Joint Trial: When Discharge of Accused Person Won’t Result in Discharge of Co-Accused

“It is not in every case where an Accused is tried jointly with another, that the discharge of the one must lead to the discharge of the other, as the Appellant is pushing forward, as it is the law that when the evidence against one Accused is different from that against the other, a different conclusion will certainly arise, at which one may be discharged and the other convicted”

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 15th Day of December, 2017

Before Their Lordships Olabode Rhodes-Vivour Mary Ukaego Peter-Odili Clara Bata Ogunbiyi Amiru Sanusi Sidi Dauda Bage Justices, Supreme Court SC.124/2017

Between Musa Yusuf ………Appellant And Federal Republic of Nigeria ……Respondent (Lead Judgement delivered by Hon. Sidi Dauda Bage, JSC)

Facts The Appellant and a certain Alhaji Moham- med Arzika Dakingari, were charged before the High Court of Kebbi State on a 20-count Charge for offences relating to fraud contrary to Section 8(a) of the Advance Fee and Other Fraud Related Offences Act. The Appellant was alleged to have conspired with Alhaji Dakingari, the Accountant-General of Kebbi State and one Ibrahim Usman, to fraudulently obtain 25 units of Iveco Trucks valued at N175,000,000.00 (One hundred and seventy-five million Naira), properties of another company, by false pretence. The trial Court found the Appellant guilty on the first and second counts of the Charges, and sentenced him to six month imprisonment. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal. The Respondent, who was also dissatisfied with the judgement of the trial Court, particularly the six month term imprisonment, filed a Cross-appeal. The Court of Appeal affirmed the conviction of the Appellant and reviewed his sentence from six months imprisonment to seven years imprisonment. Aggrieved, the Appellant filed a further appeal to the Supreme Court. Issues for Determination The Appellant filed his brief of argument in which he formulated four issues for determination as follows: i. Was the Court below right in law, when it affirmed the conviction of the Appellant for the offence of criminal conspiracy contrary to Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act and punishable under Section 1(3) of the same Act, the Appellant’s Co-Accused having been discharged in relation to same offence? ii. Was the Court below right in law, when it affirmed the conviction of the Appellant for the offence of aiding contrary to Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act and punishable under Section 1(3) of the same Act, the Appellant’s Co- Accused having been discharged in relation to same offence? iii. Did the Court below, not impute personal evidence in the consideration of the appeal before it? iv. Was the Court below, on the totality of the evidence adduced in the records, justified in affirming the conviction of the Appellant for the offences of criminal conspiracy and aiding contrary to Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act and punishable under Section 1(3) of the same Act? The Respondent on the other hand formulated three issues for determination thus: i. Whether the Court of Appeal was right, when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act, even though it discharged and acquitted Co-Accused – Alhaji Mohammed Arzika Dakingari who was charged together with the Appellant in the same count one of the Charge for the same offence. ii. Whether the Court of Appeal was right, when it affirmed the conviction of the Appellant for aiding the obtaining of property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act, even though it discharged and acquitted Co-Accused Alhaji Mohammed Arzika Dakingari who was charged together with the Appellant in the same count two of the Charge for the same offence. iii. Whether the Court of Appeal was right, when it affirmed the conviction of the Appellant for conspiracy to obtain property by false pretence and aiding one Alhaji Abdullahi to obtain property by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act 2006, on the grounds that the Respondent had proved its case against the Appellant beyond reasonable doubt on both allegations. The Supreme Court however, summed all the issues formulated by the parties into one issue thus: Whether the Court below was right, when it affirmed the conviction of the Appellant for the offence of obtaining by false pretence under Section 8(a) of the Advance Fee Fraud and other Fraud Related Offences Act. Arguments The contention of Counsel for the Appellant, was that the Respondent bore the burden of proving the offences he was charged for beyond reasonable doubt, and this also means proof of all the elements of the offence. He argued that, having discharged and acquitted the 1st Accused Person with whom the Appellant was charged, and in view of the fact that one other person whose name was mentioned in count one of the Charge was never arraigned, the Appellant also ought have been left off the hook, since the evidence relied upon in discharging and acquitting the said Alhaji, and the evidence used in convicting the Appellant, were like Siamese twins that cannot be separated. Reliance was placed on the case of EMMANUEL EBBRI v THE STATE (2005) 1 NCC 1 at 18 to submit that, the Court relied on the same evidence to arrive at a different conclusion. He argued that, the Court below rejected the evidence of criminal conspiracy, but used the same discredited evidence to convict the Appellant. Counsel submitted further that, there was no evidence before the trial Court that the Appellant benefitted from the transaction leading to his conviction, and that his conviction was based on a mere suspicion. Counsel cited COP v UDE (2011) 17 WRN 120 at 126, ratio 4. Counsel for the Appellant, also contended that, although a total of 20 exhibits were tendered, the Respondent was unable to prove that the Appellant was the maker of all the purported fraudulent documents. Based on the foregoing, he urged the Apex Court, to allow the Appellant’s appeal and discharge and acquit the Appellant. In his response, Counsel for the Respondent submitted that, contrary to the argument of Counsel for the Appellant, the count on conspiracy also had other Accused persons as Co-Conspirators, and the discharge of the said Alhaji Mohammed Arzika Dakingari, could not have resulted in the discharge of the Appellant. He further argued that, the evidence of conspiracy against the Appellant was not discredited, as there were concurrent findings of fact by both the trial Court and the Court of Appeal. He submitted that the Court of Appeal, rightly affirmed the inference of conspiracy against the Appellant by the trial Court. He relied on ARABAMBI v ADVANCE BEVERAGES INDUSTRIES LIMITED (2005) 19 NWLR (PT. 959) 1 AT 43. Counsel for the Respondent, concluded by stating that there was sufficient credible direct and circumstantial evidence, to warrant the conviction of the Appellant by the trial Court, and the affirmation of same by the Court of Appeal. Court’s Judgement and Rationale Deciding the sole issue as reformulated, the Supreme Court held that conspiracy is an offence inferentially deduced from the acts of the parties thereto, which are focused towards the realisation of their common or mutual purpose; it is not an offence that is usually established by direct evidence, since the Conspiracy or agreements thereto are usually contrived in secret. Though there cannot be conspiracy unless two or more persons are involved, however, the most important thing is for the Accused Person, to have the intention and be aware of the purpose of the criminal conspiracy, and to this extent, the Courts are allowed to draw reasonable inferences from the overt acts of the Conspirator, to establish reasonable conspiracy. The Apex Court held further that, by its nature, the offence of criminal conspiracy is established once the prosecution adduces credible evidence, which is not debunked by the Accused to show criminal design and intent. The Court placed reliance on cases of DABOH v THE STATE (1977) 5 SC 197 and ODUNEYE v THE STATE (2001) 2 NWLR (PT. 697) 311 AT 325 In addressing the submission of Counsel for the Appellant on the failure of the trial Court to discharge the Appellant upon discharging the Co-Accused Person, the Supreme Court held that it is not in every case where an Accused is tried jointly with another, that the discharge of one must lead to the discharge of the other, because it is the law that when the evidence against one Accused is different from that against the other, a different conclusion will certainly arise. Each case is considered on its own merits, and in the instant case, there were some extenuating circumstances which inured to the advantage of the Co-Accused Person, and the Appellant could not have been so considered, in view of the overwhelming evidence which tied him to the fraudulent transaction, and which made a distinct peculiar presentation from that of his Co-Accused, who was discharged and acquitted. Appeal Dismissed. Representation

1. Abdullahi for the Appellant. Chike Okoroma with C. Okongwu for the Respondent.

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