Leonard Duru Vs Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO. JSC

This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on the 25th day of February, 2016 wherein the court below dismissed the appeal of the appellant herein. The learned trial Judge of the Lagos State High Court had earlier convicted and sentenced the appellant to ten (10) years in prison in aggregate for the offences of conspiracy to obtain money by false pretense, obtaining money by false pretense, forgery and uttering of false document contrary to section 8 (a) and 1 (3), of the Advance Fee Fraud and other Fraud Related Offences Act, sections 467 (1) (b) and 468 of the Criminal Code Cap C17 Vol.2 Laws of Lagos State of Nigeria respectively. A brief fact of the case will suffice.

The case against the appellant at the trial court was presented through eleven (11) witnesses and seventy – one (71) documentary exhibits, whilst the appellant tendered eight (8) documentary Exhibits through the witnesses called by the Respondent and rested his case on the evidence adduced by the Respondent.

The gist of the evidence against the appellant is that he acted in league with other persons and obtained various sums of money totaling $397,800 from one Mr. Puchstein, a German, on the pretext that Mr. Puchstein’s Company, Deramic Company, would be awarded contract to supply and install computers, printers and office equipment to the Federal Ministry of Mines and Power which was never awarded, nor the monies so obtained by the appellant returned to Mr. Puchstein; and that the appellant forged/uttered a false document relating to the alleged transaction. At the close of the Respondent’s case, the appellant and his co-defendant made a No case submission which was rejected and they were ordered by the trial court to enter their defense.

Rather than enter a defense, the appellant rested his case on the case presented by the respondent. The trial court accepted the one sided evidence as adduced by the Respondent upon which it convicted and sentenced the appellant to ten years in prison cumulatively for the offences herein before stated. The appellant was convicted on counts 1, 5, 6, 15, 16, 31 and 32 of the charge. The trial court also made restitution order against the appellant.

Dissatisfied with the stance of the learned trial Judge, the appellant lodged an appeal at the court below and in a judgment delivered on 25th February 2016; the Court of Appeal upheld the decision of the trial court.

Again, the appellant is not satisfied with the decision of the Court of Appeal. He has further appealed to this court. Notice of Appeal was filed on 20th May, 2016 which has six grounds of appeal. From the six grounds of appeal, the appellant has formulated six issues for the determination of this appeal.

On 6th December, 2017 when this appeal was heard, the learned counsel for the appellant, Aliens Agbaka Esq identified the brief of the appellant and adopted same as their argument in this appeal. It was filed on 14th November, 2016 but deemed properly filed on 8th November, 2017. The six issues as contained in the said brief are as follows:-

1. Whether the Court of Appeal erred in law when it dismissed the Appellant’s Appeal and affirmed the judgment of the Trial Court which lacked the requisite Jurisdiction to have entertained the Information/Amended Information that prompted the instant Appeal.
2. Whether the Court of Appeal erred in law, when it dismissed the Appellant’s appeal and affirmed the Trial Court’s decision without having due regard to the binding Supreme Court decision in Michael Ijuaka vs Commissioner of Police (1976) 6 & 7 SC and consequently wrongly construed and misapplied the operative influence that operated on the mind of the alleged victim (PW2).
3. Whether the Court of Appeal was wrong in dismissing the Appellant’s appeal without having due regard to the fact that the circumstantial evidence relied upon in establishing the offences of forgery and uttering did not point directly, irresistibly and conclusively to the Appellant which is persuasive and consequently led to miscarriage of Justice.
4. Whether the Court of Appeal was wrong when it affirmed the decision of the Trial Court notwithstanding improper evaluation of evidence by the Trial Court which ultimately led to pervasive decision and miscarriage of justice.
5. Whether having regards to the peculiar nature of the facts that gave rise to this appeal, the sentence of the Appellant is hash and excessive in the circumstance.
6. Whether the Court of Appeal was wrong when it dismissed the Appellant’s appeal and affirmed the decision of the Trial court, notwithstanding the fact that the judgment was unreasonable, unwarranted and cannot be supported having regards to the weight of evidence.

Also, in the brief of the Respondent settled by Chile Okoroma Esq leading other counsel, filed on 8th November, 2017 but deemed properly filed on same date, three issues are however distilled for the determination of this appeal. The three issues are as follows:-

1. Whether the Amended Information signed by M. S. Hassan on behalf of the Executive Chairman of the Economic and Financial Crimes Commission robbed the trial court of the jurisdiction to try this matter.
2. Whether the Court of Appeal was not right in upholding the conviction of the Appellant
3. Whether the Court of Appeal was not right in affirming sentence of the appellant

Having regard to the real or main issue in contention in this appeal, bearing in mind the facts of the case, the judgment of the lower court and the grounds of appeal, I shall adopt the three issues formulated by the respondent for the determination of this appeal. Prolixity or proliferation of issues is not ideal as it tends to obscure the core issue to be determined. It creates the impression that the appellant is shopping for issues to aid his case thus reducing the issues to trifles. Appeals are not won on large or quantity of grounds appeal but on the quality of the content of the grounds of appeal and issues decoded therefrom. See Olaide Ibrahim v S. A. Ojomo & ors (2004) 4 NWLR (pt 862) 89.

The six issues formulated by the appellant are too many. In Ogunjade v Oshinkeye & anor (2007) 15 NWLR (pt.1057) 218, (2007) LPELR – 2355 (SC) this court, per Tobi, JSC (of blessed memory) warned that:-

“It is elementary law that an appellant does not win an appeal by the quantity of issues but by their quality. While an appellant can win an appeal by a properly formulated single issue for determination, the appeal could fail even if the issues are many, such as the four packaged by the appellant. An appellant should not parade before an appellate court a proliferation of issues which serve no useful purpose.” (at P. 19 paragraphs A – C)

A word, they say, is enough for the wise. Accordingly, I shall treat issue one in appellant’s brief together with issue one in the respondent’s brief. Issue 2, 3, 4 and 6 in appellant’s brief shall be taken together with issue 2 in the Respondent’s brief and finally, issue six (6) in appellant’s brief shall be taken together with issue three (3) in the Respondent’s brief.

ISSUE 1