Igp V. Sonoma (2021)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division; Coram, Abubakar Datti Yahaya, Regina Obiageli Nwodo and Tinuade Akomolafe-Wilson JJCA, delivered on the 7th day of June, 2013. In its judgment the Court below set aside the conviction and sentence of the appellant by the Federal High Court, Abuja for the offences of conspiracy defrauding of the nominal complainant (Ambassador Edem) and concealment of the sums of money allegedly defrauded.

The appellant (respondent at the lower Court) aggrieved by the decision of the Court below, filed a notice of appeal on 3rd day of July, 2013.

FACTS BRIEFLY STATED

The accused person now respondent with another said to be at large were charged to the Federal High Court, Abuja in Charge No. FHC/ABJ/CR/161/2008 on a fifteen (15) Count charge of conspiracy, which is Count 1, defrauding of the nominal complainant (Ambassador Sam Edem) of various sums of money at different dates under Counts 2-14 and concealment of the sums of money allegedly defrauded of the nominal complainant which is Count 15.

​The respondent and

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one other person who is now at large was arraigned before the Federal High Court, Abuja on a fifteen (15) count charge contained in charge sheet dated and filed on 19/9/2008 for the offences mentioned in the charge.

At the trial, with 12 witnesses testifying for the prosecution and tendering 45 Exhibits, a no case submission was made on behalf of the 1st accused now respondent.

That Trial Court in a considered Ruling delivered on 23rd day of April, 2010 discharged the 1st Accused who is the Accused/Respondent herein on count 1, the count of conspiracy to defraud as well as counts 2-14 which alleged that the 1st Accused/Respondent herein defrauded the nominal complainant of about N800 million.

However, the Trial Court ordered that the 1st Accused/Respondent herein enter a defence on Count 15 relating to concealment of the money allegedly defrauded of the nominal Complainant as charged in counts 2-14.

In his defence, the 1st Accused/Respondent herein called one Eka Uluoma as DW1 and was duly cross-examined by the prosecution.

The 1st Accused/Respondent also testified as DW2 and closed his case on conclusion of his cross-examination by

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the prosecution on the 10th November, 2010.

The crux of the 1st Accused/Respondent’s defence at the trial Court was that as far as the 15th Count was concerned, it is Ancillary or consequent upon the success of Counts 2-14 of the charge.

At the end of the case of the defence, written addresses were submitted and adopted on the 23rd of March, 2012. (See page 500-501 of the Record of Appeal)

In its judgment, the trial Court found the 1st Accused/Respondent guilty of Count 15 of the Charge on concealment of what 1st Accused allegedly defrauded the nominal complainant even though the same Judge in a no case submission held that the Prosecution could not prove Counts 1-14 relating to the issue of defrauding the nominal complainant. The trial Court convicted the 1st Accused/Respondent for concealing sums of money part of the money referred to in counts 1-14.

​After convicting the 1st Accused/Respondent, the trial Court went further to sentence him to seven years imprisonment with hard labour. The Trial Court left the issue of forfeiture of the vehicle tendered as Exhibits as well as the money in the frozen account all belonging to the 1st Accused

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to abide by the decision of the Court of Appeal. (See page 736-737 of the record of appeal Volume 1)

AT THE COURT OF APPEAL

Aggrieved with the decision of the Trial Court, the 1st Accused/Appellant therein appealed to the Court of Appeal vide a Notice of Appeal filed on the 14th day of May, 2012. The Notice of Appeal contained twelve (12) Grounds of Appeal filed on the 14th day of May, 2012.

The Prosecution/Respondent therein equally dissatisfied with the judgment of the trial Court on the issue of forfeiture, confiscation and restitution, cross appealed to the Court of Appeal vide a notice of cross appeal filed on the 31st July, 2012, on two grounds of appeal. (See Pages 928-932 of the record of appeal volume 2). The Justices of the lower Court formulated one issue for determination:

“Whether Count 15 is dependent on Counts 2-14. In other words, whether the major ingredients of the offence to be proved in counts 15 are essentially the elements to be proved in counts 1-14.”

The Court below set aside the judgment of the trial Court and discharged and acquitted the appellant now respondent of count 15 upon which the trial Court had convicted

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him. The lower Court also dismissed the cross appeal of the respondent now appellant.

Dissatisfied by the Court of Appeal’s decision the appellant(respondent at the lower Court) has come before the Apex Court to ventilate his grievances on seven grounds of appeal.

On the 5/11/2020 date of hearing, learned counsel for the appellant, Simon Lough (ACP) adopted the brief of argument filed on the 7/3/2019 and deemed filed on 14/3/2019. In it were raised six issues for determination, viz:-

(a) Whether the learned justices of the lower Court were right when they held that two elements of offence in count 15, that is fraud and concealment must be proved and count 15 is dependent on the success of counts 2-14. Ground one and four.

(b) Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling. Ground two

(c) Whether the learned justices of the lower Court denied the Appellant the right to fair hearing when they raised an issue suo motu and resolved same without inviting parties

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to address them on the said issue. Ground three

(d) Whether the learned justice of the lower Court were right when, they held that if an accused person has been discharged of the principal offence he cannot be found guilty of conspiracy because the ancillary offence cannot proceed without the substantive offence. Ground five.

(e) Whether the learned justices of the lower Court were right when they held that from the provisions of Advance Fee Fraud Act 2006, count 15 was definitely a consequential charge dependent on the success of Counts 1-14 which the trial Court discharged the respondent upon the no case submission. Ground six.

(f) Whether the learned justices of the lower Court denied the appellant fair hearing when they held that it amounted to a waste of time to consider the issues in the cross-appeal of the appellant before dismissing same. Ground seven.

Learned Counsel for the respondent, Agada Elechi, Esq adopted the brief of argument filed on 8/3/2013 and deemed filed on 14/3/2019. He adopted the issue formulated by the appellant and formulated two issues for determination thus-

1. Whether the lower Court was right in holding

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that count 15 of the Charge is ancillary and/or consequential upon the success of Counts 2-14 of the charge.

2. Whether the Court of Appeal was right in holding that the claim of the respondent/cross appellant goes to no issue since the substantial offence has not been established.

I shall make use of Issue (b) of the appellant as a sole issue since it meets with all the questions raised in this appeal.

SOLE ISSUE

Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling.

​Learned counsel for the appellant submitted that the Court below was in great error when they held that the two elements of the offence in Count 15, that is fraud and concealment must be proved and count 15 is dependent on the success of counts 2-14 of the charge. That the Court was also wrong when they held that a discharge of the principal offence means the accused person cannot be guilty of conspiracy because an ancillary offence cannot proceed without the substantive offence.

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For the appellant, it was further contended that count 15 of the charge on which the respondent was convicted is distinct and can be proved on its own without necessarily tying it to any other count in the charge sheet. He cited Section 7 of the Advance Fee Fraud and other Related Offences Act, 2006 in which Count 15 was charged.

That from the evidence of PW1-PW3 and exhibits 1-45 and the evidence of DW1-DW2, there was no doubt that it was established beyond reasonable doubt that the respondent conducted a financial transaction which involved the proceeds of an unlawful activity and the transaction was designed in whole to conceal the nature. That the trial Court found Count 15 of conspiracy as independent of Counts 2 – 14 of the charge and so could stand on its own. He relied on Shurumo v State (2010) 16 NWLR (pt. 1218) 65.

For the appellant, it was submitted that the judgment of the trial Court was based on a total evaluation of the evidence adduced at the trial and not a reversal of the ruling of the trial Court wherein he discharged the respondent. That the ingredients of the offence in count 15 of the charge upon which the respondent was convicted are

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distinct from the ingredients of the offences in count 1-14 of the charge.

Learned counsel for the appellant stated that the prosecution proved the offence in count 15 beyond reasonable doubt.

Mr. Lough for the appellant submitted that by Section 7(6) (d) of the Advance Fee Fraud Act, the form of the unlawful activity need not necessarily be specified as what is pertinent is that the accused knows or ought to know that the property involved in the financial transaction represents the proceeds of some form of unlawful activity and that was evident in the case at hand.

Learned Counsel for the appellant contended further that where a Court suo motu raises an issue it must give counsel opportunity to address on the matter before the verdict but in this case, counsel was not given that opportunity. He cited Ojo Osagie v Sunday Adonri(1994) 6 NWLR (pt. 349) 131 at 142.

That the right to fair hearing of the appellant was compromised when counsel did not address Court before verdict when the Court below raised the issue concerning the framing of the charge suo motu. He relied on Achuzia v Ogbomah (2016) 11 NWLR (pt. 1522) 59 at 81 etc.

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Learned Counsel for the respondent contended that the ruling of the trial Court stating as reason for convicting the accused/respondent of the offence of concealment is because the complainant/appellant proved her case beyond reasonable doubt on the strength of evidence led is perverse and contrary to reason. That count 15 cannot stand alone as the accused/respondent was exculpated of all fraudulent offences contained in Counts 2-14.

For the respondent, it was submitted that the learned trial judge indirectly amended the charge without calling upon the accused/respondent to plead to the amended charge. He cited Yusuf v State (2011) 18 NWLR (pt. 1279) 853.

That the effect of a defective charge is that the accused can be discharged on such a defective charge as a charge is to be clear and devoid of any form of ambiguity. He relied on Ojo v FRN (2008) 11 NWLR (pt. 1099) 467 at 513-514.

On the issue of the cross-appeal, the learned counsel for the respondent submitted that the Court of Appeal was right in holding that since the appeal against the conviction based on count 15 succeeded at the Court below and the respondent (appellant herein) was discharged

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and acquitted of same, there was no leg on which the cross appeal can rest.

I shall reproduce count 15 upon which the respondent was convicted. It reads as follows:-

“That you Matthew Sonoma (alias Dr. Perebakwe Ogah) ‘m’ 34 years native Doctor of Bomadi Delta State on or about the 10/7/2008 with intent to conceal the money, you fraudulently collected from Ambassador Sam Edem (former chairman of NDDC) executed a transfer letter of the sun of One Hundred and Fifty-Two Million Naria (N152m) to be paid into your Oceanic bank Account number, 007170120031 and the said money was transferred into the said account. You thereby committed an offence contrary to Section 7(2) (b) of the Advance Fee Fraud and Other Related Offences Act 2006.”

…

7(1) A person who conducts or attempts to conduct a financial transaction which in fact involved the proceeds of a specified unlawful activity-

(a) With the intent to promote the carrying out of a specific unlawful activity; or

(b) Where the transaction is designed in whole or in part –

i. To conceal or disguise the nature, the location, the source, the ownership or control of the proceeds of a specified

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unlawful activity; or

ii. To avoid a lawful transaction under Nigerian law, is guilty of an offence wider this Act if he knows or ought to know, having regard to the circumstances of the case, that the transaction represents the proceeds of some form of unlawful activity.

7(2) A person who commits an offence under Subsection (1) of this Section is liable on conviction –

(a) In the case of a financial institution or corporate body, to fine of N1 million and where the financial institution or corporate body is unable to pay the fine, it assets to the value of the fine shall be confiscated and forfeited to the Federal Government; or

(b) In the case of a director, secretary or other officer of the financial institution or corporate body or any other person, to imprisonment for a term not more than 10 years and not less than five years.

​At page 54 of the Record, it is seen what the learned trial judge stated in respect of his Ruling on the no case submission, thus:-

“It is not a ruling by which I made any finding that the 1st accused did not take or collect money from Ambassador Sam Edem, it was the purpose and method by which the said

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monies were collected that I was unable to reconcile with the allegation of threat and inducement when PW8 as the nominal complainant told the Court, contrary to the statement he made with the Police and amongst other things that the various sums of money which was paid to the 1st accused person were either loans or a friendly gifts and those which were loans the 1st accused person had promised to payback.”

The Court of appeal in its review of what the trial Court did, held as follows:-

“When an accused person has been discharged at that stage of stolen goods for example, the accused charged for receiving the same goods cannot be found guilty of receiving the same goods upon which the accused person has been discharged, thus after a discharge on counts 1- 14 which required the proof of fraud as in count 15, there is no extant offence for the defence to answer”.

The question arising with respect to count 15 of the charge as to whether it is ancillary and/or consequential upon the success of counts 1-14.

It has to be noted that counts 2-14 related to the alleged fraud committed by the appellant when he, by inducement and threat, collected

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various sums of money from PW8 amounting to about N800 million. There is no gainsaying that to succeed in counts 2-14, the prosecution must prove fraud beyond reasonable doubt. Count 15 on its part has two essential ingredients of the offence which are-

1. There must be proof that the respondent fraudulently collected money from Ambassador Sam Edem (PW8).
2. After obtaining the money fraudulently in order to conceal the fraudulent acts, the respondent decided to transfer N152 million of part of the money so fraudulently collected into another bank.

It follows from the elements consisting count 15 that the money fraudulently collected has to be proved before the issue of concealment of the money comes into play. It then becomes difficult not to see the dependence of count 15 on Counts 2-14.

​The follow up question that arises is, if a person can be said to have fraudulently concealed sums of money he never stole and the persuasion is to answer in the negative in view of the ruling of the trial Court on the no case submission when he discharged the respondent on count 1, the charge of conspiracy to depend as well as counts 2-14 which alleged

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that the respondent defrauded the nominal complainant of about N800 million. The learned trial judge had held in the no case submission ruling that the prosecution failed to prove the alleged offences in count 1 – 14 beyond reasonable doubt, hence the discharge on those counts in effect taking along the evidence led could not prove the offence of count 15.

It needs be reiterated that in a criminal matter, a successful submission of no case to answer means no prima facie case has been made out against an accused person because the Prosecution has failed to prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in anyway with the commission of the offence with which he had been charged with. Section 286 Criminal Procedure Act Cap. C41 Laws of the Federation 2004 states as follows:

“If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him. Such a discharge is tantamount to an

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acquittal for which a plea of autrefois Prosecution”.

Also, in the case of SUNDAY CHIJIOKE AGBO & ORS. V. THE STATE (2010) LPELR-4989 (CA) the Court of Appeal held thus:

“The meaning of a no case submission is that there is no case for an accused person to answer as there is no evidence on which even if the Court believes it, it could convict. The question whether the Court does believe the evidence does not arise nor the credibility of the witness becomes an issue at this stage.” See also: Tongo v C.O.P (2007) 12 NWLR (pt. 1049) 525, STATE V ASUNMO & ORS (2017) LPELR-42606 (CA).”

Having exculpated the Accused/Respondent of all fraudulent offences as contained in Counts 2-14, it evidently means that Count 15 will fail too, as the basic ingredient of Count 15 is fraud. Thus, it is not severable from counts 2 – 14. In this, I agree with learned counsel for the respondent. Since the Prosecution/Appellant failed to prove the major ingredient of the offence in count 15 and since count 15 is predicated on the element of fraud, upon which the other ingredients of concealment revolve, if fraud fails then count 15 cannot stand. It automatically

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crumbles like a pack of cards, as it has no legs upon which to stand. It is the Appellant’s contention in this appeal, that Section 7 of the Advance Fee Fraud and Other Related Offences Act 2006 under which the respondent was charged in count 15 of the charge did not mention the word “fraudulently”, but rather the words “unlawful activity”.

Those words “unlawful activity” are merely semantics as they amount to fraud or such like description. It did not give count 15 the independence or distinct status of a lone ranger in the event that the other counts 1-14 failed. The Court of Appeal was of the view that where an accused person has been discharged pursuant to a successful ruling on a no case submission of the substantive or main offence, the Court cannot proceed to convict on the ancillary offence. This is because the ancillary offence must necessarily be tied to the principal offence for it to stand as they share common ingredients of the offence charged. I cannot but agree more with those views expressed by the Court below. See Ikem v State (1985) 1 NWLR (pt.2) 378 at 388.

It must be brought to the fore that the learned trial judge by

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bringing in the words “unlawful activity” as what should be in count 15 as against the word “fraudulently” instead drafted by the prosecution in the charge. The learned trial judge indirectly amended the charge without calling upon the accused/respondent to plead to the amended charge and the plea not taken upon this surreptitious amendment to the charge has run foul of the law and our criminal jurisprudence. The fall out is that the whole trial was rendered a nullity. I rely on Yusuf v State (2011) 18 NWLR (pt. 1279) 853; Olabode v State (2007) All FWLR (pt. 389) 1301 at 1323.

​I have to state that an accused person can only be charged with the offence known to law and so when the prosecution used the word, “fraudulently” in the charge when Section 7(2)(b) (i) of the Advance Fee Fraud Act 2006 under which count 15 was brought had not used the word, while the learned trial judge had proffered his drafting skill when he said the words, “unlawful activity” ought to have been used by the prosecution in framing the count 15. What have been shown up is that the charge was defective and the appellant on that account should have been discharged. Courts are

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enjoined to ensure that a charge is clear and void of any form of ambiguities. See Ojo v FRN (2008) 11 NWLR (pt. 1099) 467 at 513-514.

Again to be noted is that Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006 quoted in count 15 of the charge is actually the punishment section as the section for the offence is Section 7(1) (b) (i) of the Act.

A careful look at the words of the enactment – Section 7 (1) (b) (i) depicts that the phrase “unlawful activity” must be specified which means that the financial transaction which involves an unlawful activity to be identified, it must be named in the charge for the understanding of the accused person. The activity must be tied to the unlawful transaction for it to be an offence, as the phrase “unlawful” in itself is vague. I hereby quote Section 7 (1) (b) (i) below:

7(1) “A person who conducts or attempts to conduct a financial transaction which in fact involved the proceeds of a SPECIFIED unlawful activity.

b. Where the transaction is designed in whole or in part.

c. To conceal or disguise the nature, the location, the source, the ownership or the control of the proceed

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of a SPECIFIED unlawful activity…”

“ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT”

Directly underneath this title is the interpretation or explanatory note and it states:

“An Act to Prohibit and punish certain offences pertaining to Advance Fee Fraud and other fraud related offences and to repeal other Acts related there with”.

Thus, count 15 which derives its validity from the above section, cannot see the light of day since fraud with which the Act is established for has been held not to have been proven. Thus, count 15 cannot stand on it’s own, it collapses with the others. It can be seen that the Court of Appeal was right in its judgment on the fact that “unlawful activity” cannot be distanced from fraud.

On the matter of the cross-appeal, the appellant contends that it was denied fair hearing when the Court below held, it was a waste of time to go into the issue raised in the cross-appeal and went on to dismiss the cross-appeal. This position taken by the appellant is clearly misguided and without basis. The reason is because the cross-appeal is not against the discharge of the appellant on counts 1-14 but of the

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refusal of the trial Court to order confiscation, forfeiture and restitution after it had found the appellant (now respondent) guilty of the offence in count 15. I do not hesitate in stating without hesitation that the Court of Appeal was right in throwing out the cross appeal without considering the issues raised therein as there was no foundation on which the cross appeal lay with counts 2-14 on which it earlier rested no longer in existence, therefore a void remained hence the Court below was left with the only option which is to discountenance the cross-appeal as there was nothing on which it was hinged. Something cannot be placed on nothing since it cannot stand. See UAC v Mcfoy (1961) 3 All ER 1169.

It is clear that this appeal from the foregoing lacks merit and I dismiss it. I affirm the judgment of the Court of Appeal which set aside the decision, conviction and sentence of respondent. I reaffirm the acquittal and discharge of the respondent.

Appeal dismissed.

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SC.620/2013