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TEJUMOLA v. FRN (2020)

TEJUMOLA v. FRN

(2020)LCN/15594(CA)

In The Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/IB/15C/2018

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ZACCHAEUS TEJUMOLA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

Principle guiding the establishment of the offence of conspiracy

To establish the offence of conspiracy, the prosecution needs to prove that there was an agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. There is no need for the Prosecution to prove that there was direct communication between the individuals. It will suffice if there are facts which prove that the individuals are aware of the intention or purpose of the conspiracy. See MUSA VS. STATE (2017) 5 NWLR (PT.1557) 43; OMOTOLA & ORS VS. STATE (2009) 7 NWLR (PT.1139) 148: AKINLOLU VS. STATE (2018) ALL FWLR (PT.927) 1. IN KAZA VS STATE (2008) 7 NWLR (PT.1085) 125, the Supreme Court, per Tobi, JSC help as follow;
“From the above, I sift the following ingredients of the offence of conspiracy:
(i)There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds.
(ii) The persons must plan to carry out an unlawful or illegal act, which is an offence-
(iii) Bare agreement to commit an offence is sufficient.
(jv) An agreement to commit a civil wrong does not give rise to the offence, as Section 97(1) of the Penal Code provides only for criminal conspiracy
(v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
(vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective.” FOLASADE AYODEJI OJO J.C.A.

 

NONYEREM OKORONKWO, J.C.A.(Delivering the Leading Judgment): In a judgment delivered on 3rd October 2017, the Federal High Court sitting at Ibadan Oyo State, upon trial convicted the appellant Zacchaeus Tejumola and others of offences of conspiracy and procuring others to retain moneys being the proceeds of crime thereby committing offences under Section 18C of the Money Laundering Prohibition Act and punishable under Section 17(a) of the same Act.

There are seventeen (17) charges in all whereby the appellant was charged either directly or through proxies who retained such moneys proceeds of crime for benefit of the appellant and another.

The appellant, being dissatisfied with the judgment by Notice of Appeal dated 13/12/17 but filed 15/12/17 lodged this appeal upon the following grounds.

GROUNDS OF APPEAL
1. The judgment of the Trial Court convicting the Appellant is against the weight of evidence.
2. The learned trial judge erred in law when he held that Respondent complied with Sections 84 (2) and 84 (4) of the Evidence Act before tendering Exhibits P5, and P6 and P7 which exhibits the Court relied upon in convicting the Appellant.
3. The learned trial judge erred in law which error occasioned a miscarriage of justice when he failed to put any weight on the documents tendered by the Appellant as Exhibits D1 – D17 on the excuse that the evidence of the Appellant’s oral evidence was at variance with the documents tendered by the appellant as Exhibit D1 – D17 which Exhibit exonerated the appellant financial misappropriation and money laundering but the learned trial judge relied on Exhibit D19 – D21 tendered by the
4. The learned trial judge erred in law when he held that Exhibit P11, which is the statement of the Appellant made at EFCC off, Lagos, is confessional statement and therefore relied heavily on same to convict the Appellant.
5. The learned trial judge erred in law when he relied on Section 17 (b) of the Money Laundering (Prohibition) Act 2011 when the charge was incurably defective since there was no punishment section in the charge served on the Appellant by the Respondent the basis upon which the learned judge convicted the Appellant despite the objection of the Appellant’s counsel.
6. The learned trial judge erred in law when he convicted the Appellant on count one on the basis of facts that could not prove the offense charged.
7. The learned trial judge misdirected himself when he relied on evidence of lodgment of the sum of N177, 571,609.50 (One Hundred and Seventy Seven Million, Five Hundred and Seventy One Thousand, Six Hundred and Nine Naira, Fifty Kobo) in the Account of Institute of Agricultural Research and Training Staff Club to hold that the prosecution proved count one in the charge.
8. The learned trial judge erred in law and denied the Appellant of a fair hearing when he discountenanced evidence in favour of the Appellant but made use of documents that were against him.
9. The learned trial judge misdirected himself on the facts and came to a wrong conclusion when he held thus:
“By the evidence of the Prosecution witnesses and that of the 1st, 2nd and 3rd Defendant, it will not be difficult for a discerning mind to find out that the offence of conspiracy has been established. The chain of conspiracy is based on the following sequence in summary. The 1st and 2nd Defendants agreed to warehouse the sum of N177,571,609.50 (One Thousand, Six Hundred and Nine Naira, Fifty Kobo) being money lawfully allocated to the institute in order to prevent mop up exercise usually carried out on the 31st of December of every year. As a prelude to this, an account was generated with Access Bank bearing the name ‘Institute of Agricultural Research and Training Staff Club & Cooperative with Account No. 0101632695. This account to all intent and purposes is fictitious and illegal. Funds were thereafter withdrawn on the authority of the 1st and 2nd Defendants through 3rd – 13th Defendants… It is my finding therefore and I so hold that the prosecution has proved beyond reasonable doubt the offence of conspiracy made out in count one of the charges against 1st, 2nd and 3rd Defendant.”
10. The learned trial judge erred in law when he assumed Jurisdiction and heard and convicted the Appellant.
11. The learned trial judge erred in law when he convicted the Appellant on counts 1, 2, 4, 6, 7, 11, 12, 15 and 16 and thereby occasioned a miscarriage of justice.
12. The learned trial judge erred in law when he convicted the appellant on counts 2, 4, 6, 7, 9, 11, 12, 15 and 16 but discharged the 3rd Defendant charged jointly with the Appellant on those counts and thereby occasioned a miscarriage of justice.

Issues for Determination
In the appellant’s brief filed subsequently on 9/10/19, the learned counsel for the appellant at paragraph 2.00 thereof raised nine (9) issues for determination namely:
1. Whether having discharged the 3rd Defendant on offences jointly charged with the Appellant and another person, and same having the same ingredients, the lower Court was not duty bound to discharge and acquit the Appellant on those offences. GROUND 12.
2. Whether the judgment is not against the weight of evidence. GROUNDS 1 & 11
3. Whether Exhibit 11 is a confessional Statement that could be used to convict the Appellant. GROUND 4
4. Whether from all the facts of this case, the prosecution proved its case against the Appellant beyond reasonable doubt to warrant his conviction. GROUND 1
5. Whether Exhibits P5, P6, P7 and P8 are admissible or capable of being given any weight. GROUND 2
6. Whether the charge as formulated was not defective for failure to provide the punishment section therein. GROUND 5
7. Whether the learned trial judge was not in breach of the Appellant’s right to fair hearing when he discountenanced Exhibits D13 and D14 tendered by the Appellant but relied on Exhibits D19 – D21 tendered by the Respondent. GROUNDS 3 & 8
8. Whether the Respondent proved the offence of conspiracy beyond reasonable doubt. GROUND 6, 7 & 9
9. Whether the Lower Court was right to have assumed jurisdiction to entertain the charge. GROUND 10.

The respondent, in her brief filed 8/6/18 but deemed 5/2/19 distilled two issues for determination being.
1. WHETHER HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, IT CAN BE SAID THAT THE LOWER COURT DID NOT HAVE JURISDICTION TO TRY MONEY LAUNDERING RELATED OFFENCES.
2. WHETHER HAVING REGARD TO THE EVIDENCE ADDUCED BY THE PROSECUTION, IT CANNOT BE SAID THAT THE PROSECUTION DID NOT PROVE ITS CASE AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.

Brief Facts of the Case
The appellant Zacchaeus Tejumola was at the time material to this case, the Chief Accountant of the Institute of Agricultural Research and Training (I.A.R. & T) while Professor Banjamin Adefemi Ogunbodede (charged along with appellant as 1st defendant) was the Director and Chief executive of the Institute. Consequent upon a Petition to the Economic and Financial Crimes Commission EFCC by staff of the Institute I.A.R & T about the non-payment of their Hazard Allowance by the Management when there was a claim by the authorities that such payment had been made, the EFCC began investigation into the affairs of the Institute and the following facts were revealed.

1. The sum of N115,750,000 (One hundred and fifteen million, seven hundred and fifty thousand Naira) was paid into the account of the Institute of Agricultural Research & Training (I. A. R & T) for purposes of Staff Emoluments particularly hazard allowances between November and December 2010. Because, the money could not be spent before the end of December 2010 and to prevent a retirement of money before it could be mopped up and returned to the Federal Ministry of Finance as unspent, the Director and the Chief Accountant opened an account in which they are the joint signatories and ton which they transferred the sum of N177, 571,609.50 described as Hazard Allowance from the Institute account. The trial judge, in part, recorded the narrative as follows:
This fact is corroborated by Exhibit P5 which shows that the Institute maintains an Account Number 0065001000074305 with Access Bank Plc. it was this same account that received the two separate lodgments as shown on the account narration of the 24th November, 2010 and 21st of December, 2010 of Access Bank maintained by the Institute. This sum according to the 1st Defendant in his statement, Exhibit P10 is for the payment of salaries and allowances of staff. What then happened? The 1st Defendant provided an answer to this in his statement Exhibit P10 when he said:
“From the second installment of N303, 130,935.00 received in December 2010, the sum of N177, 571,609.50 which could not be spent before the end of the year was warehoused in staff club account by transferring the amount from PE to staff club account.”

​This piece of evidence is supported by the narration on Exhibit P5 wherein there was withdrawal of the sum of N177, 571,609.50 described as Hazard allowance from the institute’s account. Under cross-examination, the 1st Defendant admitted that the said sum was transferred. According to the 1st Defendant in his statement Exhibit P10:
“This fund was used to appreciate staff of the Federal Ministry of Finance that facilitated the fund release…”

​Now where was the Funds warehoused? The answer could be found in the evidence of the 1st Defendant under cross-examination by the prosecutor, wherein he admitted that the said fund was transferred to an account named as “Institute of Agricultural Research and Training Staff Club and Cooperative”. This evidence is corroborated by Exhibit P6A which is a letter from Access Bank indicating the account name and number. Exhibit P6A also include the account opening document of the staff club cooperative account. Exhibit P6A also includes the statement of account of the staff club cooperative. On the 12th of January, 2011, two separate lodgments narrated as hazard allowance were made into the account viz the sum of N81, 065,403.85 and N96,506,205,65 respectively. Exhibit P6 ‘A’ shows that the 1st and 2nd Defendants are signatories to this cooperative account. On whether there was an agreement to open this account, the 1st Defendant admitted under cross-examination that the account was opened in consultation or agreement with the 2nd Defendant and other parties outside the Institute. A curious person will want to know the status of this account named as “Institute of Agricultural Research and Training Staff Club and Cooperative”. The evidence of the 1st Defendant under cross-examination shows that this particular account is unknown to the Accountant General of the Federation as approval was never sought or obtained before the account was opened. It then makes the account a ‘private account’ which is subject to the overall control of the 1st Defendant. Money could therefore be expended from the account without due process. This the 1st Defendant admitted in his statement Exhibit P10 that most of the expenses through this account were not vouchered. The 1st Defendant gave a vivid narration of how the money in the Co-operative account was spent and the channels through which those monies were withdrawn and disbursed at his instructions. For further corroboration, I refer to Exhibits P6B, P7 and P8, all showing the instruments of withdrawal amongst others from the Co-operative account. The 1st Defendant further admitted variously under cross-examination that part of the funds paid to the 4th – 13th Defendants were subsequently ploughed back to him.

From these pieces of evidence, it is obvious that the 1st Defendant did not act alone. This then leads me to the role played by the 2nd Defendant.

The 2nd Defendant is a signatory to Exhibit P6 (A). He stated in his statement dated 22nd of May 2013:
“The sum of N177,571,609.50 was transferred to Institute of Agricultural Research and Training Staff Club Account number 0101632695 on the 12th January, 2011. The transfer was actually done in December 2010 to prevent a mop up of the account by 31st of December 2010”.

Under cross-examination, 2nd Defendant admitted that there is no such name as IAR&T Staff Club Co-operative. See Appendix 1.

​In his statement dated 17th of May, 2013, Exhibit P11, the 2nd Defendant stated:
“My signature featured in the disbursement of the N177, 571,609.50 from start to finish. I am a signatory to the staff club account No. 0101632695 with Access Bank. The reason why cash withdrawals were made from the staff club account is to make use of the cash for certain purposes. It is not right to make cash withdrawals from the staff club account. I authorized the withdrawals from the staff club account No. 0101632695 because I did not know at that time that it was wrong. The cash withdrawals were all authorized by the Executive Director and I do not know the details of the beneficiaries”.

Responding to some questions under cross-examination, the 2nd Defendant has this to say:-
Q. It is your employer’s policy that unspent funds should be evacuated by the Accountant General?
A. You are correct.
Q. It is also correct to say that you and the other Defendants agreed to prevent the evacuation in accordance with your Employer’s Policy?
A. Yes, but for a reason.
Q. All of you agreed to prevent the return of the money from going back to the Treasury?
A. Yes.
Q. In carrying out this agreement with 1st Defendant P6 (A), the total sum of N177million Naira was transferred in two tranches.
A. Yes.
Q. In executing your agreement with 1st Defendant, the lodgment on the 12th of January 2012, the transaction narrated on that date was transferred into the account.
A. Yes.

By the evidence of the 2nd Defendant, he has clearly laid out the role he played vis-à-vis the charges against him.

2. Thus, money from the legitimate account of the Institute was transferred to an illegitimate account not know to the Federal Ministry of Finance.

3. Being joint signatories, the appellant and the Director and Chief Executive proceeded to draw various sums of money through proxies some of which were mere registered business names or business association through whom such moneys got “ploughed” back to appellant and the Director.

4. Meanwhile, the staff of the Institute to whom the Hazard Allowances were due were not paid which resulted in the Petition by the Staff Union dated 17th December 2012 which sparked off the EFCC investigation and the revelations which came off it.

Treatment of Issues
Appellants No. 1
The 3rd accused Adenose Clement was charged with the appellant and prof. Benjamin Ogunbodede on the charge of conspiracy only, 3rd accused was not charged on the any of the substantive offence. Indeed, the trial judge in his judgment clearly exonerated the 3rd accused describing him as a mere errand boy and courier of the 1st and 2nd accused. As the main offences did not connect the 3rd accused person and the evidence in those charges did not implicate 3rd accused, the discharge of 3rd accused is not ipso facto, a reason for the discharge of the appellant and the 1st accused. This ground lacks merit.

No 2.
The judgment is not against the weight of evidence. Exhibits P10 and P11 are clearly confessional statements Exhibit P11 is the confessional statement of the appellant. Concerning the appellant who was 2nd defendant in the case, here is what the trial judge recorded.

On the part of the 2nd Defendant who equally featured in all the counts involving the 1st Defendant, I will refer to and place reliance on his statement dated 17th, 22nd, 23rd of May 2013 and 19th of June, 2013. These statements as earlier observed are confessional and nothing can be added or subtracted from it. For clarity, I reproduced hereunder the statement of the 2nd defendant dated 19th of June 2013.
​”In addition to my statement made on 17/06/13 I wish to state as follows:
I have been shown a response from Access Bank dated 14/05/13 in which they forwarded instruments used to withdraw from the staff club account to the commission and I wish to comment as follows: the cheque with No.00000013 date 06/06/11 for an amount of N4,500.000 was not for contract. The contractor, Tows bury international Agency Ltd was paid the sum and withdrew the sum which he handed over to the Director. I do not know the real name of the contractor, I only know him by the name of his company. The cheque No. 00000011 dated 06/06/11 issued to Cradle Engineering Nig. Ltd was not for contract cradle Engineering Nig. Ltd account was used to withdraw the sum of N9, 700.000 written on the cheque and the money was handed over to the Director by the contractor Cradle Engineering Nig. Ltd. I do not know his real name, I only know him by his company’s name. The cheque No. 00000016 issued to Arieco Trading Venture on 25/06/11 was not for contract. Arieco Trading Ventures account was used to withdraw the money. The sum of N5, 000.000 written on the cheque was handed over to the Director by the contractor. I do not know his real name, I only know him by his company’s name. The cheque No. 00000015 issued to Al-tora Allied businesses was for contract the Atora Allied business’s account was used to withdraw the money. The sum of N5, 300,000 written on the cheque was handed over to the Director by Al-tora Allied Business. I do not know his real name, I only know him by his company’s name. The cheque No. 00000017 issued to Manifold Mercies Ventures was not for contract. The contractor’s account was used to withdraw the money. The sum of money N7, 000,000 written on the cheque was handed over to the Director by the contractor Manifold Mercies Ventures. I do not know his real name, I know him by his company’s name. The cheque No.00000014 dated 28/06/11 issued to Afribiz Viable Konsult was not for contract. Afribiz Viable Konsult account was used to withdraw the money. The sum of N4, 700, 00 written on the cheque was handed over to the Director by the contractor Afribiz Viable Konsult. I do not know the contractor’s real name. I only know him by his company’s name. The cheque No.00000024 issued to Momm. Ltd was not for contract. Momm Ltd’s account was used to withdraw the money. The sum of N9, 300,000 written on the cheque was handed over to the Director by Momm Ltd. I do not know his real name, I only know him by his company’s name. The cheques No.00000019 issued to Agbeloba Agrotech Ventures Ltd was not for contract. Agbeloba Agrotech Ventures Ltd’s account was used to withdraw the sum of N9,950,000 which was handed over to the Director by Agbeloba Agrotech Ventures Ltd. I do not know his real name; I only know his company’s name. The cheque No.00000025 issued to Cradle Engineering Service Ltd was not for contract. Cradle Engineering’s account was used to withdraw the money. The sum of N9,700,000 written on this cheque was returned to the Director by the contractor, Cradle Engineering. The cheque No. 00000026 issued to Towsbury International Agency Ltd was not for contract. Towsbury International agency withdrew the money and returned the money to the Director. The sum of N9, 700,000 written on the cheque was returned to the Director by Towsbury International Agency. I do not know his real name, I only know him by his company’s name.

The cheque No. 00000029 issued to Agbeloba Agrotech Ventures Ltd was not for contract. Agbeloba Agrotech’s account was used to withdraw the money. The sum of N9, 300,000 written on the cheque was returned to the Director by Agbeloba Agrotech Ventures. I do not know his real name. I only know him by his company’s name. The cheque No. 00000027 issued to Manifold Mercies Ventures was not for contract. The sum of N9, 100,000 written on the cheque was withdrawn and returned to the Director by Manifold Mercies Ventures. I do not know his real name, I only know him by his company’s name. The cheque No.00000028 issued to Allied Aqua-Forte Ventures was not for contract. The sum of N8, 400,000 written on the cheque was withdrawn and handed over to the Director by Allied Aqua-Forte Ventures. I do not know his real name, I only know him by his company’s name. The cheque No. 00000030 issued to Afribiz Viable Ventures was contract. Afribiz Viable Ventures collected the sum of N7, 700,000 written on the cheque and returned the money to the Director. I do not know the contractor’s real name, I only know him by his company’s name for all the companies I mentioned, the contractor is one and the same person, but I do not know his real name. I only know his company’s name. I do not know the details of what all the money was used for.
Payment vouchers were not raised for all these cheques. The contractor handed over all the cash withdrawals to the Director, Professor B. A. Ogunbodede. Vouchers were not raised for all these cheques because we did not want to raise vouchers for them.
I knew it was not normal not to raise vouchers for financial transactions. It is not in accordance with accounting practice not to raise vouchers. I am a signatory to the staff club account”.

Aside from the statement of the 2nd Defendant, all the instruments used in drawing up cheques in favour of the 5th-11th Defendants/convicts were all co-signed by him as the institute’s Chief Accountant. The 2nd Defendant also confirmed this in his evidence under cross-examination when he reacted to the question (s) fielded by the prosecution thus:
Q. Is it correct that the scheme leading to this charge is that part of this N177 Million Naira were transferred to the 5th-13th Defendants and the owner of the companies received the money, cashed it and return it to you?
A. Money was not returned to me. I signed the cheques so I did not see how the money was cashed.
Q. Are you denying that these funds were not given to 5th -13th Defendants?
A. They were given money.
Q. Are you denying that the 5th-13the Defendants did not withdraw the money from the bank?
A. They did.
Q. And the money would not have been received by the 1st Defendant but for your signing the cheque which is the instrument of withdrawal unto the account that you open which is Exhibit P6.
A. it is part of my duty to sign cheque.
Q. What I am saying is that the withdrawal would not have been possible if you had not signed those cheques.
A. Yes.

This piece of evidence is further corroborated by Exhibit P6 (a) which contains all the instruments of withdrawals co-signed by the 2nd Defendant. Based on the evidence above, I do find and hold that the prosecution has further established the guilt of the 2nd Defendant in respect of counts 4, 6, 7, 9, 11, 12, 15 and 16 and he is hereby convicted of each of the counts as charged.

The statement is direct and positive and contains all the elements of a confession. See Henry Odeh v. FRN SC /334/2001 or (2008) 3-4 SC 147, Michael Oloye vs. The State (2014) LPER CA. The trial judge rightly considered the statement as truly confessional and acted on its. This issue lacks merit.

Issue 3 & 4
These issues also revolve around Exhibit 11 the confessional Statement of the appellant. They are therefore of no consequence having regards to the confession of the appellant. They are without merit.

Issue No. 5
Exhibit P5 and P6 were tendered by an officer from Access bank with certificate of identification in line with Section 84(4) of Evidence Act. There was no objection to the admissibility of the document showing appellant was /is a signatory to the accounts. Here is what the Court recorded in respect of Exhibit P6

The 2nd Defendant is a signatory to Exhibit P6 (A) He stated in his statement dated 22nd of May 2013:
“The sum of N177, 571,609.50 was transferred to Institute of Agricultural Research and Training Staff Club Account number 0101632695 on the 12th January, 2011. The transfer was actually done in December 2010 to prevent a mop up of the account by 31st of December 2010.”
Under cross-examination. 2nd Defendant admitted that there is no such name as IAR&T Staff Club Co-operative. See Appendix 1. In his statement dated 17th of May, 2013, Exhibit P11, the 2nd Defendant stated:
“My signature featured in the disbursement of the N177, 571,609.50 from start of finish. I am a signatory to the staff club account No. 0101632695 with Access Bank. The reason why cash withdrawals were made from the staff club account is to make used of the cash for certain purposes. It is not right to make cash withdrawals from the staff club account. I authorized the withdrawals from the staff club account No. 0101632695 because I did not know at that time that it was wrong. The cash withdrawals were all authorized by the Executive Director and I do not know the details of the beneficiaries.”

Responding to some questions under cross-examination, the 2nd Defendant has this to say: –
Q. it is your employer’€™s policy that unspent funds should be evacuated by the Accountant General?
A. You are correct.
Q. it is also correct to say that you and the other Defendants agreed to prevent the evacuation in accordance with your Employer’s Policy?
A. Yes, but for a reason.
Q. All of you agreed to prevent the return of the money from going back to the Treasury?
A. Yes.
Q. In carrying out this agreement from Exhibit P6 (a), the total sum of N177 million naira was transferred in two tranches.
A. Yes.
Q. In executing your agreement with 1st Defendant, the lodgment on the 12th of January 2012, the transaction narrated on that date was transferred into the account?
A. Yes.

By the evidence of the 2nd Defendant, he has clearly laid out the role he played vis-à-vis the Charges against him.

Issue No. 6
Contrary to the opinion of the appellant about the charges not providing or linking the punishment section, the correct position is as stated by the trial Court when he stated thus at page 1203 of the record:
​Contrary to the submission of the 1st Defendant, I do not think any of the seventeen (17) count charge can be faulted on grounds that the prosecution has charged the 1st Defendant under a wrong section of the law. The correct position is as stated by the Supreme Court in Akinola Olatunbosun vs. State (2013) LPELR-20939 (SC) where Aka’ahs, JSC stated thus:
“If the facts on which an appellant was convicted are known to law, the fact that the accused was charged under a wrong law or section of the law, will not lead to his acquittal. See Alhaji Musahid Dokubo Asari vs. FRN (2007) 5-C 150; Aminu Mohammed vs. State (2007) 7 NWLR (pt.1032) 152”.

The issue is also without merit.

Issue No. 7
There is no competition between Exhibits. If any piece of evidence, be it ExhibitD13 and D14, has probative value, due weight will be accorded it. If it is irrelevant, a trial judge is not bound to lend much weight to it. They are report of investigative panel which are not counts. The same is true of Exhibit D19-21. They are not judicial proceedings, not capable of authoritative abidingness. The Judge must come to his own decision independently. The issue fails.

​Issue No. 8
Exhibits 10 the confessional statement of professor Benjamin Adefemi Ogunbodede and Exhibit 11 the confessional statement of the appellant Chief Accountant of the Institute of Agricultural Research and Training as well the instruments they both signed to open the illegitimate account and to withdraw various sums of money are ample evidence that there was a deep-rooted conspiracy between the two entitling the trial judge to infer conspiracy as the law permits. The trial judge says thus of conspiracy:
The Act did not give the definition of conspiracy but the decisions of our appellate Courts have provided adequate definition of the word “conspiracy”. I will therefore draw from these judicial authorities in defining the word conspiracy. In Michael Oloye vs. The State (2014) LPELR-22545 CA, Dongban-Mensem said:
“Conspiracy has been variously defined as an agreement between one or more persons to do an illegal act by an illegal means.”
See also Kaza vs The State (2008) 5 SCM 70 at 104; The State vs. Salawu (2011) LPELR-8252 (SC) PP.38-39.
​Conspiracy is generally proved by inference deduced from the criminal acts of the culprits done in the pursuit of the criminal or illegal purpose common to the conspirators. It should be noted that proof of the actual agreement which is the hub or essential elements of the crime is not always easy to establish since the agreement is almost always shrouded in secrecy. See Rasaki vs. The State (2011) CA.
The trial Court rightly inferred conspiracy from the evidence proved. This issue is also without merit.

Issue No. 9
Section 20 dealing with “Trial of offence” provides in subsection (1) thus:
“The Federal High Court shall have exclusive jurisdiction to try offences under this Act.”

The trial was before the Federal High Court sitting at Ibadan having complete power and competence nothing is shown that is capable at depriving the Court of competence See Madukolu vs. Nkemdilim… Issue No 9 is also without merit.

In response to issue No 2 of the respondent’s brief; it is beyond conjecture that the prosecution did not prove its case. The prosecution proved the case against the appellant beyond reasonable doubt.

In the final analysis, the appeal is without merit in its entirety and is accordingly dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA.

Upon the totality of the oral and documentary evidence adduced before the trial Court, I agree with my learned brother that this appeal is devoid of any merit. It is hereby dismissed.

FOLASADE AYODEJI OJO J.C.A.: I have read in draft, the lead Judgment just delivered by my learned brother Nonyerem Okoronkwo, JCA. I completely agree with him that this appeal lacks merit.

In the instant appeal, there is evidence on record that the Accountant-General of the Federation mops up all funds which remain unspent in the account of all Ministries, Departments and Agencies of the Federal Government of Nigeria usually on 31st of December every year. Between November and December, 2010, some monies were paid into the account of the Institute of Agricultural Research and Training (I. A. R. & T) in two tranches. The money was meant for the payment of Staff emolument The sum of N115,750,000.00 (One Hundred and Fifteen Million, Seven Hundred and Fifty Thousand Naira) was paid in November, 2010. A further sum of 303, 130,935.00 (Three Hundred and Three Million One Hundred and Thirty Thousand, Nine Hundred and Thirty-Five Naira) was paid in December, 2010. The sum of 177,571,609.50 (One Hundred and Seventy-Seven Million, Five Hundred and Seventy-One Thousand, Six Hundred and Nine Naira, Fifty Kobo) remained unspent close to the end of the year.

The Appellant who was the Chief Accountant of the institute in conjunction with the Director of the Institute, opened an unauthorized account with Access Banks The unspent fund was transferred into the said account with the Appellant and the Director as signatories. The sum of 177,571,609.50 (One Hundred and Seventy-Seven Million, Five Hundred and Seventy-One Thousand, Six Hundred and Nine Naira, Fifty Kobo) was thus not retired to the Federal Ministry of Finance at the end of December, 2010. The Appellant acting on the instruction of the Director issued Cheques to siphon the money out of the new account through proxies. No vouchers were raised in respect of the withdrawals, The Appellant admitted in his confessional statement Exhibit PI 1 that failure to raise vouchers for transactions does not accord with standard accounting practice. The learned trial Judge found him guilty of the offence of conspiracy amongst others.

To establish the offence of conspiracy, the prosecution needs to prove that there was an agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. There is no need for the Prosecution to prove that there was direct communication between the individuals. It will suffice if there are facts which prove that the individuals are aware of the intention or purpose of the conspiracy. See MUSA VS. STATE (2017) 5 NWLR (PT.1557) 43; OMOTOLA & ORS VS. STATE (2009) 7 NWLR (PT.1139) 148: AKINLOLU VS. STATE (2018) ALL FWLR (PT.927) 1. IN KAZA VS STATE (2008) 7 NWLR (PT.1085) 125, the Supreme Court, per Tobi, JSC help as follow;
“From the above, I sift the following ingredients of the offence of conspiracy:
(i)There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds.
(ii) The persons must plan to carry out an unlawful or illegal act, which is an offence-
(iii) Bare agreement to commit an offence is sufficient.
(jv) An agreement to commit a civil wrong does not give rise to the offence, as Section 97(1) of the Penal Code provides only for criminal conspiracy
(v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
(vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective.”
There is sufficient evidence on record to prove that the Appellant and others engaged in an illegal act using illegal means. They failed to retire unspent funds of the Institute to the Federal Ministry of Finance in accordance with government regulation. They transferred the said money to an illegal bank account opened and operated by them. I agree with my learned brother that the trial Court rightly inferred conspiracy from the evidence before it.

For this reason and the fuller ones contained in the lead judgment.

I too dismiss this appeal.

Appearances:

Absent though duly served For Appellant(s)

K.E. Uduak For Respondent(s)