Chinedu Nwankwo & Anor. V. Federal Republic of Nigeria (2002)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A. 

The accused persons were at the Miscellaneous Offences Tribunal, Lagos Zone, arraigned in Charge No. MOT/L/23/24/98 on a two count charge with the following offences:

“Court One

That you, Chinedu Nwankwo and Cyril Nwankwo, on or about the 5th April, 1996, at Lagos, in the Lagos Zone of the Miscellaneous Offences Tribunal, with intent to defraud, conspired among yourselves to obtain property by false pretence and thereby, committed an offence contrary to section 8(a) and punishable under section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995.

Court Two

That you, Chinedu Nwankwo and Cyril Nwankwo, on or about 5th April, 1996, at Lagos, in the Lagos Zone of the Miscellaneous Offences Tribunal, attempted to obtain from one Sister Mary Dominica, of Immaculate Queen Centre Spokane, United States of America, the sum of Fourteen thousand five hundred U.S. Dollars ($14,500 U.S.) and thereby committed an offence contrary to section 8(b) and punishable under section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995.”

At the commencement of the trial, the accused persons pleaded not guilty to the aforestated two counts of the charge. Thereafter, the prosecution called three witnesses to prove its case. At the close of the case for the prosecution, the accused persons defended themselves and gave evidence in the witness-box, but did not call any witness.

The facts leading to this case emanated from a letter dated 3rd August, 1996, and written by one Sister Mary Dominica, of Mary Immaculate Queen Centre, Spokane, United States of America, to the Deputy Inspector-General of Police, Federal Investigation and Intelligence Bureau, Ikoyi, Lagos, Nigeria, in which allegation of fraud and attempt to obtain money from her organisation in the U.S.A. were made by “supposed” lawyers in Nigeria, through correspondence to her. Annexed to the said letter, were the letters/documents which formed the correspondence in question. The said letter with the annexures (exhibit A1) were referred to the Special Fraud Unit/Department of the Nigeria Police Force Ikoyi, Lagos, for investigation. One Bala Chiroma, a Deputy Superintendent of Police attached to the said Special Fraud Unit/Department of the Nigeria Police Force, Lagos, with his team of policemen investigated the case and he gave evidence as PW1 at the trial before the Miscellaneous Offences Tribunal, Lagos Zone, (hereinafter referred to as the “Tribunal”).

Some of the letters/documents annexed to the letter received from Sister Mary Dominica and tendered in evidence by PW1 as part of exhibit A1 were written by one Barrister Kunle Abayomi, and a Barrister (Dr) Michael Uzor to Sister Mary Dominica. One of the letters (exhibit A1 page A4f) at page 16 of the record of appeal from Barrister Kunle Abayomi reads:-

“Kunle Abayomi & Associates

Solicitors & Advocates Notary Public (Supreme Court of Nigeria) 23, Aiyetoro Street, Fadeyi-Mushin, Lagos.

Tel/Fax: 234-1-5851563

Date: 07/03/96

Our Ref:…………… Your Ref: …………..

Mary Immaculate Queen Centre, North 8504 Street – Michael’s Road Spokane, WA 99207-0905.

Dear Sir,

On behalf of myself, Barrister Kunle Abayomi and Rev. Msgr. Kennedy James Ike, as trustees and executors of the Will of late Rev. Father George O. Biggart of the Universal Congregation of Catholics, who died in the Lord after a brief illness, on the 13th of March, 1994. I wish therefore, to inform you that the late Rev. Father George O. Biggart made you a beneficiary of three hundred and fifty thousand U.S. Dollars, after conversion in the Codicil to his Will for your selfless support to the Catholic faith.

In his own words, is stated in the Codicil- “This money is for the continued support for the spiritual upliftment of the Catholic faith.” Kindly acknowledge the acceptance of this legacy through Tel/Fax: 234-1-5851563.

For due proceeding, I expect your quick response. Best regard and God bless.

Sgd…… 07/03/96

Kunle Abayomi & Associates.”

By another letter dated 5/4/96 (exhibit A1 page A4b) at page 12 of the record of appeal from the said Barrister Kunle Abayomi of the same address and Tel/Fax No. 234-1-5851563, to the said Sister Mary Dominica, Barrister Kunle Abayomi forwarded to her a copy of the said first Codicil to the Will of the late Rev. Father George O. Biggart referred to in his earlier letter, dated 07/03/96. The letter was endorsed to the Probate Registrar, Lagos High Court and the Central Bank of Nigeria, Legal Department. In the said First Codicil to the Will of Rev. Father George O. Biggart, paragraph 4 thereof reads as follows:

“I give the sum of U.S. $350,000.00 (Three hundred and fifty thousand U.S. Dollars) out of my Domiciliary Account situated in Union Bank of Nigeria Plc., Lagos Branch, (to) Mary Immaculate Queen Centre North 8504 Street, St. Michael Road Spokane, WA 99207-0905, for your selfless service and continued support to the spiritual upliftment of disabled individuals and Catholic faith.”

This letter was followed by yet, another letter, dated 18/5/96 (exhibit A1 page A4h) at page 18 of the record of appeal from the said Barrister Kunle Abayomi to Sister Mary Dominica which reads:

“I crave your indulgence to nominate one Barrister Michael Uzor of Mic Chambers, Ikeja, Lagos, Nigeria, a registered Attorney with the Probate Registry Lagos High Court, who will help you sign off the legacy/be-quest and effect remittance of the fund where appropriate. Your Attorney will handle all logistics in this regard.”

Soon after writing the above-mentioned letter, and precisely on the 21st of May, 1996, the said Barrister (Dr) Michael Uzor, who was recommended and nominated by Barrister Kunle Abayomi to Sister Mary Dominica, to deal with the legacy/bequest, by a letter (exhibit A1 pageA4) at page 20 of the record of appeal, to Sister Mary Dominica, promised her to obtain accelerated release of the said bequest to her and directed her to fax a Power of Attorney instructing Abayomi & Associates to release to his Chambers – Mic Chambers – a copy of the Certification and all related documents to be tendered to the Probate Registry for immediate action. Also Barrister Michael Uzor in the letter demanded from Sister Mary Dominica the following fees:

(1) Professional fee of 1% of the total value of the bequest

(2) Stamp duty fee $5,000 (Five thousand U.S. Dollars)

(3) L.C.V. = $6.500 (Six thousand five hundred U.S. Dollars).

In another letter from Dr. (Banister) Michael Uzor, dated 17th June, 1996 (exhibit A1 page A4a) at page 11 of the record of appeal to Sister Mary Dominica, he directed her to pay the stamp duty fee and L.C.V. fee as earlier demanded to the under-mentioned foreign bank:

“Barrister Banque Francaise Delorient

50-52 Curzon Street London WIY 7PN

A/C No. 10229808 BEN: Liberty Commence Ltd.

London.”

PW1 in his evidence before the Tribunal said that armed with the letters (exhibit A1) he wrote to Nigeria Tele-communication Company Ltd. (NITEL) by exhibit A2 inquiring about the subscribers of the telephone lines or numbers 5851563 and 4923248 carried on the letter heads of Barrister Kunle Abayomi and Dr. Michael Uzor respectively, in their letters to Sister Mary Dominica. In the reply (exhibit A3) NITEL indicated that telephone No. 5851563 was subscribed to by one Godwin Ekeh of No. 107 Apapa Road, Ebute Metta, and a visit by PW1 and his team to that place revealed that no one by that name lived at that address. Upon a physical tracing with a technician from NITEL of the telephone line/number 5851563, PW1 discovered that the said line was at No. 41 Ajijedun Street, Ijeshatedo, Lagos. On 24/10/96, PW1 and his team went to that address where they arrested the 1st accused person in the house therein. They also conducted a search in that house in the presence of the 1st accused and recovered the telephone box and fax machine in respect of Tell Fax No. 5851563 used by Barrister Kunle Abayomi on his headed letters to Sister Mary Dominica. The telephone box and the fax machine were admitted in evidence as exhibits A5 and A6 respectively. On 28/10/96 the 2nd accused person came to the police station and claimed being the occupant of No. 41 Ajijedun Street, Ijeshatedo, Lagos, where the 1st accused was earlier arrested and exhibits A5 and A6 recovered. He also claimed the ownership of exhibits A5 and A6 recovered. PW1 there and then arrested him. In view of the hand-written letter dated 5/4/96 (exhibit A1 page A4b) and the hand-written foot-note in the letter dated 25/6/96 (exhibit A1 page A4e) by Barrister Kunle Abayomi to Sister Mary Dominica, PW1 caused the specimen hand writings of the accused persons to be obtained and with exhibits A1 page A4b and A1 page A4e they were forwarded to the handwriting analyst (PW3) for examination and report. The report was later obtained and admitted in evidence as exhibit B8. PW1 also testified that in respect of Tel/Fax No. 4923248 carried on the letter-head of Dr. Michael Uzor’s letters to Sister Mary Dominica, their investigation revealed that the wire for that particular telephone line was traced and found hanging on a pole leading to nowhere. As to the domiciliary account with the Union Bank of Nigeria Plc., Lagos Branch, from which the bequest of $350,000 U.S. Dollars to Mary Immaculate Queen Centre U.S.A. was made in the First Codicil to the Will of late Rev. Father George O. Biggart, PW1 testified that from their investigation no such account existed with that bank. Michael Anibogu, an Inspector of Police attached to the Special Fraud Unit who worked with PW1, also gave evidence as PW2. He corroborated the evidence of PW1.

He also testified that the address given by the supposed Barrister Kunle Abayomi & Associates as No. 23 Aiyetoro Street, Fadeyi Mushin was found to be fake and non-existent, while the address given by Dr. Michael Uzor as Ikeja – Lagos was not specific and could not be traced. PW2 also in his evidence tendered the voluntary statements of the 1st and 2nd accused persons which he recorded and they were admitted in evidence as exhibits A9 and B1 respectively. Under cross-examination, PW2 insisted that Barrister Kunle Abayomi and Dr Michael Uzor were fake lawyers because the addresses given by them were not in existence. PW3 was the last witness for the prosecution. He was an A.S.P. attached to the Forensic Science Laboratory, Lagos and a hand-writing analyst and photographer. He examined and compared the specimen hand-writings of each of the appellants with the disputed handwritings and found characteristic features of similarity between them. He testified that the writer of specimen hand writing exhibit B6 wrote the questioned hand-writing of exhibit A1 page A4b, while the questioned hand-writing at page A4e of exhibit A1 was written by the writer of specimen hand-writing exhibit B5.

The case of the accused persons was that of absolute denial of the charges. They also denied knowing anything about the documents forming exhibit A1, including the letters already reproduced above. The 1st accused person (DW1) described himself as an Estate Agent, while the 2nd accused person (DW2) said that he is a dealer in second hand cars. The accused persons are blood relations, the 1st accused being senior to the 2nd accused. The 2nd accused person (DW2) in his evidence denied knowing Dr. Michael Uzor and Barrister Kunle Abayomi. He admitted the ownership of exhibits A5 and A6 (the telephone box and fax machine) that were recovered in his house, and explained that he bought the telephone line No. 5851563 from Godwin Eke, a NITEL staff at Iponri Exchange.

He said that he used the telephone line for about one year before his arrest by the police in connection with this case. Asked under evidence-in-chief about the whereabouts of the NITEL documents relating to that telephone, he said that he sold the telephone line with the documents to the Task Force on NITEL. The 2nd accused also denied owning any foreign bank account and explained that his business is only within Nigeria. Under cross-examination, the 2nd accused person admitted that the fax machine (exhibit A6) was recovered by the police from his house, but said that it was not functioning well and so it could not be used to receive fax message.

Also, asked when he bought the said telephone line, the 2nd accused said he bought it at the end of 1995. When shown his statement to the Police (exhibit B1) wherein he stated that he bought the telephone line No. 5851563 direct from NITEL and asked why he was now saying that he bought the same from Godwin Eke, the 2nd accused insisted that he bought the telephone line from Godwin Eke. The 2nd accused further said that he sold the line after his arrest by the police.

At the conclusion of evidence, the learned Counsel for both sides addressed the Tribunal extensively.

In a well-considered judgment delivered on the 3rd day of March, 1999, the Tribunal came to the conclusion that the prosecution had discharged the burden of proof placed on it and had proved the case against the two accused persons beyond reasonable doubt.

Accordingly, the Tribunal found the two accused persons guilty on the two counts of the charge and convicted them. After an allocutus by the learned defence Counsel on their behalf the Tribunal, sentenced each of them to ten years imprisonment in respect of count one and ten years imprisonment in count two of the charge, but the sentences were made to run concurrently.

The accused persons now the appellants herein, being dissatisfied with the decision of the Tribunal appealed against the same to the Special Appeal Tribunal on a notice of appeal, dated 11th day of March, 1999, and filed on the 12th day of March, 1999, on one ground of appeal which reads:

“That the decision of the lower Tribunal is unreasonable and cannot be supported having regard to the evidence before the Tribunal.”

It has to be mentioned that the appellants filed a joint brief of argument on 10/6/99 at the now defunct Special Appeal Tribunal, for the determination of the appeal. However, consequent upon the provision of section 7(1) of the Tribunals (Certain Consequential Amendments, etc) Decree No. p2 of 1999, which confers on the Court of Appeal, the jurisdiction to hear an appeal from a person convicted under the said Decree, the appellants’ appeal was therefore, transferred to this court for hearing and determination.

In the appellants’ brief of argument, six issues were formulated for the determination of the appeal, and they read:

“(1) Whether conspiracy was proved as charged.

(2) Whether the learned trial Chairman of the lower Tribunal was right in convicting the 1st and 2nd appellants on circumstantial evidence that did not point conclusively to the guilt of the appellants.

(3) Whether the learned trial Chairman of the lower Tribunal was right in convicting the 1st and 2nd appellants of offence that could have been committed by another person.

(4) Whether the learned trial Chairman of the lower Tribunal adequately evaluated the evidence before him.

(5) Whether the charge against the appellants was proved beyond reasonable doubt.

(6) Whether the act of recovery of the telephone box bearing telephone No. 5851563 at the residence of the 2nd accused in the presence of the 1st accused is enough evidence to prove conspiracy on the part of the accused persons as charged.”

For the respondent, three issues have been identified in the respondent’s brief of argument for the determination of the appeal.

They also read:

“(1) Whether or not sufficient evidence has been led to secure the conviction of the accused persons.

(2) Whether or not the learned trial Judge adequately evaluated the evidence before it.

(3) Whether or not the offences as contained in the counts of the charge against the appellants were proved by the prosecution beyond reasonable doubt.”

In the appellants’ Notice of appeal, there is only one ground of appeal, but there are six issues for the determination of the appeal formulated in the appellants’ brief of argument. It is an elementary principle in brief writing that issues formulated in a brief must of necessity arise or be related to the grounds of appeal filed. The issues should not be so prolix and proliferate as to be more in number than the grounds of appeal on which they are related and based. See Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614) 334: Ishie v. Mowanso (2000) 13 NWLR (Pt. 684) 279 at pages 288 and 289.

Where in an appeal, an issue formulated in the brief of argument is not supported by or related to any of the grounds of appeal filed, such an issue is not for determination by the court and should be discountenanced, and struck out by the court. See Modupe v. The State (1988) 4 NWLR (Pt. 87) 130. In Abioye v. Afolabi (1998) 4 NWLR (Pt.545) 296, it was held that an issue for determination which is not related to any of the grounds of appeal filed is incompetent and will be discountenanced or disregarded.

In the instant case, of the six issues formulated in the appellants’ brief of argument, only issue No.5 is related to the sole ground of appeal filed and it is accepted. The other issues namely issues Nos. 1, 2, 3, 4 and 6 are incompetent and are hereby, struck out.

In the respondent’s brief of argument, three issues are formulated for the determination of the appeal. Of the three issues, only issues Nos. 1 and 3 are similar and closely related to the only ground of appeal filed. However, issue No. 1 is subsumed in issue No.3. As for issue No.2 in the respondent’s brief of argument, it is my view that the issue is not related to the appellants’ sole ground of appeal and the respondent not having filed a cross-appeal or respondent’s notice, has no valid reason to go outside the confine of the appellant’s ground of appeal to formulate the issue. Issue No.2, therefore, not having arisen from the ground of appeal filed by the appellants, it is hereby, discountenanced and is accordingly, struck out. See Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 543-544.

To recapitulate, I wish to state, therefore, that the two issues that are competent and germane to the determination of this appeal are issue No.5 in the appellants’ brief of argument and issue No.3 in the respondent’s brief of argument. As I have earlier stated, the two issues are identical and shall therefore be considered together.

It was contended for the appellants in their brief of argument that the prosecution failed to discharge the burden of proof upon it to prove the case against the appellants beyond reasonable doubt and therefore the Tribunal ought to have discharged the appellants.

On Count One of the charge, it was contended that exhibit A1 page A4a, which the learned trial Judge relied heavily upon has no nexus with exhibit A6 (the fax machine). It was further argued that exhibit A1 age A4a which had the details of the foreign Bank Account, where the money was to be paid in to and exhibit A1 page A4j which contained the actual amount demanded all had telephone No. 4923248 on their letter-heads and this telephone number was not by any stretch of the imagination linked to the appellants. It was also contended that PW3 (the handwriting analyst) after analysing exhibits B5 and B6 could not form any opinion as to the authorship of the endorsements in exhibits A1 pages A4b and A4e. It was therefore, submitted by the learned Counsel for the appellants that it was wrong for the Tribunal Chairman to have convicted the appellants for conspiracy with intent to defraud in Count One, when the legal requirements were not met.

On Count Two of the charge, it was the argument of the learned Counsel to the appellants that there was no compelling evidence to justify the conviction of the appellants in respect of that count. It was his contention that the actual demand letter that constituted the attempt in count two was expressed in exhibit A1 page A4j with telephone No. 4923248 which was not referable to the appellants.

The learned Counsel referred to the inconsistency between the sum of $14,500 U.S. Dollars stated in count two of the charge, which the appellants were alleged to have attempted to obtain by false pretence and the sum of $11,500 U.S. Dollars demanded in exhibit A1 page A4j. He submitted that the sum of $14,500 U.S. Dollars stated in the charge is an ingredient of the offence charged and ought to be proved specifically in order to secure conviction. He further contended that the complainant, Sister Mary Dominica, who was the only person to establish the receipt of the alleged fraudulent document which constituted the offence of attempt to obtain money from her, was not called to give evidence. He referred to section 5 of the Advance Fee Fraud and Other Related Offences Decree No. 13 of 1995. The learned Counsel therefore, submitted that there clearly exist doubts in the case of the prosecution as to whether the appellants were the perpetrators of the offence charged and these doubts ought to have been resolved in favour of he appellants. He further submitted that it is a fundamental principle of criminal law that once there is doubt about the guilt of an accused person, such doubt should be resolved in favour of the accused person. A doubt in the mind of the court, learned counsel submitted, means or presupposes that the case against the accused has not been proved beyond reasonable doubt.

In the respondent’s brief of argument, it was submitted that the ingredients of the offence upon which the appellants were convicted by the learned Tribunal Chairman were proved beyond reasonable doubt. The learned Counsel for the respondents also referred to section 5 of the Advance Fee Fraud and Other Related Offences Decree No. 13 of 1995 and submitted that there is no rule compelling the complainant to adduce evidence personally in proof of her complaint and cited the case of Ugwu v. The State (1998) 7 NWLR (Pt. 558) 397 at 408. See also Clement Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521 at 551. He referred to the evidence of the prosecution witnesses which the learned Tribunal Chairman believed and also to the judgment of the Tribunal at page 97 lines 15 to 21 of the record of appeal, where the Tribunal found that there was glaring evidence that the appellants sent the annexures to exhibit A1 to the complainant who received the same. This evidence was corroborated by the evidence of the recovery of the telephone line bearing telephone No. 5851563 and the evidence of the handwriting analyst – PW3. On the inconsistency between the sum of $14,500 U.S. Dollars stated in count two of the charge and the sum of $11,500 U.S. Dollars demanded in exhibit A1, the learned Counsel submitted that the contradiction was not material and fatal to the case, and referred to Otti Nwaogu v. The State (1992) 7 NWLR (Pt. 254) 426 at 438. On proof beyond reasonable doubt as the burden placed on the prosecution in criminal trials, it was submitted that the prosecution in this case had proved the guilt of the appellants beyond reasonable doubt. Reference was made to the case of Michael Alake & Anor. v. The State (1991) 7 NWLR (Pt. 205) 567, where it was held that once the ingredients of the particular offence the accused person is charged with are proved, that constitutes proof beyond reasonable doubt. Also cited are Ferdinand Abadom v. The State (1997) 1 NWLR (Pt. 479) 2 at page 21; Basil Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 at 13. Finally, referring to the Supreme Court case of Clement Oguonzee v. The State (supra) at 545 on the attitude of the appellate court to the finding of fact by the trial court, the learned Counsel for the respondent submitted that an appellate court will not ordinarily interfere with such findings of fact made by a trial court, which are supported by evidence unless the trial court did not make proper use of the opportunity it has of seeing and hearing the witnesses at the trial, or where it drew wrong conclusions from accepted credible evidence or took erroneous view of the evidence adduced before it or its findings of facts are perverse in the sense that they did not flow from the evidence accepted by it. He therefore, urged this court to accept and uphold the findings of fact by the trial Tribunal as the findings were supported by material evidence and the appellants will not suffer miscarriage of justice.

This appeal focuses on the omnibus ground of appeal, which generally is grounded on facts and not on matters of law. See Alake v. The State (1991) 7 NWLR (Pt. 205) 567. It is directed to the evidence proffered before the Tribunal below.

To succeed in an appeal on facts in a criminal case, the law is that the appellant must show that on the evidence against him, the verdict was unreasonable or could not be supported having regard to the evidence. See Q. v. Imoudu & Ors. (1961) 1 All NLR 13. If there is sufficient evidence to support a conviction and no other considerations arise, the appeal against it must be dismissed. See R. v. Adebanjo (1935) 2 WACA 315 at 126.

For the omnibus ground of appeal to succeed, the appellant must show that there was no evidence at all to support the conviction, or that the evidence before the trial court disclosed facts, which if the trial court had properly considered should have raised some doubt in favour of the appellant. See Ose v. Commissioner of Police 9 E.N.L.R. 85.

The question is whether the evidence of the prosecution before the Tribunal below was sufficient to ground the conviction of the appellants. As can be seen from the record of appeal, the evidence of the prosecution leading to the conviction of the appellants is mostly documentary evidence as given by PW1 and PW3. In his evidence before the Tribunal, PW1 tendered the letter of complaint dated 3/8/96, written by Sister Mary Dominica to the Deputy Inspector-General of Police, Federal Investigation and Intelligence Bureau, Lagos, together with the scam letters written to her by Barrister Kunle Abayomi and Dr. Michael Uzor, which letters formed the subject matter of the complaint to the police. All these letters were collectively admitted in evidence as exhibit A1. It is pertinent to mention that the letters written by Barrister Kunle Abayomi had his telephone/fax No. 234-5851563 printed on his letter-heads, while those letters written by Dr. Michael Uzor had his telephone/fax No. 234-14923248 printed on his letter-heads. Evidence by PW1 revealed that the telephone/fax No. 5851563 of Barrister Kunle Abayomi was traced to the house occupied by the 2nd appellant at No. 41 Ajijedun Street, Ijeshatedo, Lagos. The 2nd appellant was living with the 1st appellant therein. The telephone box (exhibit A5) and the fax machine (exhibit A6) belonging to phone/fax No. 5851563 used by the fictitious Kunle Abayomi on his said headed-letters to Sister Mary Dominican were recovered by PW1 in the said house occupied by the 2nd appellant in the presence of the 1st appellant. The 2nd appellant was absent then. Later, the 2nd appellant reported himself at Ikoyi Police Station and in his statement to the police he admitted the ownership of exhibits A5 and A6. However, the telephone/fax No. 4923248 of Dr. Michael Uzor could not be traced to any specific place as the line was found hanging on a pole during the tracing exercise by PW1.

There is also the credible evidence of PW3, a hand-writing expert or analyst, who essentially testified as to the similarities between the specimen hand-writing of the 2nd appellant (exhibit A6) and the disputed or questioned hand-writing at page A4b of exhibit A1, and also to the similarities between the specimen hand-writing of the 1st appellant (exhibit B5) with the disputed or questioned hand-writing at page A4e of exhibit A1. After the exercise, PW3 issued his report (exhibit B8). It is significant that both PW1 and PW3 whose evidence the Tribunal accepted and heavily relied upon were not shaken under the rigorous cross-examination of the fence counsel.

After taking a wholistic view of the evidence, the Tribunal Chairman in his judgment at page 95 of the record of appeal stated as follows:

“There is no doubt that from the facts disclosed in this case, the circumstances of the revelation contained in the annexures to exhibit A1 are such that it can be rightly inferred that the aforesaid Kunle Abayomi and Dr. Michael Uzor conspired with intent to defraud the complainant of her property. No other conclusion avails itself to this court from the available evidence. I am convinced therefore, that the offence of conspiracy exists in the instant case.”

At page 96 of the record of appeal the Tribunal Chairman continued thus:

“What can be deduced from this conclusion is that both the first and the second accused (i.e. the appellants) used the assumed name of Kunle Abayomi because both pages A4b and A4e of exhibit A1 were signed by the said Kunle Abayomi… From the annexures A4b and A4e, which it is concluded were written by the first and second accused, it can be adduced (sic) that the accused persons conspired to defraud the complainant. This is all the more manifest when a wholistic view is taken of the annexures to exhibit A1. This evidence is strengthened by the evidence of the recovery of the telephone box bearing telephone number 5851563 at the residence of the second accused in the presence of the first accused. The relevance of the evidence of the telephone box with number 5851563 is based on the fact that it is one of the telephone numbers in the annexures to exhibit A1, which are the documents sent to the complainant to seduce her to part with her money. The fact of conspiracy, I believe has been proved.”

It is a settled principle of law distilled from a long line of decided cases, that findings of fact in a case are ordinarily exclusively within the domain of the trial court as it has the singular opportunity of seeing and observing the witnesses give oral evidence and determine their credibility from their demeanour and behaviour before the court of trial. The Court of Appeal is not in the same advantageous position as the trial court on this and it cannot set aside the judgment of the trial court merely because it would have come to a different conclusion, if it were considering the matter. So long as there is evidence from which the trial Judge could come to the conclusion to which he did, the verdict cannot be disturbed. See Ikem v. The State (1985) 1 NWLR (Pt. 2) 378; R. v. Omisade & Ors. (1964) NMLR 67; Efe v. The State (1976) 11 S.C. 75.

Where however the finding of fact of the trial court cannot be supported on the evidence on the record, such a finding will be disregarded and the Court of Appeal can interfere by setting aside the finding. See Nafiu Rabiu v. The State (1980) 8-11 S.C. 130 at page 172; R. v. Ogodo (1961) All NLR 700; Edet v. Board of Customs & Excise (1965) NMLR 188; Opayemi v. The State (1985) 2 NWLR (Pt.5) 101; Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521 at 545. The principles which guide an appeal court in such matters were succinctly stated in the earlier case of R. v. Ologen (1935) 2 WACA 333 thus:

“It is not the function of the Court of Appeal to retry a case on the notes of evidence and to set aside the verdict, if it does not correspond with the conclusion at which the members of the court (i.e. the Court of Appeal) would have arrived on these notes, nor is it enough that they feel some doubt as to the correctness of the verdict. If there was evidence before that Judge from which he could reasonably have inferred that the appellant made the false statement knowing at the time it was false, the verdict must stand. We think that there was sufficient evidence to support the finding and the appeal must accordingly be dismissed.”

I therefore, agree with the findings and inferences made by the Tribunal which are supported by the credible evidence of the prosecution witnesses notably PW1 and PW3.

The contention by the learned Counsel for the appellants that there was no nexus between the appellants on the one hand and Kunle Abayomi and Dr. Michael Uzor on the other is not sustainable. In the first place, there is evidence-linking the fictitious Kunle Abayomi and Dr. Michael Uzor together. Kunle Abayomi introduced and nominated Michael Uzor to the complainant, as a registered Attorney who would handle the logistics and help her sign off the legacy or bequest and effect remittance of the fund where possible. See letter exhibit A1 page A4b. Therefore, the only logical inference one can draw from the place of evidence is that Kunle Abayomi and Michael Uzor knew themselves well at all times material to this case. Secondly, there is the evidence of PW1 linking the Tel/Fax No. 5851563 used by Kunle Abayomi in his scam letters to the complainant (exhibit A1 annexures) with the telephone box (exhibit A5) and fax machine (exhibit A6) recovered in the house of the 2nd appellant and admittedly owned by him. Thirdly, there is the evidence of PW3, the handwriting expert, linking the 1st and 2nd appellants with the writing of the scam letters (exhibits A1 A4b and A1 A4e) respectively.

The gist of the offence of conspiracy lies not in the doing of the act or the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties. See Majekodunmi v. The Queen (1952) 14 WACA 64. In R. v. Plummer (1902) 2 K.B. 339, Bruce, J. observed that the external or overt act of the crime of conspiracy is concert by which mutual consent to a common purpose is exchanged. It is generally recognised in law that in a charge of conspiracy, proof of the actual agreement which is an essential ingredient of the crime is not always easy to come by; hence it has been laid down as a matter of law that in criminal practice, proof of the existence of conspiracy is generally a matter of inference by the courts deduced from certain criminal acts of the parties concerned, done in pursuance of an apparent criminal purpose in common between the parties. In Daboh & Anor. v. The State (1977) 5 S.C. 197, the Supreme Court held the view that merely because there was no positive evidence of any agreement between the accused persons to commit the offence, the subject matter of the conspiracy charged is not enough to hold that the prosecution cannot establish the charge of conspiracy. Since in most cases of conspiracy charges no body except the conspirators themselves can give direct and positive evidence of the agreement, the proof of conspiracy has become a matter of inference from the evidence adduced and the courts can infer a conspiracy and convict, if it is satisfied from the evidence that the accused persons pursued by their acts the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. See Clark & Anor. v. The State (1986) 4 NWLR (Pt. 35) 381.

In Onochie & Ors. v. The Republic (1966) 1 All NLR 86, the Supreme Court held that in a charge of conspiracy it is open to the trial court to infer a conspiracy from the fact of doing things towards a common end. In my view therefore, the Tribunal was right from the evidence before it to infer the existence of conspiracy in this case and to find that Kunle Abayomi and Dr. Michael Uzor conspired with intent to defraud the complainant of her property, and that the appellants used the assumed name of Kunle Abayomi to commit the conspiracy.

Dealing with the evidence of PW3 the handwriting expert, it is my candid view that his evidence is as devastating to the case of the appellants as the evidence of PW1, the Investigating Police Officer. Inspite of the rigorous cross-examination of PW3 by the learned Counsel for the appellants, PW3 was not shaken under cross-examination. Though the evidence of an expert witness cannot prevail over the court, but the court will not treat such evidence with levity. Only in a clear case can a Judge be justified in substituting his own opinion for that of an expert. The Tribunal, in the instant case had the singular opportunity, which this court did not have, of hearing PW3 give evidence, watching his demeanour in the witness box and eventually evaluating and giving weight to the evidence which it accepted and made use of. It is therefore, outside the province of this court as a Court of Appeal to interfere with the decision of the Tribunal based on the evidence of PW3.

On the argument by the appellant’s counsel that the complainant, Sister Mary Dominica, was not called to give evidence at the Tribunal, I feel that the failure to call her to give evidence is not fatal to the case of the prosecution. In Oguouzee v. The State (1998) 5 NWLR (Pt. 551) 521, the law as laid down by the Supreme Court is that it is not necessary for a person on whom the onus of proof lies even in criminal cases, to call every piece of evidence in order to discharge that burden. It is enough if evidence is tendered sufficient to discharge the onus which the law lays down upon the prosecution. Accordingly, in arriving at a conviction in criminal cases, the court is concerned with whether or not there is sufficient credible evidence of probative value and not the number of witnesses called on an issue. See Odili v. The State (1977) 4 S.C. 1; Alonge v. I. G. P (1959) 4 F.S.C. 203; SCNLR 516. In the instant case, the scam letters forming the documentary evidence received by the complainant were tendered in evidence by PW1 at the trial. As documentary evidence they speak for themselves and there was no need to call the complainant at the trial to give evidence. Therefore, the important consideration of this court in the present case is not the number of witnesses called by the prosecution, but whether sufficient evidence was tendered in the court below by the prosecution to discharge the onus of proof on it. Under section 5 of the Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995. It is not even mandatory to call as a witness the recipient of the scam or fraudulent letter in order to prove the offence of attempt under the Decree. What is required is for the prosecution to prove that the letter or other document was received by the person to whom the false pretence was directed. And this is what the prosecution has proved in this case.

Section 5 of the said Decree reads:-

“5(1) Where a false pretence which constitutes an offence under this Decree is contained in a letter or other document, it shall be sufficient in a charge of an attempt to commit an offence under this Decree to prove that the letter or other document was received by the person to whom the false pretence was directed.

(2) Notwithstanding anything to the contrary in any other law, every act or thing done or omitted to be done by a person to facilitate the commission by him of an offence under this Decree shall constitute an attempt to commit the offence.

(3) In this section –

“Other document” includes a document transmitted through a fax or telex machine or any other electronic or electrical device, a telegram and a computer print out.”

In Ugwu v. The State (1998) 7 NWLR (Pt.558) 397 at page 408, this court observed thus:

“That it is the generally accepted practice for a complainant to give evidence during the course of the proceedings.

In most cases, the complainant starts the burden of proof by leading evidence to substantiate his complaint which is the basis of the charge. However, not all complainants give evidence at trial as there is no rule compelling the complainant to adduce evidence personally in proof of his complaint.”

The defence Counsel had canvassed the issue that there was a contradiction or inconsistency between the sum of $14,500 U.S. Dollars stated in count two of the charge which the appellants were alleged to have attempted to obtain by false pretence and the sum of $11,500 U.S. Dollars, demanded from the complainant by means of the letter exhibit A1 page A4j. With respect, I do not think that there is any substance in that contention as the contradiction is immaterial to the case of the prosecution. To sustain a conviction under this charge it is not necessary to state the value of the property or the exact amount of money attempted to be obtained by the accused person.

Finally, on whether the prosecution had proved its case beyond reasonable doubt as a sine qua non for the conviction of the appellants. It is settled law that in criminal cases the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt and not for the accused person to prove his innocence.

The burden on the prosecution never shifts. Proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. See Alonge v. I.G.P. (1959) 4 F.S.C. 203, 7 SCNLR 516; The State v. Bakare (1987) 1 NWLR (Pt. 52) 579; Abadom v. The State (1997) 1 NWLR (Pt. 479) 1

In Alake v. The State (1991) 7 NWLR (Pt. 205) 567 it was held that once the ingredients of the particular offence the accused person is charged with are proved, that constitutes proof beyond reasonable doubt..

In Miller v. Minister of Pensions (1947) 2 A.E.R. 373, Denning, J. (as he then was) in proffering a definition of the expression or term proof beyond reasonable doubt, had this to say:

“The law will fail to protect the community if it admitted fanciful possibilities as to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.”

For the accused to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the court. See The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548. There is no such doubt in this case.

From the credible evidence before the Tribunal in the instant case, which it appraised and evaluated, it is my view that the prosecution had discharged the burden on it to prove the case beyond reasonable doubt. I therefore, dismiss this appeal as lacking merit and affirm the decision of the Tribunal. The conviction and sentence on each of the appellants is hereby affirmed.

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Other Citations: (2002)LCN/1258(CA)