Harrison Odiawa V. Federal Republic of Nigeria (2008)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

The appellant herein was convicted and sentenced by the High Court of Lagos State (No 40) Ikeja Judicial division (per J.O.K Oyewole J) which found him guilty on 48 counts for the offences of-

(a) Conspiracy to obtain money by false pretences;

(b) Obtaining money by false pretences

(c) Forgery

(d) Possession of documents containing false pretences; and

(e) Uttering

The facts leading to the charges of the various offences against the appellant (as per the 3rd amended information of 19/11/04 with 58 counts) are as follows:-

Sometime between March 2003 and January 2004, a syndicate of fraudsters by way of an advanced fee fraud duped and obtained various sums of money amounting to about US D2M from an American citizen by name Mr. George Blick (the victim and PW1). The leader of the syndicate used a fictitious name of Abu Belgore and they used telephones (including GSM) and internet in making false representation and sending fake or forged documents to their said victim who was convinced or deceived to send or transfer the various sum of US dollars to some bank accounts in Nigeria and elsewhere which were later claimed by or for the use of the syndicate. The e-mail communication between Abu Belgore and the victim gave a false representation inter-alia that there was a huge sum of US Dollars (about USD 20.5M) to be transferred to his Company account in USA from Nigeria and also to procure some contracts from Nigeria Government (or ministries) for his benefit or that of his company. He reported the fraud in Nigeria through the EFCC, which started investigation into the cyber – fraud, or information technology (IT) fraud. In the course of their investigation, the EFCC, were able to trace the existence of an Internet facility called Communication Trend Limited (CTL) as the location from where the e-mails (or internet) messages were sent to the victim by Abu Belgore. The EFCC investigating team also found that the CTL was located at the business premises of the appellant who operated a commercial internet, browsing, business (cybercafe) thereat. When the appellant’s business premises were raided by the EFCC team, a green bag was recovered (Exhibit P 19) which contained copies of some of the documents sent to PW1 by Abu Belgore. In addition, a GSM telephone with an MTN line number (No.08035856409), which had been used to communicate to the said PW1 by Abu Belgore, was recovered from the appellant’s office. Also in addition, the appellant made a confessional statement (in Exhibits p.15 – p.18 that he changed a password (in his computer) and was able to communicate to the victim by impersonating that he was Abu Belgore. Some personal documents of the appellant and his specimen handwriting or signatures were also recovered and sent along with the documents in Exhibit P 19 (i.e. the green bag) issued and signed by the so called Abu Belgore to the handwriting analyst (an expert) (pw5) who, in his positive report, confirmed that the two sets of documents were written by one and the same person – i.e. the appellant.

In proof of its charges or counts against the appellant, the prosecution called 8 witnesses and closed its case. The appellant testified as DW 3 in his defence and called two (2) other witnesses DW1 and 2. After the summing up and final addresses, the trial Judge adjourned for judgment which was delivered on 13/1/2006 in which the appellant was found guilty, convicted and sentenced on 48 counts. He was however found not guilty on the remaining 10 counts of the 3rd amended information containing 58 counts and accordingly discharged. The appellant being aggrieved and dissatisfied with his conviction and sentence (on the 48 counts), by the learned trial judge is now appealing against them in this Court. In his notice of Appeal dated 9/2/06 the appellant filed 6 (six) grounds of appeal from which he distilled 4 (four) issues for the determination of the appeal.

In his brief of arguments dated 27th and filed on 28th of November, 2006 adopted at the hearing of the appeal, the four (4) issues formulated in the appellants brief are as follows: –

“5.5.1 ISSUE NO.1

a). Whether the evidence led by the prosecution at the lower Court identified the Appellant as the Abu Belgore that defrauded Mr. George Blick (PW1) in 2003. (Ground 1 of the Notice of Appeal).

ISSUE NO.2

b). Whether the prosecution discharged the onus placed on it to prove the charges against the appellant beyond reasonable doubt to ground a conviction by the Lower Court (Ground 2 of the Notice of Appeal).

ISSUE NO.3

c). Whether the lower Court properly evaluated and applied the information Technology (Internet) related evidence adduced before it, in its conviction of the Appellant. (Grounds 3 & 4 of the Notice of Appeal).

ISSUE NO.4

d). Whether the learned Trial Judge was biased in his evaluation and application of the evidence adduced at the trial in favour of the prosecution. (Ground 5 of the Notice of Appeal).”

In the respondents brief dated 11/4/07 but deemed by this court on 29/3/08 the 4 issues framed by the appellant are adopted but reframed into the following three (3) issues:-

“ISSUE ONE

Whether the respondent proved positively through the evidence adduced at the trial in the lower Court that appellant (sic) was the Abu Belgore that was part of the syndicate that obtained money by false preferences from PW1 Mr. George Bilek between March 2003 and January 2004 (Ground One of the Notice of Appeal).

ISSUE TWO

Whether the respondent proved its case beyond reasonable doubt against the appellant at the lower Court as required by Law (Ground two of the Notice of Appeal).

ISSUE THREE

Whether the learned Trial Judge was biased in the evaluation of and application of evidence adduced at the trial (Ground five of the Notice of Appeal)”.

From the above reproduction of the two sets of issues in the briefs of the parties in the present appeal, it is clear that they both agree on the common issues calling for the determination of the appeal. They have also related their issues to the grounds of appeal. The only point to note in this regard is that the respondent who did not frame any issue on grounds three and four as done by the appellant under his 3rd issue appears to have abandoned that issue and its related grounds (i.e. grounds 3 and 4). However since the issue is a complaint against the evaluation of evidence by the learned trial judge and that has been adequately covered under ground 5 upon which the respondents issue No.3 is based, there is no need to repeat it. Consequently I agree more with the formulation of issues in the respondent’s brief in which unnecessary repetition of issues has been avoided. By this agreement, issues 3 and 4 of the appellant can be merged together to make only one issue predicated on the evaluation of evidence and the alleged bias of the learned trial judge in his evaluation exercise. Thus, I will adopt the 3 (three) issues formulated by the respondent in this judgment and will refer or consider the appellants submission on the merged issues (3 and 4) together as appropriate.

Under the 1st issue which is the most crucial one and which both parties agree or concede to be the core issue upon which the whole appeal is based, the appellant’s main complaint is that there is no direct evidence to link the appellant with or to identify him as Abu Belgore who is the acknowledged principal actor and leader of the syndicate of cyber fraudsters in the transactions in which the victim Mr. George Blick (PW1) was defrauded of a huge sum of money in Us Dollars. It is the contention of the appellant (by reference to the trial courts finding at pages 532 of the record) that the identity of Abu Belgore who is the central figure in the fraud is very important and has to be proved first before any consideration of the ingredients or proof of the offences against the appellant. Thus it must first and foremost be proved or established that the appellant is the person who under a hidden identity posed as Abu Belgore in the communication and fraudulent transaction (both in the internet or otherwise) leading to or luring the victim (PW1) or deceiving him to part with his money and thereby defrauded him under such a fictitious pretence by the so called Abu Belgore. In his lengthy submission in the brief the appellants learned counsel maintains that there is no direct evidence by any of the prosecution witnesses, to show or prove that the appellant is or was the Abu Belgore who defrauded the said victim (PW1). Since there is no direct or positive evidence of identification of the appellant as the controversial Abu Belgore it is argued in the brief that it was wrong for the trial court to hold so based on circumstantial evidence e.g. the recognition of the appellant’s voice by PW1 in the Court. Reliance on this submission is placed on MBENU V. STATE (1988) NWLR (PT. 84) 615 and a legal “Criminal Evidence in Nigeria” (2004) 1st Edition by Jide Bodede at P. 142 thereof. However, the brief also cites the case of UKPABI V. THE STATE (2004) All FWLR (pt. 218) 814 where the Supreme Court held that where identification though informal was accepted by the trial court having regard to other surrounding circumstances, an appellate court does not interfere except where such finding is perverse.

Another means of identification of the appellant relied upon by the trial court is by use of a code system mutually agreed to be used by PW1 and Abu Belgore in their telephone discussion or conversation so as to avoid interference or imposters in their secret communication. Before they started any telephone discussion PW1 was to ask the name of Abu Belgore’s daughter and the later would answer “Halima”. The lower court’s finding of the appellant’s identity as the Abu Belgore is debunked in the appellants brief on the ground that there is no other evidence (e.g. a tape recording of the conversation) to corroborate the evidence of PW1 to that effect. It is also argued that the lower court was wrong to have held that the burden of proving the non -existence of the code system had shifted on the appellant. -See the cases of SHANDE V. STATE (2004) ALL FWLR (PT. 223) 295 at 1969. Section 36 (5) of the 1999 constitution of the Federal Republic of Nigeria section 138 and 139 of Evidence Act 1990 (as amended); PAUL AMEH V. THE STATE (1978) 6 & 7 SC 27 AT 31; DAVID USO V. COP (1972) 11SC 37 at 46; and EGWABA V. FRN (2004) ALL FWLR (PT.232) 1512 at 1519-1520 cited and relied upon by the appellant on the above submission.

In his further submission under issue 1, the appellant refers to his confessional statement in Exhibit D2 and his testimony to the effect that he impersonated the Abu Belgore through the use of E-mail in his Communication with PW1 in 2004. It is submitted that the learned trial judge was wrong to have relied on that evidence (and the exhibit) to hold that the identity of the appellant as the Abu Belgore has been established and that the said appellant did not discharge the burden shifted on him to prove otherwise on his failure to supply the E-mails he claimed, to have read on the internet mailbox which enabled him to successfully impersonate Abu Belgore (owner of the mailbox). This finding of the lower Court is vehemently criticized by the appellant who asserts that it is based on the Courts ignorance of the Information Technology (IT) and the operation of the internet. It is argued that the computers brought to or tendered in the Court which were not connected to the internet could not be used to asses or produce the E-mails in question. In any case, the appellant states in the brief that the E-mail in question could not be produced as the mailbox had been closed or deleted in the internet as at the time he was asked to produce it by the court. It is argued that it is the duty of the investigators or prosecution (i.e. the respondent) to prove or disprove the defence put forward by an accused person (the appellants) as in the instant case which duty has not been carried out -see MOSHOOD V. STATE (2004) 42 WRN 155 at 171; ONUCHWKWU V. STATE (1998) 4 SC 49 at 61; OPAYEMI V. STATE (1985) NSCC 921 at 932; AZEEZ V. STATE (2005) QCCR (Vol. 2) 113 at 116; ADEDEJI V. STATE (1971) 1 ANLR 75 and BOZIN V. STATE (1985) 2 NWLR (PT.8) 465; and ADELEKE V. STATE (2001) 13 NWLR (PT. 729) 1 at 20 cited in support of the above argument. It is submitted that where a burden of proof is wrongly shifted on the accused person by the trial Court as in the instant case, an appellate court has a duty to overturn the judgment of the said trial court -see STATE V. USMAN (2004) ALL FWLR (pt. 226) 231 at 252 and EGWARA v. FRN (2004) All FWLR (PT. 232) 1519 cited in support of the preposition.

In a related submission the appellant criticized his identification as the Abu Belgore by the lower Court through the contents of Exhibit p 19. Exhibit p 19 was the green bag found or recovered from the appellant’s office during the raid and search carried out on his business premises by the EFCC operatives or investigators. Some documents were found in the said bag, which were addressed to PW1 and used to make false representation to the later by Abu Belgore. A.GSM telephone with an MTN network No. 08035856409 (Exhibit P. 71) that was used by “Abu Belgore” to communicate with PW1 was also recovered in the appellant’s office premises. The appellant in his submission vehemently denies being the owner of the bag or the telephone line and argues that the lower courts finding that he was the owner based merely on his exclusive possession of the office and the business premises was not supported by evidence and was therefore perverse. It is also submitted that the non-evaluation or improper evaluation of the evidence adduced by the prosecution vis a vis that of the defence on the matter by the trial court should lead to the reversal of its judgment by this court-see MILLAR V. STATE (2005) 2 QCCR 22 at 49; and ADAMU V. STATE (1991) NWLR (PT. 187) 530 at 538 cited in support of the appellants submission. Some personal documents belonging to the appellant were also found in the green bag. Other documents also found in the same bag signed or prepared by Abu Belgore were compared and found to be similar or copies of the documents sent to PW1 by Abu Belgore. The two sets of documents were sent to a handwriting expert (PW5-Muazu Abdullahi) who gave a forensic report and analysis of the two sets of documents with the conclusion that they were written by one and the same person. On the other hand the appellant called another handwriting expert (DW1- Rapheal Omwzuligbo) from the police (FCID) who made his own analysis of the documents and concluded that the writers of the two sets of documents were not the same. The appellant argues that the trial Court should have preferred and relied more on the evidence of DW1 who was a police witness rather than accepting the version of PW5 (an EFCC staff) as it wrongly did. It is submitted that by its reliance on PW5’s evidence as a circumstantial evidence, it was not cogent or positive enough to warrant the conviction of the appellant for the offences alleged or charged -see UBANI V. STATE (2004) FWLR (PT 191) 1533 at 1546 cited in support of the submission. In conclusion the appellants brief submits that the identification of the appellant by the lower court as the Abu Belgore (apart from his admission that he Impersonated the later in July 2004) was unreasonable having regard to the evidence led at the trial and its finding to that effect has led to a miscarriage of justice leading also to his wrongful conviction. This court is therefore urged to overturn the finding and to consequently discharge and acquit the appellant on all the counts.

In the respondents brief the above submissions of the appellant are also answered or addressed under issue 1. It is conceded under the issue that the identity of the appellant as the Abu Belgore who duped PW1 of over US D2m is very crucial and decisive in the ultimate determination or resolution of the whole appeal. Reference is made in the respondents brief to the testimony of PW3 (at page 402 the record) who stated that the MTN telephone line No. 08035856409 which was recovered at the appellants office or business premises was found to have been used by Abu Belgore who was the principal actor in the syndicate that defrauded PW1 on the pretence that they were arranging to transfer a huge sum of US D 20.5m to his company account in the United States of America (USA). The telephone line is said to have been admitted in evidence through PW3 as Exhibit P71 and is capable of establishing the identity of the appellant as Abu Belgore.

Another important link between the appellant and Abu Belgore is said to be the green bag also recovered at the appellants office and admitted as Exhibit P19 the contents of which are copies of the letters forged and sent to PW1 which were compared with the documents sent to the said PW1 were found to be the same. The brief also refers to the appellant’s admission (in his testimony) that he-contacted Mr. George Blick (PW1) on the internet using the name of Abu Belgore and had conversation with the later on how to get the addresses of the other fraudsters and to recover some money from them -see pages 78 -82 of the record.

It is contended in the respondents brief that the contents of Exhibit P19 (especially exhibits P. 26 – P.33 were found to be similar to the documents sent by Abu Belgore to PW1. It is also admitted by the appellant that he had changed the password of Abu Belgore before communicating to PW1 just in order to drive away the said Abu Belgore. By this admission, the respondent argues that the presence of any other Abu Belgore apart from the appellant himself is eliminated or out of question. It is pointed out on this aspect that the appellant made his above admission of communicating with PW1 (while posing as the Abu Belgore) both in his confessional statements (in Exhibits P15-P18) and in his testimony before the trial court (at page 436 of the record). It is submitted that from the contents of the appellants confessional statement, which shows an indepth of knowledge of the fraudulent transaction with PW1, it is clear as rightly found by the learned trial judge that said appellant is the only Abu Belgore and no other person or at least that he is a principal member of the syndicate that defrauded PW1. Furthermore, it is pointed out that the supposed defence put forward by the appellant that he had changed the password of Abu Belgore in order to communicate with PW1 further implicates him when considered with his explanation on the use of internet where he stated (at page 441 of the record) that the procedure was that you have to know the existing password before you can change it into a new password. This position is also said to be confirmed by an I.T expert called by the appellant himself as DW2 (see page 432 of the record referred to in the brief). The respondents’ brief also criticizes the so called defence put up by the appellant by impersonating Abu Belgore and changing the password as not a defence recognized in law or in Nigerian Law. It is also said to be an illegal act and evidence of another crime rather than a defence- see section 484 of the criminal code referred to in the brief.

It is argued that even if it is regarded as a special defence that should be investigated by the prosecution as the appellant suggests, and then it would be his duty to supply the necessary information or facts to carry out such an investigation since they are within his personal knowledge. -See WAKALA V. STATE (19991) 8 NWLR (PT. 211) 552 at 562, MANGAI V. STATE (1993) 3 NWLR (PT. 279) 108 at 119; NWABUEZE V. STATE (1988) 4 NWLR (PT. 86) 16 and section 36(5) of the 1999 Constitution cited in support of the above contention. The appellant’s failure to furnish PW3 with the alleged password is therefore fatal to his so-called defence. He could not be forced by the prosecution to supply the password because of his Constitutional right to remain silent as guaranteed under section 35 (2) of the 1999 constitution -see ADEKUNLE V. STATE (2006) 14 NWLR (pt. 1000) 717, at 744; ARCHIBONG V. STATE (2006) 14 NWLR (pt. 1000) 349 at 396-397; cited in support of above submission.

On the contents of the green bag exhibits p.19 which was found in the appellants’ office during the raid and search by the EFCC officials when the former was arrested on 6/8/2004, the respondents brief refers to the denial of ownership of the said bag by the said appellant who said that it must have been left there by one of the users of his cybercafe. The respondent brief regards that as an afterthought and submits that since they were found in his office and therefore in his constructive possession he was rightly regarded by the learned trial judge as their owner (i.e. Abu Belgore) or as a person acting in concert with the said Abu Belgore -see section 17 of the Evidence Act referred to). The documents found in the bag are said to be very similar to those sent to PW1 by “Abu Belgore” in the course of the fraudulent transaction in which PW1 was duped by the syndicate of fraudsters. The documents contained in Exhibit P19 found to be similar to those sent by Abu Belgore to PW1 include a letter reference No. FMOH/FA/1183 for USD 20.5m (Exhibit p92); a Tax Clearance Certificate (Exhibit p.10); and a Certificate of Incorporation of PW1’s Company QUEST in Nigeria, Exhibit P.30 A and B) amongst others. The respondent in the brief describes all these as similar facts evidence to prove the identity of the appellant as the Abu Belgore -see a of “Contentious issues and Responses in contemporary Evidence Law in Nigeria by Hon. Justice C.C NWEZE (page 180); and Law and Practice of Evidence in Nigeria by Late Fidelis Nwadialo, SAN (Edited by Chief Afe Babalola, SAN) page 104 referred to m support of the above preposition -see also R V. WRIGHT (1989) 90 Cr, App R 325 at 331; DPP V. KILBOURNE (1973) AC 729; ISHOLA V. STATE (1978 NSCC 499 at 510 -511; MAKIN V. ATTORNEY GENERAL OF NEW SOUTH WALES (1984) AC 57 and OKORO V. STATE (2007) 2 NWLR (PT. 1019) 530 at 544 cited in addition.

On the appellants complaint against the evaluation of evidence on his identity by the learned trial judge, the respondent refers to the settled principle of law on the point and submits that the duty of evaluating the evidence, findings of facts and ascription of probative value to such evidence is essentially within the sphere province or responsibility of the trial court which had the singular advantage of seeing and hearing the witnesses and other evidence adduced during the hearing and unless such findings and evaluation are made in violation of law or are not based on evidence (and are therefore perverse) an appellate court does not ordinarily interfere to substitute them with its own -see IBIKUNLE V. STATE (2007) 2 NWLR (pt.1019) 546 at 575; ARCHIBONG V. STATE (2007) 14 NWLR (pt. 1000) 349 at 399 – 400; and AKUNIYILI V. EJIDIKE (1996) 5 NWLR (pt.449) 381 at 405 cited in support of the principle. It is submitted that the learned trial judge in the present case properly evaluated the credible evidence adduced by the prosecution and the defence before him and drew the proper inferences based on proved facts.

On the evidence of the appellant’s identification as Abu Belgore by PW1 through the formers voice, reference is made in the respondents brief to the longstanding telephone conversation between the two, which enabled the said PW1 to recognize the appellant’s voice, when he spoke in the open Court (at the plea taking) as the same with that of Abu Belgore. Reference is also made to their conversation on the MTN telephone line NO.08035856409 (Exhibit p71) that was amongst the items recovered at the appellant’s business premises (or office) by PWs 2 and 3. PW1 is also said to be familiar with the appellants voice through the use of the coding system they used on the phone before embarking on their “business discussion” whereby PW1 was to ask” Abu” the name of his daughter and the later was to answer” Halima” in order to ensure that they were speaking to themselves alone. It is submitted that the Supreme Court endorsed the identification of an accused person through recognition of his voice in cases where there is no direct evidence of an eye-witness as in the instant case -see MBENU V. STATE (1988) 3 NWLR (Pt.84) 615 at 628; IBE V. STATE (1992) 5 NWLR (Pt. 244) 643 at 649; and ADEYEMI V. STATE (1991) 1 NWLR (Pt. 170) 679 at 694. On the appellants insistence that there should be corroboration of the prosecutions evidence as to his identity as Abu Belgore, the respondent’s brief refers to section 179 of the Evidence Act and submits that it is not every evidence of witness or witnesses that requires corroboration which is only required on certain specified instances under or as provided by the section. Thus ordinarily the evidence of only one witness which does not require corroboration by law as in the instant case is sufficient and can secure a conviction if accepted by the Court -see HAUSA V. STATE (1994) 6 NWLR (pt.350) 281 at 307 and ALGA V. STATE (1996) 4 NWLR (Pt.445) 762 cited in support of the submission.

The respondent’s brief also refers to another significant way by which the appellant’s identity as “Abu Belgore” was confirmed at the trial Court. This is said to be through the evidence of PW5 (who is a handwriting analyst attached to EFCC). The witness gave detailed evidence of his comparison of the Tax Clearance Certificate sent to PW1 by Abu Belgore (Exhibit P10) and some specimen documents or (or signatures) obtained from the appellant (including those found in the green bag – exhibit p 19). His conclusion was that the series or sets of documents he analyzed were written or signed by one and the same person i.e. the appellant. The brief compares the evidence and report of PW5 with that of DW1 (the Police handwriting analyst called by the appellant to give a contrary report) and it is submitted that the later did not give any account or details of his qualification and his experience on the subject as an expert with the requisite skill.

Consequently the learned trial Judge is said to be justified in accepting the version of PW5 and rejecting that of DW1. See AZU V. STATE (1993) 6 NWLR (Pt. 299) 303 at 312; ARCHIBONG V. STATE (Supra) and NGIGE V. OBI (2006) 14 NWLR (Pt. 999) 1 at 443 cited in support of the submission.

In conclusion the respondents brief submits that all the many pieces of evidence adduced by the respondent as adumbrated above go to show positively and to identify the appellant and no other person as the Abu Belgore who defrauded PW1 during the period from March 2003 to January 2004. The respondent finally urges this Honourable Court to uphold the findings of the lower Court on the positive identification of the appellant as the controversial though fictitious Abu Belgore who defrauded PW1 in the scheme of events, which began in March 2003 and ended up with the appellants arrest in January 2004.

I have given due consideration to the above submission from the two briefs under issue 1. I commend the mutual concession and the agreement of the learned counsel on the crutial and decisive nature of the issue the determination of which is capable of disposing the whole appeal. Accordingly, I also adopt the concession and the view of the learned counsel that because of its paramount importance to the appeal and its transcending nature to or through all the other issues, its determination one way or the other can bring to an end the appellants complaints or grudges in the whole appeal. As set out above, the gravamen of the appellants complaint under the issue and in the appeal, is hinged on his erroneous identification by the learned trial judge as the Abu Belgore who is the acknowledged fraudster and principal member of the advanced fee fraud (or 419) syndicate which employed the use of telephone, e-mail, internet and other Information Technology (IT) methods or facilities to dupe or deceive an American citizen by name Mr. George Blick (PW1) who in the process lost to the benefit of Abu Belgore (or the syndicate) the sum of USD2M. With the parties’ concession on the decisiveness of the issue, its consideration and resolution in this judgment have been made easier. Before embarking on the consideration of the submission under the issue, I must comment on the prolix and verbous way or manner in which the learned counsel in this appeal addressed the issue in their respective briefs of arguments. The learned counsel made or presented very lengthy and uncoordinated submission under the issue in particular and in their briefs in general making their said brief as overloaded and out of proportion with each brief running into about 80 printed pages. The appellants brief on the 1st issue alone devoted 48 printed pages while the respondents brief in the like manner dealt with the issue in 45 pages of its brief. Most of the points (discussed under some unsanctioned subhead or topics) are unnecessary surplausages, which show the counsels lack of experience and professional amateurism in the art or knowledge of brief writing. A brief of argument as it name suggests is required to be a concise and succinct statement or presentation of the fact of the case and the legal argument or submission of the party in the appeal and does not therefore admit or allow an overflow of arguments at large as done by the learned counsel in the present case. I recommend to the learned counsel the good counsel on the art and skill of brief writing by NIKI TOBI, JCA (as he then was) in AMADI V. ESSIEN (1994) 7 NWLR (pt. 354) 91 at 112 in the following words:-

“Brief writing is a very major aspect of the appellate court which requires utmost skill it is an act which must be imbibed by any counsel interested or involved in appellate practice. It is a function, which needs great skill, and expertise, which can only be acquired by a very serious application of a high-organized professional mind. Brief writing was introduced in this Court in 1984. I expect counsel to be familiar by now with the rules governing the writing of briefs. Unfortunately, it is not so and that is bad”.

See also OBIORA V. OSELE (1989) 1 NWLR (Pt.97) 279 at 288 -289; CHINWEZE V. MAST (1989) 1 NWLR (pt 97) 254 at 265 and Manual of Brief waiting in the Court of appeal and the Supreme Court of Nigeria By NNAEMEKA AGU, JSC.

As stated above, the main complaint of the appellant under his issue No 1 is against the holding or finding of the learned trial judge that the appellant was positively identified as the person who posed under the fictitious name of Abu Belgore in the telephone and internet communication or correspondence by which he deceived and induced PW1 under false pretences to make some advanced payments to the tune of USD2M for the use of the said appellant and other members of the syndicate operating the internet or cyber fraud. The question to be answered in the resolution of the issue is whether or not there is evidence on record to support the finding of the learned trial judge complained against by the appellant under the issue. In answer to the question, I am inclined to agree with and accept the submissions in the respondents brief. Thus there are series or pieces of evidence adduced before the trial court, which linked the appellant to the commission of the offences or an in-depth knowledge of the transactions or communications (i.e. correspondences that led to the cyber fraud. Such series or pieces of evidence consisted (or included) the following:

1. The recovery from the appellants office of the MTN line NO.08035856409 (Exhibit P71), which had been used by “Abu Belgore” in communicating with the victim (PW 1).
2. The recovery (also from the appellants office) of the green bag (Exhibit P 19) the contents of which included some of the documents earlier forged and prepared by “Abu Belgore” and sent to PW1 in the course of the fraudulent activities and correspondence. These were the Tax Clearance Certificate (TCC) Exhibit P.10 a Certificate of Incorporation of PW1’s company”

QUEST” in Nigeria (Exhibit P 30) and a letter of award of contract by the Federal Ministry of Health FMOH/FA/1183 (for USD20.5M) -Exhibit p.92,

3. The confessional statement of the appellant to the police (i.e. the EFCC) Exhibits 02 & 09 and his testimony in the Court in which he admitted communicating with PW1 in 2004 under the pre that he was Abu Belgore. He even explained that he was able to do so by changing the password of the owner (i.e. Abu Belgore). His witness (PW2) who was an expert in I.T. testified that before a person can change the password he must have a prior knowledge of the existing password to be changed.
4. When the appellant was making his plea in the Court, PW1 instantly identified his voice as the Abu Belgore with whom he had been communicating by phone on daily basis for over 100 times and for a long period on each occasion.
5. The reports and expert opinion on their comparison between the handwritings and signatures on the documents found in the green bag (exhibit p.19) which were written to the PW1 by Abu Belgore and the samples of specimen handwriting or signatures of the appellant and the acceptance of the report, by the learned trial judge, showing that the two sets of documents analyzed were written or signed by the one and the same person (i.e. the appellant).

It is pertinent to observe on the above pieces or series of evidence that all the heavy whether made by the appellant in his criticism of the above evidence before the trial Court which linked him with the commission of the offence or proved his identity as the controversial Abu Belgore is not directed or hinged on the non-existence of such evidence in the record or during the trial but is rather based on the evaluation or improper evaluation of the said evidence by the learned trial judge before he accepted it. For example on the MTN line, which was found in the appellant office, the appellants argument was that it did not belong to him but could have been kept or thrown away by one of his customers in the cybercafe.

The learned trial judge however rightly held that the cyber-cafe hall was different from the appellant’s office where the MTN telephone line was found. The same reason was applied by the learned trial judge in accepting the fact that the green bag (Exhibits P19) was found in the appellant’s office rather than in the cyber-cafe hall. On the appellant’s confessional statement in which the appellant admitted making contact with PW1 in 2004 through the internet, the said appellant is not denying making such contact but is relying on the technical ground of changing the password of Abu Belgore in order to be able to communicate with the said PW1 and also in order to ward off the said Abu Belgore. These are lame grounds by the appellant to justify his Illegal act in impersonating the Abu Belgore by changing the laters password. The learned trial judge was right in rejecting the illegal act, which the appellant regarded as his defence or Justification in his admitted contact or communication with PW1 while impersonating as the Abu Belgore, I agree with the respondents submission that the so-called defence put forward by the appellant amounted to or disclosed the commission of another offence rather than being a defence. However what baffles me most is that, in the desperate effort of the learned counsel for the appellant to justify the illegal act and to criticize the evaluation of the e-mail or internet related evidence on the point, he went to the extent of accusing the learned trial judge not only of bias but also of ignorance on the computer or knowledge of information technology (I.T). This is my humble view is an insult against the learned trial judge who rightly acted and was justified in his evaluation of evidence and in the acceptance of the confessional statement of the appellant which was also supported (or repeated) in the appellant testimony before the court. It is the duty of counsel as officer of the court to accord due respect to the judges in their address before them and also in their briefs of argument. It is therefore wrong and an act of disrespect or insult for the respondent’s counsel to impute ignorance (of whatever subject or aspect of knowledge) against the learned trial judge as he did in his brief of arguments- (at page 27 paragraph 9.3 and page 32 paragraph 11.3). It is the duty of legal practitioners being officers of the court to show utmost respect to the judge (or the court) and to always apply politeness, decent language and respect in their addresses or briefs of arguments and to avoid unnecessary or unjustified attack or foul language on the person of a judge – see ALON V. DANDRILL (NIG) LTD (1997) 8 NWLR (PT 517) 495; SCHMIDTT V. UMANAH (1997) 1 NWLR (PT. 479) 75; and MOKWE V. WILLIAMS (1997) 11 NWLR (Pt. 528) 309.

It is pertinent to observe in relation to the confession made by the appellant that apart from the extra- judicial statement of the appellant to the investigators (in Exhibits P15 – P18) which were admitted by the trial court and which the appellant did not deny their making, the said appellant also repeated his confession in his oral testimony before the trial court (see page 436 of the record). The fact of the confession in both instances was that he had changed the password of Abu Belgore and was able to communicate with PW1 (under the pre that he was the Abu Belgore) sometime in 2004. In order to accept and rely on the appellant’s concurrent confessions as described above, the learned trial judge did not have to acquire or possess any knowledge of computer or internet as wrongly stated in the appellants brief. Whatever was the appellants motive in making his voluntary confession it was rightly regarded and accepted by the learned trial judge to establish the fact that the appellant posed or disguised himself as Abu Belgore and communicated to PW1 (by means of E-mail messages and telephone) in the fraudulent transaction which resulted in the commission of the advanced fee fraud with which he was charged before the trial court. A “confession or a voluntary confession” has been defined in section 27 (1) of the Evidence Act (cap 112) L.F.N 1990 as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime”. Once a confessional statement is made by an accused person as in the instant case, and it is found by the court to be voluntarily made and it is positive and unequivocal it is sufficient to establish the guilt of an accused person and capable of securing his conviction see GIRA V. THE STATE (1996) 4 SCNJ 95; UCRE V. QUEEN (1964) 1 ALL NLR 195; OTUFALE V. STATE (1968) NMLR 261; ONUNGWA V. STATE (1976) 2 SC; SAIDU V. STATE (1982) 4 SC 41; and NWACHUKWU V. STATE (2007) 17 NWLR (PT. 1062) 31 at 69; SALAWU V. STATE (1971) NMLR 735; and OLALEKAN V. STATE (2001) 18 NWLR (PT. 746) 739. Thus by virtue of the provision in section 27 (1) and (2) the learned trial judge was entitled in the present case to accept and rely on the appellants confession alone without the need of any corroborative evidence as he rightly did, and to find that the said appellant impersonated or disguised himself as Abu Belgore and communicated to PW1 in the fraudulent deal or correspondences in which the said PW1 was defrauded. I am of the humble view that the appellants voluntary and concurrent confession on the point (both extrajudicially and in oral evidence before the court) which were also direct and unequivocal have satisfied the criteria of a valid and proper confession that can be relied upon by the court as prescribed by the above definition of the Evidence Act (Supra) and as pronounced in the above cited judicial decisions.

It is the appellant’s contention that the learned trial judge wrongly accepted and relied on some of the evidence adduced by the respondent, which were not corroborated, by some independent evidence. In this regard reference should be made to the appellants submission on PW1’s recognition or identification of the appellants voice which the appellant said should have been supported or corroborated by a voice or tape recording device before being accepted or relied upon by the court I have considered the submission of the appellant on the point and the reply thereto in the respondents brief. I am inclined to agree more with the respondent and I am of the humble view that the appellant’s submissions are based on the misconception of the provision of sections 177 -179 of the Evidence Act (supra). It is expressly provided in section 178 (1) that no particular number of witnesses is required to prove or establish any fact except as provided in or under the section. The section then goes on to give four specific instances that require corroboration (in subsections (2) – (4) of the section). The necessary implication is that in all other cases corroboration is not required and the evidence of a single witness will suffice or is enough to establish the fact in issue. Thus a court does not take into account the number of witnesses called to prove a particular fact but what is regarded as important is the quality of the evidence of the witnesses – see IGBINE V. STATE (1997) 9 NWLR (pt 579) 101; AKALESI V. STATE (1993) 2 NWLR (PT 273) 1; and BAKO BAHAR V. YAURI N.A Police (1970) NNLR 107. In the present case, the appellant who argued that the evidence of PW1 should be corroborated did not show that he is one of those whose evidence is required to be corroborated under section 178 of the Evidence Act (supra) – e.g. an accomplice, a co-accused, a child or a tainted witness. In the absence of any evidence that PW1 as a witness was one of such class of witness who is required by Law to be corroborated or only to be accepted with a warning the learned trial judge was right in accepting his evidence of voice recognition or identification without any need for corroboration.

Another point which is meticulously addressed by the parties under issue and which should be considered in this judgment is on the opinion of the two expert witnesses called respectively by the parties and who gave contradictory reports and testimonies. These were PW5 (MUAZU ABDULLAHI) and DW1 (Inspector Raphael Onwuzuligbo). Both were handwriting analyst or Document Examiners and were called as experts respectively by the prosecution and the accused in their field of science for their opinions on the comparative analysis they conducted on the disputed documents forwarded to them by the parties. While PW5 is a staff of the EFCC charged with the examination and comparative analysis of disputed documents, DW1 is a police Inspector attached to the forensic laboratory of the FCID, Alagbon Close, at Lagos. As stated, the two experts gave conflicting reports and evidence one implicating and the other absolving the appellant on the disputed documents they analyzed which were similar. The said documents, which were in two sets, were photocopies of the disputed documents (allegedly sent to PW1 by Abu Belgore) and the appellant’s specimen handwriting (or signatures). The appellant vehemently criticized the acceptance by the learned trial judge of the evidence given by PW5 (called by the respondent) and his rejection of the version of DW1 called by the appellant. I have considered the appellant’s criticism on the expert witnesses and the reply thereto in the respondents brief. I disagree with the appellants submission that the evidence of the DW1 who was a police inspector attached to FCID should have been preferred to that of PW5 who was an EFCC staff and was therefore more likely to be biased.

The purpose for which experts are called to give evidence in any case in trial is merely to assist the Court or the judge in forming its or his opinion on matters bordering on the fields of science, art, custom, foreign Law and identity of handwriting as in the present case, This is informed by the provision of Section 57 (1) and (2) of the Evidence Act (supra) which also defines who is an expert as a person who is especially skilled in the particular field of science or art etc for which he is called to give evidence. It follows therefore that the two witnesses called as handwriting experts in the present case were required not only to give result of their conclusion on the disputed documents but also to give some practical analysis in support of their reports in order to assist the trial judge in forming his own opinion on the disputed documents.

The ultimate acceptance or reliance of the report of an expert remains under the discretion of the trial judge who under the circumstances of the case may even decide to reject it.

In the celebrated case of R V. MICHEAL ADEDAPO OMISADE and ORS (1964) NMLR 67; (1964) 1 ALL NLR 47 one of the accused persons who denied visiting the naval base in pursuance of the plan or conspiracy to commit treasonable felony relied on the visitors book kept at the base to prove that his signature was not contained therein. He called a handwriting expert who gave evidence in his favour. However the trial judge discarded the evidence of the Police witness on the ground that he was not a real expert and compared or inspected the signature in the visitor book with the other writings of the accused. He found that it was the accused person who made the signature in the said book. Although the Supreme Court overturned that decision the reason given for so doing was based on the absence of another evidence from another person or another expert (rather than the judge), which would contradict the evidence of the expert.

In the present case, since there were two experts who gave conflicting versions on the disputed documents, the learned trial judge had the discretion to accept one and discard the other as he rightly did – See ELIJAH OKOH V. THE STATE (1971) 1 NMLR 140; SIESMGRAPH SERVICE (NIGERIA) LTD V. OGDENI (1976) 1 NMLR 290, JOHN WIBERFORCE BAMIRO V. SCOA (1941) 7 WACA 150;

some grounds, which are relied by the Court to discard one or the other of such conflicting expert evidence, are:

(a) where such expert evidence or opinion is apparently illogical and unreasonable

(b) where the expert fails to provide enough data analysis or basis to support his conclusion;

(e) where the Court itself makes its own comparison under section 107 of the Evidence Act and reaches a different conclusion from that of the expert.

(d) Where the expert who claims to have a special skill in the field in question gives evidence in the Court but fails to give account of his skill, qualification or experience in the said field for which he is called upon to give his opinion.

-See ALADU V. STATE (1998) 8 NWLR (Pt.563) 618; VAU TITTIDABALE V. SOKOTO NA (1964) 1 NIGERIAN LAW JOURNAL, page 123; (1964) NNLR; UTB V. AWANZIGANA ENTERPRISES (1994) 6 NWLR (pt 348) 58.

In the present case the learned trial judge was right in rejecting the evidence of the appellant’s police witness who as the respondents brief contends did not give account of his skill and experience in the analysis of documents and handwriting. Thus it is stated in the Judgment of the learned trial judge as follows:-

“PW5 started by giving his professional exposure and length of experience on the job while DW1 did not avail the Court of any such information about himself. While PW5 ably demonstrated his skill and explained to the Court how he arrived at his conclusion, it was apparent from the testimony of DW1 that all he went out for was to achieve a preconceived agenda to mislead the Court…”

-see page 539 of the record of appeal.

In addition to the above pronouncement in the judgment of the learned trial judge he has also made a comparison or personal inspection of the disputed document before arriving at his above conclusion.

The bulk of the appellant’s submission under issue 1 is predicated on the alleged wrong or improper evaluation by the learned trial judge of the evidence adduced by both parties in the case which led him to arrive at wrong findings or conclusions by favouring or accepting the respondent’s evidence and rejecting that of the appellant.

On this point I have given due consideration to the parties submission and I am of the view that it can easily be resolved by or on the settled principle that the function or duty of evaluation of evidence, ascription of provative value to such evidence and findings of facts are the primary duties or responsibilities of the trial Court which had the singular advantage of seeing the witnesses, listening to them and watching their demeanor. Where the trial Court performs its solemn functions or duties on those aspects or matters, appellate Courts has no business or no jurisdiction to interfere except m certain special circumstance, one of which is where such findings and evaluation are not based on or supported by evidence and are therefore perverse -see EKI V. GIWA (1977) 11 NSCC 96; FASHANU V. ADEKOYA (1974) 1 ALL NLR (pt.1) 35; FATOYINBO V. WILLIAMS (1956) 1 FSC 87; AKINLOYE V. EYILOLA (1965) NWLR 92; OKWEJIMINOR V. GBAKEJI (2008) ALL FWLR (pt. 409) 405 at 430; and AYANRU V. MANDILAS LTD (2007) 10 NWLR (pt. 1043) 462 at 479 – 480.

Before I am through with the 1st issue, it is necessary to consider and resolve the optly repeat submission of the appellant that there is no direct evidence throughout the proceedings before the trial court, linking him directly with the commission of the offence, under the counts or identifying him as Abu Belgore, This argument is predicated on the acceptability or by the Court of circumstantial as opposed to direct or real evidence and reliance on it to convict an accused person or to make an inference as to his guilt. The usual situation calling for the use of circumstantial evidence arises in cases where there is no evidence or testimony of an eye – witness and the Court is entitled to infer from the proved facts or circumstances as in the instant case. It is pertinent to observe in this regard the common practice amongst the advanced fee fraudsters to cover or screen their true identities from their victims and other person when or in the course of perpetrating their nefarious and fraudulent activities by which they deceive or dupe their victim so that at the end of it all their true identity would not be known or proved. This fact based on the common knowledge and frequent occurrences on the modus operandi of the persons involved in advanced fee fraud can be taken judicial notice of by this court -see the recent unreported decision of this Court in appeal No. CA/L/389/2005 delivered on 4/6/07: MIKE AMADI V. FEDERAL REPUBLIC OF NIGERIA (which was also a cyber-fraud case like the present case).

The principle for the acceptance or otherwise of circumstantial evidence by the court has since been settled by our superior courts in many decided cases, For circumstantial evidence to support or ground a conviction, it must be unequivocal positive, irresistible and must point at the guilt of the accused person. Where circumstantial evidence cogently, irresistibly, positively, unequivocally unmistakably and conclusively points to the accused person as the perpetrator of the offence alleged to have been committed, a court of Law would be entitled to infer from such evidence and the surrounding circumstances that the accused committed the offence and can convict him on such evidence. It does not matter that there was no real evidence of an eyewitness to the commission of the offence -see KALU V. STATE (1993) 6 NWLR (Pt. 300) 385; IBINA V. STATE (1989) 5 NWLR (Pt. 120) 238; OMOGBODO V. STATE (1981) 5 SC 5; UKORAH V. STATE (1977) 4 SC 167; ADIO V. STATE (1980) 1-2 SC 116 GABRIEL V. STATE (1989) 5 NWLR (Pt. 122) 457; BUDA V. STATE (1994) 7 NWLR (Pt.355) 195 at 197; and AMALA V. STATE (2004) 12 NWLR (Pt. 888) 520 at 555-556. In ETIMIONU V. AG DELTA STATE, (1995) 6 NWLR (pt.404) 719 at 731, this Court even elevated the status of circumstantial evidence as the best evidence in the following pronouncement: –

“It is true that there are cases in which circumstantial evidence maybe the best evidence when it is capable of proving a preposition with the precision of mathematics … ” (Per Ige, JCA of blessed memory). In applying the above principle of circumstantial evidence to the present case, I recall the various pieces of evidence before the lower court including inter alia the MTN line NO.08035856409 which was used by the appellant to communicate with PW1; his confessional statements and evidence in the Court, the contents of the green bag found in his office and its analysis by the expert showing that they were prepared or written by the said appellant. With these overwhelming evidence, there is no doubt that they all point positively unequivocally and conclusively that he was the one who posed or impersonated as Abu Belgore and through Email and other forms of communication duped PW1 (by way of an advanced fee fraud) of a huge sum of USD. Contrary to what the appellant asserts in his brief, by proving the above circumstantial facts pointing at him and no other person as the Abu Belgore, the prosecution has discharged its burden of proof and the evidential burden has shifted on the appellant to show or prove that he was not the Abu Belgore or was not acting in concert with him -see sections 138 (3) and 139 – 141 of the Evidence Act (supra). -See also ABDUL-RAHMAN V. COP (1971) NMLR 87; QUEEN V. OHAKA (1962) 1 ALL NLR 505; ARASE V. ARASE (1981) 5 SC 33; and SAVANNAH BANK OF NIGERIA LTD. V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD AND ANOR (1987) 1 NWLR (Pt. 49) 212.

For all my above consideration of the 1st issue, the issue and its related ground of appeal (i.e. ground 1) must be resolved against the appellant and in favour of the respondent.

On my resolution of the 1st issue, I will recall the mutual consensus reached by the learned counsel for the parties that the issue when consider red under a narrow compass or compact and because of its crutial nature to the appeal is capable of resolving or bringing to an end, the whole appeal. I have earlier indicated my agreement or acceptance of this mutual concession and hereby wish to add that the said issue as canvassed or argued in the respective briefs and in copious details has transcended upon the other issues respectively formulated by the parties in the appeal. This is why in my consideration of the issue I have unconsciously touched on other issue in the appeal namely the evaluation of evidence by the trial court as well as the burden of proof on the prosecution. It is also pertinent to recall my earlier resolve to adopt the three (3) issues formulated by the respondents rather than the appellant’s four (4) issues in the resolution and ultimate determination of the present appeal. Going by this resolve therefore and in view of my unconscious determination of the issue bordering on the evaluation of evidence and the alleged bias of the learned trial judge as canvassed under the respondents 3rd and final issue, it is my humble view that the said issue has been sub-summed or submerged in my consideration of or under the 1st issue and therefore should be better put to rest. Thus the only issue left to be considered in this judgment is the respondents 2nd issue (i.e. issue two) which borders on whether the respondent had proved its case against the appellant at the Lower Court as required by Law.

After going through the submission in the two briefs on the issue, the normal or conventional way of proving the offence(s) for which an accused person is charged is by reference to the charges or counts made against him with a view to showing that all the ingredients of the offence so charged are proved or established beyond reasonable doubt as provided for in sections 138 and 141 of the Evidence Act. This recommendation of proof beyond reasonable doubt stems from the constitutional provision in section 36 (5) of the 1999 constitution which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty – i.e. the presumption of innocence under our adversary criminal system of justice.

The phrase “beyond reasonable doubt” has been interpreted by our superior Court to mean that in order to discharge its burden and to dispel the constitutional presumption of innocence all that the prosecution requires is to produce evidence to prove the offence beyond reasonable doubt, but not beyond all shadow of any doubt that the accused is guilty of the offence with which he is charged. Nor does the phrase eliminates the possibility of any doubt whatsoever -see BAKARE V. STATE (1987) 1 NWLR (Pt. 26) 47; MILLAR V. MINISTER OF PENSIONS (1947) 2 ALL ER 373; INSPECTOR GENERAL OF POLICE V. OGUNTADE (1987) 1 NWLR (pt 51) 579; AKALEZI V. STATE (1993) 2 NWLR (Pt 273) 1 NWLR AND CHIA & ORS V. THE STATE (1996) 6 NWLR (pt. 455) 465.

By the charges or Count brought or framed against the appellant before the trial Court, he was charged under the 48 counts on which he was convicted for five different types of offences- though they were all related (as reproduced at the beginning of this judgment). The ingredients of the offence(s) are ascertained from the statutory provisions or sections creating or defining the particular offence (or offences).

On the count of conspiracy, the learned trial judge rightly found (at page 543 of the record) as follows: –

“From the evidence adduced by the prosecution, it is evident that the accused and his cohorts