Elvis Ezeani V. Federal Republic Of Nigeria (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on 27th day of January, 2017 wherein the Court below affirmed the decision of the High Court of Lagos State which convicted and sentenced the Appellant to 10 years imprisonment in each of the three counts of the charge of conspiracy to obtain money by false pretence (Count 1) obtaining money by false pretence (Counts 2 and 3) contrary to Sections 8 (a) and 1 (3) AND 1(1) (a) and 1 (3) of the Advance Fee Fraud and Other Related Offences Act Cap A 6, Laws of the Federation of Nigeria, 2004 respectively. The Salient facts giving birth to this appeal are as hereunder stated.

By information filed on 23rd February, 2015 before the High Court of Lagos State, the Appellant was charged with the following offences, namely:

“COUNT 1

Statement of Offence:

Conspiracy to obtain money by false pretence contrary to Section 8(a) and 1(3) of the Advance Fee Fraud and Other Related Offences Act No.14 of 2004:

PARTICULARS OF OFFENCE:

Elvis Ezeani and Joseph Morah on or about the 25th of

1

May, 2006 at Lagos within the Ikeja Judicial Division with intent to defraud conspired to obtain money under false pretences from one Auwalu Abdulrahman.

COUNT 2:

STATEMENT OF OFFENCE:

Obtaining money by false pretences contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related offences Act Cap 46, Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE:

Elvis Ezeani and Joseph Morah on or about the 25th of May, 2006, at Lagos within the lkeja Judicial Division with intent to defraud, obtained the sum of N13,500, 000,00 (Thirteen Million, Five Hundred Thousand Naira) only from one Auwulu Abdulrahman on the false pretences as value for the transfer of $250,000 (Two Hundred and Fifty Thousand US Dollars) to him through his brother, one Alhaji Nurudeen resident in Ghana and which pretences you knew to be false.

COUNT 3:

STATEMENT OF OFFENCE:

Obtaining money by false pretences contrary to Section 1(1) (a) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act Cap A6, Laws of the Federation of Nigeria, 2004.

2

PARTICULARS OF OFFENCE:

Elvis Ezeani and Joseph Morah on or about the 25th of May 2006 at Lagos within the Ikeja Judicial Division with intent to defraud obtained the sum of $143,620 (One Hundred and Forty Three Thousand, Six Hundred and Twenty US Dollars) from one Auwalu Abdulrahman on the false pretences as value for the transfer of $250,000 (Two Hundred and Fifty thousand US Dollars) to him through his brother, one Alhaji Nurudeen resident in Ghana and which pretences you knew to be false.”

At the trial, the Respondent herein as Prosecutor at the trial Court called three witnesses who testified as PW1, PW2 and PW3 and tendered some documents admitted in evidence as Exhibits 1, 2, 3, 4 and 5 and closed its case. In defence, the Appellant testified as DW1, and closed his case.

The gist of the Respondent’s case is that the Appellant in concert with both John Obiamalu and Joseph Morah had some time in May, 2006 approached one Auwalu Abdulrahman, the PW1, a Bureau De Change Operator with an offer to sell to him $500,000.00 which they claimed they had for sale but was in the custody of their agent, one Nurudeen in Ghana. Auwalu Abdulrahman was interested in the deal but wanted to buy only the sum of

3

US$250,000.00 and after due negotiation, the parties arranged to meet in Auwalu Abdulrahman’s Lagos office.

On the agreed date, they met at UBA Plc., Marina Branch, Auwalu’s bank and the sum of N13,500,000.00 was withdrawn by him and paid in cash to the Appellant and the two other persons, Joseph Morah and John Obiamalu. However, Auwalu Abdulrahman was also to pay and actually paid to them the sum of US $143,620.00 cash as part of the payment for the US $250,000.00 in addition to the cash of N13,500,000.00 also paid to them. The agreement was that a nominee of Auwalu Abdulrahman one Mahadi Ahmed would stay with them until Auwalu Abdulrahman received confirmation from his brother and agent in Ghana that the sum of $250,000 has been handed over by the seller’s agent in Ghana.

Unfortunately, when Auwalu Abdulrahman’s brother/agent arrived in the Ghana office, he discovered that there was no sign of the seller’s agent or the promised US dollars to collect. In the meantime, the Appellant and his confederates were able to get away from the presence of Mahadi Ahmed after pushing him out of the Taxi Cab they were all in and left with the monies in the car.

4

On his part, the Appellant denied the allegation of the Respondent and stated that he merely acted as a commissioned agent in the transaction at the request of one Mr. Tunde Ogunsetan, a Bank Manager and was paid his agency fees of N750,000.00.

At the conclusion of trial at the High Court of Lagos State, the learned trial judge found the Appellant guilty on all the three counts and sentenced him to ten years imprisonment on each count and ordered same to run concurrently commencing from 28th April, 2015 being the date of the Appellant’s remand in prison custody by the learned trial judge.

Dissatisfied with the stance of the learned trial judge, the Appellant appealed to the Court of Appeal which, after hearing argument from both sides, dismissed the appeal and affirmed the conviction and sentence of the appellant. Appellant is again not satisfied with the judgment of the lower Court and has further appealed to this Court.

Notice of appeal was filed on 15th February, 2017 and contains four grounds of appeal out of which the Appellant has distilled three issues for the determination of this appeal.

5

On 21st November, 2018 when this appeal was argued, the learned counsel for the appellant V.I.P. Nwana Esq., identified and adopted the brief of argument of the appellant filed on 5th March, 2018. He also adopted a reply brief he filed on 14th May, 2018. Learned counsel for the Respondent, Chile Okoroma. Esq., also adopted the Respondent’s brief of argument he filed on 11th April, 2018.

On page six of the Appellant’s brief of argument are the three issues distilled by the appellant as follows:

1. Whether given the doubt, speculations, uncertainties and inconsistencies of the prosecution witnesses which ought to be resolved in favour of the appellant and uncorroborated evidence of PW1 and PW2 the learned Justices of the Court of Appeal Lagos Division were right and correct to affirm the decision of the trial Court Coram: Honourable Justice Atinuke Ipaye of 18th day of February, 2016 which found appellant guilty and sentenced him to 10 years term of imprisonment.
2. Whether the Court below was right to uphold the decision of the trial Court to the effect that the entire transaction was a phantom one orchestrated by the Appellant and his confederates to obtain and they did obtain the various

6

sums as alleged in the charges against the appellant and which charges were proved beyond reasonable doubt as required by law when there is no supportive evidence to that effect.

3. Whether the learned trial (sic) justice of the Court below were right and correct to affirm that the trial Court properly and legally interpreted, construed and applied the clear provision of Section 315 of the Administration of Criminal Justice Law of Lagos State 2011 and now 2015 to the effect to mean that the term of 10 years imprisonment shall commence from the date the appellant was reminded (sic) in prison custody rather than the whole period of the detention of the appellant at Kuje prison Abuja, the police, the EFCC detention both in Abuja and Lagos and prison custody as provided by the Legislature in Section 315 of the Administration of Criminal Justice Law of Lagos State 2011 and now 2015.

On his own part, the learned counsel for the Respondent has formulated two issues for the determination of this appeal as follows:

1. Whether the Court below was right when it affirmed the judgment of the trial Court to the effect that the Respondent proved its case

7

against the Appellant beyond reasonable doubt on each of the three counts of the information and therefore convicted him accordingly.

2. Whether the Court below was right when it held that the sentence of the Appellant to 10 years imprisonment respectively on the three counts of the information under the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004 by the trial Court with effect from date of his remand in prison custody by the Court was in accordance with Section 315 of the Administration of Criminal Justice Law, 2011.

A cursory look at the three issues distilled by the appellant shows that they are verbose and windingly unimpressive to the extent that they seem to have lost their meaning. But looking at the two issues donated by the Respondent, they are concise, apt and straight to the point. I shall accordingly adopt the two issues as framed by the Respondent as they bring out the real complaint of the appellant in this appeal. More so, in arguing the appeal, the learned counsel for the appellant argued issues one and two together while issue three is argued separately, thus coinciding with the Respondent’s two issues. ISSUE ONE: (Appellant’s issue 1 & 2)

8

The submission of the learned counsel for the appellant on his issues 1 and 2 is that the determination of these issues call for the reason or reasons the learned Justices of the Court below did not examine the issues in resolving the doubts, uncertainties, speculations, inconsistencies, discrepancies, hollowness, contradictions and corroborative evidences of PW1 and PW2 in favour of the appellant before affirming the decision of the trial Court.

Learned Counsel submitted that notwithstanding the apparent material inconsistencies and uncorroborated evidence as to who owns the money and how much was involved, and why did the PW1 and PW2 not report such incident to the police immediately and PW1’s failure to report the matter to Alhaji Saliu Ibrahim over a month after it happened but had to wait for him to write a petition to the Inspector General of Police, it was wrong for the Court below to affirm the judgment of the trial Court. According to him, there was doubt in the prosecution’s case which ought to have been resolved in favour of the appellant.

9

Learned counsel contended that the failure to call Alhaji Nurudeen to corroborate the evidence of PW1 and PW2 is fatal to the case of the Respondent notwithstanding that he resides in Ghana. He opined that the listing and calling of Alhaji Nurudeen as a witness will also clear the doubt if anybody like him exists at all, if PW1 ever had anybody in Ghana who doubles as his brother and agent whom PW1 said went and saw money and later said he did not see anybody and who will clear the lacuna if there was any discussion that the money PW1 said was to be collected in Ghana on PW1’s behalf was actually seen or collected. Appellant also faulted the non-calling of Sani Musa and John Obiamalu as witnesses. He also contended that there is no corroboration that PW2 was pushed out of the car and that the Appellant and Joseph Morah sped away with the money.

According to him, failure to call vital witnesses is fatal to Respondent’s case, relying on State v. Nnolim (1994) 3 NWLR (Pt. 345) 394. State v. Azeez (2008) All FWLR (Pt. 424) 1423.

He urged the Court to resolve his issues one and two in favour of the appellant.

10

In his response, the learned counsel for the Respondent submitted that this appeal is on concurrent findings of the two Courts below and that this Court does not interfere with such findings or decision except where that decision or findings appears to be perverse. He opined that it behoves the appellant to satisfy this Court with plausible arguments backed by facts why this Court should interfere, relying on LAGGA v. Sarhuna (2008) 6 SCNJ 181, Dumez Nig. Ltd v. Peter Nwakhoba (2008) 12 SCNJ 768, Agbonmwanre Omoregie v. the State (2008) 12 SCNJ 723, Theophilus v. The State (1996) 1 SCNJ 79.

According to him, the issues of inconsistencies, doubts, speculations etc. alleged by the Appellant’s counsel in his argument are fanciful and irrelevant. That the issues of ownership of the money, the actual amount of money involved, how much was actually given by PW1 in exchange for the dollars, what corroborates the allegation that N13.5 Million and $143, 620.00 was given out by PW1 at the same time is akin to ploughing the sand. He contended that if the money or any part of it did not belong to PW1, the appellant did not lay any claim or lead any evidence to show that it belonged to him or any of his confederates.

11

He opined that the evidence of PW1 and PW2 on how the money came about is unassailable. He contended that the sum of N13.5m and $143,620.00 given by PW1 to the appellant and his confederates are certain and as such it was unnecessary to list and call Alhaji Sani Ibrahim as a witness. He stressed that there is no law which compels the prosecution to call a particular number of witness to prove its case.

On issue of contradictions, learned counsel submitted that they were not material contradictions. That for contradictions in the evidence of the prosecution witness to be material and capable of rendering the evidence unreliable, it must relate to the material ingredient of the offence charged. He submitted that inaccuracies and discrepancies that do not touch the justice or substance of the case is not a sufficient ground to disturb the judgment, relying on Silas Sule v. The State (2007) LPELR – 8901, P1 at PP 5 -6; Onubogu v. State (1974) 9 SC. 1.

On why it was Alhaji Ibrahim who reported the matter to the Police and not PW2, he submitted that there is no law that only the victim of the offence can make a report to the police.

12

He drew the attention of the Court to the testimony of PW1, where he told the Court that Alhaji Ibrahim is his business partner who gave him the $143,620 USD which he gave to the appellant. It was therefore immaterial if it was PW1, PW2 or Alhaji Ibrahim who reported the matter to the police. He submitted that since the prosecution had proved that the various sums of money were paid by the PW1 to the appellant, the burden of proof that the equivalent was actually received by the PW1’s agent was on the appellant by either calling Alhaji Nurudeen or tender an acknowledgement of receipt. Such failure to offer explanation will support the inference of guilt against him citing the case of Igabele v. State (2006) 6 NWLR (Pt. 975) 100 at 131.

On why the money was paid, both in Naira and in dollars, he submitted that the PW1 gave explanation at the trial Court which was never impeached.

On the issue of whether the prosecution proved the exact date the offence was committed, learned counsel submitted that when the phrase “on or about” is used in a criminal charge, it is not necessary to prove the precise date the alleged offence was committed, citing the case of Akpa v. State (2007) 2 NWLR (Pt. 1019) 500 at 522 – 53 paragraph & – A, Awopejo v. State (2000) 5 NWLR (Pt. 659) 1 at 13 paragraph F – G.

13

Again, on the issue that there was no corroboration on the evidence of PW2 that he was pushed out of the taxi, learned counsel submitted that the contention is frivolous as the appellant neither denied the evidence nor impeached same. He then urged the Court to resolve this issue against the appellant.

As I noted earlier in this judgment, the Appellant filed a reply brief which in my opinion is a re-argument of the case of the appellant and not reply to new issues in the respondent’s brief. The law is trite that a reply brief is not an opportunity to improve the argument of the appellant. Rather, it is to answer the arguments in the respondent’s brief which were not taken in the appellant’s brief. In circumstance therefore, I shall not go into it further. See Mozie & Ors v. Mbamalu & Ors (2006) 15 NWLR (Pt. 1003) 466, (2006) LPELR – 1922 (SC), Oguanuhu & Ors v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588, (2013) LPELR – 19980 (SC).

All the argument of the appellant’s counsel in his issues one and two which are submitted in the

14

respondent’s first issue is that the Respondent did not prove the charge against the appellant beyond reasonable doubt. He then cataloged facts in the case which he felt ought to have raised doubts in the mind of the Court which also ought to have been resolved in favour of the appellant. The areas of doubts which the appellant wants this Court to consider relate to the following:

1. That the ownership of the money, the subject matter of the charge was not resolved.
2. How much was actually involved
3. How much was actually given to the appellant by PW1 in exchange for dollars.
4. What corroborates the allegation that both N13,500, 000.00 and $143,000.00 were given to the appellant the same time.
5. Why did the PW1 give the appellant both Naira and Dollars at the same time
6. Why is it that Alhaji Saliu Ibrahim reported the case to the police instead of PW1 or PW2
7. Why Alhaji Nurudeen was not called as witness.
8. No Corroboration that PW2 was pushed out of the car, etc. etc.

I have read the judgment of the learned Trial Judge and the judgment of the Court below and I noted that the above issues have been

15

ventilated and pronounced upon. All the appellants want in this Court is a third opinion. But will he be satisfied This is what the learned trial Judge said on page 249 of the Record of Appeal:

“PW1 has led evidence before this Court of how he went to the Marina Branch of his Bank UBA PLC to withdraw the sum of N13.5 million which he paid to the duo of Elvis Ezeani, the defendant herein and Joseph Morah as part payment for his purchase of the $250,000.00 the later has offered to sell to him. His testimony in this regard has not been impeached in any way. In fact, PW2 has corroborated testimony of PW1 in this regard as he joined PW1 in the bank and was present when the N13.5 Million was withdrawn and handed over to the defendant and Joseph Morah and I so hold. DW1’s oral testimony before the Court has equally confirmed his presence in the bank at the material time. He has equally confirmed that the said sum was handed over to Joseph Morah. Furthermore it has been established that upon receipt of the money, the defendant, Elvis Ezeani, Joseph Morah and PW2 Mahadi Ahmed left the bank together in a taxi cab and were purportedly to (sic) rendezvous in

16

Excelsion Hotel to await confirmation that $250,000.00 had been handed over to the buyer’s agent and brother Alhaji Sani Nurudeen based in Ghana. The testimonies of PW1 and PW2 in respect of the above facts have been given in a clear and concise manner. In addition, their testimonies have not been impeached or discredited in any material particular. I am therefore inclined to accept the veracity of same and I so hold.”

The above is part of the views expressed by the learned Trial Judge in this matter before reaching his conclusion that the appellant was guilty of the offence as charged. All through the judgment, the learned trial judge evaluated the pieces of evidence adduced by both parties and concluded that the evidence against the appellant was unchallenged and/or unimpeached. Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. See Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246, Adamu v. The State (1991) 4 NWLR (Pt. 187) 530, (1991) LPELR – 73 (SC).

17

It has to be noted that the appellant, either at the Court below or in this Court, has not appealed against the finding that the evidence of prosecution witnesses was not controverted or impeached in any material particular. Thus the appellant is bound by these findings.

The Court below, after reviewing the judgment of the trial Court, made the following conclusions on pp. 368 -369 of the record as follows:

“There is nowhere in law where corroboration is required in the circumstances of the testimonies of the PW1 and PW2. Their evidence, which were credible, first hand and consistent needed no corroboration and being largely unchallenged, were good evidence on which the Court below could and indeed acted rightly to convict the Appellant. It must be pointed out at once that it is never the law that the prosecution needed to call any number of witnesses or a hordes of witnesses or even all material witnesses since in (sic) a sole credible witness is sufficient to prove a charge particularly offences in which corroboration is not required in law, beyond reasonable doubt. It needs to be further reiterated that in law decision of Court are not reached by majority of vote of witnesses but by

18

the quality of evidence led. See Section 39 of the Evidence Act 2011. See also Onah v. State (1985) 3 NWLR (Pt. 12) 236, Alake v. State (1992) 9 NWLR (Pt. 265) 200, Adie v. State (1980) 12 NSCC 51, Udor v. State (2014) 12 NWLR (Pt. 1422) 548), Afolabi v. The State (2010) 16 NWLR (Pt. 1220) 584, Okunade Kolawole v. The State (2015) LPELR – 24400 (SC), Abeke Onafowokan v. The State (1987) 1 NWLR (Pt. 610 538, Akpabio v. State (1994) 7 NWLR (Pt. 359) 635.”

The lower Court went on:

“I find that the Court below was perfectly right when it held that the entire transaction was a phantom one orchestrated by the Appellant and his confederates to obtain and they did obtained (sic) the various sums alleged in the charges against the Appellant and which charges were proved beyond reasonable doubt as required by law.In my view, on the face of the credible and consistent evidence of the prosecution witnesses of which there was no credible denial from the appellant that indeed and in fact the alleged sums were received by the Appellant and his confederates and no money delivered to the PW1’s agent, one Nurudeen in Ghana, the inconsistent, incredible and

19

largely after thought evidence of the Appellant as DW1 ought to be taken with a “pinch of salt” and was also rightly not accorded any weight by the Court below.”

There is no doubt that in criminal trials, the burden of proving the guilt of an accused person rests on the prosecution and does not shift. It is static throughout the trial. See Adeyeye v. The State (2013) 11 NWLR (Pt. 1364) 47, (2013) LPELR -19913 (SC). However, where the prosecution has led credible evidence before the Court which establishes a prima facie case against the accused, it is the duty of the accused to lead evidence to explain to the Court why the prosecution’s evidence should not be believed. In Muftau Bakare v. The State (1987) 1NWLR (Pt. 52) 579, (1987) LPELR – 714 (SC) at Page 14 – 15, per Oputa, JSC (of blessed memory), this Court held as follows:

“The primary onus of establishing the guilt of the Appellant was on the prosecution and this does and did not shift. What does shift, is the secondary onus or the onus of adducing some evidence which may render the prosecution’s case improbable and therefore unlikely to be true and thereby create a reasonable doubt: –

20

V. Harry Lazarus Lobel (1957) 41 cr. App. R. 100 at P.104 per Goddard L. C.J.

See also Igabele v. The State (2006) 6 NWLR (Pt. 975) 100 at 131 paragraphs D-G.In the instant case, both the trial Court and the Court of Appeal have found and held that the prosecution witnesses established a prima facia case against the appellant. That is to say, that the prosecution has proved its case beyond reasonable doubt against the appellant. Both Courts have held that the appellant and his confederates received the sums of money as per the charge from the PW1 but failed to give to him the $250,000.00 as agreed. In fact, there was no such dollars in Ghana as evidence reveals. These are concurrent findings of fact of the trial Court and the Court of Appeal and this Court does not, in practice, disturb such concurrent findings unless they have been shown to be perverse. See Bashaya & ors v. The State (1998) 5 NWLR (Pt. 550) 35 1, (1998) LPELR 755 (SC), Sobakin v. The State (1981) 5 SC 75, Adio & Anor v. The State (1986) 2 NWLR (PT24) 581, Adekoya v. The State (2017) LPELR-41564(SC).

21

I have examined both the evidence led at the trial Court and the judgment of the two Courts below and I have noted that the appellant admitted taking part in the transaction which has given birth to his trial. On page 156 of the record, he testified on oath as follows, amongst others:

“After that discussion, Auwalu invited us all to his office in Lagos Island. Auwalu and Joseph Morah (who speaks Hausa) held a discussion after they agreed to transact the business. Joseph said they had their dollars in Ghana who will go and meet Joseph’s people there. Auwalu shifted the meeting to the next day and we all met at UBA, Marina Branch. At the bank, Auwalu discussed with Joseph and Joseph put a call to Ghana. The two of them agreed and Auwalu withdrew money and paid Joseph.”

The appellant having, by his own testimony located himself in the midst of the transaction vis-a-vis the evidence led by the prosecution against him, was duty bound to explain what the N13.5 million and $146,000.00 the PW1 and PW2 paid to them were all about. He also had a duty to show to the Court that the $250,000.00 was paid to the PW1, through Nurudeen in Ghana. Alas, he failed to offer any credible explanation.

22

The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170, Akinlolu v. The State (2015) LPELR – 25986(SC) Oseni v. The State (2012) LPELR – 7833 (SC); Miller v. Minister of Pensions (1974) 2 ER P. 372.

Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004. The law states as follows:

“Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud:

(a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act

23

Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.

Section 8 (a): A person who

(a) Conspires with, aids, abet, or counsels any other person to commit an offence – – – under this Act, is guilty of the offence and liable on conviction to the same punishment as is prescribed for that offence under this Act.”

As has been clearly stated by this Court in several decisions, conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. See Njovens v. The State (1973) All NLR 371, Kayode v. The State (2016) LPELR 40028 (SC), Chibuzor Nkem Bouwor v. The State (2016) LPELR- 26054 (SC). As conspiracy is always not able to be proved by tendering some evidence, Courts do infer conspiracy from the acts of the parties which tend to actualize a common purpose in aid of the agreement. There is no doubt that ingredients of conspiracy abound in the entire presentation between the appellant and is confederates.

24

On the counts of obtaining by false presence, the transaction has shown clearly as follow:

1. That there was a pretence.
2. That the pretence emanated from the accused persons including the appellant.
3. That the pretence was false.
4. That the appellant and his co-accused person knew that it was false.
5. That there was an intention to defraud
6. That the monies obtained from the PW1 was capable of being stolen, and
7. That the appellant induced the owner of the money to transfer his whole interest in the property.

All the above ingredients of the offence of obtaining by false pretence are clearly seen in the transaction which gave rise to this appeal. There is no doubt about that.

On the whole, I agree with the Court below that the Prosecution proved the charge against the appellant beyond reasonable doubt and that the appellant failed to lead credible evidence to show that the prosecution’s evidence was doubtful. Thus, this issue does not avail the appellant and I accordingly resolve it against him.

ISSUE 2

This issue turns on the correct or proper interpretation of Section 315 of the Administration of Criminal Justice Law of Lagos State 2011 (now 2015).

25

In his argument, the learned counsel for the appellant raised two issues, first being that the sentence of 10 years imposed on the appellant ought to have been reduced and secondly that the date of commencement of imprisonment ought to be when he was arrested and detained by the police and not when he was remanded by the Court on arraignment. Learned counsel for the Respondent argued otherwise.

Let me say quickly that issue of reduction of sentence does not arise as the punishment section of the law under which the appellant was charged makes 10 years the minimum sentence he could get in the circumstance. Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act Cap A6 Law of the Federation of Nigeria, 2004, 2004 provides:

“(3) A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.”

Clearly, the above provision, by the use of the words “not less than 10 years”, prescribes the lowest limit of the term of imprisonment upon conviction for conspiracy and obtaining by false pretence. As was observed by the learned counsel for the Respondent,

26

this undoubtedly fetters the discretion of the Court from sentencing any person convicted under the Act, including the appellant, for any of the said offences to any term of imprisonment less than 10 years. It is trite law that where a law prescribes a mandatory sentence in clear terms, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised. See Amoshima v. The State (2011) 14 NWLR (Pt. 1268) 530 at P. 530 paragraphs A – C, Afolabi v. The State (2013) 13 NWLR (Pt. 1371) 292, (2013) LPELR – 20700 (SC).

The submission of counsel for the appellant and the cases cited and relied by him are in relation to where a Court has discretion in reducing sentence. This is not the case here.

The second argument relates to the pronouncement of the learned trial judge on P. 258 of the record as affirmed by the Court below. It states:

“Your terms of imprisonment shall run concurrently and shall commence from 28/4/15 being the date of your remand in custody by this Court.”

The above pronouncement is sequel to the provision of Section 315 of the Administration of Criminal Justice Law of Lagos State 2011 which states as follows:

27

“315 – A sentence of imprisonment takes effect from and includes the whole of the day of the date on which it was pronounced, provided that in reckoning the length of imprisonment, the Court shall direct that any period of detention prior to conviction shall be taken into consideration.”

The views of the Court below in this matter are illuminating and I shall reproduce it here. It states on page 377 of the record as follows:

“I have dispassionately considered the circumstances relied upon by the Appellant and reviewed the submission of counsel for the parties and it does appear to me that this request not supported by any hard record of evidence, including the ruling of the Federal Capital Territory High Court Abuja at page 46 of the Record, of the Appellant’s detention between 2006 – 28/4/2015 when he was arraigned before the Court below and remanded in prison custody, the Court below was thus in my finding justified to reckon the commencement of the concurrent term of ten years imprisonment on each of the three counts from the 28/4/2015, the date it remanded the Appellant into prison custody within its jurisdiction.”

28

I agree entirely. There is nothing in the record of appeal, particularly during the proceedings before the trial Court to show that the assessment or statistics of the period the appellant spent in detention before he was arraigned at the Trial Court was placed before the Court. Such statistics and calculations by the learned counsel for the appellant in his address does not by any stretch of imagination become evidence upon which a Court can act on. The law is settled that no amount of brilliant address of counsel can make up for lack of evidence to prove or defend a case in Court. See Segun Ogunsanya v. The State (2011) 12 NWLR (Pt. 1261) 401, Donatus Ndu v. The State (1990) LPELR – 1975) (SC).

To make matters worse for the Appellant, the PW3, during his examination in Chief at page 138 of the record of appeal stated that the Appellant was granted Administrative bail in 2007 and he jumped bail from 2008 till 2014 when he was rearrested. This piece of evidence was not controverted by the Appellant. This seals the lid on his case. I agree with the Court below that the learned trial judge was right to have directed the sentence of the

29

appellant to take effect from 28/4/2015, the date he was remanded in prison by the trial Court as there was no evidence of any other date of detention before the Court. Accordingly, issue two is also resolved against the appellant.

Having resolved all the issues against the appellant, I hold that there is no merit in this appeal. It is accordingly dismissed. I affirm the judgment of the Court below delivered on 27th January, 2017.

---

SC.675/2017