JUDGMENT

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA HUDICIAL DIVISION
HOLDEN AT COURT 31(CRIMINAL DIVISION)
BEFORE HON. JUSTICE M. O. OBADINA (MRS.)
TODAY THURSDAY THE 19TH DAY OF FEBRUARY 2009

CHARGE NO: ID/114C/2006

BETWEEN :

FEDERAL. REPUBLIC OF NIGERIA         PROSECUTION

AND

1. IGWE GODWIN MADU (alias usman mustapha) ACCUSED
2. GODDYSON WEST AFRICA LTD

JUDGMENT

The 1st accused person (hereinafter called the accused person) was arraigned with the 2nd accused before this court first on a 24          count charge dated 11th September 2006 and later on 26 count Amended charge dated 7lh November 2006. He pleaded not guilty       for himself and on behalf of the 2nd accused.

The 26 count charge reads as follows:-

STATEMENT OF OFFENCE – Ist  COUNT
Conspiracy  to obtain money by false pretences contrary to Sections 8(a) and 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No.62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 atLagos within Ikeja Judicial Division with intent to defraud conspired to obtain money by false pretence from Mr. Ishmael Lightbourne of Bahamas.

STATEMENT OF OFFENCE – 2ND COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No.13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45, 000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 3RD COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$25, 000 (Twenty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 4TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$50, 000 (Fifty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 5TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 2nd day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$47, 037 (Forty Seven Thousand, Thirty Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 6TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West  Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$39, 577 (Thirty Nine Thousand, Five Hundred and Seventy Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 7TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35, 000 (Thirty Five Thousand United States Dollars) from Ishmael
Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 8TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13   of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe  Godwin  Madu  (alias  Usman  Mustapha),  Goddyson  West
Africa Limited, Chinedu John (still at large) arid others still at large
on or about the 19th day of November 2002 at Lagos within Ikeja
Judicial Division with intent to defraud obtained the sum of US$30,
000(Thirty   Thousand   United   States   Dollars)   from   Ishmael
Lightbourne of Bahamas by falsely pretending that the said sum
was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 9TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of
Advance Fee Fraud and Other Fraud Related Offences Act No. 13
of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe  Godwin   Madu  (alias  Usman  Mustapha),  Goddyson  West
Africa Limited, Chinedu John (still at large) and others still at large
on or about the 22nd day of November 2002 at Lagos within Ikeja
Judicial Division with intent to defraud obtained the sum of US$40,
252 (Forty Thousand, Two Hundred and Fifty Two United States
Dollars)   from   Ishmael   Lightbourne   of   Bahamas   by   falsely
pretending that the said sum was for processing NNPC Contract
No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 10TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 18th day of December 2002 at Lagos within Ikeja

Judicial Division with intent to defraud obtained the sum of US$72, 000 (Seventy Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum            was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 11TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13     of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin  Madu  (alias Usman  Mustapha),  Goddyson West         Africa Limited, Chinedu John (still at large) and others still at large on or about the 7th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$62, 000  (Sixty Two Thousand  United States Dollars) from  Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 12TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin  Madu (alias Usman Mustapha),   Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$36, 373 (Thirty Six Thousand, Three Hundred and Seventy Three United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 13TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of   Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 28th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35, 135 (Thirty Five Thousand, One Hundred and Thirty Five United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 14TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13  of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin  Madu (alias Usman Mustapha),  Goddyson  West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of February 2003 at Lagos within Ikeja          Judicial Division with intent to defraud obtained the sum of US$45, 000 (Forty Five Thousand United States Dollars) from Ishmael          Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 15TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$20, 000 (Twenty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 16TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (stili at large) and others still at large on or about the 14th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$32, 000 (Thirty two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 17TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 20th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$65, 000 (Sixty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.

STATEMENT OF OFFENCE – 18TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$44, 000 (Forty Four Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 19TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 31st day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million, Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) purported to have been issued by one Virginus Chukwu.

STATEMENT OF OFFENCE – 20TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2005 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million, Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.

STATEMENT OF OFFENCE – 21ST COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of August 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N6, 664,000 (Six Million, Six Hundred and Sixty Four Thousand Naira Only) purported to have been issued by one Virginus Chukwu.

STATEMENT OF OFFENCE – 22ND COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17,
Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe  Godwin  Madu  (alias  Usman  Mustapha),  Goddyson  West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2006 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N6, 664.000 (Six Million, TSix Hundred and Sixty Four Thousand Naira Only) to Mr. Philip Ngoke of Economic and  Financial  Crimes Commission as genuine.

STATEMENT OF OFFENCE – 23RD COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap.
C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe  Godwin   Madu  (alias Usman  Mustapha),  Goddyson  West
Africa Limited, Chinedu John (still at large) and others still at large
on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for  the  sum  of N11,  728,640  (Eleven   Million, Seven Hundred and Twenty Eight Thousand Six Hundred and Forty Naira Only) purported to have been issued by one Virginus Chukwu.

STATEMENT OF OFFENCE – 24TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17,
Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin  Madu  (alias Usman  Mustapha),  Goddyson West Africa Limited, Chinedu John (still at large) and others still at large
on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently
uttered  forged  acknowledgment receipt for the sum  of N11, 728,640 (Eleven   Million,   Seven   Hundred   and   Twenty   Eight Thousand, Six Hundred and Forty Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.

STATEMENT OF OFFENCE – 25TH COUNT
Forgery contrary to Section 467(2}(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) arid others still at large on or about the 12th day of January 2001 at Lagos within Ikeja Judicial Division with intent to defraud forged NNPC document titled “Contract Agreement No FGN/NNPC/3160/X2X001″ purported to have been issued by NNPC.

STATEMENT OF OFFENCE – 26TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.

PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged NNPC document titled “Contract Agreement No  FHN/NNPC/3160/X2X001″ to Ismael Lightbourne of Bahamas as genuine.”

The accused  person  pleaded  not guilty to the charge.     The Prosecution opened its case on the 15th of November 2006.

PW1   was  Musibau  Adegbolahan Awoderu  a   Police  Inspector  attached to the EFCC.

He testified that sometime in December 2004, the EFCC received through an informant who was not named, an information that one   Ishmael  Lightbourne   of the   Bahamas   was   swindled   by fraudsters from Nigeria.  The informant supplied the address of the victim. The EFCC sent an e-mail to the victim requesting for details of the scam.   He replied via e-mail and sent down six wire
transfer slips.   He also sent a summary of the payments made to the fraudsters for the purported NNPC contract.

He testified that the accused person was arrested on the 1st  of March 2005. He obtained his statement under caution. The accused person made additional 7 statements also under caution.

PW1 tendered the victims e-mail Exhibit PI, Barclays Bank of Ghana Wire Transfer as Exhibit P2, Wire Transfer of Bank of America, Exhibits P3 – P7, Summary of payments Exhibit P8 and the purported NNPC document Exhibit P9. He also tendered the statements of the accused Exhibits P10 – P17.

PW1 was cross-examined extensively. Defence Counsel tendered Exhibits Dl – D5 through him.

PW2 was Philip Ngwoke an investigator with the EFCC.  He testified that he was instructed by his team leader to record additional statements from the accused. He tendered Exhibits P18 – P22 statements of the accused which he said he recorded under caution.

PW3 was Yayaha Bello of the EFCC.  He testified that he led a team of operatives to Enugu to arrest the accused person. A search was conducted in his house after which he was flown to Lagos where he made his statement to PW1.

He testified that the accused person implicated one Virginus Chukwu as the person who used his account to defraud the victim. The accused person presented acknowledgement of payment receipts evidencing payment of the Naira equivalent of the Dollars paid into his account to Virginus Chukwu. On the strength of this allegation, Virginus Chukwu was arrested. He denied participating in the crime. He denied the documents acknowledging payment of Naira equivalent.  These documents were admitted as Exhibits P23, P24 and P25, He testified that the signature of Virginus Chukwu in his letter of employment with the company of the accused and his offer letter Exhibits P26 and P27 were sent to the Forensic Document Examiner to compare with Exhibits P23 – P25. The handwriting analysts reports were admitted as Exhibits P28 and P29 respectively.

He testified that the accused person refunded some US Dollars which were remitted to the victim by the EFCC. The witness tendered copies of the Bonds to produce Exhibit for the various sums and all the correspondence relating to the remittances to the victim. These documents were admitted as Exhibits P30 – P50.

PW4 was Donatus Uqwu an Assistant Superintendent of Police attached to the EFCC. He testified that he accompanied PW3 to Enugu to arrest the accused. He was also present when the house of the accused was searched. He said in the course of the search, they recovered the International Passport of the accused person as well as £4720. All the items recovered were endorsed at the back of the search warrant.

He testified that in the course of investigation, the accused person made a refund of the sum of £2, 500. That he also agreed to use the £4, 720 recovered from him as part of the refund.  He made an application to collect these sums and change to dollars which is the currency of the victim and for the EFCC to remit same. The application was approved and the money was changed to dollars and remitted to the victim. The witness identified Exhibit D4 the Search Warrant. He tendered the International Passport of the accused admitted as Exhibit P51 and the two applications of the accused to convert the money to dollars, exhibits P52 and P53 respectively.

PW5 was Muazu Abdullahi a Superintendent of Police and the Document Examiner of the EFCC. He gave evidence of his qualifications and experience as a handwriting analyst and document examiner. He testified that in May 2005, he received a letter from the Director of Operations EFCC accompanied by two sets of documents. The first was the disputed signature marked X and the second set the standard signature marked A for comparison.

He testified of his analysis of the two sets of documents and stated that his conclusion is that the two signatures are replicas. He said there is traced forgery of document marked A. The one marked X is a forged signature. He said he issued a report of his findings dated 7th June 2005.
He stated that on the 26th of April 2006, he received another letter from the EFCC also accompanied by the sets of document marked X – X2 and A – A1 for comparison. He carried out the forensic analysis and his conclusion was that the disputed signatures marked X – X2 were forged signatures in a class of forgery known as free hand simulation. He issued a report dated 13th May 2006 Exhibit 29.

The witness identified Exhibits P28, P28(i) & P28(ii) the documents in respect of the 2005 examination and Exhibit P29(i-iv) in respect of the 2006 examination.

PW6 was Ishaq Mohammed an investigator with the EFCC.  He testified that on the 16th of September 2005 his team leader Yahaya Bello asked him to record the statement of the accused person in relation to $10, 000 he brought as part payment of the money he defrauded Ishmael Lightbourne. He cautioned the accused person and the accused person asked him to assist him to write the statement. He dictated the statement and he helped him to write it. He read it over and the accused confirmed it and signed. He said he could not remember the reason the accused person gave for his inability to write the statement himself. The statement was admitted as Exhibit P55.

PW7 was Chukwu Virginus Nnajiofor. He testified that the accused person was his in law. He said on the 2nd of February 2005, he was invited to the EFCC where he was informed that the accused person said that he used his account to lodge in money. The EFCC showed him an acknowledgement receipt which he was purported to have signed. He said he did not sign any receipt and he did not pay any money into the account of the accused person. He also told them that he never asked the accused person to build houses or buy cars for him.

He said he was shown Exhibits P23, P24, P29 (iii) (iv) and (v) and he told the EFCC that he did not sign these documents.

PW8 was Alien Aiyelaye Alamman a Banker with Unity Bank formerly Intercity Bank. He testified that between 20/9/2005 -20/7/2006, the EFCC requested that the Bank transfer money from their domiciliary account totaling $87,701.00 in four different transfers to one Ishmael Lightbourne of Peaceful Waters Company Ltd in Bahamas. The transfers were done as instructed. He identified Exhibits P31 – P34, P36 – P39, P41 – P49 as the documents for the transfer.

He also testified that they sent the copies of the Swift Message instructing their Bankers Offshore to transfer the funds to the EFCC to evidence the transfer to Ishmael Lightbourne.

The  Swift  Messages of 1/8/2006,   18/4/2006,  29/11/2005  and  2/9/2005 were admitted as Exhibits P56 – P59 respectively.

This was the case for the Prosecution.

Relevant portions of the cross-examination of the Prosecution witnesses will be referred to in the course of this judgment.

DW1 was Igwe Godwin Madu the accused person.    He testified that he is a traditional ruler and businessman.   He stated that on the 29/12/2004, one DSP Mrs. Ifeoma Ezeona from Alagbon came to his house with three men that he should follow them to Alagbon because there is a petition against him.   He told them that his coronation was in two days. Two of the men told the DSP to allow him to come after the coronation.  The DSP agreed and gave him appointment   for   the   9th   of  January   which   appointment   he honoured.   He tendered the complimentary card of the DSP and his coronation programme as Exhibit D11 and D12.

He testified that he is from the same village as Virginus Chukwu PW7 and there have been some issues between them as a result of his installation as Igwe. He stated that when he got to Alagbon on the 9th, he saw the DSP and 3 men who introduced themselves as representatives of one Ishmael Lightbourne. He told the DSP that he had never met the man. The DSP took all of them to the office of the ACP where the DSP brought out a petition that he defrauded Ishmael Lightbourne who alleged that he lodge some money into his account for him to supply aluminium profiles.

He denied the allegation. The ACP told him to go and write his statement with the DSP. As they were going, one of the officers who came with the DSP to his village to arrest him came to ACP’s
office.  The ACP came later to the DSP’s office and told her to be careful with this case that these petitioners are not the real petitioners, that the real petitioners are from his village.  The DSP left the office and came back after two hours.   She demanded for NI0m to settle the case.  He told her he did not have that kind of money.   She threatened him with EFCC.   The three men did not
talk. She put a call through to Yayaha Bello.

After about 2 or 3 weeks, Yahaya Bello came to his village with Frank  Ezeona  the  husband  of Ifeoma  Ezeoma  the  DSP.     He tendered the complimentary card of Frank Ezeona as Exhibit D13.

He testified that when he got to the EFCC, Yayaha Bello brought out a petition on the letter head of Liberty Chambers who said they are representing an NGO New Citizen Group of which Frank        Ezeona is the President.

In the petition, he was alleged to have defrauded one Ishmael Lightbourne with other people.  He denied the allegation.  He was asked to write his statement which he did.   He said they showed him printed Bank Slips showing that money was lodged into his account and the sender of the money was Ishmael Lightbourne.

He said he admitted that the account names were his own but he did  not  know  Ishmael  Lightbourne.     He  said that he  could remember that he gave his account number to his in-law Virginus Chukwu PW7 and Ikem Esel Robert.   PW7 came to him in 2001 that he has foreign exchange that he wants to sell to him. He told PW7 if it is not fraudulent money or drug money he can use the  account and he will give him the Naira equivalent upon his collecting   2%  Commission  for the  Bank  Charges  and  other expenses.     PW7 agreed.     He stated that PW7  used to sign acknowledgement receipts for the Naira equivalent.   He identified  Exhibits P23, P24 and P25 as some of the acknowledgments.

He testified that PW7 made a statement to NDLEA where he admitted that he bought him four exotic cars and he built houses for him at the time the lodgments were made. CTC of the statement of PW7 to NDLEA was tendered as Exhibit D14.

The accused person confirmed that he made refund of $88, 000 at the EFCC. He said when he finished writing his statement, Yayaha Bello came in and saw where he said he collected 2% of the total , , money lodged into his account. The 2% was about $16, 000 according to the lodgment but Yayaha Bello said he must pay $100, 000 before he can end the case. He agreed because it dawned on him that the NIOm the DSP was asking for and this $100, 000 was about the same amount.

I think I need to pause here to say that Yahaya Bello testified as PW3 and he was never confronted with these allegations under cross-examination.

The accused person testified further that he and PW7 were in-laws because PW7 married his senior sister. They were very close until  2003 when he was presented as the Igwe Elect against PW7′s father. That was when PW7 began to write petitions against him  first to the former Governor of Enugu State and later to Alagbon  and to the EFCC. On the day of his coronation PW7 was absent  with his family. Instead, they went to another chieftaincy  ceremony for their father.

DW2 was Raphael Onwusuligbo a Police Inspector and document
examiner attached to the Forensic Science Laboratory Force C. I.
D. Annex Alagbon Close Ikoyi Lagos.

He gave evidence of his qualifications and his experience as a handwriting analyst. He stated that he was subpoened to testify in this case. His office received a letter on the 10th of October 2006 later corrected to be 5th of October 2006 from the office of U. C. Ikegbule Ibrahim Tahir and Associates to examine some documents marked A1, A2, A3, A4, X and XI He said he carried out the examination and he came to the conclusion that one signatory signed all the documents. He wrote his opinion and issued a report to U. C. Ikegbule & Associates.

He tendered Exhibits D16 – D25 and explained the comparative table Exhibit D25 to the court. He also stated that he used the video spectra comparator and other apparatus to do the comparison.

This was the case for the Defence.

In his final address dated 16lh May 2008, defence counsel U C. Ikegbule formulated only one issue for determination to wit:-

“Whether the Prosecution did not fail to establish that the accused persons committed the offences with which they are charged in this case.”

In his own final address, prosecution counsel M. S. Hassan   also formulated one issue for determination to wit:

“Whether the prosecution has proved its case beyond reasonable doubt against the accused persons to wan ant this court convicting them of the offences with which they are charged?”

Since these  two issues are similar, I adopt the issues formulated by prosecution counsel.

I agree with and I adopt the submissions of defence counsel at paragraphs 2.01 – 2.06 of his address.   I will first examine the substantive  counts of obtaining  money by false  pretences  in counts 2-18 before dealing with the count of conspiracy in count 1 since the facts in support of the count of conspiracy are based on the same facts as the counts in the substantive offences. Amachree V Nigerian Army (2003) 3 NWLR (Pt. 807) 256.

It is trite law that in criminal cases the onus of proof at all times is on the prosecution. The onus is discharged once all the essential elements of the offences alleged are proved. Alake V Slate (1991) 7 NWLR (Pt. 205) 567 at 591 per Niki Tobi JCA (as he then was).

In order to establish a case of obtaining money under false pretences, the prosecution is required to prove the following:-

That there was a pretence

That the pretence emanated from the accused.

That the said pretence is false

That the accused knew of the falsity or did not believe in its truth.

That the thing is capable of being stolen

6. That the accused person induced the owner to transfer his whole interest in the property.

Alake V State (supra); Nwankwo V Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809) 1.

The Supreme Court captured the ingredients succinctly in the case of Michael Ijuaka V Commissioner of Police (1976) 6-7 SC 99 at 105 where the court held:-

“To secure conviction what must the prosecution prove? On this point, we refer to the case of R. V John Sullivan 30 C App R 132 where Humphreys J delivering the judgment of the court in an appeal against a conviction of obtaining property by false pretences said at page 134 as follows:

“In order that a person may be convicted of that offence it has been said hundred of times that it is necessary for the prosecution to prove to the satisfaction of the jury that there was some mis-statement as to an existing fact made by the accused person, that it was false to his knowledge, that it acted upon the mind of the person who parted with the money, that the proceeding on the part of the accused was fraudulent.   That is the only meaning to apply to the word “with intent to defraud”

See Laja V Police (1961) ANLR 744 at 746.

In his address, defence counsel argued that there was no credible and legally admissible evidence of a pretence. The charge is that he obtained the various sums from Ishmael Lightbourne of Bahamas by falsely pretending that the said sums of money were for processing NNPC contract No FGN/NNPC/3160/X2X001.

He submitted that the alleged informant who gave the EFCC the information relating to this case was not disclosed. Even Ibrahim Lamorde to whom this information was given was not called to
testify.   The evidence of PW1 – PW4 on this alleged information  are hearsay and should be discountenanced.

Furthermore, he argued, Exhibits PI – P9 constitutes documentary hearsay in that the makers were not called to testify. He referred to Section 77 of the Evidence Act and the cases of Azeez Okoro V State (1998) 12SCNJ 84 at 96; Sanusi V State (1984) 10 SC 166 at 199 etc.

Since Ishmael Lightbourne was not invited to Nigeria to come and testify on the transaction that led to the fund transfers, PW1 -        PW4 cannot give admissible evidence on the pretence that was practiced on him.   He urged the court to note that PW1 admitted under  cross-examination  that  he  did   not  know  if  it  was  the informant that was posing as the victim and replying EFCC e-mail. He submitted that the EFCC did not investigate the genuiness of the e-mails purported to be from the victim.

Defence counsel argued further that the prosecution failed to establish that the accused person had an intention to defraud Ishmael Lightbourne.   He urged the court to give weight to the defence of the accused and accept the corroborated evidence of DW2 and Exhibit D15 to the effect that it was PW7 who signed Exhibits P23 – P25.

He argued that PW7 showed himself to be a tainted witness with his own purpose to serve as he said under cross-examination that he reported the accused at the Force C. I. D Alagbon in respect of this case in order to pay the accused person back in his own coin for the travails of his father in the hands of the Police.

He submitted further that PW7 is an unreliable witness.   That he denied writing Exhibit D5 yet PVV1 testified that PW7 told him that he wrote it.   PW1 denied that the accused bought cars for him yet Exhibit D14 shows that he did.   It is clear therefore that it was PW7 who defrauded Ishmael Lightbourne in this case.

Learned   counsel   also   attacked   the   evidence   of   PW5   the handwriting expert.   He urged the court to disregard his evidence because   it   was   full   of  contradictions.   He   pointed   out   the contradictions in paragraphs 2.25 – 2.28 of his address.
He finally submitted that there is no proof that the accused person obtained the various sums alleged in the charge. He contended that the only evidence on the various amounts are exhibits P2 -P8. He reiterated his earlier submission that these exhibits are documentary hearsay. Also, exhibit P1 did not refer to any of these exhibits and there is nothing on Exhibit P3 – P9 to show that they were attachments to Exhibit P1.

He submitted that should the argument be made that there s an admission by the accused confirmed by Exhibit P23 – P25 that  money was lodged into his account, he urged the court to hold that the admission is not direct or positive as to the offences in counts 2 to 18. He referred to these cases – Raimi Adnbisi Afolabi V Commissioner of Police (1961) All NLR 195, Patrick Njovens V State (1973) 5 SC 17, Olubu V State   (1980) 1 NCR 309 at 316.

He finally submitted that the whole case of the prosecution is an orchestrated scheme by the league of PW7, Mrs. Ifeoma Ezeona, Mr. Frank Ezeona and Yayaha Bello to make the accused part with
NI0m to them on the pretext of his allegation.

He urged the court to hold that the case against the accused is not proved in respect of counts 2 to 18.

He also submitted that the counts of forgery and uttering are not  proved.  He made extensive submissions on these counts.

In his reply to these submissions, prosecution counsel M. S. Hassan relied on Exhibits P1 – P8 and the statements of the accused Exhibits P10 – P22 and P55. He said from these exhibits, it is clear that there was a representation made to the victim which representation emanated from the accused persons to the victim and accused knew the representation was false because the NNPC document Exhibit P9 forwarded to the victim was a forged document.

He submitted that the accused person admitted  under cross-examination that he had an account with Barclays Bank Ghana one of the Banks the victim paid the money to. Also that the accused
person admitted that money was paid into his account and he has refunded about $80 something thousand USSD.

He submitted at page 6 of his address that the evidence of PW1 -PW4 are not hearsay evidence but direct evidence of the investigation they conducted into the case. PW1 he said is riot bound to reveal the source of his information while conducting an investigation. He referred to Section 166 of the Evidence Act which provides:-

“No Magistrate or public officer shall be compelled to say whence he got any information as to .the commission of any offence, and no officer employed in or about the business of any branch of the public revenue shall be compelled to say whence he got any information as to the Commission of any offence against the public revenue”

He argued that the prosecution is not bound to call all witnesses to I establish its case. The prosecutor is only bound to call material witnesses. Failure of the prosecution to call the makers of Exhibit  P1 – P9 is therefore not fatal. He referred to the case of Nwankwo V Federal Republic of Nigeria (2003) 4 NWLR a (Pt. 809) 1 at 34.

On the submission that Ishmael Lightbourne was not invited to testify, he submitted that it is not in all cases that victim of a crime must be called to give evidence.

He also made extensive submissions on the counts of conspiracy, forgery and uttering.

I have already identified the sole issue for my determination in this case.

The most important ingredient to be proved in a case of obtaining money under false pretence in my view is the representation made to the victim by the accused which was false.

The pretence alleged in the charge must be proved and it must be established that it was the only irresistible influence that operated on the mind of the victim. Ijuaka V Commissioner of Police (supra)

The representation  alleged in the charge is that the accused person represented to the victim Ishmael  Lightbourne that the sums   alleged   was   cost   for   processing   NNPC   contract   No FGN/NNPC/3160/X2X001.

The prosecution did not call any NNPC official to testify whether there is in existence any contract so named and whether any sum was required to be paid to process the contract if it existed. The prosecution sought to bring in an amended charge after the  Defence had filed its final address and raised this issue. They sought to call an official of the NNPC as an additional witness. In a considered ruling, this court refused the application saying that it was highly prejudicial to the accused at that stage of the proceedings.

The NNPC official should have been one of the early witnesses for           the prosecution in view of the charge.

The alleged victim Ishmael Lightbourne to whom this alleged representation was made was also not called to testify.    It is correct as prosecution counsel stated that it is not compulsory that the victim of an offence be called to testify. This is the position of the law.   See Ugwu V State (1998) 7 NWLR (Pt. 558) 397; Nwankwo V Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809).

However,   there   must   be   credible   evidence   from   competent witnesses to establish the charge.

How did the EFCC become seised of this case? According to PW1, an unnamed informant called the Director of Operations Mr. Ibrahim Lamorde on phone and gave him the details of this scam. PW1 was not present when the information was given to Mr. Lamorde. Mr. Lamorde to whom the information was given was riot called as a witness in this trial. Defence counsel has urged me to hold that this whole case is premised on hearsay evidence.

Section 77(a), (b) and (c) of the Evidence Act provides:-
“77.   Oral evidence must, in all cases whatever, be direct.

If it refers to a fact which could be seen, it must be the evidence of a witness who says that he saw that fact:

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.

If it refers to a fact which could be perceived by any other sense or in any other mariner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner”

The evidence of an Investigating Police officer about what he personally saw or discovered in the course of his investigation not what he heard from someone not called to testify is admissible, Ajibola V State (1994) 8 NWLR (Pt. 364) 587 at 600.

The evidence of PW1 on what Mr. Lamorde told him is hearsay evidence and inadmissible and I so hold.

Even if Ishmael Lightbourne did not lodge any compliant and Mr. Lamorde was not notified by any informant about the alleged scam, it is my view that the EFCC on becoming aware through any means that a crime under the EFCC Act has been committed has the power to set machinery in motion to investigate the allegation.

This now brings me to Exhibit PI – P9. The evidence of PW1 is that on receipt of the allegation, the EFCC contacted the victim via e-mail and the victim responded and sent the details of the scam Exhibits P2 – P9.

Exhibit P1 from the heading was sent on Friday 24th December 2004 to the EFCC. The evidence of PW1 that it was sent on 12/24/2005 is therefore incorrect. 12/24/2005 is indeed reflected on pages 1 and 2 of Exhibit P1 at the bottom page. I wouldn’t know why. The two dates on Exhibit P1 are contradictory. The submissions of defence counsel relying on the evidence of PW1 that the mail was sent on 12/24/2005 cannot be accepted when considered against the background of the evidence of PW1 under cross-examination that all these documents were shown to the accused before he wrote his statement. The accused person never said that he did not see these documents before he wrote his statement or else what did he respond to?
In Exhibit P1, Ishmael Lightbourne wrote to Ibrahim Lamorde:-

“Dear Sir,

I wish to acknowledge the receipt of your e-mail and my willingness to cooperate with your investigation.   However, I would  caution,  that because of the obvious security and other  risks  associated  with  this  matter,  I  would  wish  to proceed with extreme caution, so as not to become to (sic) deeply embroiled and highly visible, in your ongoing enquiry. I am sure that you can appreciate and respect my concern.
Kind regards,

Ishmael”

From this e-mail, that there is no indication that documents were forwarded   as   attachments   as   no   reference   was   made   to documents by the writer.   It is therefore not too clear how the
documents got to the EFCC.

The maker of Exhibit P1 as I noted earlier did not testify. I can see from Exhibit P1 that he expressed some fears concerning his security but no prosecution witness told the court that he was invited to Nigeria and he declined to come for security reasons.

In Abadom V State (1997) 1 NW1.R (Pt. 479) 1, the Court of Appeal considered the probative value of Exhibit E in that case, the report of a firm of Auditors which was tendered and admitted but  on which no member of the Firm of Auditors gave evidence. The court held that the exhibit was documentary hearsay and cannot be relied upon. The court cited the popular case of Subremanian V Public Prosecution (1956) WLR 965 at 969 where the principle of law was stated thus:

“Evidence of a statement made to a witness by a person who is not called as a witness may not be hearsay.   It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.   It is  not  hearsay and  admissible  when   it  is  proposed  to

establish by evidence not the truth of statement but the fact that it was made.”

Also in Okoro V State (1998) 14 NWLR (Pt, 584) 181, the Supreme Court held that a written account of what was told the police during investigation is hearsay evidence where the maker of the statement was not called as a witness.

In Nwachukwu V State (2002) 12 NWLR (Pt. 782) 543 at 563, the Supreme Court allowed the Doctor’s Report Exhibit E stating the cause of death of the deceased even though the Doctor who prepared the report did not testify. The court allowed the Report because there was evidence before it that the Investigating Police Officer who tendered the report was present when the post portem examination was carried out and also because there was evidence that the Doctor had traveled overseas for further studies and his location was unknown.

A court of law cannot attach probative value to a document or documents whose maker did not give evidence at the trial and 55;         therefore was not exposed to cross-examination. Okonkwo V         State (1998) 8 NWLR (Pt. 561) 173.  The Prosecution cannot just dump documents on the court and expect the court to believe  its contents when the writer was not made available to be cross-examined. I cannot therefore attach probative value to Exhibits, P2 -P9.

The general law in criminal trials is that the prosecution need not call a host of witnesses to prove its case. The duty on the prosecution is to call witnesses sufficient to establish its case beyond reasonable doubt.

In the discharge of the burden of proof, it is the duty of the        prosecution to see that it calls vital evidence to establish a vital issue that could settle the case one way or another.    State V Azeez & 5 Ors (2008) 4 SC 188, Alake V State (supra)

Failure of the prosecution to call any NNPC official, Ishmael       Lightbourne and Ibrahim Lamorde is fatal to their case.

The statement of the accused person is part of the case of the prosecution.

In Exhibit P10, he said:-

“I have no transaction with Ishmael Lightbourne. Sometimes towards the end of year 2001, one Virginus Ngbe Chukwu who is my brother in law came to me in Enugu with one Ikem. He informed me that he has some foreign exchange and demanded to know whether I was interested in the Forex for my importation business and I answered in affirmative. He, Virginus Ngbechukwu, who stays in Ghana told me that (he wanted me to use the Foreign exchange) I should be giving him the Naira equivalent of any foreign exchange he sent to my company account in Ghana and I should give him my Ghana account number in Backlays Bank in Ghana which he used to lodge the money while I will give him the Naira equivalent, in Nigeria. I was giving him the Naira equivalent till 2002 when Virginus asked me to assist him in using the money to build house or buy cars which I complied. I built a filling station for him between 2002 and 2003 at Nineth Mile Enugu but is not completed yet. I bought three cars l.e M/Benz, Red Convertible car, one land cruiser Jeep and a Jaguar car for Virginus but he also has a Baby Lexus Jeep, M/Benz “E” class.

I built a two storey building at Orifite Street, NewLayout, Ogui Enugu for him. Another house at Trans Ekulu Street, North Fourth Avenue Enugu. Virginus also has a land in . Abuja. The name of the filling Station is Azunna Oil at Nineth Mile Opposite Ania Breweries main gate Enugu.

He also has a Toyota Hilux Pickup and a land at Mile 2, Oji River along Galaxy Road. Virginus only paid me 2% commission on all the monies lodged into my company’s account”

In his oral evidence in court, the accused person said:-

“I also said I will take 2% of every lodgment into my account to take care of bank charges and other expenses. He agreed
and I gave him my accounts.   To my surprise, the account they showed me was not my account number but I know that such transaction happened.”

Under cross-examination, he said:-

“It is true that I don’t operate a bureau de change.  It is not true that I gave my account to be used as a conduct pipe. It is true I gave my account to my inlaw to use.   It was not illegal to do so.   It is correct the money that was paid into my account was paid by Ishmael Lightbourne and I gave Naira equivalent to PW7.  I cannot tell how much I benefited from the entire transaction except the 2%.   I returned back to EFCC about 80 something thousand USD…”

Exhibits P11, P12, P13, P15, P16, P17 are the evidence of the      refunds he made to the EFCC.

In Exhibit P14, the accused person said “since 1999, I don’t know   the type of job Vjrginus Chukwu does for living”.

A confession is an admission made at anytime by a person charged with a crimes stating or suggesting the inference that he committed that crime. Section 27(1) of the Evidence Act.

By this definition, there must be an admission of all the facts which constitute the offence.

The accused person did not admit that he had direct dealings with Ishmael Lightbourne. He did not admit that he made any representation to him. He did not admit that he forged Exhibit P9. His admission which is against his interest is that he was aware of the source of funds into his account that it was from Ishmael Lightbourne. He did not know the work or business Virginus Chukwu was doing but he made his account available to him for inflow of money from Ishmael Lightbourne.

Statements whether oral or written made by a party to a proceeding or by an accused person in a criminal prosecution which are against his interest are admissible against him as evidence of the facts thus asserted. These are informal admissions. Such admissions unlike formal admissions are not conclusive evidence against their maker. They are prima facie evidence which may be contradicted or explained in appropriate cases, Nwachukwu V State (2002) 12 NWLR (Pt. 782) 543 at 567 – 568 per Iguh JSC.

Exhibit P10 and his oral testimony cannot constitute sole ground on which conviction for the offences charged can be based in view of the fact that there was no equivocal admission of guilt. Nevertheless, these admissions are proved against the accused as to the facts admitted therein. What this means is that the 80 something thousand dollars recovered from him rightly belongs to Ishmael Lightbourne. But the Prosecution erred greatly in remitting the money to the victim without waiting for the conclusion of this case. The conduct is condemnable and I condemn it.

The submissions of Defence counsel on Peaceful Waters/Ishmael Lightbourne the recipients of the money sent by the EFCC is neither here nor there. There is an e-mail Exhibit P50 from Ishmael Lightbourne acknowledging receipt of the remittances, In any case, it does not’ lie in the mouth of the accused person to complain about this money. By his own admission his account was used to receive these funds from the victim. He did not lay claim to the money as his own. He cannot benefit from his own wrong.

This case could have gone differently if the accused person was charged along side PW7 who prima facie is heavily linked with this case. But the prosecution decided to use PW7 as a witness. PW7 showed himself as a tainted witness with his own purpose to serve. He lied under oath when he denied that the accused person bought cars and built houses for him. Exhibit D14 his statement to NDLEA contradicted him. In that statement, he said the accused person is the Chairman of their 419 business. He mentioned the cars and houses he got from the accused which are the proceeds of the 419.
Under cross-examination, PW7 admitted that he wrote petition to Force C. I. D Alagbon against the accused person on Ishmael Lightbourne and the reason he did so was because the accused person wrote a petition against him to NDLEA and the accused person also wrote a petition against the Chieftaincy title

conferment on his father. According to PW7, he wrote the petition “in order to pay the accused back in his own coin”. Also, PW7 denied writing a petition to stop the installation of the accused as a traditional ruler. That petition was tendered through PW1 who took the statement of PW7 and admitted as Exhibit D5.

In dealing with the question of veracity or credibility of a witness, the following factors are considered:-

a.       His knowledge of the facts to which he testifies.
b.      His disinterestedness
c.       His integrity
d.      Whether the evidence is contradictory or is contradicted
by the surrounding circumstances.      Onuoha V State
(1989) 2 NWLR (Pt. 101) 23.

I have no hesitation in holding that PW7 is not a credible witness.
His evidence is unreliable. I attach no weight to it.

In order to discredit the defence of the accused that the monies credited to his account were meant for PW7 and that PW7 received the Naira equivalent, the prosecution sought through expert opinion to show that the accused not PW7 signed Exhibits P23, P24 & P25 “Acknowledgment of Payment”

PW5 is the expert witness. I have no problems accepting his claim -to expertise in the field of handwriting analysis.   My problem is with his contradictory reports in Exhibits P28 and P29.

I agree totally with the submissions of defence counsel at page 9 paragraph 2.25 from line 4 of his address. In Exhibit P28, PW5 stated that the disputed signature in Exhibit P28(i) was a forgery by tracing. In Exhibit P29, he referred to the same signature as a specie of forgery known as free hand simulation from a master model. Under cross-examination he admitted that forgery by tracing and forgery by free hand simulation are different. I wonder which of the contradictory reports he wants me to accept. A court is not bound to accept a contradictory report of an expert. See Ngige V Obi (2006) 14 NWLR (Pt, 999) 1 at 143.

In contrast, the handwriting expert who gave evidence for the accused DW2 was not discredited and his report Exhibit D15 was not contradictory. I give weight to it. I accept his evidence that Exhibits P23 – P25 were signed by PW7.

Since PW7 is not on trial in this case, I will not say more on his culpability or otherwise.

Where there is no direct evidence of the representation made by an accused person in a charge of obtaining by false pretences, the accused person can still be liable under Section 7 of the Criminal Code if it is proved that he aided other accused persons who made the representation. Akran V Inspector General of Police (1960) NSCC (vol 1) 2.

Section 7(b – c) of the Criminal Code Cap C17 Laws of Lagos State. 2003 provides:

“7.     When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(b)    every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
(c)    Every person who aids another person in committing the offence”

In the case of Sunday lyaro V State (1988) 1 NWLR (Pt 69)
259, the Supreme Court held that to secure a conviction under Section 7 of the Criminal Code, it must be proved that either prior to or at the time of commission of the offence the person charged did something to facilitate its commission.

Aiding and abetting is a case of specific intent. A person possesses the mental element when at the time of aiding the principal offender he:
knows that the principal offender is committing or will possibly  commit the  actus  reus  of the   crime  in question.

Intends or at least knows that his or her conduct will assist or encourage the principal’s commission of this actus reus and

Knows  or  believes that the  actus  reus  is  being committed.   See Peter Gillies.   “Secondary Offences and Conspiracy”.   Criminal Law Journal Vol. 15 1991. See   also   Director   of   Public   Prosecution   for Northern Ireland V Lynch (1975) A. C. 653.

In this case, there is no principal offender.  For Section 7 to apply, the person assisted must have been found guilty of an offence.Abacha V State (2002) 11 NWLR (Pt. 779) 437. Also there is _ no evidence of the false representation, the inducement that proceeded  from the  accused or his supposed  accomplice to Ishmael Lightbourne that made the latter to send the money to the Bank Account of the accused person.  Onwudiwe V Federal       Republic of Nigeria (2006) 4 SC (Pt. 11) 70 at 106.

There is a very strong suspicion that the accused person knows more about this case than he has stated. It is trite law however that suspicion no matter how strong cannot take the place of legal proof. Onagoruwa V State (1993) 7 NWLR (Pt. 303) 49, Alake V State (1992) 9 NWLR (Pt. 265) 265, Abacha V State (supra).

Guilty knowledge cannot be founded on suspicion.

The specific amounts alleged in counts 2-18 are not proved. The documents tendered by the prosecution to establish these counts are documentary hearsay and inadmissible.

In a criminal case where the evidence adduced by the Prosecution is inadequate to implicate an accused person, the accused should be given the benefit of the doubt as the prosecution would then have failed to prove the case against the accused beyond reasonable doubt. Ubani V State (2003) 18 NWLR (Pt, 851) 224.
In this case, it is my finding that the prosecution failed to prove    counts 2 – 18 beyond reasonable doubt. I find the accused person not guilty on these counts.

The count, of conspiracy suffers the same fate. The Ist accused was alleged to have conspired with Goddyson West Africa Limited to commit the offences stated in this charge.

The 1st accused is the later ego, the directing mind of the 2nd accused. No evidence was produced by the prosecution to show that other Directors of the 2nd accused were involved in this case, The names mentioned in the charge as co-conspirators were not proved to be Directors of the 2nd defendant. This being so, the case of the prosecution is that the 1st accused conspired with himself since he is the face of the 2nd accused presented in this court.

Viscount Haldene L. C in Lennards Carrying Company Ltd V
Asiatic Petroleum Company Ltd (1915) A. C. 703 at 713 -
714 said on the status of a corporation:-

“A Corporation is an abstraction. It has no mind of its own anymore than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent; but who is really the directing mind and will of the corporation, the very ego and centre of personality of the  corporation.”

Since the 1st accused is the mind of the 2nd accused, he could not have conspired with himself. Director of Public Prosecution V Kent and Sussex Contractors Ltd (1944) AC 146; Federal Republic of Nigeria V Ikpe (2006) EFCCLR, 1.

Accordingly, I hold that count 1 is not proved.   I find the 1st and 2nd accused not guilty of count 1.

Counts 19 – 24 are in respect of forgery and uttering of Exhibits P23 – P25 the Acknowledgement Receipts. In view of my earlier finding in respect of the expert opinion of PW5, I hold that these

 

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