CORAM

---

---

PARTIES

---

ELVIS EZEANI APPELLANTS

---

FEDERAL REPUBLIC OF NIGERIA RESPONDENTS

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

The Appellant and one Joseph Morah were charged at the High Court of Lagos State, on 3 counts for conspiracy to obtain money by false pretence and obtaining money by false pretence contrary to Sections 8 (a) and 1 (3) and 1(1) (a) and 1 (3) of the Advance Fee Fraud and Other Related Offences Act Cap A 6, Laws of the Federation of Nigeria, 2004 respectively. The Appellant with intent to defraud obtained the sum of $143,620 (One Hundred and Forty Three Thousand, Six Hundred and Twenty US Dollars) from one Auwalu Abdulrahman on false pretence as value for the transfer of $250,000 (Two Hundred and Fifty thousand US Dollars) to him through his brother, one Alhaji Nurudeen resident in Ghana. The trial Court convicted and sentenced the Appellant to 10 years imprisonment in each of the three counts. Dissatisfied with the stance of the learned trial judge, the Appellant appealed to the Court of Appeal which, after hearing argument from both sides, dismissed the appeal and affirmed the conviction and sentence of the Appellant. The Appellant is again not satisfied with the judgment of the lower Court and has further appealed to this Court.

---

HELD

---

Appeal Dismissed

---

ISSUES

---

1. Whether the Court below was right when it affirmed the judgment of the trial Court to the effect that the Respondent proved its case against the Appellant beyond reasonable doubt on each of the three counts of the information and therefore convicted him accordingly.

2. Whether the Court below was right when it held that the sentence of the Appellant to 10 years imprisonment respectively on the three counts of the information under the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004 by the trial Court with effect from date of his remand in prison custody by the Court was in accordance with Section 315 of the Administration of Criminal Justice Law, 2011.

 

---

RATIONES DECIDENDI

---

REPLY BRIEF – PURPOSE OF REPLY BRIEF

---

“The law is trite that a reply brief is not an opportunity to improve the argument of the appellant. Rather, it is to answer the arguments in the respondent’s brief which were not taken in the appellant’s brief. In circumstance therefore, I shall not go into it further. See Mozie & Ors v. Mbamalu & Ors (2006) 15 NWLR (Pt. 1003) 466, (2006) LPELR – 1922 (SC), Oguanuhu & Ors v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588, (2013) LPELR – 19980 (SC).” –

---

EVALUATION OF EVIDENCE- NATURE OF EVALUATION OF EVIDENCE BY A TRIAL COURT

---

“Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. See Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246, Adamu v. The State (1991) 4 NWLR (Pt. 187) 530, (1991) LPELR – 73 (SC).” –

---

BURDEN OF PROOF- ON WHO LIES THE BURDEN OF PROOF IN CRIMINAL TRIALS

---

“There is no doubt that in criminal trials, the burden of proving the guilt of an accused person rests on the prosecution and does not shift. It is static throughout the trial. See Adeyeye v. The State (2013) 11 NWLR (Pt. 1364) 47, (2013) LPELR -19913 (SC). However, where the prosecution has led credible evidence before the Court which establishes a prima facie case against the accused, it is the duty of the accused to lead evidence to explain to the Court why the prosecution’s evidence should not be believed. In Muftau Bakare v. The State (1987) 1 NWLR (Pt. 52) 579, (1987) LPELR – 714 (SC) at Page 14 – 15, per Oputa, JSC (of blessed memory), this Court held as follows:
“The primary onus of establishing the guilt of the Appellant was on the prosecution and this does and did not shift. What does shift, is the secondary onus or the onus of adducing some evidence which may render the prosecution’s case improbable and therefore unlikely to be true and thereby create a reasonable doubt: –
R. V. Harry Lazarus Lobel (1957) 41 cr. App. R. 100 at P.104 per Goddard L. C.J.See also Igabele v. The State (2006) 6 NWLR (Pt. 975) 100 at 131 paragraphs D-G.” –

---

CONCURRENT FINDINGS OF FACT OF LOWER COURT- INSTANCE WHERE THE SUPREME COURT WOULD DISTURB THE CONCURRENT FINDINGS OF FACT OF LOWER COURTS

---

“These are concurrent findings of fact of the trial Court and the Court of Appeal and this Court does not, in practice, disturb such concurrent findings unless they have been shown to be perverse. See Bashaya & ors v. The State (1998) 5 NWLR (Pt. 550) 35 1, (1998) LPELR 755 (SC), Sobakin v. The State (1981) 5 SC 75, Adio & Anor v. The State (1986) 2 NWLR (PT24) 581, Adekoya v. The State (2017) LPELR-41564(SC).” –

---

PROOF BEYOND REASONABLE DOUBT- WHETHER PROOF BEYOND REASONABLE DOUBT MEANS PROOF BEYOND ALL SHADOW OF DOUBT

---

“The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170, Akinlolu v. The State (2015) LPELR – 25986(SC) Oseni v. The State (2012) LPELR – 7833 (SC); Miller v. Minister of Pensions (1974) 2 ER P. 372.” –

---

OFFENCES OF CONSPIRACY AND OBTAINING BY FALSE PRETENCES – SECTION 1(1) (A); 1 (3) AND 8 (A) OF THE ADVANCED FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT CAP A6 LAWS OF THE FEDERATION OF NIGERIA 2004.

---

Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004. The law states as follows:
“Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud:
(a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act
Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine. Section 8 (a): A person who
Conspires with, aids, abet, or counsels any other person to commit an offence – – – under this Act, is guilty of the offence and liable on conviction to the same punishment as is prescribed for that offence under this Act.”

---

CONSPIRACY- MEANING OF CONSPIRACY

---

“As has been clearly stated by this Court in several decisions, conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. See Njovens v. The State (1973) All NLR 371, Kayode v. The State (2016) LPELR 40028 (SC), Chibuzor Nkem Bouwor v. The State (2016) LPELR- 26054 (SC). As conspiracy is always not able to be proved by tendering some evidence, Courts do infer conspiracy from the acts of the parties which tend to actualize a common purpose in aid of the agreement.” –

---

SENTENCE- WHETHER COURTS CAN IMPOSE ANYTHING LESS THAN A MANDATORY SENTENCE AS PROVIDED BY LAW

---

“Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act Cap A6 Law of the Federation of Nigeria, 2004, 2004 provides:
“(3) A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.”
Clearly, the above provision, by the use of the words “not less than 10 years”, prescribes the lowest limit of the term of imprisonment upon conviction for conspiracy and obtaining by false pretence. As was observed by the learned counsel for the Respondent, this undoubtedly fetters the discretion of the Court from sentencing any person convicted under the Act, including the appellant, for any of the said offences to any term of imprisonment less than 10 years. It is trite law that where a law prescribes a mandatory sentence in clear terms, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised. See Amoshima v. The State (2011) 14 NWLR (Pt. 1268) 530 at P. 530 paragraphs A – C, Afolabi v. The State (2013) 13 NWLR (Pt. 1371) 292, (2013) LPELR – 20700 (SC).” –

---

ADDRESS OF COUNSEL- WHETHER ADDRESS OF COUNSEL CONSTITUTES EVIDENCE

---

“The law is settled that no amount of brilliant address of counsel can make up for lack of evidence to prove or defend a case in Court. See Segun Ogunsanya v. The State (2011) 12 NWLR (Pt. 1261) 401, Donatus Ndu v. The State (1990) LPELR – 1975) (SC).” –

---

ISSUE FOR DETERMINATION – BASIS OF AN ISSUE FOR DETERMINATION

---

“Learned counsel for the appellant framed the issue in violation of the principle of law, to the effect that an issue for determination must be a proposition of law or of fact or both, so cogent, weighty and compelling that a decision in it in favour of one of the parties to the appeal will entitle the party to Judgment. It must arise from and relate to the grounds of appeal. See Sunday Sodinje Nteogwuija & Anor. V. Chief Dickson A. Ikuru (1998) 10 NWLR (Pt. 569) 767 at 288; Ugo v Obiekwe (1989) 1 NWLR (Pt.9 9)5 66. An issue is based on concrete matters of Law or fact or both Law and fact and is not based on unestablished matters of law or facts or both”.

---

ISSUES FOR DETERMINATION – WHETHER ISSUES NOT RELATED TO THE GROUNDS OF APPEAL ARE COMPETENT IN THE DETERMINATION OF A CASE.

---

“An issue properly so called will not include unestablished law or facts. The issue reproduced above assumes matters yet to be established such as doubts, speculations etc and they are not derived from a ground of appeal. It is trite law that an issue for determination not related to or based on ground(s) of appeal is incompetent and ought to be ignored in the determination of the appeal. See Omo V JSC Delta State (2000) 7 SC (Pt. 11) 1.” –

---

EVALUATION OF EVIDENCE- EVALUATION OF EVIDENCE IS THE PRIMARY DUTY OF A TRIAL COURT

---

“I must stress that it is the primary duty of the trial Court to evaluate evidence and ascribe probative value to same.” –

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Administration of Criminal Justice Law of Lagos State 2011 (now 2015)

2. Advance Fee Fraud and Other Fraud Related Offences, 2004

 

---

CLICK HERE TO READ FULL JUDGMENT

---