LEGALPEDIA ELECTRONIC CITATION:LER[2018] CA/L/1105^C /2011

AREAS OF LAW:

APPEAL, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS:

The Appellant was charged with one Olayinka Ajiboluwaduro (a.k.a. Onile) as 1^st and 2^nd Defendants respectively, before the High Court of Lagos State, on ten counts of conspiracy and obtaining money by false pretences. The facts of the case is that the Appellant, a Legal Practitioner was approached by a client who had landed property to sell to help market the sale of the property. Upon finding prospective buyers, a search of the property was conducted at the Lands Registry and being satisfied with the title, the buyers paid the purchase price for the land directly to the owner, the Appellant’s client. It was thereafter discovered that the Appellant’s client was an impostor who unlawfully posed as the actual owner of the property in consequence of which he was able to dispose of the property and obtain the proceeds from the buyers. The impostor was not found but the Appellant and the estate agent were arraigned, tried and convicted as charged. Dissatisfied with the trial court’s judgement, the Defendants filed separate appeals. The Appellant herein contends that the charge was not proved beyond reasonable doubt.

HELD:

Appeal Allowed

ISSUE FOR DETERMINATION:

• Whether the Prosecution proved the offences charged against the Appellant beyond reasonable doubt so as to warrant his conviction by the lower court.

RATIONES:

PROOF BEYOND REASONABLE DOUBT – WHAT DOES PROOF BEYOND REASONABLE DOUBT ENTAILS?

“Proof beyond reasonable doubt does not require that the proof attain certainty, but it must carry a high degree of probability required in a criminal trial. Proof beyond reasonable doubt does not require that the prosecution prove its case with mathematical exactitude. Proof beyond reasonable doubt is accomplished when the evidence adduced establishes the essential ingredients of the offence charged and that it is the defendant who is standing trial that committed the offence. See Miller vs. Minister Of Pensions (1947) 2 ALL ER 372, Adekunle vs. The State (1989) 12 SCNJ 184 at 198, Bakare vs. The State (1987) 1 NWLR (PT 52) 579 at 587 and Adeboye vs. The State (2011) LPELR (9091) 1.” PER U. A. OGAKWU, J.C.A.

CONSPIRACY – MEANING OF CONSPIRACY

“Now, conspiracy as an offence is the agreement by two (not being husband and wife) or more persons, to do or cause to be done an illegal act or a legal act by illegal means. In Haruna vs. The State (1972) 8 – 9 SC 108 or (1972) LPELR (1356) 1 at 23E – 24A, Fatayi-Williams, JSC (as he then was) stated as follows:

Conspiracy as an offence is nowhere defined in the Criminal Code… It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (See Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.”

• PER U. A. OGAKWU, J.C.A.

PROOF OF THE OFFENCE OF CONSPIRACY – WHETHER THE OFFENCE OF CONSPIRACY CAN BE PROVED BY DIRECT EVIDENCE

“The actual agreement alone constitutes the offence of conspiracy and it is not necessary to prove that the act had in fact been committed. The offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. See Obiakor vs. The State (2002) 36 WRN 1 at 10, Egunjobi vs. F.R.N. (2001) 53 WRN 20 at 54 and The State vs. Osoba (2004) 21 WRN 113.” PER U. A. OGAKWU, J.C.A.

PROOF OF THE OFFENCE OF CONSPIRACY – WHETHER THE OFFENCE OF CONSPIRACY CAN BE PROVED BY INFERENCE

“Since by its very nature, the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and “agreement, the offence can be proved through inference drawn from the surrounding circumstances. See Sule vs. The State (2008) 17 NWLR (PT 1169) 33 and Adejobi vs. The State (2011) LPELR (97) 1 at 36B – E.” PER U. A. OGAKWU, J.C.A.

OFFENCE OF CONSPIRACY- NATURE OF CIRCUMSTANTIAL EVIDENCE ON WHICH A SUCCESSFUL CONVICTION FOR CONSPIRACY CAN BE PREDICTED

“The circumstantial evidence on which a successful conviction for conspiracy can be predicted is evidence not of the fact in issue, but of other facts from which the fact in issue can be inferred. The evidence in this connection must be of such quality that irresistibly compels to make an inference as to the guilt of the accused person. See Oduneye vs. The State (2001) 1 SC (PT 1) 1. The bottom line of the offence of conspiracy is the meeting of the minds of the conspirators to commit an offence and the meeting of the minds need not be physical: Adejobi Vs. The State (supra).” PER U. A. OGAKWU, J.C.A.

OFFENCE OF CONSPIRACY- BASIS FOR ESTABLISHING THE OFFENCE OF CONSPIRACY

“The focal point of the authorities is that for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or omit to do an act criminally. The evidence has to show acts on the part of the defendant from which a court can conclude that he and others were engaged in accomplishing a common object or objective. See Kaza vs. The State (supra). Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose. See Kazeem vs. The State (2009) 29 WRN 43 and Salau vs. The State (2010) LPELR (9106) 1 at 35-36”. PER U. A. OGAKWU, J.C.A.

BURDEN OF PROOF- ON WHO LIES THE BURDEN TO PROVE CRIME

“The evidential burden is on the prosecution to prove the crime charged beyond reasonable doubt. There is no duty on a defendant to purge himself of guilt.” PER U. A. OGAKWU, J.C.A.

OBTAINING BY FALSE PRETENCE- INGREDIENTS TO ESTABLISH IN A CHARGE OF OBTAINING BY FALSE PRETENCE

“Now the ingredients to establish in a charge of obtaining by false pretences are:

1. That there was a pretence
2. That the pretence emanated from the defendant.
3. That the pretence was false
4. That the defendant knew of its falsity or did not believe in its truth
5. That there was an intention to defraud
6. That the thing is capable of being stolen
7. That the defendant induced the owner to transfer the property.

See Alake vs. The State (1991) 7 NWLR (PT 205) 567 at 591, Oshin vs. IGP (1961) 1 SCNLR 40, Onwudiwe vs. FRN (2006) 10 NWLR (PT 988) 382, Amadi vs. FRN (2008) 18 NWLR (PT 1119) 259 and Aguba vs. FRN (2014) LPELR (23211) 1.” PER U. A. OGAKWU, J.C.A.

OFFENCE OF OBTAINING BY FALSE PRETENCE – MODE OF PROVING THE OFFENCE OF OBTAINING BY FALSE PRETENCE

“The ingredients for the offence of obtaining by false pretences must be proved conjunctively and not disjunctively. Where convincing proof of any of the ingredients is absent, the charge cannot be said to have been proven beyond reasonable doubt.” PER U. A. OGAKWU, J.C.A.

STATUTES REFERRED TO:

Court of Appeal Rules, 2016

Evidence Act, 2015