Mathew Sonoma V. Inspector General Of Police (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment)

The appellant, the 1st accused person was charged along with another at large at the Federal High Court, Abuja on fifteen (15) count charge of criminal conspiracy, fraud and concealment of the money defrauded contrary to Sections 8, 1(3) and 7(2)(b) respectively of the Advance Fee Fraud and Other Related Offences Act, 2006. The nominal complainant was one Ambassador Sam Edem (former Chairman of NDDC).

Count one of the charge was for criminal conspiracy, counts 1-14 for defrauding Ambassador Sam Edem of various sums of money totaling about N800 million at different dates while count 15 was for the concealment of the money allegedly obtained from Ambassador Sam Edem. To establish the case against the appellant, the prosecution called twelve witnesses and tendered 45 exhibits. At the close of the case for prosecution, a no-case submission was made whereupon the appellant on 23rd April, 2010 was discharged on counts 1 -14 and was called upon to defend himself on count 15.

Subsequently, on 1st June 2010, the prosecution filed a motion to amend the charge but same was refused by another ruling considered by the learned trial Judge on 21st July 2010; on the ground that if successful, would have brought back counts 2 -14 of the charge sheet. Thereafter, the appellant opened his defence, called a witness who testified as DW1 while he testified for himself as DW2.

At the conclusion of the case, the learned trial Judge found the appellant guilty, convicted him and sentenced him to seven years (7) imprisonment with hard labour, on count 15 of the charge.

Being dissatisfied with the judgment, the convict/appellant filed a Notice of Appeal to this Honourable Court containing twelve (12) grounds.

After the conviction, the prosecution, on behalf of the respondent applied to court for an order of forfeiture of the vehicles tendered as exhibits, the monies in the account and a storey building all belonging to the appellant but the learned trial Judge refused the application on the ground that the prosecutor did not appropriate evidence before the court on these exhibits. The court left the issue of forfeiture to abide the decision of the Court of Appeal.

Dissatisfied with the decision of the trial court on the issue of forfeiture, the respondent cross-appealed to this Honourable Court on two grounds.

The grounds of appeal in the main appeal are as follows:

1. GROUND ONE

“The learned trial Judge erred in law and in facts in convicting the accused person hereafter referred to as the Appellant and sentenced him to seven years imprisonment with hard labour on count 15 as charged when from the provisions of the Advance Fee Fraud Act of 2006 including the charge as drafted and the facts in support of the case, the said count 15 was an ancillary or consequential charge dependent on the success of counts one to fourteen which the trial Judge upon a no case submission discharged the Appellant because the Prosecution failed woefully to prove the said charges and thereby came to a wrong decision.

2. GROUND TWO

The learned trial Judge erred in law by not identifying fraudulent “taking or collecting of money” as one of the essential element/ingredients of the offence which the Prosecution must prove before the Appellant can be convicted on count 15 having regard to the provisions of Section 7(1)(b) of the Advance Fee Fraud and Other Related Offence Act 2006 as well as count 15 as drafted by the Prosecution including the evidence adduced in prove of the charges and count 15 in particular and thereby came to a wrong decision.

3. GROUND THREE

The learned trial Judge erred in law and facts in looking at the element/or ingredient of concealment only upon which he made an inference of unlawful activities without any iota of evidence from the Prosecution witnesses in support of this essential ingredient for the offence before the Court convicted the Appellant in court 15 and thereby came to a wrong decision.

4. GROUND FOUR

The learned trial Judge erred in law and against the trite position of the law and criminal jurisprudence by placing the burden of proof on Appellant to prove his innocence and thereby came to a wrong decision.

5. GROUND FIVE

The learned trial Judge having held and found in the Judgment that: “it was the purpose and method by which the said monies were collected that I was unable to reconcile with allegation of threat and/or inducement when PW8 as the nominal complainant told the court contrary to the statements he made with the police among other things that the various sum of money which he paid to 1st accused (now Appellant) were either loans or friendly gift and those which are loans, the 1st Accused person has promised to pay back” could not in law and fact convict the accused person on count 15 having regard to the facts the court accepted as evidence or PW8 the nominal complainant and thereby came to a wrong decision.