“There is need to point out the error in appellant’s issue one which is reproduced here in part: “Whether given the doubt, speculations, uncertainties and inconsistencies of the prosecuting witnesses which ought to be resolved in favour of the appellant and uncorroborated evidence of PW1 and PW2, the learned Justice… are right and correct to affirm the decision…” (Underlining mine). 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. 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. In my considered view, appellant’s issue one is completely useless and ought to be ignored.” Per ONNOGHEN, J.S.C. at P. 13, Paras. E-G.
Facts
This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on 27th day of January, 2017 wherein the Court below affirmed the decision of the High Court of Lagos State which convicted and sentenced the Appellant to 10 years imprisonment in each of the three counts of the charge of conspiracy to obtain money by false pretence (Count 1) obtaining money by false pretence (Counts 2 and 3) 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 Salient facts giving birth to this appeal are as hereunder stated.
By information filed on 23rd February, 2015 before the High Court of Lagos State, the Appellant was charged with the following offences, namely:
“COUNT 1
Statement of Offence:
Conspiracy to obtain money by false pretence contrary to Section 8(a) and 1(3) of the Advance Fee Fraud and Other Related Offences Act No.14 of 2004:
PARTICULARS OF OFFENCE:
Elvis Ezeani and Joseph Morah on or about the 25th of May, 2006 at Lagos within the Ikeja Judicial Division with intent to defraud conspired to obtain money under false pretences from one Auwalu Abdulrahman.
COUNT 2:
STATEMENT OF OFFENCE:
Obtaining money by false pretences contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related offences Act Cap 46, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE:
Elvis Ezeani and Joseph Morah on or about the 25th of May, 2006, at Lagos within the lkeja Judicial Division with intent to defraud, obtained the sum of N13,500, 000,00 (Thirteen Million, Five Hundred Thousand Naira) only from one Auwulu Abdulrahman on the false pretences 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 and which pretences you knew to be false.
COUNT 3:
STATEMENT OF OFFENCE:
Obtaining money by false pretences contrary to Section 1(1) (a) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act Cap A6, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE:
Elvis Ezeani and Joseph Morah on or about the 25th of May 2006 at Lagos within the Ikeja Judicial Division 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 the false pretences 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 and which pretences you knew to be false.”
At the trial, the Respondent herein as Prosecutor at the trial Court called three witnesses who testified as PW1, PW2 and PW3 and tendered some documents admitted in evidence as Exhibits 1, 2, 3, 4 and 5 and closed its case. In defence, the Appellant testified as DW1, and closed his case.
The gist of the Respondent’s case is that the Appellant in concert with both John Obiamalu and Joseph Morah had some time in May, 2006 approached one Auwalu Abdulrahman, the PW1, a Bureau De Change Operator with an offer to sell to him $500,000.00 which they claimed they had for sale but was in the custody of their agent, one Nurudeen in Ghana. Auwalu Abdulrahman was interested in the deal but wanted to buy only the sum of US$250,000.00 and after due negotiation, the parties arranged to meet in Auwalu Abdulrahman’s Lagos office.
On the agreed date, they met at UBA Plc., Marina Branch, Auwalu’s bank and the sum of N13,500,000.00 was withdrawn by him and paid in cash to the Appellant and the two other persons, Joseph Morah and John Obiamalu. However, Auwalu Abdulrahman was also to pay and actually paid to them the sum of US $143,620.00 cash as part of the payment for the US $250,000.00 in addition to the cash of N13,500,000.00 also paid to them. The agreement was that a nominee of Auwalu Abdulrahman one Mahadi Ahmed would stay with them until Auwalu Abdulrahman received confirmation from his brother and agent in Ghana that the sum of $250,000 has been handed over by the seller’s agent in Ghana.
Unfortunately, when Auwalu Abdulrahman’s brother/agent arrived in the Ghana office, he discovered that there was no sign of the seller’s agent or the promised US dollars to collect. In the meantime, the Appellant and his confederates were able to get away from the presence of Mahadi Ahmed after pushing him out of the Taxi Cab they were all in and left with the monies in the car.
On his part, the Appellant denied the allegation of the Respondent and stated that he merely acted as a commissioned agent in the transaction at the request of one Mr. Tunde Ogunsetan, a Bank Manager and was paid his agency fees of N750,000.00.
At the conclusion of trial at the High Court of Lagos State, the learned trial judge found the Appellant guilty on all the three counts and sentenced him to ten years imprisonment on each count and ordered same to run concurrently commencing from 28th April, 2015 being the date of the Appellant’s remand in prison custody by the learned trial judge.
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. Appellant is again not satisfied with the judgment of the lower Court and has further appealed to this Court.
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.
Lead Judge(ment)
JOHN INYANG OKORO, J.S.C. (Delivering the Lead Judgment)
Held
Unanimously dismissing the appeal.
Alternate Citations
Read Full Judgment
Counsel:
V.I.P. Nwana, Esq……For Appellant
And
Chile Okoroma, Esq. with him, Deborah Ademu-Eteh, Esq., M.S. Abubakar, Matiyak Yoshiya John, Esq. and S.M. Dabak…..For Respondent
For Appellant(s)
For Respondent(s)
Counsel’s Photograph(s) Needed.