Musa Yusuf V. Federal Republic Of Nigeria (2017)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the decision of the Court of Appeal, Sokoto Division delivered on 8th December, 2016, wherein the Lower Court affirmed the conviction of the Appellant and reviewed the sentence from six months imprisonment to seven years imprisonment for committing offences provided for under Section 8(a) of the Offences of Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same law.
SUMMARY OF FACTS
Based on a charge dated 8th August, 2014, the Appellant herein (the 2nd Accused person at the trial Court) and one Alhaji Mohammed Arzika Dakingari (as the 1st Accused person at the trial Court). Both of them were arraigned before the High Court of Kebbi State sitting in Birnin Kebbi on a 20 counts charge for offences relating to fraud, contrary to Section 8(a) of the Advance Fee and Other Fraud Related Offences Act.
On May 20, 2016, the trial Court found the Appellant guilty on the 1st and 2nd counts of the charges and sentenced him to six months imprisonment.
Dissatisfied by the Judgment of the trial
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Court, Appellant lodged an appeal at the Court of Appeal in Sokoto Division. The Respondent, also expressed his dissatisfaction with the judgment of the trial Court, particularly the six month imprisonment, filed a Cross Appeal in the same Court.
On 8th December, 2016, the Court below affirmed the conviction of the Appellant and reviewed the sentence from six months imprisonment to seven year imprisonment for the offences for which he was charged under Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act still dissatisfied, the Appellant preceded to this Court to lodge this appeal.
ISSUES FOR DETERMINATION:
The Appellant formulated four (4) issues for determination at page 3 of its Appellant’s Brief filed on 10th March, 2017.
- Was the Court below right in law when it affirmed the conviction of the Appellant for the offence of Criminal Conspiracy contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and punishable under Section 1(3) of the same Act the appellant’s co-accused having been discharged in relation to the same offence (This is decoded from ground 2 of the grounds of
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appeal)
- Was the Court below right in law when it affirmed the conviction of the Appellant for the offence of aiding contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and Punishable under Section 1(3) of the same Act, the appellant’s co-accused having been discharged in relation to the same offence (This is decoded from ground 3 of the grounds of appeal)
- Did the Court below not impute its personal evidence in the consideration of the appeal before it (This is decoded from ground 4 of the grounds of appeal).
- Was the Court below on the totality of the evidence adduced on the records justified in affirming the conviction of the appellant for the offences of criminal conspiracy and aiding contrary Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act and punishable under Section 1(3) of the same Act. (This is decoded from ground 1, 5 & 6 of the grounds of appeal).”
The Respondent however, formulated three (3) issues at pages 2-3 of the Respondent brief.
ISSUE ONE
Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for conspiracy
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to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and Other Fraud Related Offences Act even though it discharged and acquitted the co-accused Alhaji Mohammed Arzika Dakingari who was charged together with the Appellant in the same count one of the charge for the same offence. (Distilled from ground 2 of the Grounds of Appeal).
ISSUE TWO
Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for aiding the obtained of property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act even though it discharged and acquitted the co-accused Alhaji Mohammed Arzika Dakingari who was charged together the Appellant in the same count two of the charge for the same offence. (Distilled from ground 3 of the Grounds of Appeal).
ISSUE THREE
Whether the Court of Appeal was right when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence and aiding one Alhaji Ibrahim Abdullahi to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act,
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2006, on the grounds that the Respondent had proved its case against the Appellant beyond reasonable doubt on both allegations. (Distilled from grounds 1, 4, 5 and 6 of the Notice of Appeal).
I observed that all the issues formulated by the Appellant and Respondent touched and concern the fact that the Court below affirmed the conviction of the Appellant for the offences for which he was charged. Thus, it is my considered view that all the issues could be summed-up and sufficiently answered under one issue for determination. Therefore, for the purpose of determining this appeal, I have formulated the sole issue for determination, thus:
“Whether the Court below was right when it affirmed the conviction of the Appellant for the offence of obtaining by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act.”
CONSIDERATION AND RESOLUTION OF THE ISSUE:
The contention of the Appellant is that, he was alleged to have conspired with Alhaji Mohammed Arzika Dakingari, the Accountant General of Kebbi State and one Ibrahim Usman to fraudulently obtain 25 units of Iveco Trucks, properties of Karimat
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Global Trade Inks Limited valued at N175,000,000.00 (One Hundred and Seventy Five Million Naira) by false pretence. Therefore, by virtue of Sections 131 and 132 of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, as well as decisions in MOSES VS THE STATE (2006) 6 QCCR, page 1 at 23 Ratio 2; AMAREMOR v. THE STATE (2010) 7 NWLR (Pt.1193) page 317 at 329, paragraphs G-H among others cases cited at pages 4-5 of the Appellant’s brief, the prosecution always bears the burden of proof.
Counsel contended that, by the decisions in ODEN v. FRN (2005) 1 NCC 303 at 327-328 which Counsel quoted extensively, proof of an offence beyond reasonable doubt in turn means proof of all essential elements of an offence. Counsel contended that since the 1st accused person with whom the Appellant was alleged to have committed the offence has been discharged and acquitted, and also one Ibrahim Usman who was mentioned in count one of the charges was never arraigned, the Court below glossed over same and convicted the Appellant. Counsel submitted that this, in effect, meant that the Court below rejected the evidence of the
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criminal conspiracy but nonetheless used the same discredited evidence to convict the Appellant. On this contention, the learned Counsel relied on the case of IDIOK vs. THE STATE (2010) 8 LRCNN 96 at 110 paras EE.
The Appellant further contended that having discharged the charges, the 1st accused person on count 2 of the charges, the Appellant also ought to be left of the hook since the evidence relied upon by the prosecution was like Siamese twins that cannot be separated. Counsel relied on the case of EMMANUEL EBRI VS THE STATE (2005) 1 NCC 1, at 18 and submitted that the Court relied on the same evidence to arrive at different conclusion.
The learned Counsel contended that, the learned justice of the Court below, in interpreting the evidence of the PW6 imported their personal views or evidence into the case before the Court thereby arriving at a verdict detrimental to the Appellant thus occasioning a miscarriage of justice. Counsel contended that the duty of Court is to consider all available evidence and not to manufacture one which does not exist. He relied on the case of AWOPEJO v. THE STATE (2002) FWLR (Pt.87) 772 at 781 Ratio 3.
The
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learned counsel for the Appellant contended that although a total of 20 exhibits were tendered, the prosecution was unable to prove that the Appellant is the maker of all the purported fraudulent documents. He contended that all the trial Court did was to pitch the Appellant documents that were never procured by him as justification for his conviction thereby leading to a miscarriage of justice. Counsel cited the case of AGBOMEJI VS. BAKARE (1998) 9 NWLR (Pt.564) 1, STATE V. AJIE (2000) 7 SC (Pt.1) at 24.
Counsel contended further that there was no evidence before the trial Court that the Appellant benefitted even in a minimal proportion from the transaction leading to his conviction. The conviction of the Appellant, in the view of the Appellant, in the view of Counsel, was based on mere suspicion and that the law is settled that suspicion, no matter how strong, cannot occasion criminal responsibility. Counsel relied on the case of COP V. UDE (2011) 17 WRN 120 at 126, Ratio 4.
In the final submission, the learned counsel for the Appellant argued that his client ought not to have been convicted and that such lingering doubt had been
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casted in the prosecutions case and that such doubts by law, ought to be resolved in favour of the Appellant. Based on his arguments and submission, the learned counsel for the Appellant urged this Court to acquit and discharge the Appellant.
In his response, the learned counsel for the Respondent contended that Section 8(a) of the Advance Free Fraud provides that:
“A person who conspires with, aids, abets, or counsels any other person to commit an offence ………. under this Act commits an offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.
Counsel proceeded to list out the elements of criminal conspiracy which the prosecution must establish to ground conviction. Counsel submitted that contrary to the argument of the learned counsel for the Appellant, the count on conspiracy also had other accused persons as co-conspirators and the discharge of one Alhaji Muhammed Arzika Dakingari could not have resulted in the discharge of the Appellant.
The learned counsel clarified that contrary to the submission of the Appellant, the evidence of conspiracy against the Appellant
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was not discredited as there was concurrent findings of fact by both the trial Court and the Court below. Counsel submitted that the Court below rightly affirmed the inference of conspiracy against the Appellant by the trial Court. Counsel relied on the cases of ARABAMBI VS. ADVANCE BEVERAGES INDUSTRIES LIMITED (2005) 19 NWLR (Pt.959) 1 at 43; NWADIKE v. IBEKWE (1987) 4 NWLR (Pt.67) at 718; OGUGU vs. THE STATE (1990) 2 NWLR (Pt.134), 539 at 553; and ODUNEYE VS THE STATE (2001) 2 NWLR (Part 697) 311 at 325, Paras.A-B, 332-333, Paras. H-C.
The learned counsel for the Respondent submitted that the contention of the Appellant’s counsel that the discharge of the co-accused should have led to the discharge of the Appellant cannot stand. This is because the Appellant does not qualify as a person who acted innocently without the intention to commit any of the offences. Counsel relied on the case of ARABAMEN VS THE STATE (1972) 7 NSCC 194 at 200, Lines 15-20. The Learned Counsel also relied on the case of NWANKWOALA VS THE STATE (2006) 15 NWLR (Pt.1000) 663 at 683 at APARS C D.
In his final submission, the learned Respondent’s Counsel argued
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that it is not the duty of the appellate Court to state whether or not it believed or did not believe the Appellant as a witness as contended by counsel to the Appellant. On this contention, Counsel relied on the case ONUOHA V. THE STATE (1989) NWLR (Pt.101) 23 at 34 G-H. Counsel concluded by stating that there was abundance of credible, direct and circumstantial evidence to warrant the Lower Court to affirm the conviction of the Appellant by the trial Court. The learned Respondent’s Counsel therefore urged this Court to dismiss the appeal and affirm the conviction of the Appellant by the Court below.
The basis of the Appellants appeal is largely based on his submission that the conspiracy charge involved Alhaji Mohammed Arzika Dakingari, the Accountant General of Kebbi State and one Ibrahim Usman. Therefore, having discharged the 1st accused person on count 2 of the charges, the Appellant also ought to be left off the hook since the evidence relied upon by the prosecution was like Siamese twins that cannot be separated.
To all intent and purposes, this is misplaced. Certainly, there cannot be conspiracy unless two or more persons are involved.
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However, the most important thing is for the accused to have the intention and be in the know as to the purpose of the criminal conspiracy. To this extent, the Courts are allowed to draw reasonable inferences from the overt acts of the conspirators to establish reasonable conspiracy.
It is to be noted that the Appellant places reliance on Sections 131 and 132 of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999, to contend that prosecution always bears the burden of proof. Appellant would appear to assume that the burden is static even where the prosecution has deployed credible evidence to prove its case.
Sections 131 and 132 of the Evidence Act relied upon by the Appellant is herein re-produced:
“BURDEN AND STANDARD OF PROOF:
- BURDEN OF PROOF.
(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a Person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
- On whom burden of proof lies. The
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burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
Section 138 further complements the above. It provides for the burden of proving fact necessary to be proved to make evidence admissible.
“138(1) The burden of proving any fact necessary to be proved in order to:
(a) enable a person to adduce evidence of some other fact; or
(b) prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the adduction of such evidence, respectively.
(2) The existence or non existence of facts relating to the admissibility of evidence under this Section is to be determined by the Court.”
Proof in criminal trial is attained against the background of the burden enshrined in Section 135(1) of the Evidence Act, 2011 which states thus:-
- Standard of proof where commission of crime in issue; and burden where guilt of crime etc. asserted. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
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It is acknowledged that the above section imposes only a burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Section 36(5) of the Constitution stipulates that:-
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
On the issue of respective burdens of proofs imposed on the Accused and prosecution, the learned Counsel for the Respondent cited the case of BELLO v. THE STATE (2007) 10 NWLR (Pt.1043) 564; OLADELE VS NIGERIAN ARMY (2004) 6 NWLR (Pt.868) at 166 and OBIAKO VS THE STATE (2002) 10 NWLR (Pt.776) at 612.
However, it needs to be appreciated that, by its nature, the offence of conspiracy is established once the prosecution adduces credible evidence, which is not debunked by the accused, to show criminal design and intent. See ODUNEYE VS THE STATE and DABOH VS THE STATE (1977) 5 SC 197. Quoting the Lower Court:
“In the instant case, it relates to (that is conspiracy) to the
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involvements of the Appellant as 2nd accused person, his role which culminated in the defrauding of the PW.1 literally shouts to the high heavens. It was he who played very active roles in procuring all the fraudulent documentations with which the PW.1 was defrauded even when he knew that there was no contract for the supply of rice anywhere. See page 999 of the Record of Appeal.”
I also share the views of the Court below to the effect that:
“The most important disclosure in this case is the fact that the Appellant, despite knowing that there was no contract anywhere for the supply of rice still went ahead and procured Exhibits 17 and 18 with which they easily convinced the PW1 and ended up defrauding him.
PW.5 in his evidence, testified that the supply of rice was procured when the appellant handed him a document and instructed that the contents be transferred to the official letter-headed paper. In addition, the appellant is not unaware that the so called supply of rice contract was not genuine, and yet he still went about its procurement.
The appellant, however, at page 452 of the records while under cross-examination,
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admitted that he knew that there was no such thing as a contract for the supply of rice when he said:-
“Yes, I requested an ISPO from the office of the Accountant-General in respect of supply of rice to Kebbi State Civil Servants. I submitted the ISPO to ECO BANK. There was no contract between us and Kebbi State Civil Servants: there was also no contract for the supply of rice.
The learned trial judge in his Judgment at page 530 of the records stated that.-
In relation to the 2nd accused the evidence against him was that he was the one that came to PW.5 with a handwritten draft of the ISPO with instructions from the 1st accused to transfer the content of the handwritten draft unto the official letter-headed paper of the office of the Accountant-General. He took this ISPO with him to PW6 who was then the branch manager of ECO BANK 1 Birnin-Kebbi. He was accompanied to the office of the Accountant-General where the ISPO was made and to the office of the manager ECO BANK 1 Birnin-Kebbi by one Ibrahim Abdullahi Usman (now at large). On the strength of the standing order PW6 issued a confirmation letter to Cigale Finance S.A. (Exhibit
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7). It was the ISPO (Exhibit 17) and the letter of domiciliation of account issued by ECO BANK that were used to defraud PW1…
In the instant case, there is no direct evidence of conspiracy to defraud in the sense that the 2nd accused conspired with Malami Galadirna, Ibrahim Abdullahi Usman and Abdulrazak to defraud PW1. There is however enough circumstantial evidence to that effect. There was a meeting at a Hotel between 2nd accused and Ibrahim Abdullahi Usman and Malami Galadima Birnin-Kebbi. The 2nd accused obtained Exhibit 17 from the office of the Accountant-General, Kebbi State. When the said Ibrahim Abdullahi Usman brought same trucks to Birnin-Kebbi (Presumably Part of the 22 IVECO TRUCKS he defrauded PW1) the 2nd accused went to the place where they were parked and saw them. In the circumstances of this case, I find the 2nd accused person, YUSUF MUSA guilty of the offence of conspiracy and I convict him accordingly.”
The main thrust of the prosecution’s case is that the appellant despite knowing that there were no contracts anywhere for the supply of rice still went ahead and procured Exhibits 17 and 18 with which he convinced the
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PW.1 and ended up defrauding him.
I am also of the view, like the Court below that Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006 does not give the Court any discretion to impose a sentence below seven (7) years imprisonment. The statutory range is a maximum of twenty (20) and a minimum of seven (7) years imprisonment. For clarity, I reproduce the exact provisions of Section 1(3) of the Act:
“1(3) A Person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 Years and not less than seven years without the option of a fine.
See also the case of AMOSHIMA VS THE STATE (2011) All FWLR (P.597) at 601.
It is my considered view that, in view of the above provisions, the Lower Court was right to have invoked the provisions of Section 15 of the Court of Appeal Act in revisiting the issue of the punishment imposed with a view to effecting the appropriate punishment envisaged under the law. It is for this reason that I re-affirm the imposition of seven (7) years imprisonment imposed by the Lower Court as against the six (6) months
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imprisonment imposed by the trial Court.
In concluding, it is my view that the Lower Court was right when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Related Offences Act, 2006 irrespective of the discharge and acquittal of the co-accused person. It does not lie in the mouth of the Appellant to complain that whatever consideration that led to the acquittal or discharge of the Mohammed Arzika must necessarily lead to his acquittal irrespective of the overwhelming evidence against him. The imposition of higher punishment of seven (7) years imprisonment imposed is also well justified.
In view of the foregoing, this sole issue is resolved against the Appellant. The appeal is consequently dismissed as lacking in merit. The judgment of the Court below is hereby affirmed.
SC.124/2017
