Joseph Morah V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 29 January, 2015 dismissing the appeal of the appellant from the decision of the High Court of the Federal Capital Territory, Abuja. The judgment of the High Court was delivered on 8 October 2013.

The appellant was the 2nd accused in Charge No.CR/07/06 wherein he stood trial with John Obiamalu (1st accused) on an amended 3 count charge which reads as follows:-

COUNT ONE

That you John Obiamalu, Joseph Morah, Elvis Ezeani (now at large) and Sani Musa (now at large) on or about the 25 day of May 2006 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory did agree among yourselves to commit illegal act to wit: Obtaining money under false pretence, and thereby committed an offence contrary to Section 8 (a) of the Advance Fee Fraud and other Fraud Related Offences Decree No. 13 of 1995 as amended by the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999 and punishable under Section 1 (3) of the same Decree.

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COUNT TWO

That you John Obiamalu, Joseph Morah, Elvis Ezeani (now at large) and Sani Musa (now at large) on or about 25 day of May 2006 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory did with intent to defraud obtain the sum of N13,500,000.00 (Thirteen Million, Five Hundred Thousand Naira only) from one Awalu Abdulrahman by false pretence, as value for the transfer of the sum of $250,000.00 US Dollars to him through his brother, one Alhaji Nurudeen, resident in Ghana and thereby committed an offence contrary to Section 1 (1)(a) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Decree No. 13 of 1995 as amended by the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999.

COUNT THREE

That you John Obiamalu, Joseph Morah, Elvis Ezeani (now at large) and Sani Musa (now at large) on or about the 25 day of May, 2005 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory did with intent to defraud obtain the sum of $143,620 (one hundred and Forty Three Thousand, Six Hundred and Twenty US Dollars) from one Awalu

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Abdulrahman by false pretence, as value for the transfer of the sum of $250,000 US Dollars to him through his brother, one Alhaji Nurudeen, resident in Ghana and thereby committed an offence contrary to Section 1(1)(a) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Decree No. 13 of 1995 as amended by the Tribunals (Certain Consequential Amendments etc) Decree No. 62 of 1999.

The 1st accused and the appellant pleaded not guilty to the charge. Thereafter the prosecution called 5 witnesses. The appellant and the 1st accused each testified and called no other witness for their defence. The trial Court delivered its judgment on 7 October, 2013 convicting the appellant on each of the three counts and sentenced him to 10 years imprisonment on each count. The sentences were to run concurrently.

Being dissatisfied with the judgment, the appellant appealed to the Court of Appeal, Abuja and the appeal was dismissed. The appellant further appealed to this Court in his Notice of Appeal dated 24 February, 2015 which contained four grounds of appeal (See: pages 497-501 of the records). Tawo E. Tawo SAN learned senior

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counsel who settled the brief distilled two issues for determination of the appeal namely:-

1. Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant when the trial Court lacks the jurisdiction to try the appellant of the offences (Ground 1).
2. Whether the prosecution proved its case beyond reasonable doubt against the appellant to warrant the Court of Appeal upholding the conviction (Grounds 2, 3 and 4).

Chile Okoroma, Learned counsel for the respondent also formulated two issues which are similar. The respondents issues read as follows:-

1. Whether the trial Court lacked the jurisdiction to try the appellant for the offences in respect of which he was charged and convicted (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the Court of Appeal was right when it affirmed the conviction of the appellant for the offences of conspiracy and obtaining money under false pretence (Distilled from Grounds 2, 3 and 4 of the Notice of Appeal).

Before delving into the issues raised in the appeal it is necessary to take a cursory look at the political development of this country from

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1954 when the Richards Constitution came into existence which saw the emergence of three regions namely the Northern Region, Eastern Region, and Western Region. In 1963, the Mid-West Region was created from the Western Region. In 1967 the regions with the exception of the Mid-Western Region were broken up into States. Lagos which hitherto was the Federal Capital Territory became a State. The Mid-Western Region was renamed Mid-Western State. Although there were 12 States in 1967 which became 19 in 1976, by 1988 the number of States increased to 21 before 9 additional States were added in 1991 to bring the number to 30 and in 1996, six more States were created and the number now stands at 36 States.

On the historic-legal plane, the Criminal Code held sway throughout the country until 1960 when the Penal Code Law 1959 was enacted. By the provision of S.3(1), the Penal Code Law was applicable in the Northern Region (later Northern States) while Section 14 of the Criminal Code Act limited the application of the Act to the Southern States including the Federal Capital Territory of Lagos.

S.4 of the Penal Code established the territorial jurisdiction

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of the Penal Code. It provides that the provisions of the Penal Code shall apply to every person in Northern Nigeria at the time of doing the act or omission.

The practice of two codes for criminal law in the same country brings along with it the inherent problem of jurisdiction. In the case of Sirdar Gurdyal Sineh v. The Rajah of Faridkote (1894) A. C. 670, the Earl of Selbourne, Lord Watson observed at page 683 thus:-

Territorial jurisdiction attaches to (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory

This means that if a law is restricted by territory, that law cannot be applied outside that territory. However, if an offence is committed outside Nigeria but part of the offence is committed in Nigeria, the Courts would acquire jurisdiction to try the case in Nigeria. In R v. Osoba (1961) All NLR 1, the appellant was convicted on charges of theft. He had by virtue

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of his position as Managing Director of a company directed, via a telegram in Lagos, that a particular sum of money be paid out from the company to a bank account in London.

On appeal, it was contended for the appellant that the trial Court did not have the jurisdiction to try the case. The appellate Court in dismissing the appeal held that the trial Court had the jurisdiction since the initial element of the offence was carried out in Nigeria.

Thus, by the combined provisions of S.4 of the Penal Code and S.12A of the Criminal Code it is important to know which code would have jurisdiction in respect of the criminal offences that occur within both jurisdictions. If a crime is one with multiple elements, with the initial and subsequent elements happening in different states, the position of the law is that each state has a right to try the offender and punish him as if all the elements of the offence were carried out in that State.

By the provision of S.12A(2)(b) of the Criminal Code, if part of an offence was carried out in one State, and the other parts of the offence were committed in another State, if the offender later comes into the

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initial state, he would be held liable as if he committed the whole offence in that state.

This was posited by the Courts in the case of Sunday Okoro v. Attorney-General Western Nigeria (1965) 4 NSCC 225. In this case, the accused posted a letter in Port Harcourt which induced the fraud of certain people in Ibadan. The Court held that the former western region had the jurisdiction to try the case since an element of the offence occurred in its territory. See also Haruna v. State (1972) NSCC 550

The above provisions could raise some confusion as to whether or not the entry into the territory where the crime is concluded should be voluntary or by arrest. This was laid to rest by this Court in the case of Patrick Njovens v. State (1973) 1 NMLR 331 (1973) ANLR 371 where the Court stated at page 393:-

“We are satisfied that to construe the word ‘enter’ in the subsection as meaning voluntary entry would be completely ridiculous since in that circumstance no criminal will ever enter a state when he knows that such entry may make him liable by the laws of the State…

Thus, this means that entry into the territory in which the crime was

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committed could be effected by arrest and is not necessarily voluntary. However, this provision would not apply in a situation in which the only event that happens in the particular territory is the death of a person whose death was caused outside the territory; S.12A(2) Criminal Code. For example, if a person is wounded in a fight while in the southern region but he dies from that injury while in the northern region, the code to be applied would be the Criminal Code. See: Territorial Jurisdiction in Nigeria Criminal Law by Olanrewaju Olumide published in https://www.djetlawyer.com.

On the issue of jurisdiction, Yunus Lambo Akanbi Esq who argued the appeal submitted that all the transactions which led to the commission of the alleged offences took place in Lagos and the Court lacked the territorial jurisdiction to try the appellant in Abuja since no aspect of the offence occurred in Abuja. He said the proofs of evidence before the trial Court, revealed that all the transactions that led to the offences charged, occurred in Lagos except that the 1st accused was alleged to have travelled and met one Awalu, PW1 at Abuja to discuss the business with him. He

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argued that even though the respondent inserted Abuja in each of all the counts in the charge, the learned trial Judge held that the purported money paid did not belong to PW1 but to one Alhaji Saminu Ibrahim of All States Bureau De Change Limited whose office is in Lagos and he also operated his business in Lagos. He referred to the evidence of PW1 and PW2 and submitted that the mere mentioning of the word Abuja in all the counts does not clothe the trial Court with the territorial jurisdiction placing reliance on Abacha v. State (2002) 11 NWLR (Pt.779) 437; Ede v. State (1977) 1 FCA 95 and Jimoh Atanda v. Attorney-General Western Nigeria (1955) NMLR 225. He argued that when Sani Musa (now at large) introduced DW1 to PW1 in Abuja, the appellant was not there and he did not take part in the negotiation that led to the transaction.

Learned counsel pointed out that since the trial Court found that the transaction involving DW1, John Obiamalu which took place in Abuja was not illegal, there is no basis for assuming jurisdiction of the offence with which the appellant was tried and convicted. Consequently the conviction of the appellant affirmed by the Lower Court is

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erroneous.

Learned counsel for the respondent submitted that Sani Musa (now at large) whose name appeared on the charge sheet was part of the team that met with PW1 at his office in Abuja and he was a co-conspirator with the appellant. The meeting of the said Sani Musa in Abuja was an element of the offence on which the appellant was convicted. The law is that when a co-conspirator does an act or makes an omission in furtherance of a conspiracy, his act or omission is ascribable and binding on all the conspirators. See: Ikwunne v. State (2000) 5 NWLR (Pt.658) 550. Although the appellant never visited Abuja until the trial, Sani Musa’s meeting the PW1 rubs off on the appellant because it was their common intention that was being executed by Sani Musa.

In Ikwunne v. State supra Tobi JCA (as he then was) at pages 560 – 561 explained that in the offence of conspiracy, the conspirators may be in direct communication in respect of the offence and only one person may be the hub of which the others revolve in respect of the offence. It is therefore possible for the offence of conspiracy to be committed by the persons who have not met or known themselves and

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the conspirators need not be seen together planning the offence. A Court of law can infer from criminal acts of the parties, including evidence of complicity. See: Njovens v. The State (1973) 5 SC 17.

In a charge of conspiracy, the prosecution has the burden to prove not only the inchoate or rudimentary nature of the offence but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence. See:Gbadamosi & Ors. v. The State (1991) 6 NWLR (Pt.196) 182.

This is buttressed by Section 8(1) of the Evidence Act 2011 which states:-

“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by one of them, is a relevant fact as against each of the persons believed to be so conspiring for the purpose of proving the existence of the conspiracy as well as for the purpose of showing that any such person was a party to it.”

ISSUE 2

The

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appellant’s issue 2 is whether the prosecution proved its case beyond reasonable doubt. Learned counsel for the appellant submitted that the respondent failed to prove conspiracy between the appellant and Elvis and/or any other persons whatsoever. He argued that the evidence of the prosecution witnesses at the trial vis-a-vis the evidence of DW1 and that of the appellant was to the effect that the appellant’s presence at the bank with Elvis was at Elvis’ request who wanted to repay a debt he was owing the appellant. In the statement of DW1 who initiated the transaction and evidence-in-chief, he did not state the role played by the appellant. He mentioned the appellant’s name when he escorted Elvis and Awalu to collect his commission and so the appellant can at best be described as one who was at the wrong place at the wrong time. He therefore submitted that the finding of the trial Court that the appellant is a conspirator and knew the transaction from the beginning is perverse and the Lower Court ought not to have affirmed such finding.

Chile Okoroma Esq. who led other counsel for the respondent pointed out that when learned counsel for the appellant

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appealed on jurisdiction to the Court below, he did not formulate any issue on it and so it is taken as abandoned.

He said the issue is being raised again before this Court. He did not pursue the point any further.

Proffering his argument on the issue of jurisdiction, learned counsel referred to Section 257(1) and (2) of 1999 Constitution, Section 4 Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990 and Nyame v. FRN (2010) 7 NWLR (Pt.1193) 344 and submitted that some of the elements of the offences charged must occur in Abuja before the High Court of the Federal Capital Territory, Abuja can assume jurisdiction. He then referred to pages 382 – 384 of the records and argued that learned counsel to the appellant erroneously relied on the history of the case as highlighted in the Interim Police Investigation Report” written by DCP Onuoha U. Udeka, a Deputy Commissioner of Police, to the Assistant Inspector General of Police Zone 7 Police Headquarters, Wuse Abuja which is not a material document in the proof of evidence and contended that the interim report has no place to stand when placed side by side with the statement of PW1

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who was the victim. He maintained that the trial Court rightly held it had jurisdiction to try the appellant and other accused, though they are residing in Lagos but some of the initial elements took place in Abuja and relied on Chief Lere Adebayo v. The State (2012) LPELR 9454: Haruna & Ors. v State (1972) NSCC 550 and Njovens v. The State (1973) NSCC 257 where Section 4(2) of the Penal Code was construed. In response to the argument that the appellant is not in the team that negotiated the transaction with the PW1 in Abuja, learned counsel for the respondent submitted that Sani Musa, one of the accused (now at large) was part of the team who met with the PW1 at his office at Abuja in the execution of the conspiracy which is an element of the offence for which the appellant was convicted. The law is that when a co-conspirator does an act or makes an omission in furtherance of a conspiracy, his act is ascribable or imputable and binding on all the conspirators. It does not matter which of the accused did what. The following cases were cited in support:Alagba v. R (1950) 19 NLR 19; Alabi v. The Queen (1959) SC NLR 259; (1959) WRNLR 197; Queen v. Bello

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(1962) 2 SCNLR 381 (1962) 1 All NLR (Pt.4) 633 at 635; Adekunle v. State (1989) 20 NSCC (Pt.III) 403 at 411 – 412: Ikwunne v. State (2000) 5 NWLR (Pt.658) 550. The entry of the appellant into Abuja where an initial element of the offence took place imbued the High Court in Abuja to try the appellant. See: Njovens v. State supra at 272.

It was submitted by learned counsel for the respondent and quite rightly too that whenever the issue of the venue for the trial of an accused comes up for determination, the most appropriate way of resolving it is to identify the offence charged and the elements which constitute the offence as contained in the proofs of evidence. This is with a view to determining whether any of the acts constituting the offence occurred within the vicinity of the particular place where the accused is being tried.

Learned counsel for the appellant has argued that when Sani Musa (now at large) introduced DW1 to PW1 in Abuja, the appellant was not there and he did not take part in the negotiation that led to the transaction. Since the learned trial judge found that the transaction involving DW1 was the only transaction which took place

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in Abuja was not an illegal act there is no basis for assuming jurisdiction of the offence for which the appellant was tried and convicted and so that judgment was erroneously affirmed by the Court below.

The evidence by the prosecution may be briefly stated as follows:-

PW1 was in ABUJA ON 22/5/2006. While there DW1 went to meet him in the office in Zone 4. DW1 told him they had $1.6m USD in Ghana which they wanted to sell and he told him he could only buy $250,000 at N137.00 per Dollar. The person who was in the custody of the money in Ghana was one Alhaji Sani. PW1 then called his brother Alhaji Nurudeen in Ghana and gave him Alhaji Sani’s number. When Alhaji Nurudeen phoned the number, someone picked the call and they arranged where to meet in Ghana. During the meeting, Alhaji Sani showed the money to Nurudeen. The latter called PW1 to confirm that the money was there but would not be released to Nurudeen until there was confirmation that PW1 had given the naira equivalent of the amount he wanted to purchase. Based on this information, 1st accused informed PW1 of the people who were to collect the money in Lagos. PW1 then travelled to Lagos on

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24 May, 2006. The next day the 1st accused with the others went to meet PW1 in the office where he told them he had a draft cheque but they insisted on having cash. On 26 May 2006, PW1 arranged with the 1st accused to meet in the Standard Trust Bank Marina. PW1 met with the three people (1st accused, the appellant and Elvis) at the Bank. The Bank gave PW1 N13.5m equivalent to $100,000.00 purchase. He asked the appellant and Elvis to count the money. He did not have enough Naira to cover the transaction, so he sent his brother Mahdi to bring $143,620 which exchange value was N20,250,420.00. The appellant and Elvis collected the money both the Naira and Dollars. The appellant and Elvis said they were heading for Apapa to drop the cash for the owner. Pw1 instructed his brother Mahdi to accompany them to Apapa. After two hours waiting he called Mahdi who informed him that while they were driving in a taxi to Apapa, the appellant and Elvis pushed him out of the car. Earlier before they took off the 1st accused appeared and demanded for his commission and he was given N750,000.00 when PW1 later phoned Nurudeen to find out if he had collected the $250,000.00 in Ghana

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he replied that the person who was to surrender the money had disappeared into thin air.

Based on this evidence and the finding by the trial Court that the only transaction that took place in Abuja between 1st accused and PW1 was not illegal, learned counsel for the appellant submitted that there was no basis for assuming jurisdiction in the case moreso that payment of the money took place in Lagos and not in Abuja.

The learned trial judge after reviewing the evidence found that although the 1st accused person initiated and was actively involved in bringing the PW1, the 2nd accused and Elvis together in the exchange transaction, he nevertheless was at all times involved only as a commissioned agent.

As regards the 2nd accused (appellant) the learned trial Judge considered the evidence of PW1 and PW2 where they narrated how the 2nd accused and Elvis followed PW1 to the Bank at Marina where he withdrew N13.5m and gave to them plus $143,620.00 to make up the Naira equivalent of the $250,000 US Dollars to be sold in Ghana. After collecting the money they boarded a taxi and headed towards Maryland with PW2 who was later pushed out of the taxi and in

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the end the $250,000.00 was not given to Alhaji Nurudeen in Ghana as earlier expected.

The 2nd accused in his oral evidence sought to explain his presence at the Marina by stating that Elvis had bought a car from him and made a part payment leaving a balance of N500,000.00 which he said he (2nd accused) should go to the Marina to collect. But this evidence was punctured by the extra judicial statement Exhibit E which he made on 27/9/2006 wherein he said that the N500,000.00 was commission he earned for a transaction Elvis entered into in Ghana involving the sum of N32.5m which was to be paid into his Zenith Bank account.

The prosecution submitted that there is evidence before the Court to prove that the 2nd accused conspired with others to commit the unlawful act. They further submitted that Exhibit E which the 2nd accused made is at variance with his testimony and was also discredited and referred to the case of Omini v. State (1999) 9 SC 1; (1999) 12 NWLR (Pt.630) 168 where it was held that:-

“where it is shown that a witness had made a previous statement inconsistent with one given at the trial such evidence should be regarded as

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unreliable”.

The learned trial Judge found that the following facts were established:-

(a) The 2nd accused person knew about the transaction from the beginning.

(b) He had a long standing relationship with Elvis who is at large and has been communicating with him with regards to the transaction in issue

(c) He was in the bank when the money was paid by PW1.

(d) He joined in a taxi and left in the company of 1st accused, Elvis and PW2

(e) He in agreement with Elvis gave the 1st accused the sum of N750,000.00

He then found that the 2nd accused connived and agreed with Elvis and others who are at large to obtain money under false pretence contrary to the relevant section of the Advance Fee Fraud and other Fraud Related Offences Decree.

Since the appellant knew about the transaction from the beginning i.e. right from the time 1st accused and Sani Musa (now at large) made contact with PW1 in Abuja and negotiated the sale of the Dollars up to when PW1 withdrew the money from the Bank in Lagos and added $143,620 which he gave to him and Elvis before they finally pushed away PW2 from the taxi in Maryland, the appellant was

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already guilty of conspiracy. The last elements of the offence was the collection of the money in Lagos. Proving the initial elements of the offence is not dependent on 1st accused’s knowledge and participation in the conspiracy and so his acquittal and discharge cannot affect the trial of the appellant of the offences in Abuja. The Lower Court was therefore perfectly right in not interfering with the decision of the learned trial Judge in assuming jurisdiction to try the appellant in Abuja.

The issue of conspiracy is inextricably linked up with counts II and III dealing with obtaining money by false pretences. The whole story was laid bare in Exhibit E. The learned trial judge also found that the evidence of PW1 and PW2 point to the fact that the sums of money mentioned in count II was handed over to the 2nd accused and Elvis after it was withdrawn from the bank together with the $143,620 in anticipation that the sum of $250,000 US Dollar would be transferred to PW1’s brother Nurudeen in Ghana. The PW1 had been made to believe that once the monies were released in Nigeria then the Dollar equivalent would be paid to Nurudeen.

However,

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the 2nd accused in his testimony denied knowing PW1 and DW1 before his arrest and claimed that Elvis bought a car from him and made part payment leaving a balance of N500,000.00 and they arranged after Elvis had called for him to collect the balance at the Marina. Under cross-examination he admitted that in the statement he made on 27/9/2006, the N500,000.00 was for commission.

As found by the learned trial Judge the 2nd accused and Elvis who is at large, had known each other before 26/5/2006 the day the money exchanged hands. They knew that there was no Dollar to be given to Alhaji Nurudeen in exchange for the naira equivalent which they collected from PW1. After collecting the monies from PW1 they left in a taxi to Maryland. If they had no intention to defraud PW1 they would have made effort to ensure that their purported partner in Ghana transferred the $250,000 US Dollars or refund the money to PW1 when the exchange transaction did not go through. Since there is no denial by the 2nd accused that they collected the various sums in issue from PW1, the 2nd accused and Elvis had a premeditated design to obtain the amounts under consideration from PW1;

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consequently the ingredients of obtaining money by false pretence have been fully established against the 2nd accused in counts 2 and 3.

The learned trial Judge meticulously considered the evidence adduced and arrived at the right conclusion that the appellant was guilty in counts 2 and 3. There was nothing the Lower Court could do than to affirm the findings of the learned trial Judge. It would have been a travesty of justice if the Lower Court had decided otherwise.

On the whole, this appeal is totally devoid of merit and it is accordingly dismissed. The industry put in by the learned trial Judge, Umar J. in resolving the issues which were agitated in the trial is highly commendable. The judgment of the Lower Court delivered on 29 January 2015 dismissing the appeal is hereby affirmed.

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SC.160/2015