsel submitted that PW1 when confronted under cross examination on whether the Appellant had told him that he had 3 containers of rice to sell, his (the PW1) story changed as can be seen on page 73 line 4-8 of the record, where he stated that the Appellant had told him that his friend had rice to sell. Hence, agreeing with his statement as in exhibit C, D and F.

He maintained that PW1 in exhibit C, E and F which were his earlier statements made no suggestions that the Appellant had anything to do with the monies sent out into several accounts which he (PW1) paid monies into pursuance of the business deal that brought about this action. But when the Appellant brought suit KDH/KAD/2M/2009 the PW1’s story began to shift, he (PW1) first suggest that he made all the payments in issue at the behest of the Appellant. In his oral testimony before the Lower Court PWl stated at page 72 lines 8 to 10 that he only dealt with the Appellant and no other in pursuance to the transaction leading to this action.

Learned counsel maintained also that PW1 in his statements in exhibits C, E and F stated unequivocally that he communicated with several persons in pursuance of the transaction and had their phone numbers, this fact was strengthened by the evidence of DW2 (on page 91 of the printed record) who stated that he got the phone numbers of Garba, Jamilu and Francis from PW1.

Also in Exhibit F, PW1 states that the unit sum agreed upon for the individual bags of the rice in the 3 containers was N6,000 according to him, making the total sum for the rice to come up to N10,800,000.00 (Ten million, eight hundred thousand naira) In his testimony on page 65 of the printed records he (PW1) states that the unit price agreed upon per bag of rice was N8,600.

Appellant’s counsel maintained that in Exhibit D, PW1 stated in sub-paragraph 5 thereof that the Appellant advised him to take no less that N750, 000 with him on the trip to Lagos, while under cross examination he (PW1) insisted on page 72 of the record that it was when he got to Lagos he first heard of the need for him to deposit N750, 000 for the rice in aid of changing the bill of lading.

He contended that it was in the face of all the above that the trial Court found on page 163 and 167 that the contradictions suggested by the Appellant to exist in the evidence of PW1 were mere discrepancies and also that the evidence placed before it by the DW1 and DW2 rather that diminish the Appellant’s case did in fact strengthen their case. He submitted that the contradictions in the PW1’s evidence go to the veracity of his statement and evidence. He maintained that the contradictions as they affect extent of the role played by the Appellant in this matter are so fundamental that the trial Court cannot suggest that same is a mere discrepancy.

He submitted that if the Appellant never in fact gave the PW1 the bank accounts into which PW1 made payment because PW1 actually interacted with the persons into whose accounts monies were paid, that piece of evidence would dismantle the Respondent’s case hence it cannot be a mere discrepancy. He maintained that a careful look at the changing stories given by the PW1 would suggest that he (PW1) was initially telling the truth of what happened in the matter as all his initial statements agree somewhat with the Appellant’s evidence. It was much later that he seemed to be bent on putting forth evidence to suggest that it was the Appellant who did everything he complained about single-handedly.

He insisted that if the trial Court looked carefully at all the evidence placed before it, it would have come to the conclusion that the contradictions in the evidence of PW1 vis a vis exhibits C, D, E and F were much more than mere discrepancies.

In consequence of the above learned Appellant’s counsel urge the Court to find that the trial Court failed to carefully consider the entire evidence before it as it affect the question whether or not there were fundamental contradictions in the evidence of PW1 vis a vis exhibits C, D, E and F. He referred the Court to the cases of; STATE VS YUSUF (2007) ALL FWLR (PT.377) PG.1001 AT 1009, DOGO VS STATE (2001) FWLR (PT.39) PG.1388 AT 1401, and urged the Court to resolve this issue in favour of the Appellant.

Learned Appellant’s counsel also submitted that the Appellant through DW2 tendered the police file containing the entire work done by the police in relation to this case, he refer the trial Court to the statement of PW1 to the police and the MTN record procured by the police while investigating the issue of the phone numbers of the persons defrauded the PW1 and the trial Court marked the said documents as Exhibit E, F and G respectively. He maintained that curiously the trial Court in its judgment stated on page 164 of the record lines 10 to 18 and on page 165 lines 1 to 8 as follows;

“…. In their investigation report after failing to locate those named therein from the non-existing or dubious addresses given, had this to say in their investigation report dated 2/9/2009;

“The Alhaji Gwandu introduced the business to Alh. Isa and he wanted to demolish Alh. Isa’s business by defrauding him because Alh. Isa is not literate”

In conclusion, it was stated as follows; “in view of the facts highlighted above, it is evidently clear that Alh. Sani Gwandu is responsible for the conspiracy to defraud Alhaji Isa Gada. I suggest that the case of criminal conspiracy, criminal breach of trust and cheating would hold against him and his cohorts to be charged to Court for prosecution.” Need I say more as the police interim investigation report and other titled investigation report at pages signed by me since they are unpaginated that is Exhibit G say it all.”

Learned Appellant’s counsel submitted that it is strange that the trial Court will refer to the document reproduced above as exhibit G, the record shows exhibit G was a record of call logs procured by the police from MTN and there is nothing else attached to exhibit G. He referred the Court to page 92 of the printed record.

He maintained that while the trial Court never admitted any document referred to by it in the excerpt above, it seems to suggest that it was actually a part of exhibit G admitted by it in evidence. Beyond that, none of the parties before the trial Court made an issue of the reports the trial Court relied upon as quoted above affecting its decision in the matter before it. He submitted that the trial judge clearly descended from his seat as an arbiter and crosses over to the side of the Respondent and argued the Respondent’s case for it, even when the issue herein was never canvassed by the Respondent before him. He referred the Court to the cases of; UCHE vs. ELACHI (2012) ALL FWLR (PT.625) PG.237 AT 258, TUNJI VS BAMIDELE VOL.12 NWLR (PT.1315) PG.477 AT 490, 491 to 492.

The said document having not been placed before the trial Court, parties never got the opportunity to address it on same and its effect. Therefore by the holding of the trial Court above, the trial Court went beyond his duty as an unbiased arbiter and took on the duty of fishing for evidence that ended in his convicting the Appellant.

Learned Appellant’s counsel submitted that in arriving at his judgment of guilt against the Appellant, the trial Court found on page 165 line 8 to 12 as follows;

“Less I am wrong in my findings as stated above, I take solace in the fact that Exhibit C by virtue of Section 27 of the Evidence Act is a confessional statement. It is trite that an accused person can be convicted solely on his confessional statement if voluntarily made”

Learned counsel submitted that it is difficult to see how exhibit C qualifies as a confessional statement in the eyes of law. He maintained that exhibit C as shown on page 82 lines 8 to 11 of the record is the petition written by one Bala Usman on PW1’s behalf to the EFCC. He maintained that assuming this Court were to conclude that reference to exhibit C by the trial Court was a slip and it meant exhibit B which it referred to C. He submitted that even so, it is not the designation given to a document that makes it a confessional statement but rather the contents of the said document. He referred the Court to the cases of; NIGERIAN ARMY VS LAMBERT (2007) ALL FWLR PT.396 PG.574 AT 583, ELE VS STATE (2006) ALL FWLR (PT.329) PG.849 AT 867-869.

On the definition of confession learned counsel referred the Court to Section 27 (1) of the Evidence Act and Blacks Law Dictionary Six Edition page 296. He submitted that it is difficult to see how the trial Court was able to conclude that exhibit C or B is a confessional statement. He reproduced the contents of Exhibit B and submitted that he has read the statement of the Appellant Exhibit B over and over again and unlike the trial Court, he was unable to see how the statement amounts to confession.

He submitted that the error made by the trial Court in regarding the statement of the Appellant as in exhibit B as amounting to a confessional statement contributed in the entire error made by the trial Court in finding the Appellant guilty of the offence charged. And had the trial judge carefully x-rayed exhibit B and found it to have fallen short of the requirement of law as to what amount to a confession, he would have reached an entirely different conclusion.

On the issue of whether conspiracy had been established against the Appellant, the learned Appellant’s counsel submitted that the trial Court had this to say on page 166 lines 1 to 9 of the printed record;

“Learned counsel for the accused made heavy weather about the MTN log books Exhibit G not showing that the accused person made any calls to those the nominal complaints made payment into their accounts. However, if the definition of conspiracy is well understood and the manner of operation of fraudsters is taken into consideration, it would be realized that they operate incognito and such would not be expected to be different in this case.”

He submitted that in the entire proceedings before the trial Court, no suggestion was made as to the manner of operation of fraudsters by any of the parties, and there was nothing before the trial Court upon which the trial Court could draw any inferences or conclusion as to how fraudsters operate. Hence, the trial Court went into speculations based on conjectures and facts not placed before it.

He referred the Court to the cases of;
NWAKANMA VS ABARIBE (2010) ALL FWLR (PT.505) PG.1767 AT 1803.
AGIP (NIG) LTD VS AGIP PETROLI INT’L (2010) ALL FWLR (PT.520) PG.1198 AT 1249.
ANKA VS ABUBAKAR (2010) ALL FWLR (PT.511) PG.949 AT 960.
OLUFEAGBA VS ABDURRAHMEEM (2010) ALL FWLR (PT.511) PG.1033 AT 1074.
GAMBARI VS IBRAHIM (2012) ALL FWLR (PT.644) PG.29 AT 57.
LAMURDE L.G VS KARKA (2012) ALL FWLR (PT.628) PG.912 AT 912.

In the light of all the decisions above, he urged the Court to find that by going into speculations as to the manner of operations of fraudsters the trial Court make a case for the Respondent which was not based on any facts placed before it and hence occasioned a miscarriage of justice.

Learned Appellant’s counsel argued that PW1 testified that the Appellant informed him that he had 3 containers of rice for sale, and that he (PW1), the Appellant himself and one Jamilu met with an agent in Lagos who took the trio into the Wharf and showed them the 3 containers of rice (600 bags) billed for sale at N8,600 per bag. He (PW1) told the Court that from that point he was made to pay N13,504,940 in all, into the several accounts at the prompting of the Appellant. He referred the Court to pages 64 lines 11 – 13 of the record.

He submitted that under cross examination, PW1 conceded that the Appellant had not told him that he had 3 containers of rice to sell, but that his friend had 3 containers of rice to sell. The evidence agrees with the initial complaint made to EFCC (i.e Exhibit C).

He maintained that in the letter of complaint written to the police by PW1 (i.e exhibit E) he (PW1) stated that the Appellant invited him to purchase rice which was meant to be auctioned by the Nigerian customs, this evidence also agrees with the evidence of the Appellant as to the fact that he was introduced to one Jamilu by his neighbour and the said Jamilu told him of the availability of rice for sale and he (Appellant) spoke to the PW1 about it. He referred the Court to page 95-96 of the record.

Learned counsel argued that PW1 did not make any suggestions at all that the Appellant did more than merely introduce him to Jamilu in neither exhibit C nor E. It was later when the Appellant decided to file an action by way of Enforcement of Fundamental Rights action that PW1 first made the suggestions (by way of exhibit D) that the Appellant had played a greater role by instructing him (PW1) to deposit monies into accounts that were given to him by the Appellant.

He submitted that the trial Court in its judgment on page 154 to 156 of the printed record pointed out the fact that the Appellant agree that he introduced the PW1 to Jamilu and that he (Appellant) travelled to Lagos and Abuja with the PW1 and deduced there from that the Appellant played a greater role in this matter.

He maintained that the trial Court after saying that a person can involve himself in a crime of conspiracy by mere assent and encouragement of the design, it went on to say that it will consider the issue of payment purportedly made by the PW1 at the behest of the Appellant later in the body of the judgment. On page 164 to 165 of the printed record the trial Court rather than consider the entire evidence before it to determine the actual roles played by the Appellant, went into a voyage of discovery into a document not placed before it (i.e the police investigation report) and deducted from there the possibility that the Appellant had introduced the business to Alhaji Isa and wanted to demolish Alhaji Isa business by defrauding him (Alhaji Isa).

Learned Appellant’s counsel insisted that from the record and the judgment of the trial Court, it is obvious that there was nothing placed before the trial Court which was cogent enough to suggest that the Appellant did in fact conspire to practice fraud on the PW1. On the definition of conspiracy, he referred the Court to section B (a) of the Advance Fee Fraud & Other Related offences Act and the case of GARBA VS COP (2006) ALL FWLR (PT.384) pg.277.

He submitted that from the definitions, it is clear that for a person to be said to have conspired in a manner constituting an offence, it must be shown that the person conspired with that other person to commit the offence in the sense that he agreed with other person to commit an offence. He maintained that in the instance case the trial Court was wrong to have found that the Appellant conspired with anyone to defraud the PW1 as there was no evidence to show that.

In conclusion he urged the Court to find that this appeal succeeds and inconsequence urged the Court to set aside the finding of guilt against the Appellant herein and in its place enter a judgment discharging and acquitting the Appellant of all the offences charged.

In response the learned Respondent’s counsel contended that the superior Courts have laid down the standard of proof in criminal cases which is proof beyond reasonable doubt. She referred the Court to the cases of;

IORTIM VS STATE (1997) 2 NWLR (PT.490) PG.711 AT 732.
KALU VS STATE (1998) 13 NWLR (PT.583) AT 531.
UDO VS STATE (2006) ALL FWLR (PT.337) PG.456 AT 457.

Learned counsel submitted that a person may involve himself in the crime of conspiracy by his mere assent to and encouragement of the design, although nothing may have been assigned or intended to be executed by him personally. Respondent’s counsel maintained that conspiracy is one of those offences which can be predicated on circumstantial evidence which is evidence not of the fact in issue but of other facts from which the facts in issue cam be inferred.

It has been contended on behalf of the Respondent that conspiracy does not consist merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. It was submitted therefore that so long as a design rests in intention only, it is not indictable, but when two or more agree to carry it into effect, the very plot is an act in itself and the act of each of the parties becomes criminal and therefore becomes punishable. Learned counsel maintained that all the conspirators need not to have started at the same time, as others may join at later stage. The Court was referred to the cases of;

NJOVENS & ORS VS THE STATE (1973) NSCC PG.257 AT 280.
OBIAKOR VS STATE (2002) 10 NWLR 9 (PT.776) PG.612 AT 628-629.
DEVIN VS STATE (1994) 5 NWLR (PT.346) PG.522 AT 534.
EDE VS FRN (2001) 1 NWLR (PT.695) PG.502 AT 512-513.

Learned Respondent’s counsel submitted that to prove conspiracy, the prosecution must establish the following ingredients viz;

a. That there was an agreement between two or more persons;
b. That the agreement was to do or cause to do an illegal act; or
c. To do legal act by illegal means.

Learned counsel maintained that there is abundant evidence before the trial Court from which it can infer conspiracy between the Appellant and two others at large, who were the primary suspects that set the ball rolling wherein others joined later.

Learned counsel reproduced Exhibit B-B1 extra judicial statement of the Appellant where he states in part thus;

“In 2008 Alhaji Ibrahim (alias my friend) my neighbour, said he will connect me with Jamilu, Jamilu is a businessman and my neighbour connected me to Jamilu, Jamilu told me that there are containers of rice confiscated by custom for auction, whether I am interested, I told Jamilu that I cannot afford it but I will contact my friend. Is from there I contacted Isa (the complainant) he told me he is interested, thereafter we went to the house of Alhaji Ibrahim (alias my friend) and met Jamilu.”

It was submitted that this part of statement is also consistent with the evidence of PW1. PW1 in his testimony corroborated this fact on how the Appellant invited him to Alhaji Ibrahim (alias my friend), and introduced him to Jamilu the owner of the three containers of rice to be auctioned at Tin-can Island, Lagos. He gave vivid account on how he (PW1), the Appellant and Jamilu travelled to Lagos to see the containers of rice.

Learned counsel contended that from the circumstances of this case and the evidence before the trial Court, the Court can draw an inference that the prosecution has established count one of the charges for the following reasons;

1. The Appellant himself his extra judicial statement admitted and narrated how they met and agree to go to Lagos and how he met the complainant and inform him of the transaction.
2. There is corroborative evidence by PW1 and PW2 on the facts adduced.

Learned Respondent’s counsel therefore submitted that in order to prove conspiracy it is not necessary that there should be direct communication between each of the conspirators and every other, all that needs to be established is that the criminal design alleged is common to all of them. It was argued that proof of how they are connected with or among themselves is not necessary. Even though in this case there is direct communication between the conspirators. The Court was referred to the cases of;

ERIM N. VS STATE (1994) 5 NWLR (PT.346) PG.522 AT 533.
NWOSU VS STATE (2004) 15 NWLR (PT.897) 466.

On corroboration evidence of PW1 and PW2 learned counsel submitted that such evidence must not be completely the same with other evidence, but must be evidence which confirms in some material particular not only that the crime has been committed but also that it was the Appellant who committed it. The Court was referred to the case of; IGBINE VS STATE (1997) 9 NWLR (PT.519) PG.101 AT 110.

Learned counsel urged the Court to hold that the trial Court was right in holding that a case of conspiracy had been made out against the Appellant by the Respondent on count one.

On count two i.e Obtaining Money by False Pretence, learned Respondent’s counsel contended that Section 23 of the Advance Fee Fraud and Other Related Offences Act 2006 (as amended) defines False Pretence to mean;

“a representation, whether deliberate or reckless, made by word, in writing or conduct, or a matter of fact or law, either past or present, which representation is false or does not believe to be true”

It was submitted that in order to succeed in a charge of obtaining by false pretence the prosecution must prove the following ingredients;

a. that there is pretence;
b. that the pretence emanated from the accused;
c. that it was false;
d. that the accused knew of its falsity or did not believe in its truth;
e. that there was intention to defraud;
f. that the thing is capable of being stolen;
g. that the accused induced the owner to transfer his whole interest in the property. Learned counsel referred the Court to the cases of;
ONWUDIWE vs FRN (2006) 10 NWLR (PT.988) PG.382 AT 431-432;
ALAKE VS STATE (1991) 7 NWLR (PT.205) AT 567;
EDE VS FRN (SUPRA) AT 512-513.

Learned Respondent’s counsel argued that PW1 the complainant in his examination in chief testified and gave vivid account of how the Appellant told him that there were three containers of rice to be auctioned, that Jamilu is in charge of the rice, he will come from Kano State, but he told him that he should look for three air tickets to Lagos State to see the containers of the rice, that the following day he met Sani Gwandu and that they went to the Kaduna Airport and took off to Lagos, on their arrival Alhaji Sani Gwandu called one Alhaji Garba who instructed his boy called Usman to take them to the wharf and showed them the three containers of rice. Alhaji Sani Gwandu later demanded N750,000.00 for goods clearing. The Appellant was given N750,000.00 to give to Usman. The complement said he paid a total sum of N13,504,940.00 into various UBA Account given to him by the Appellant.

Learned counsel submitted that the evidence of the prosecution witnesses especially PW1 were not in any way discredited by way of cross examination and should be taken as established. The Court was referred to the case of; DAGASH VS BULAMA (2004) 14 NWLR (PT.205) AT 567. Respondent counsel maintained that it is trite law that where as in the instance case, the defense failed to cross-examine a witness on vital aspects of his evidence, such evidence is deemed established.

On the Appellant’s contention that it was at the police station that he got to know that the nominal complainant had paid monies in excess of N13,504,940.00 for the rice, learned Respondent’s counsel contended that in proof of a charge of obtaining money under false pretence, it is not the requirement of the law that the prosecution must prove that the Appellant has collected the money himself, beside, the Appellant had never denied the fact that he connected PW1 to Jamilu And Alhaji Ibrahim and also collected the initial N750,000.00.

On exhibit D (certified true copy of the counter affidavit filed in the matter before high Court No.9) learned Respondent’s counsel submitted that an affidavit used for one stage of proceeding cannot be used for another stage except both parties consent to it. The Court was referred to the cases of;
PERKINS VS SLATER (1875) 1 Ch.D 83 AT 83.
WAZIRI vs STATE (1997) 3 NWLR (PT.496) PG.689 AT 720.

Learned counsel maintained that even without the testimonies of all the prosecution witnesses in this matter, the statement of the accused to the police command Kaduna and EFCC which were admitted in evidence as exhibit B-B1 are confessional statement, sufficient to ground conviction of the Appellant. Learned counsel referred the Court to the cases of;
NSOFOR VS STATE (2004) 18 NWLR (PT.905) PG.311 AT 313.
DIBIE VS STATE (2004) L4 NWLR (pT.893) 257 AT 286-287.

It was submitted on behalf of the Respondent that in the light of the arguments canvassed above, the trial Court was right in holding that a prima facie case of obtaining money by false pretence had been made out against the Appellant by the Respondent.

The Court was urged to dismiss the appeal.

On contradictions in the PW1’s Evidence, the learned counsel for the Appellant contended that the contradiction in the PW1’s evidence which affected the extent of the role played by the Appellant are so fundamental and cannot be a mere contradictions. He urged the Court to find that the trial Court failed to consider the entire evidence before it, on whether or not there were indeed fundamental contradictions in the evidence of PW1 vis a vis his statements in exhibits C, D, E & F.

It has been observed that this issue of contradictions was raised by the then accused’s counsel in his final address in the trial Court. In resolving this issue the Court below stated at page 163-164 of the printed record thus;

“It must be noted that it is not every discrepancy or inconsistency in the testimonies of witness for the prosecution that will vitiate a decision. For it to have such effect, it must be material and substantial to the extent that it effect, the crux or judgmental issue to be determine by the Court. That is not the case here…”

In this case the contradictions raised in the Appellant’s brief centred on whether or not the Appellant called PW1 to his house and said he has 3 containers of rice. The main question to be resolved is whether or not there was pretence and it emanated from the accused person and other accused at large.

The questions of whether the Appellant had anything to do with the monies which PW1 sent into several accounts pursuance to the business deal, whether the Appellant had told PW1 of the availability of rice to be auctioned by the custom and the unit sum agreed for the individual bag of rice in the three containers of rice are all immaterial. All that need to be established is whether there was pretence emanated from the accused and others at large. This question was answered in the instance case. Therefore, the inconsistencies referred to in the Appellant’s brief as I have said earlier are immaterial.

If the contradictions or inconsistency do not touch on a material point or substance of the case, it will only vitiate a conviction when the evidence is clear and it is believed by the trial Court. See; SELE VS THE STATE (1993) 1 SCJN 15 AT 22-23. The evidence of PW1 and the contents of exhibits C, D, E & F had not revealed any substantial or material contradiction, the trial Court had not failed to advert to the inconsistency in its judgment and no miscarriage of justice has been occasioned.

On the issue of trial Judge’s referring to other documents contained in the Police file tendered (by DW2) in its finding the Appellant contended that a part from Exhibit E, F and G, it is wrong for the trial judge to refer to any other documents contained in the police file tendered when writing his judgment. He maintained that none of the parties made the police interim investigation report contained in the police file (referred to by the trial Court as exhibit G) an issue before the trial Court and the trial Court never admitted the said police interim investigation report in evidence. Therefore, the trial judge was wrong in referring to the police interim investigation report in his judgment. He submitted that by doing that the trial judge crossed over to the side of the Respondent on voyage of discovery, fishing for evidence that ended in convicting the Appellant.

It is pertinent for me to reproduce the relevant portion of the said judgment of the trial Court for ease of reference. It reads thus;

“I did mention elsewhere earlier in this judgment that I shall return to the issue of monies paid into various accounts by the Nominal Complainant on the prompting of the accused person. The tellers EXHIBIT A – A17 were handed over to the police by the Nominal Complainant and in their Investigation Report after failing to locate those named therein from the non-existing or dubious addresses given, had this to say in their investigation report dated 2/9/2009 – “the Alhaji Gwandu introduced the business to Alhaji Isa and he wanted to demolish Alhaii Isa business by defrauding him because Alhaii Isa is not literate”

In conclusion, it was stated as follows; “in view of the fact highlighted above, it is evidently clear that Alhaji Sani Gwandu is responsible for the conspiracy to defraud Alhaji Isa Gada. I suggest that the case of criminal conspiracy’ criminal breach of trust and cheating would hold against him and his cohort to be charge to Court for prosecution”.

Need I say more as Police Interim Investigation Report and another titled Investigation Report at pages signed by me since they are unpaginated that is EXHIBIT – G say it all.”
(Underline mine for emphases)

There is no dispute between the parties that the said report is part of the contents of the record before the trial Court.

The Appellant at page 10 paragraph 4.04 of his brief of argument conceded that he tendered through DW2 the Police File containing the entire work done by the police in relation to the matter. It is trite that a document tendered and admitted forms part of the record of the Court. In such record having been received in evidence a Court can suo motu make reference to it and make use of any document it finds necessary. In the instance case the police file containing the police interim investigation report referred to by the trial judge was tendered by DW2. The trial judge was right in referring to it in his judgment.

The issue on whether Exhibit B is a Confessional Statement has been raised by the Appellant in his brief of argument. It is settled that the guilt of an accused person can be establish by his confessional statement of the accused among others. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. See: Saidu Vs State (1982) 3 S.C. 41. It is stronger than the evidence of an eye witness because the evidence comes out from the horse’s mouth, who is the accused person. In such statement there is no need for further proof since what is admitted needs no further proof. See; Akpa Vs State 2008 14 NWLR (Pt.1106) Pg.72 at 100-101.
A free and voluntary confession of guilt which is direct, positive, and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence so long as the Court is satisfied as to the truth of the confession.

It is not any voluntary statement of an accused that makes it a confessional statement to warrant conviction, but its purpose and contents. In other word a statement may be voluntary made but does not necessary qualifies as a confessional statement of guilt, for it to be a confessional statement of guilt to warrant conviction, it must be an admission made by the accused charged with a crime, stating or suggesting the inference that he committed the crime charged.

After a carefully examination of exhibit B, it is apparent that the said exhibit B cannot be said to be a confessional statement, There is nowhere in it the Appellant directly and unequivocally confesses to the commission of the offence charged, nor can an inference be made to that effect. It is also a misconception on the part of the Appellant’s counsel to say that decision of the trial Court cannot be effected if exhibit B had not been admitted. In the instance case the Lower Court did not relied solely on exhibit B in convicting the Appellant.
It is trite law that an accused person may be convicted on the evidence of a single witness. See: Amodu Vs State (2010) 2 NWLR (Pt.1177) P9.47 at 78. In the instance case there is evidence PW1 and PW2, which were also corroborated by other documentary evidence before the trial Court.

The learned Appellant’s counsel contended that there is nothing before the trial Court upon which it can make such opinion and conclusion on the manner of operation of fraudsters. Therefore, the trial Court went into speculation and make case for the Respondent on facts not placed before it. Hence, occasioned a miscarriage of justice.

The learned trial Court judge on page 166 line 4-9 commented as to the manner of operation of fraudsters where he stated thus;

“… However, if the definition of conspiracy is well understood and the manner of operation of fraudsters is taken into consideration, it would be realised that they operate incognito and such would not be expected to be different in this case.”

Speculation is the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge. See: BLACKS LAW DICTIONERY 6TH EDITION. A trial Court must not base its decision on speculation as that will occasion miscarriage of justice. In the instance case it is not shown how the above comment occasion any miscarriage of justice to the Appellant.

On whether there is a conspiracy between the Appellant and others now at large. I have earlier said in this judgment that the contradictions in the evidence of PW1 were not material which goes to the substance of the charge against the Appellant and have not led to any miscarriage of justice. The Appellant’s counsel contended that the trial Court was wrong to have found that the Appellant conspired with anyone to defraud the PW1 as there was no any evidence before it to show that.

Legally, conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way. The purpose of the meeting of the two or more minds is to commit an offence. The prosecution must establish that the criminal minds really met somewhere to hatch a crime. Also conspiracy can be establish where the agreement is other than agreement to commit offence, but that same criminal act besides the agreement was done by one or more of the parties in furtherance of the agreement. See: STATE VS OLASHEHU SALAWU (2012) ALL FWLR (PT.614) PG.1.
Also for the offence of conspiracy to have been said to be committed, positive and affirmative action’s of the parties must be proved. He referred the Court to the cases of;
OMOTOLA VS. STATE (2009) 7 NWLR (PT.1139) 151.
YAKUBU VS FRN (2009) 14 NWLR (PT.1160) AT 151.

In the instance case the Appellant in his statement to EFCC (exhibit B) and under cross examination admitted that he was introduced into the business of rice by one Jamilu (now at large), and he (Appellant) introduce PW1 (the complainant) into the business of buying the three containers of rice from the said Jamilu and other persons now at large. It is not in dispute between the parties that in furtherance of the said agreement to buy rice, the offence was committed. He (Appellant) also confessed being interrogated by the Police CIB in Kaduna, in his extra judicial statement to the police in CIB (Pages B1-B4) contained in the Police case file tendered by the Appellant himself through DW2, the Appellant stated that he called Malam Isa Adamu PW1 (the complainant) and inform him that he had a friend who has a business of three containers for sale, he (Appellant) also stated how they travelled to Lagos with PW1 and gave details of monies collected from PW1 (complainant) by Jamilu and others persons at large he (Appellant) introduced PW1.

I have stated earlier in this judgment that in order to prove the offence of conspiracy the prosecution must establish that the criminal minds of the suspects/accused persons really met somewhere to hatch a crime. In the instance case there are abundant evidence both in the police case file (tendered through DW2) and the evidence before the trial Court which shows the meeting of criminal minds of the Appellant and other persons at large.

In whole, this lone issue is resolved in favour of the Respondent.

I find no merit in this appeal and it is hereby dismissed. The judgment of the Federal High Court Kaduna in Charge No:FCH/KD/98C/2012 delivered on 5th November, 2013 by M. I. Awokulehin J. is hereby upheld. The conviction and sentences passed on the Appellant are hereby affirmed.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, ABDU ABOKI JCA gave me the opportunity of reading before now the judgment just delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the order affirming the judgment of the High Court.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

Counsel to the Appellant made heavy weather of some perceived contradictions in the testimony of the complainant who testified as the first prosecution witness. The alleged contradictions were said to have been between the statements made by the witness in his petition to the Economic and Financial Crimes Commission, in a counter affidavit deposed to by the witness in an earlier action brought by the Appellant in the High court of Kaduna State for the enforcement of his fundamental rights in Suit No KDH/KAD/2M/2009, in his letter of complaint to the police, in his written statement made at the police station, tendered as Exhibits C, D, E and F respectively at the trial and in the oral testimony of the said witness at trial. It is not in dispute that the contents of Exhibits C, D, E and F constitute previous written statements of the first prosecution witness. Now, the procedure for establishing a contradiction, if any, between the previous Statement of a witness and his oral evidence in court is provided in Section 232 of the Evidence Act 2011 and the section reads:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but if it is intended to contradict him by writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
This section was interpreted by the Supreme Court in Madumere Vs Okafor (1996) 4 NWLR (Pt.445) 637, and the court stated that the essential requirements of the section is that where party intends to impeach the credit of a witness by showing that what that witness has said in the present proceedings contradicts his previous written statement:- (a) his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him; (b) he must be reminded of what he said on that previous occasion; and (c) he must also be given an opportunity of making an explanation. Where this procedure is not followed, the previous written statement cannot be used to contradict the oral testimony of the party before the Court – Amodu Vs State (2010) 2 NWLR (Pt.1177) 47. The records of appeal show that the Counsel to the Appellant did not follow this procedure in the instant case; Counsel did not put the said contradictory statements in Exhibits C, D, E and F directly to the first prosecution witness during cross-examination. The issue of the alleged contradictions was not properly raised and the Lower Court ought not to have entertained the complaint of Appellant on the alleged contradictions at all.

Going forward and assuming that the issue of the alleged contradictions was properly raised, it is trite that contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says of contains – Bassey Vs State (2012) 12 NWLR (Pt.1314) 209, Jeremiah Vs State (2012) 14 NWLR (Pt.1320) 248 and Egwunmi Vs State (2013) 13 NWLR (Pt.1372) 525. Looking at the alleged contradictory statements highlighted by the counsel to the Appellant in his brief of arguments, it is obvious that the said statements of the first prosecution witness do not state the opposite of each other. Rather some are more explanatory than the other; the differences are mere discrepancies.

Going further forward and assuming that there were indeed inconsistencies in the statements of the first prosecution witness, it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial – Osetola Vs State (2012) 17 NWLR (Pt.1329) 251, Osung Vs State (2012) 18 NWLR (Pt.1332) 256, Famakinwa vs state (2013) 7 NWLR (Pt.1354) 597, Musa Vs State (2013) 9 NWLR (Pt.1359) 214 and Iregu vs State (2013) 12 NWLR (Pt.1367) 92. In Theophilus Vs The State (1996) 1 NWLR (Pt.423) 139, the Supreme Court at 155 A-B put the point thus:
“…It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.”
This point was reiterated by Rhodes-Viviour, JSC in Egwunmi Vs State (2013) 13 NWLR (Pt.1372) 525, a matter on culpable homicide, at page 555 D-F thus:
“When two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The court is only concerned with testimony on material facts and not peripherals that have no bearing on the substance in issue.
The material facts in this case are: (i) when was Alhaji Umoru Bamayi killed; (ii) how was he killed; (iii) who killed him, It is only if there are contradictions in the testimony of the prosecution witnesses on the above that grave doubt would be cast on the prosecution’s case.”

The alleged inconsistencies, in the instant case, were not on matters that went to establish the essential ingredients of the two count charge brought against the Appellant. They were thus not material.

Reading through the entire evidence led by the parties before the Lower Court, it is obvious that the Respondent led sufficient credible and cogent evidence to establish the ingredients of the two count charge of conspiracy to obtain money under false pretences and obtaining money under false pretences brought against the Appellant. It is worthy of note that throughout his testimony before the Lower Court, the Appellant did not say what effort, if any, he made to assist the police in apprehending the said fraudsters if indeed he knew nothing about the fraud. Thus is not natural.

I agree that there is no merit in this appeal. I too dismiss the appeal and affirm the judgment of the Federal High Court in Charge No.FHC/KD/98C/2012 delivered on the 5th of December, 2013 by Honorable Justice M. I. Awokulehin as well as the sentences passed on the Appellant therein.

Appearances

M. Kyon Esq. appearing with D. G Laah Esq and Y. J. Imam EsqFor Appellant

AND

No appearanceFor Respondent