Aimuamwehi Friday Osareren V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant was the 1st accused person in the charge No. FHC/B/57C/2011 before the Federal High Court, Benin City. The eleven (11) count charge alleged that the Appellant and two others conspired to commit the offence of obtaining money from an American, Cynthia Taylor (F), by false pretences, and that they committed various offences of obtaining by false pretences various sums of money on diverse dates between May and December, 2008. The Appellant and two others pleaded not guilty to the charges. Thereafter two witnesses testified and tendered several documents. At the close of the prosecution’s case, and before the accused persons opened their defence, the prosecution submitted amended charge to which the three accused persons, each, pleaded “not guilty” afresh to each of the 11 charges. Thereafter the accused persons, particularly the appellant as the 1st Accused, each entered his defence.
At the close of the defence and the final addresses of the respective counsel for the prosecution and the defence the trial Federal High Court reserved its judgment to 13th June, 2016. It
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delivered the reserved judgment on the said 13th June, 2013. The three accused persons were all convicted and sentenced to various terms of imprisonment. Finding that the prosecution had proved their case against the appellant herein, as the 1st Accused, on each of the 11 charges, the trial Court convicted him on all the 11 charges. The appellant lodged his appeal against his conviction on 20th June, 2013, on five grounds to the Court of Appeal (hereinafter called the “Court below”). The Notice of Appeal was subsequently amended with the grounds of appeal increased from 5 to 12 in the amended Notice of Appeal at the Court below.
The appellant’s appeal was heard by the Court below. It was on 16th July, 2014 dismissed in its entirety. The appellants conviction and sentence were affirmed by the Court below: hence this further appeal. The Notice of Appeal, filed on 3rd September, 2014, has 8 grounds of appeal. From these 8 grounds of appeal, the appellant’s counsel has formulated 4 issues for the determination of the appeal. They are:
- Whether the decision of the Court below is not marred by unfairness and lack of fair hearing by their
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deliberate refusal to countenance and determine various germane issues laid before them by the Appellant [from grounds 1, 2 & 3] .
- Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 8-11 of the charge [from ground 6]
- Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 1-7 of the charge [from grounds 7 & 8]
- Whether the learned justices of the Court below were right in refusing to declare the trial of the Appellant a nullity since the amended charge upon which it was based is an abuse of Court’s process [from grounds 4 & 5]
Issue 4, raising issue of the competence or otherwise of the proceedings of the trial Court culminating in the conviction and sentence of the appellant, shall be given its deserved prominence and precedence over the other issues. The implication of a defect in the competency of the Court is that any defect in the competence of the Court is fatal. It renders the proceedings a nullity no matter how well conducted the proceedings were: MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR
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(Pt. 4) 587; EGUNJOBI v. F.R.N. (2013) 3 NWLR (Pt. 1342) 257.
Appellants counsel submits that the Amended Charge before the trial Court, not initiated by due process of the law, was a nullity or void ab initio: and that the jurisdiction of the trial Court over it and him, on the basis of which the trial of the appellant proceeded was legally ousted, as such the proceedings are void ab initio. He called in aide OKORO v. THE STATE 14 WACA 370; ORUCHE v. C.O.P. (1963) 1 ALL NLR 262; THE STATE v. CHIEF MAGISTRATE ABOH MBAISE (1978) 1 LRN 316.
Learned counsel argues that the effect of Sections 162 and 163 of the Criminal Procedure Act (C.P.A.) is that every amendment to the charge after the accused had taken his plea to it shall be upon leave sought and granted; that the leave of Court for the prosecutor to amend the charge is a condition precedent to the validity of the amended charge; and that if the prosecutor proceeded to file amended charge without leave of Court first sought and obtained, the amended charge is fundamentally defective and invalid.
This objection, appearing to be posthumous, is predicated on the following facts.
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The original charge was filed on 15th July, 2011. The appellant, as the 1st accused, took his plea to it on 18th July, 2011. The Pw.1, and Pw.2, the only witnesses called by the prosecution, concluded their testimonies on 3rd May, 2012 and they were discharged. The case was then adjourned to 26th June, 2012 for continuation of the hearing. However, on 25th June, 2012, the prosecutor filed the Amended Charge. In substance, the amendment affected only the original count 6. Therefrom Intercontinental Bank Plc was inserted. Apart from this, the 11 counts in Amended Charge remain ipssima verba with the 11 counts in the original charge. The prosecuting counsel brought this to the attention of the trial Court in the presence of the defence counsel. From all indications the defence counsel nudged and encouraged the prosecution to undertake this course. The minutes of the proceedings at pages 97-98 are as follows:
EDOBOR: We discovered that there is a need to amend the charge in count six (6) instead of Skye Bank in place of Intercontinental Bank. I discussed this with the defence counsel but he preferred a new charge drafted to replace the present one and I have
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done so.
OYAKHIRE: We are not opposing the amendment.
USIFOR: No opposition to the amendment.
COURT: The newly amended charge of 25.6.2012 is read and explained to each of the accused persons and each appeared to have understood satisfactorily and pleaded as follows.
The 3 accused persons, this appellant inclusive, all pleaded NOT GUILTY to each of the 11 counts. Thereafter the prosecutor closed his case.
It is against this same procedure he acquiesced in that the appellant is making so much fuss about. Equity follows the law and will not allow a party to approbate and reprobate on the same issue. Equity, acting in personam, will forbid anything that is unconscionable to do. Thus it restrains a party from insisting on a right he had waived. If by his conduct he had made another person to assume that he could act in the way he had acted, it would therefore be unconscionable for the same party to renege on his words and insist on his legal right as doing so will prejudice the party who had so acted.
I am aware that this Court in MENAKAYA v. MENAKAYA (2001) 9-10 SC 1; (2001) 16 NWLR (Pt. 738) 203 had stated that this specie
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of estoppel by conduct does not apply to statutory rights but only to personal rights. The MENAKAYA situation is distinguishable. In the instant case, the appellant can waive all niceties ensuring the protection of his personal right. He waived them.
Since the MENAKAYA case, the principle of estoppel by conduct had been codified and made statutory by virtue of Section 169 of the Evidence Act, 2011. In MENAKAYA case the parties and their counsel gave the trial Judge, in a divorce petition, their consent that the judgment be delivered in chambers instead of open Court. The law enjoins, in order to demonstrate that justice is not only done but seen manifestly to be done, that trials and delivery of judgment shall be done in open. That is what makes it a public right.
I do not, from the peculiar facts of this case, think that the appellant has suffered any prejudice by the failure of the trial Court to formally grant leave to the prosecutor to file the amended charge. It is clear to me, from the proceedings, that the trial Court and the parties, through their respective counsel, had approved the amendment and given the nod to the prosecutor file the
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Amended Charge. The parties, including the appellant, were in no way misled. The insistence of the appellant’s counsel on the learned trial Judge failing “to formally grant leave for the amendment” is nothing but sheer insistence on crass or arcane technicality. Thus, as Aderemi, JSC stated in YUSUF v. ADEGOKE (2007) 6 SC (Pt. 1) 126; (2007) 11 NWLR (Pt. 1045) 332, a technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of case. In other words, it arises when a party holds or relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, like Shylock in the Merchant of Venice, the rules must be followed to the last sentence, the last word and the last letter. The party emphasising on technicality has little or no regard to the justice that would be sacrificed, or injustice that would be caused to the opponent. The attitude of the Courts, these days is to enthrone substantial justice without undue adherence to technicalities. Justice can only be done, as stated by Edozie, JSC in ADELUSOLA v. AKINDE (2004) 18 NSCQR 371; (2004) 12
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NWLR (Pt. 887) 295, if the substance of the matter is examined. I have examined the substance of this complaint. The justice of it does not avail the appellant.
In any case, the appellant, being very vociferous about the learned trial Judge not formally granting leave to the prosecutor, under Section 102 CPA, to file the Amended Charge, was completely oblivious of the principle or rule of law in Section 167 of the same CPA to the effect that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge had been read over to the accused and not later. This objection at this appellate stage to the Amended Charge is no doubt belated. It is mere appeal to arcane or crass technicality. Since equity follows the law, and takes as done that which ought to be done; the fact that the learned trial Judge drew from the consent of the defence counsel to the prosecutor “to draft a new charge” and proceeded to read and explain “the newly amended charge” to the accused persons, including the appellant herein and immediately thereafter took their respective pleas thereto, suggest his defacto and substantial permission
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or approval to prosecutor to file the Amended Charge.
This being a Court of justice as well and not only of law, I shall invoke Section 168(1) of the Evidence Act, 2011 to take as granted to the prosecutor the formal leave to file the Amended charge. It is enacted in Section 168(1) of the Evidence Act (supra) that when a judicial act is shown to have been done in a manner substantially regular, it is presumed that all formal requisites for its validity were complied. The justice of the matter demands that is formal act be taken as done as it ought to have been done. Coming, as I do, to this conclusion, issue 4 is hereby resolved against the appellant and I hereby declare that the learned Justices of the Court below were right in refusing to declare the trial of the appellant, founded on the Amended Charge, a nullity.
At the Court below, the appellant had raised issues 3, 5 & 6 thus-
- Whether the learned trial Judge was right in relying on hearsay evidence, both oral and documentary, to adjudge the Appellant guilty of the offences charged
5 Whether the Appellant whose bail was revoked by the lower Court for daring to challenge
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the voluntariness of some confessional statements sought to be tendered against him could be said to have had fair trial at the lower Court which ultimately culminated in his conviction and sentence
- Whether the failure of the learned trial Judge to consider the defences of the Appellant before adjudging him guilty of the offences charged and to subject his purported confessional statements to the appropriate test laid down by law before proceeding to rely on them to the prejudice of the Appellant do not occasion substantial miscarriage of justice against the Appellant
Learned counsel for the appellant submits that the failure, one way or the other, of the Court below to consider these issues submitted to them for the determination of the appellant’s before them had undermined the appellant’s right to fair hearing, particularly as the Court below offered no reason for their failure to consider these three (3) issues. The cases: OKONJI v. NJOKANMA (1991) 7 NWLR (Pt. 202) 131; OWODUNNI v. REGISTERED TRUSTEES CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 675) 315; ABIOLA v. F.R.N (2015) 7 NWLR (1457) 125 at 135-136; OVUNWO v. WOKO (2011) 17 NWLR
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(Pt. 1277) 522 at 533 and 548-549 are cited to buttress the submission.
It is further submitted for the appellant that while the Court below could reframe the issues formulated by the appellant, it could not justifiably, totally, ignore and abandon the core issue in the appeal. And that as an intermediate Court, the Court below has a duty, on the authority of ODUNAYO v. THE STATE (1972) 8-9 SC 290 at 296; IFEANYI CHUKWU (OSONDU) LTD v. SOLEH BONEH LTD (2000) 5 NWLR (Pt. 656) 322 at 338-339; A-G, FEDERATION v. A.I.C. LTD (2000) 10 NWLR (Pt. 675) 293 at 300 & 308; ADEOGUN v. FASOGBON (2011) 8 NWLR (Pt. 1250) 427 at 437-438 & 448; to consider and decide on all issues submitted to it for determination.
As a general principle, the intermediate Court, as the Court below, is duty bound to consider all issues raised and or placed before it. It does not have the liberty to decline a consideration of the issues before it, unless it intends to order a retrial and the further consideration of the issues in the case will prejudice the fresh hearing being ordered: EDEM v. CANON BALLS LTD (2005) 6 SC (Pt. II) 16; (2005) 12 NWLR (Pt. 938) 27. If the
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Court failed to consider issues raised and placed it before it without any valid reason, then it would have failed in its judicial duty and there is a failure of justice: EDEM v. CANON BALLS LTD (supra) IKPEAZU v. OTTI & ORS (2016) LPELR-4005 (SC); OKONJI v. NJOKANMA (supra); CHUKWU v. SOLEH BONEH (supra).
Let me, from the onset, restate the law that not every error or mistake in the judgment results in allowing an appeal. The appeal Court will only interfere when the error or mistake is shown to have occasioned a miscarriage of justice: ABUBAKAR v. B.O. & A.P. LTD (2007) 2 SC 48; (2007) 18 NWLR (Pt. 1066) 319; UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 1) 1; (2008) 7 NWLR (Pt. 1086) 372. Because miscarriage of justice varies from case to case; the facts and circumstances of the case, where miscarriage of justice is alleged, must be examined: ABUBAKAR ABUBAKAR & ORS v. SAIDU USMAN NASAMU & ORS (2011) LPELR-1831 (SC). In effect the error resulting in miscarriage of justice is the mistake or error that is prejudicial or inconsistent with the right of a party:OLADIJA SANUSI v. OREITAN I. AMEYOGUN (1992) 4 NWLR (Pt. 237) 237 at 527. A
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wrongful conviction based on a failure of the process of trial, no doubt, constitutes a miscarriage of justice. That is because a grossly unfair outcome in a judicial proceeding constitutes a miscarriage of justice: BLACKS LAW DICTIONARY.
The summary of issue 3, 5 & 6 the appellant raised at the Court below is –
I. Issue 3 challenged the admissibility of the evidence of the Pw.1 and Pw.2 at the trial Court. The evidence of the two witnesses are said to be hearsay.
II. Issue 5 raised the issue of the unfairness of the trial Court not ordering trial-within-trial to determine the voluntariness of the extra-judicial statements of the appellant herein.
III. In Issue 6, it was contended that the trial Court short its eyes to the defence of the appellant, as the 1st Accused.
The appellant’s six issues at the Court below are reproduced in the judgment of the said at page 289 of the record. The respondent’s 3 issues are also reproduced in the said judgment at page 290 of the record. The Court below gave its reasons for preferring to adopt the appellant’s issue 1 and the respondents three (3) issues. The reasons are stated at page 290
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of the record. It is therefore not correct as stated robustly, albeit misleading, that “the learned justices of the Court below (did) not offer any reason for their failure to consider and determine these issues one way of the other.”
The Pw.1 and Pw.2, at the trial Court, testified to their investigatory roles including their recording statements of the accused persons, recovery of real evidence including documents, tracing the transfers of money and receipt of payments through Western Union Money Transfers. I do not think, or agree with the appellant, that the oral evidence of the Pw.1 and Pw.2 based on their investigatory roles are hearsay. Their oral evidence do not offend any principle of the Evidence Act on hearsay. Rather, they are in accord with Section 126 of the Evidence, 2011 that enjoins the witness to give direct evidence as to what he saw, heard, perceived or did.
The learned appellants counsel appears to me to have misconceived the purport of Exhibits A, C1-5 and D1-6 when he submits that they are documentary hearsay evidence. The learned counsel never showed where and how the trial Court used their contents to convict
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the appellant. These documents were put into the evidence through the PW.1, an investigator, who gave the circumstances of their recovery in the course of the investigation. Exhibit A, for instance, is the petition that spurred the Pw.1 and other agents of the Economic and Financial Crimes Commission (E.F.C.C.) into investigation. Exhibits C1-4, said to be scam mails were recovered in the course of the investigation. It appears, from page 70 of the Record, that they were tendered and received in evidence without objection as real evidence. Ditto for Exhibits D1-6. It was the defence counsel (see page 82) who caused the Pw.2, under cross-examination, to read out the contents of Exhibits C2 and C3.
The learned trial judge, at page 167 of the Record, merely recounted how, from the evidence of Pw.1 and Pw.2, the appellant, as the 1st Accused was arrested and Exhibits A, B, C1-4, D1-6, E, F, I1-3 were recovered in the course of their investigation. I cannot see how and where Exhibits A, C1-4 and D1-6, said to be hearsay documentary evidence, formed the basis of the judgment of the trial Court convicting the appellant. I also cannot see how the Court below
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affirmed the conviction of the appellant on those bases.
Competent issues for determination of an appeal are formulated or raised from competent ground(s) of appeal, which also flow directly from the reasons for the decision appealed. A valid ground of appeal attacks the decision of the Court on an issue decided by that Court: F.M.B.N. v. N.D.I.C. (1999) 2 NWLR (Pt. 591) 333. An issue for the determination of an appeal, like the appellant’s issue 3 at the Court below, which does not arise from the decision appealed is incompetent. An appellant, whose incompetent issue is allegedly ignored cannot complain of a miscarriage of justice.
The unfairness of the failure of the trial Court not ordering a trial-within-trial to determine the voluntariness of the appellant’s extra-judicial confessions is said to be the substance of the appellant’s issue 5 at the Court below. The Pw.1, who recorded the extra-judicial statements of the appellant, the 1st Accused was testifying when the prosecutor sought to tender the statements, Appellant’s counsel objection to their admissibility on grounds of involuntariness of their making. It appears, from page
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73 of the record, that all the counsel agreed that trial-within-trial be conducted to determine the voluntariness of the statements.
The trial Court did not actually scuttle or jettison the idea or propriety of the trial-within-trial. Continuation of the proceedings was adjourned to 3rd May, 2012 for that purpose. Before the adjournment the trial Court, observing that “there is likelihood the case will take longer time and (that) we cannot guarantee accused persons bail till then”, suo motu revoked the bail of the accused persons.
When the trial Court re-convened on 3rd May, 2012; Mr. Afolabi of counsel to the appellant announced dramatically that they were withdrawing their “objection (to) the tendering (of) the 1st and 2nd Accused’s statements in evidence”. That was how the trial-within-trial was aborted. The order of the trial Court suo motu revoking the bail of the appellant appears arbitrary and wrong. It was also an appealable order, by virtue of Section 318 of the Constitution that was not appealed.
It is not true, ex facie the minutes of the proceedings in the printed record, that “even though the prosecutor conceded to the ordering
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of a trial-within-trial in order to determine the voluntariness or otherwise of the said purported confessional statements, the learned trial Judge refused to order a trial-within-trial”. This sheer falsehood contrived by the learned counsel for the appellant in support of this issue is completely suppositious. It is a lie full of sound and fury and yet signifies nothing. The printed Record does not support and substantiate the rather unethical conduct of the learned counsel, Charles Ihua-Maduenyi, Esq., who settled this Appellant’s brief. Based on this blatant falsehood, the learned counsel submits that the appellant was constrained to withdraw his objection to the admissibility of his confessional statements, the learned trial Judge having instilled fear on the appellant and intimidated him.
The Pw.1, who recorded the confessional statement of the appellant under caution, testified that on 5th April, 2011 the appellant, as the 1st Accused, “Confessed (that he was) the brain behind the scam scandal and (that) he started as pen-pal to Cynthia Taylor before he introduced (the) loan scam”. Pw.1 testified further that the appellant admitted that “he
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promised to help (Cynthia Taylor) obtain or secure a loan from a bank in Nigeria and asked for advance fee for processing”, that he (the appellant) continued his scam until he was ready for his Youth Service before he handed it to his friend, the 2nd Accused”, and that on 6th April, 2011, the appellant led the investigators to the 2nd Accused and he was arrested.
The Pw.1 and Pw.2, on 3rd May, 2012 after the vexed revocation of bail of the appellant suo motu by the trial Court, were cross-examined. No attempt, albeit feeble, was made by the appellant’s counsel to discredit their evidence either as to the fact of the appellant’s admission or as to the voluntariness of the appellant’s confessional statements in Exhibits I1-3, written personally by the appellant.
Learned Appellant’s counsel submits on authority of AHMED v. COMMISSIONER OF POLICE, BAUCHI (2012) 9 NWLR (Pt. 1304) 104 at 133, correctly, that Courts are recognized as hallowed chambers of justice, not where fear is meted out to citizens standing trials thereat. The facts of this case do not warrant this principle. Courts of justice are also not theatres where lawyers enjoy the luxury of
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maligning Judges with blatant lies crafted skillfully to win cases at all costs.
The unchallenged evidence of Pw.1 and pw.2 establishing the oral confession of the appellant, standing on its own, is a strong evidence pointing in the direction of complicity of the appellant in alleged offences. It also corroborates the appellants confessions in Exhibits I1-3.
Counts 8-11 in the Amended charge are not really about obtaining by false pretences. Rather, they allege that the appellant was in possession of scam e-mails. The scam e-mails that the appellant was allegedly in possession of are Exhibits C1-4. The defence of the appellant to counts B-11, as found at page 105 of the Record, is that:
Exhibits C1-4 were documents (sent) to Chi-Egwe by Cynthia Taylor (the lawyer who wrote the petition to E.F.C.C.). These documents were not found in my possession.
The Pw1, through whom Exhibits C1-4 were tendered in evidence, never testified that Exhibits C1-4 were found in possession, or recovered from the passion of the appellant. He merely averred in his evidence at page 70 of Record, that “some scam mails were recovered during
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investigation”. He thereafter indentified Exhibits C1-4 as the scam mails. Pw.2 also did not aver that Exhibits C1-4 were in the possession of the appellant. However, based on the appellant’s confessional statements the trial Court found that Exhibits C1-4 were found in the possession of the appellant and recovered therefrom. The Court below however took its time to consider this before it affirmed the finding.
This same issue was issue 4 considered by the Court below at pages 302-309 of the Record. The substance of appellant’s issue 6 at the Court below, subsumed in issue 4, was considered by the Court below.
Having demonstrated that the appellant’s issues 3, 5 and 6 at the Court below were considered by the Court below, I hereby resolve issue 1 before us against the appellant.
I did touch, under issue 1 just resolved, some salient points on whether the scam mails, Exhibits C1-4 were found in the possession of the appellant and recovered therefrom. Exhibits C1-4 are the subject of counts 8- 11 the Amended Charge. The trial Court and the Court below made concurrent findings of facts that the appellant was in possession of Exhibits C1-4.
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The trial Court predicated this finding on the confessions of the appellant. The learned appellant’s counsel preferred not to attack this finding. He left the said finding of fact inviolate. The Court below also addressed the point before affirming the finding of fact. Again, rather than offering a frontal attack, the learned counsel merely submits, incorrectly, that the trial Judge and the justice shut their eyes to the admission of the Pw.1, allegedly, that they “found or recovered” Exhibits C1-4 from the e-mails sent to E.F.C.C. by Barrister Chi-Obi Igwe, Cynthia Taylor’s lawyer. Page 67 to which learned counsel pointed as the factual sources of this submission does not bear him out. Lines 9 and 10 of page 67 of Record to wit:
We went through the additional documents sent to us by the complainant among which are SCAM Mails
have been clearly misconceived or twisted by the learned counsel. The scam mails alluded to here have not been linked to, or identified as, Exhibits C1-4. When the PW.1 was cross-examined no such effort was so made. The opportunity was missed and wasted.
Appellant’s issue 3 before us here is supposed to have sprung from his
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grounds 7 and 8 of the Grounds of Appeal, which shorn of their particulars complain that –
- The learned Justice of the Court of appeal erred in law in affirming the conviction and sentence of the Appellant in counts 1-7 of the charge when the same was never proved beyond reasonable doubt.
- The learned Justice of the Court of Appeal erred in law in failing to come to the conclusion that the finding of the appellant guilty in counts 2, 6 and 7 of the charge by the learned trial Judge who had earlier discharged the Appellant’s co-accused on the same was erroneous’ and perverse.
The issue formulated from the two grounds is: whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 1-7 of the charge It is difficult to find that this issue distilled from grounds 7 and 8 above reproduced, has its focus on attacking the very facts on which concurrent findings of fact on which the conviction and sentence rested. Learned appellant’s counsel cannot therefore use the issue to spring attacks on admissibility of Exhibits A. C1-4 and D1-6 on the grounds that they are documentary hearsay evidence.
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He cannot use the issues as a basis to insist that the appellant’s confessional statements were made involuntarily and therefore inadmissible.
The trial Court and the Court below having found concurrently that the respondent, the prosecutor, had proved the guilt of the appellant beyond reasonable doubt on facts regards counts 1-7, the duty of the appellant’s counsel in this further appeal is to demonstrate how perverse and unreasonable those concurrent findings of facts were. That burden is not discharged by whining and whimpering.
The appeal on this issue is clearly predicated on the question of facts requiring proof by empirical evidence. The attitude of this Court, on concurrent findings of facts by the trial Court and the intermediate Court, has since fossilized. Unless the appellant shows that there are special circumstances: that is that the conclusions reached were wrong or perverse, this Court will not readily interfere with the concurrent findings: IBRAHIM v. OSUNDE & ORS (2009) 6 NWLR (Pt. 1137) 382 (SC); OMOTOLA & ORS v. THE STATE (2009) 7 NWLR (Pt. 1139) 148 (SC). I do not think the appellant has satisfactorily shown
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why the concurrent findings of facts by the trial Court and the intermediate Court should be interfered with to warrant my venturing to interfere with the findings. The viva voce confession of the appellant which the Pw.1 testified to read with the confessions in Exhibit I1-3, amount to the appellant’s conclusive admission of his guilt of the offences in counts 1-7 of the Amended Charge.
The defence put up by the appellant at pages 103-108 of the Record were completely prevaricatory and unreliable. For instance, at page 107 of the Record, he made this ambivalent explanation of the $2,000 USD he admitted receiving from Cynthia Taylor to effect that the $2000 USD was “not only for my personal upkeep” But also for what He did not say.
The operative false pretence in counts 1-7 is the false representation made to Cynthia Taylor that the appellant and his co-accused were in a position to help her obtain or secure loan from a Nigerian bank. This representation was factually a hoax from the totality of the prosecution’s evidence, including the confessional statements of the appellant made under his own hand, Exhibits I1-3. The appellant, testifying
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as Dw.1 at pages 103-108 of the Record, interestingly never once alluded to the damaging evidence that he falsely represented to Cynthia Taylor that himself and his co-accused were in a position to give or secure loan to her from a Nigerian bank and in furtherance of that asked her “for an advance fee for processing” of the loan. Cross-examined the appellant, Dw.1, admitted that he “gave statements to E.F.C.C.” and that he was not a loan lender. He offered no iota of evidence in rebuttal of the prosecution’s evidence on the operative false pretence. Thus, the appellant failed to discharge the evidential burden on him to cast any reasonable doubt on this crucial operative false pretence. I cannot, therefore, fault the holding of the trial Court as a matter of fact that the confession of the appellant, “Exhibits I1-3 were admitted in evidence with no objection” and that the Exhibits are consistent with the knowledge, acts and intentions of the appellant. In dismissing the appellant’s appeal and affirming the conviction of the appellant, the Court below found “that the prosecution has proved beyond reasonable doubt the offences of criminal conspiracy to obtain
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money from Cynthia Taylor by false pretences, and obtaining various sums of money from the said Cynthia Taylor by false pretence.
It is an established judicial policy of this Court that it will not readily and ordinarily interfere with the concurrent findings of facts by Courts below it, unless the appellant satisfactorily shows or establishes that the said concurrent findings are perverse, unreasonable and not supported by facts in the printed record: BASHAYA v. THE STATE (1998) 4 SC 199; (1998) 5 NWLR (Pt. 550) 351; OGBU v. THE STATE (1992) 10 SCNJ 88; (1992) NWLR (Pt. 259) 255; OGUNDIYAN v. THE STATE (1991) 4 SCNJ 44, (1991) 3 SC 100. The appellant herein has not satisfactorily shown why this judicial policy shall not be followed in this case. In what appears an appeal to mere sentiments, the appellant’s counsel submits that since the trial Court had held that counts 2, 3, 6 and 7 were not proved against the 2nd and 3rd accused persons, the trial Court could not offer any reason which made it to adjudge the appellant guilty on those same counts. Sentiments, it must be borne in mind, command no place in judicial deliberations: EZEUGO v. OHANYERE
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(1979) 6 SC 17; MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 NWLR (Pt. 884) 396; ORJI UZOR KALU v. F.R.N. & ORS (2016) LPELR-40108 (SC). On this note, I hereby dismiss this issue, and resolve it against the appellant.
On the whole, I find no substance in this appeal. It is hereby dismissed in its entirety.
The decision of the Court of Appeal in the appeal No. CA/B/349AC/2013 affirming the conviction and sentence of the appellant by the Federal High Court in the charge No. FHC/57C/2011 is hereby affirmed.
SC.670/2014
