ADIJEH v. COMMISSIONER OF POLICE NASARAWA STATE

Briefly, the facts of the case leading to the Appeal are as follows: The Appellant was initially arraigned on before the Federal High Court, Lafia on a two-count charge 03-12-13. Subsequently, the Respondent filed an amended seven-count charge on 11-02-14 and the original charge was withdrawn and struck out. Thereafter, the Appellant pleaded not guilty on all seven counts on 17-02-14. The charge against the Appellant therefore read as follows:
1. COUNT 1
That you Kingsley Adijeh (male) of No. 130A Oniru Estate, Victoria Island, Lagos and one Chinyere Ogbonanya (female) now at large, on or about the 17/10/2013 at God is Able Pharmacy, Masaka, Karu Local Government Area of Nasarawa State within the jurisdiction of this Court committed an illegal Act to wit conspired and obtained (drugs) by false pretence worth five hundred and seven thousand four hundred naira (N507, 400.00) as shown on invoice number 1254 from God is Able Pharmacy, Masaka, Karu Local Government Area and absconded without paying for the said drugs and thereby committed an offence under Section 8 and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, CAP. A6 Laws of Federation of Nigeria, 2004.
2. COUNT 2
That you Kingsley Adijeh (male) of no. 130A Oniru Estate, Victoria Island, Lagos and one Chinyere Ogbonanya (female) now at large, on or about the 17/10/2013 at God is Able Pharmacy, Masaka, Karu Local Government Area of Nasarawa State within the jurisdiction of this Court obtained drugs worth five hundred and seven thousand four hundred naira (N507, 400.00) by false pretence using invoice number 1254 from God is Able pharmacy and absconded without paying for the said drugs and thereby committed an offence under Section 1(1 )(c) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, CAP A6, Laws of the Federation of Nigeria.
3. COUNT 3
That you Kingsley Adijeh (male) of no. 130A Oniru Estate, Victoria Island, Lagos on or about the 17/10/2013 at God is Able Pharmacy, Masaka, Karu Local Government Area of Nasarawa State within the jurisdiction of this Court obtained drugs worth three hundred and sixty seven thousand seven hundred Naira (N367,700.00) under false pretence from the said Minaco Pharmacy and absconded without, paying for the said drugs and thereby committed an offence under Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related offences Act, CAP A6 Laws of the Federation of Nigeria 2004.
4. COUNT 4
That you Kingsley Adijeh (male) of no. 13OA Oniru Estate, Victoria Island, Lagos sometime in August, 2013 and September, 2013 at Crown Pharmaceutical and Chemicals, Nig. Ltd. in Karu Local Government Area of Nasarawa State within the jurisdiction of this Court obtained drugs by false pretence worth N2,529, 660.00 and N 988,720 respectively from the said Crown Pharmaceutical and Chemicals Nig. Ltd and absconded without paying for the said drugs and thereby committed an offence under Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, CAP A6 Laws of Federation of Nigeria, 2004.

5. COUNT 5
That you Kingsley Adijeh (male) of no. 130A Oniru Estate, Victoria Island, Lagos on or about the 1st October, 2013 at Crown Pharmaceutical and Chemicals Nig. Ltd Karu Local Government Area of Nasawara State within the jurisdiction of this Court obtained drugs by false pretence from the said Crown Pharmaceutical and Chemicals Nig. Ltd worth N6, 051, 800 using invoice number 0015 and absconded without paying for the said drugs and thereby committed an offence under Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud

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Related Offences Act, CAP A6 Laws of Federation of Nigeria, 2004.
6. COUNT 6
That you Kingsley Adijeh (male) of no. 13OA Oniru Estate, Victoria Island, Lagos on or about the 15th October, 2013 at Crown Pharmaceutical and Chemicals Nig. Ltd Karu Local Government Area of Nasarawa State within the jurisdiction of this Court obtained drugs by false pretence from the said Crown Pharmacy worth N888,000.00 (eight hundred and eighty eight thousand Naira) using invoice no: 0021 and absconded without paying for the said drugs and thereby committed an offence under Section 1(1) (c) and punishable under Section 1(3) of Advance Fee Fraud and other Fraud Related Offences Act, CAP A6 Laws of Federation of Nigeria, 2004.
7. COUNT 7
That you Kingsley Adijeh (male) of no. 13OA Oniru Estate, Victoria Island, Lagos on or about the 16th October, 2013 at Crown Pharmaceutical and Chemicals Nig. Ltd Karu Local Government Area of Nasarawa State within the jurisdiction of this Court obtained drugs by false pretence from the said Crown Pharmaceutical and Chemicals worth N4, 977, 500.00 (four million, nine hundred and seventy seven thousand five hundred Naira) using invoice number 0022 and absconded without paying for the said drugs and thereby committed an offence under Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, CAP A6 Laws of Federation of Nigeria, 2004.”
In order to prove its case, the prosecution adduced evidence through four witnesses. In his defence, the Appellant testified for himself and called one other witness. The case against the Appellant was that he received drugs and goods from PW1, PW2 and PW3 without paying for them, with the instruction to deliver them to specific persons/businesses, some of which had issued Local Purchase Orders (LPOs) in that regard. However, he diverted the drugs with an intention to cause wrongful loss to the owners, absconded to an unknown location, switched off his phone lines and became incommunicado. He was later arrested by the Police in Lagos on 05-11-13 and brought to New Nyanya Police Station in Karu LGA of Nasarawa State. Thereafter, he was transferred to the Criminal Investigation Department (CID) of the Police Force in Lafia.
In his defence, the Appellant contended that after collecting the drugs and goods from the owners, he travelled to Lagos to render his yearly audit report to Orange Drug Pharmaceutical Company where he was a Sales Representative. He contended that this was merely a case of a debt owed by him to the people from whom he collected the drugs. He admitted that goods worth N12,000,000.00 (Twelve Million Naira) were supplied to him by PW1 but even though he disputed the amount stated in the charge, he did not know the actual amount of money he had since refunded and the quantity of drugs recovered from him by the Police, and therefore how much he still owed.
At the close of trial and final addresses of Counsel, the Appellant was found guilty on all counts of the charge and convicted for the offences of conspiracy and obtaining drugs by false pretences on 04-05-15. He was sentenced to ten years imprisonment to run concurrently, with effect from the date of his arrest. He was also ordered to make restitution of the drugs or their monetary value to the owners. Dissatisfied with the Judgment, the Appellant appealed to this Court on 18-06-15 complaining on seven grounds.
At the hearing of the Appeal on March 5, 2018, G.I. Enebeli Esq., adopted the Appellant’s Brief of argument filed on 26-10-17 and the Appellant’s Reply Brief filed on 23-01-18, both settled by G.I. Enebeli Esq., in urging the Court to allow the Appeal and set aside the Judgment of the lower Court. In like vein, T. Atime Esq., Senior State Counsel with the Federal Ministry of Justice, adopted the Respondent’s Brief of Argument settled by D.S. Dekaa Esq., in urging the Court to dismiss the Appeal.
In his Brief of argument, the Appellant submitted six issues for determination as follows –

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1. Whether the learned trial judge was right in law when it convicted the Appellant with one Chinyere Ogbonna for conspiracy to obtain drugs by false pretence in this case. (Ground 1)
2. Whether by virtue of Section 251 (1) (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 12 and 17 of the Advance Fee Fraud and other Fraud Related Offences Act, CAP. A6 Laws of Federation of Nigeria, 2004, the Federal High Court had jurisdiction to hear and determine charge no: FHC/LF/CR/16/2013. (Ground 6)
3. Whether the learned trial Judge was right when he failed to deliver separate verdicts in counts 1, 2, 3, 4, 5, 6 and 7 of the charge while passing the sentences. (Ground 3)
4. Whether the Federal High Court was right while sentencing the Appellant, ordered him to return the said drugs when on the record it was apparent that the conviction and restitution was a nullity as the quantity of the drugs and the monetary value of the alleged drugs was not proved. (Grounds 4 and 7)
5. Whether the Federal High Court was right in convicting the Appellant when it failed to separate counts 1, 2 and 3 with count 4, 5, 6 and 7 reported by different persons at various transactions and therefore, the charge is bad for misjoinder of offences. (Grounds 2 to 7)
6. Whether the prosecution has proved their case beyond reasonable doubt.

The Respondent adopted the six issues for determination formulated by the Appellant. However, upon a consideration of the issues for determination, the Court inquired from Counsel for the Appellant whether the issues distilled from the grounds of Appeal were competent. Counsel confidently contended that they were competent but simply superfluous. It is however apparent from the issues formulated that they are prolix. Issues 2, 3 and 4 are distilled from Grounds 3, 4, 6 and 7; while issue 5 is also distilled from Grounds 3, 4, 6 and 7. This is unacceptable as it offends the rules of brief writing. The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be covered by a single congruous issue for determination; but it is undesirable to split a ground of appeal into several issues. A Legal Practitioner who is familiar with the practice in the appellate Courts must know that proliferation of issues for determination in a Brief of argument is not tolerated.
It is the practice that whilst two or more grounds of appeal may generate one issue for determination, an Appellant is not permitted to formulate more than one issue from a Ground of Appeal. Proliferation of issues has therefore in countless judicial pronouncements been frowned upon. Such proliferation, rather than aid in the understanding of the issues raised in the Appeal, serves to confound them. The reason is obvious. Grounds of appeal complain on specific aspects in the Judgment of the Court, but issues deal with a number or agglomeration of grounds. Thus, proliferation of issues constitutes an error which has continually been deprecated by appellate Courts. See Amodu V The Commandant, Police College, Maiduguri (2009) All FWLR (Pt. 488) 195; Mercantile Bank of Nigeria Plc V Nwobodo (2005) 14 NWLR (Pt. 945) 379; Nnonye V Anyichie (1999) LPELR-5449(CA) 12-15, paras G-F per Tobi, JCA (as he then was); & Agbetoba V Lagos State Executive Council(1991) 15 NWLR (Pt. 188) 664.
In Agu V Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 401, Karibi-Whyte, JSC said
“The Court has counseled counsel formulating issues on several occasions to ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds relied upon, but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. This is because whereas an issue to be determined can take into consideration a number of grounds of appeal, it is not desirable to split a ground of appeal into a number of issues.
Thus, one ground can never properly raise more than one issue for determination. In the instant Appeal, in addition to the proliferation of the issues, issue 7 is not anchored to any ground of Appeal. The only issue therefore properly formulated by Counsel for the Appellant is issue 1 which is distilled from Ground 1. Consequently, issues 2 to 6 which have been proliferated, and issue 7 which has not been tied to any Ground of Appeal, are discountenanced.
Nonetheless, since this is a criminal Appeal which concerns the liberty of an individual, I am of the view that refusing to determine Appeal on the issues distilled from the Grounds

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of appeal by the Appellant may end up visiting injustice on the litigant who, through no fault of his, but that of Counsel, would have been prevented from ventilating his grievances before this Court and therefore would lead to a stultification of the Appeal process to his detriment. Thus, while discountenancing issues 2, 3, 4, 5 and 6 crafted by the Appellant, I will reframe the said issues distilled from Grounds 2 to 7 of the Grounds of Appeal. I am fortified in this by the decision of the Supreme Court in Atiku V State (2010) 9 NWLR (Pt. 1199) 241 at 264where it held that in a criminal appeal, the defect of proliferation of issues can be overlooked for the purpose of determining the real complaint in the grounds of appeal. The issues for determination are therefore re-framed as follows:
1. Whether the learned trial Judge was right in law when he convicted the Appellant along with Chinyere Ogbonanya (now at large) for conspiracy to obtain drugs by false pretence. (Ground 1)
2. Whether by virtue of Section 251(1) (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 12 and 17 of the Advance Fee Fraud and other Fraud Related Offences Act, CAP. A6 Laws of Federation of Nigeria, 2004, the Federal High Court had jurisdiction to hear and determine charge no: FHC/LF/CR/16/2013. (Ground 6)
3. Whether the learned trial Judge was right when he failed to deliver separate verdicts in counts 1, 2, 3, 4, 5, 6 and 7 of the charge while passing sentences. (Ground 3)
4. Whether the Federal High Court was right when it ordered the Appellant to return the drugs, the subject matter of the charge, when the quantity of drugs and their monetary value was not proved. (Ground 4)
5. Whether the Charge under which the Appellant was convicted is bad for misjoinder of offenders (sic) and has resulted in a breach of the Appellant’s right to fair hearing. (Ground 2)
6. Whether the prosecution has proved its case beyond reasonable doubt. (Grounds 5 and 7)

Issue one Whether the learned trial Judge was right in law when he convicted the Appellant along with Chinyere Ogbonanya (now at large) for conspiracy to obtain drugs by false pretence.
It is the contention of learned Counsel for the Appellant under this issue that from the evidence adduced, there is no proof that Chinyere Ogbonanya contributed or assisted the Appellant in committing any criminal act as alleged in the charge. Thus, the prosecution failed to prove the offence of conspiracy. In addition, it is argued that the prosecution did not prove fraud or intention to deceive the PW1, PW2 and PW3. Instead, the goods were not supplied as expected in September 2013 due to the delay in transportation and importation logistics. PW1 confirmed that he supplied drugs to the Appellant in August, 2013 and the Appellant sold same and paid him as agreed. Also, upon the Appellant’s arrest, the money in his account was used to pay PW1, PW2 and PW3. Consequently, there was no evidence that the accused misappropriated the money meant to pay PW1, PW2 and PW3 to cause any gain to himself or loss to them.
It is also contended that one Uche at Aba in Abia State returned the goods that the Appellant supplied to him and which were not sold. Furthermore, that since PW4 did not search for the Appellant in Lagos, the allegation that he had absconded was not proved. It is therefore submitted that the totality of the evidence of the prosecution only raised suspicion which cannot be relied upon to secure a conviction. Ahmed V State (2001) 8 NWLR (Pt. 746) 622; Nsofor V State (2004) 18 NWLR (Pt. 905) 292 at 317-318 paras, H-A, (SC); Emiowe V State (2000) 1 NWLR (Pt. 641) 408 (CA); & lgabele V State (2004) 15 NWLR (Pt. 314) (CA) are relied on.
In addition, it is contended that the prosecution failed to prove conspiracy and false representation against the Appellant; conspiracy being a meeting of minds of the conspirators and an intention/agreement of two or more persons to do an unlawful act or a lawful act by unlawful means. Reliance is placed on Posu V State (2011) 6 NCC 23 at 41- 42, paras G-A, per Galadima,

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JSC; Garba V COP (2007) 16 NWLR (Pt. 1060) 378 at 403, paras E-F, 411 paras F-H. Thus the Court is urged to resolve this issue in favour of the Appellant.
In response, the Respondent submits that evidence was adduced through PW2 to show that the Appellant conspired with Chinyere Ogbonanya (now at large) to defraud the complainants, and this evidence was unchallenged. Circumstantial evidence was adduced which unequivocally revealed a conspiracy between the Appellant and Chinyere Ogbonanya and the meeting of the minds of the conspirators to do an unlawful act. It was therefore immaterial that Chinyere Ogbonanya was at large.
It is argued that where a piece of evidence is unchallenged or uncontroverted, it is deemed admitted. In addition, where there is a failure by an adverse party to cross-examine a witness on the evidence presented, it is taken as an admission by the opposing party. Reliance is placed on Babarinde V State (2013) All FWLR (Pt. 662)1731 at 1764, para E; & Ojobi V State (2008) 4 NWLR (Pt. 1076) 171 at 194-195. The Court is therefore urged to resolve this issue in favour of the Respondent.
In his Reply Brief, the Appellant relies on Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that the alleged co-conspirator at large is presumed innocent until she is proved guilty. Since she was not arraigned before the trial Court and so did not defend herself from the allegation, she cannot be tried in absentia.
Findings –
Conspiracy is a legal term which has been defined as the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means.
For a conspiracy to exist there must be two or more persons involved, as one person cannot conspire with himself. The two or more persons must be found to have agreed in order to ground a conviction for conspiracy. Thus, to prove an offence of conspiracy, there must be an agreement which is an advancement of an intention conceived in the mind of each person secretly. The secret intention must have been translated into an overt act or omission or mutual consultation or agreement. It is trite that the Court can infer conspiracy from the circumstantial evidence or the facts of the case. In Tanko V State (2008) 16 NWLR (Pt. 1114) 597) 597 at 638, the Supreme Court held –
The Court can infer conspiracy and convict on it if it is satisfied from the evidence that the accused persons pursued by their acts the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design.
The essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be express or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. The agreement between the parties must be proved beyond reasonable doubt, and an inference or circumstantial evidence of an agreement would do. SeeSmart V State (2016) LPELR-40827(SC) 27; & Yakubu V State (2014) LPELR-22401(SC) 33.

Conspiracy is generally proved by inference deduced from the criminal acts of the culprits done in pursuance of the criminal or illegal purpose common to the conspirators. Proof of the actual agreement, which is the hub of the crime, is not always easy to establish since the agreement is almost always shrouded in secrecy. That being so, the facts of each case will determine whether or not a charge of conspiracy has been proved. See Rasaki V State (2011) LPELR-4859(CA) 67; Omotola V State (2009) 4 NCC 89; Tanko V State (2008) 16 NWLR (Pt. 1114) 591.

In the instant case, the evidence adduced through all three witnesses from whom the Appellant collected goods and drugs, to wit: PW1, PW2 and PW3, consistently disclosed that Chinyere Ogbonanya was introduced to them by the Appellant as his business partner as well as his fiance.
Indeed, Chinyere accompanied the Appellant when he took delivery of the goods from PW2, and it was she who sent part of the goods/drugs so collected to one Uche in Aba. It is therefore safe to draw an inference from the close dealings of the Appellant with Chinyere, the part she played in facilitating the deception and the her role as the business partner of the Appellant, that she was in cahoots with

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the Appellant when he collected the drugs/goods for the PW1, PW2 and PW3 under false pretences with an intent to defraud them. The fact that at the time of trial she could not be found to be arraigned alongside the Appellant does not detract from the evidence adduced at the trial on the conspiracy between the accused persons. The submission by learned Counsel for the Appellant that the trial Court breached Chinyere’s right to fair hearing by finding him guilty of conspiring with Chinyere, is erroneous. This is because the finding is essentially with respect to the charge against the Appellant and based on the circumstantial evidence adduced against him on the issue of conspiracy from which such an inference was validly drawn. Thus, based on these, I resolve issue one in favour of the Respondent.
Issue two – Whether by virtue of Section 251(1) (2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 12 and 17 of the Advance Fee Fraud and other Fraud Related Offences Act, Cap A6 Laws of Federation of Nigeria, 2004, the Federal High Court had jurisdiction to hear and determine the charge.
Learned Counsel for the Appellant contends that by a community reading of Sections 12 and 17 of the Advance Fee Fraud and other Fraud Related Offences Act, 2004 and Section 251(2) and (3) of the Constitution (supra), the Federal High Court had no jurisdiction to try the Appellant. The seven count charge alleged conspiracy to obtain drugs under false pretences contrary to Section 8 and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act. Reference is made to Sections 12 and 17 of the Act to submit that the Federal High Court, Lafia was without jurisdiction to try the Appellant. Instead, jurisdiction was imbued on the High Court of Nasarawa State to hear and determine the offences as charged.
It is argued that the word “shall” used in Section 12 connotes a mandatory discharge of a duty or obligation. Adra V Govt., Nasarawa State (2015) All FWLR (Pt. 764) 70 (CA); Okomu Oil Company V Tajudeen (2015) All FWLR 1101 (CA); Sogbesan V Chief, Naval Staff (2015) All FWLR) (Pt. 803) 1918; & Tabik Inv. Ltd V GTB Plc (2011) 6 SCNJ 20 at 30 are relied on.
In addition, it is argued that by Section 251(2) and (3) of the Constitution (supra), the criminal jurisdiction of the Federal High Court does not cover the offences for which the Appellant was charged; that the crux of counts 1, 2, 3, 4, 5, 6 and 7 of the amended charge is centered on the unrecovered monies allegedly owed by the Appellant and is not in respect of any of the offences set out in Section 251 the Constitution. In addition, that no Federal Government Agency was involved in the business transaction between the Appellant and the PW1, PW2 and PW3.
It is further submitted that the prosecution witnesses did not prove any of the essential ingredients of the offences alleged, even though the Court assumed jurisdiction wrongly. In addition, that whereas the Appellant pleaded to an initial two-count charge on 12-12-13 based on Sections 516 and 419 of the Criminal Code, this charge was subsequently amended on 17-02-13 without the leave of Court. It is submitted that the failure to seek leave to amend the charge, vitiates the trial as it has caused a miscarriage of justice to the Appellant. Reliance is placed on the Practical Approach to Criminal Litigation in Nigeria at pages 488 to 493, 1st Edition by J.A Agaba. The Court is therefore urged to hold that the trial Court lacked the jurisdiction to entertain the case.
In response, learned Counsel for the Respondent submits that the Appellant was tried and convicted in 2015 for offences bordering on defrauding PW1, PW2 and PW3 of drugs contrary to the provisions of the Advance Fee Fraud and other Fraud Related Offences Act Cap A6, Laws of the Federation Nigeria, 2004. The offences were said to have been committed in 2013. However, at the time the Appellant was arraigned before the trial Court right up to the time of his conviction and sentence, it was the Advance Fee Fraud and other Related Fraud Offences Act Cap A6 LFN, 2006 that was in force, and not the Advance Fee Fraud and other Related Fraud Offences Act CAP A6 LFN, 2004.
The latter was repealed by the Advance Fee Fraud and other Related Fraud Offences Act Cap A6, LFN, 2010.
It is therefore conceded that there was an error in the description of the applicable law as to the

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year and provisions stated in the charge, which was reflected as 2004 instead of 2006, hence the grouse of the Appellant on this issue. However, it is submitted that a mere mis-description of a statute creating an offence does not remove the acts or omissions from the category of offences known to law, where such an offence already exists. It is submitted that a conviction will not be set aside on appeal, (i) where an offence known to law is disclosed in a charge and the penalty for the offence is prescribed in a written and existing law, (ii) where the charge is erroneously brought under the wrong section of an existing law or brought under a law which has been repealed or has ceased to exist, (ii) both the accused and his Counsel are not misled, (iv) where no objection is raised to the defect in the charge, and (v) where there has been no miscarriage of justice. Reliance is placed on Ogbomor V State (1985) 1 NSCC 225; (1985) 2 SC 289; Yabugbe V COP (1992) 4 SCNJ 116; & Shehu V State (2010) 2-3 SC (Pt. 1) 158. In Obakpolor V State (1991) 1 NWLR (Pt. 165) 133, the Supreme Court held that an accused person who pleads to a charge after it has been read over and explained to him, might not thereafter successfully raise an objection on formal defects on the face of the charge. His plea to the charge is a submission to the Court’s jurisdiction if the defect does not deprive the Court of jurisdiction, as such will prejudice the power of Courts to amend charges at any time before Judgment.
It is further submitted that the amended charge was proper before the trial Court as leave was sought and granted, without any objection from the defence Counsel, to prefer same. Thus, that the Appellant cannot now seek to vitiate the same lawful proceedings which he participated in without objection. Moreover, the Court can suo moto amend a charge at any time before judgment is delivered.
It is finally submitted that it is not every error in a case that will result in interference by an appellate Court or that will result in an appeal being allowed. It is only when the error is substantial and has occasioned a miscarriage of justice that an appellate Court is bound to interfere. Reliance is placed on Ishaya V State (2013) ALL FWLR (Pt. 696) 588 at 602, paras F-G. The Court is therefore urged to hold that the lower Court had the requisite jurisdiction to entertain the case and a minor error in the mis-description of statute does not affect its jurisdiction as the Appellant was not misled thereby and there was no miscarriage of justice.
In the Appellant’s Reply Brief, on the contention that an objection should have been taken in respect of any defect in the charge immediately after the charge was read, Counsel submits that he does not need the leave of Court to raise a constitutional issue on appeal. It is argued that it is immaterial whether or not an objection was taken at the trial. An issue of jurisdiction can be raised at any time. Reliance is placed on Oyakhire V State (2007) 2 NCC 15 at 22 per Tabai, JSC; Obiakor V State (2002) 10 NWLR (Pt. 776) 612 at 626 and 627; & Gaji V Paye (2003) 8 NWLR (Pt. 823) at 583.

Also relying on Section 36(12) of the Constitution, 1999 (as amended), it is contended that since the Appellant was arraigned pursuant to the Advance Fee Fraud Act of 2004 which had been repealed, the trial and conviction under a non-existing law was in breach of the Constitution, and so the trial is void ab initio. Reliance is placed on Ogudo V State (2011) 18 NWLR (Pt. 1278) 50, paras F- H; & Aliu V State (2015) All FWLR (Pt. 782) 1706 at 1725, paras B-D. The Court is therefore urged to resolve this issue in favour of the Appellant.
Findings –
The complaints of the Appellant under this issue are mainly that, whereas the Advance Fee Fraud & other Fraud Related Offences Act of 2004 had been repealed by the Advance Fee Fraud & Other Fraud Related Offences Act of 2006/2010, the Appellant was charged under the 2004 Act. Secondly, that by the 2004 Act it is the State High Court that was vested with jurisdiction to try offences under the 2004 Act and not the Federal High Court. Thirdly, that by virtue of Section 251 of the Constitution supra, the Federal High Court lacks jurisdiction to entertain the charge of Advance Fee Fraud.
The Respondent on its part has readily conceded that the wrong law was set out in the charge against the Appellant.

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That whereas the Advance Fee Fraud Act of 2004 had since been repealed at the time the Appellant was charged in 2013, the charge erroneously reflected the 2004 Act. It is however argued that this is not necessarily fatal to the case as the Appellant was not misled by the mis-description of the Law nor did his Counsel raise any objection to the charge at the time of the Appellant’s arraignment nor was a miscarriage of justice occasioned thereby.
I must say from the onset that since the assertion of the Appellant is that he was charged and convicted under a repealed law, it raises a jurisdictional issue which can be taken up at any stage of the proceedings, even on appeal. See Eze V AG Rivers State (2001) 18 NWLR (Pt. 746) 524 at 559.
Indeed, Sections 21 and 22 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 provide as follows
21. (1) The Advance Fee Fraud and other Related Offences Act No. 13 of 1995, and the Advance Fee Fraud and other Related Offences (Amendment) Act, 2005 are repealed.
(2) The repeal of the Acts specified in Subsection (1) of this Section shall not affect anything done or purported to be done under or pursuant to the Acts.
22. This Act may be cited as the Advance Fee Fraud and other Fraud Related Offences Act, 2006
From the Ruling of the lower Court on the issue of jurisdiction delivered on March 17, 2015, it is evident that the Court relied on the provisions of the 2004 Act cited in the charge to determine that the Court was vested with jurisdiction to entertain the charge. In particular, it placed reliance on Section 12 thereof which explicitly gave the Court jurisdiction to proceed as it did. For ease of reference, Section 12 provided as follows
The Federal High Court shall have jurisdiction to try offences and impose penalties under the Act.
However, since by Sections 21 and 22 of the 2006 Act (reproduced above) the 2004/5 Act has been repealed and it is the 2006 Act that is the Law in existence at the time of the commission of the of the offences, it is the 2006 Act that must be examined with a view to determining whether or not the Federal High Court was conferred with jurisdiction to entertain the charge. Thus, Section 14 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 provides as follows
14. The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.
From this provision, it is unquestionable that learned Counsel for the Appellant is mistaken in his submissions that the Federal High Court lacked the requisite jurisdiction to entertain the charge against the Appellant in respect of offences said to have been committed in the year 2013.
On the scope of the jurisdiction of the Federal High Court as delineated under Section 251 of the 1999 Constitution (supra), it is again evident that learned Counsel for the Appellant chose to close his eyes to the express provision of Subsection (1) thereof and instead dwelt on Subsections (2) and (3) to make his point. Section 251(1) (2) and (3) of the Constitution (supra) expressly provide thus
251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters
(2) The Federal High Court shall have and exercise jurisdiction and power in respect of treason, treasonable felony and allied offences.
(3) The Federal High Court shall have and exercise jurisdiction and powers in respect of criminal causes and matter in respect of which jurisdiction is conferred by Subsection 1 of this section.
These provisions are explicit and speak for themselves, and thus do not require any further elucidation. It makes it clear that by the Subsection (1) the jurisdiction of the Federal High is not excluded in matters as may be vested on it by an Act of the National Assembly. The Advance Fee Fraud and other Fraud Related offences Act of 2004 and that of 2006 were Acts of the National Assembly which conferred jurisdiction on the Federal High Court in respect of the offences spelt out therein. Therefore, it is patently wrong for the Appellants Counsel to suggest that the criminal jurisdiction of the Federal High Court is only limited to the matters set out in Subsection (2) of Section 251 without acknowledging the

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additional jurisdiction recognized in Subsections (1) and (3) thereof.
In respect of the consequences/effect of charging and convicting the Appellant under a wrong provision of the law, the law is that if the facts on which an Appellant was convicted are known to law, the fact that an accused person was charged under a wrong law or section of the law will not lead to his acquittal. See Olatunbosun V State (2013) LPELR-20939(SC) 32 per Akaahs, JSC; Dokubo-Asari V FRN (2007) All FWLR (Pt. 375) 558; (2007) 5-6 SC 150; & Mohammed V State (2007) 7 NWLR (Pt. 1032) 152.
In the case of Ogbomor V State (1985) 1 NWLR (Pt. 2) 223 at 233, the Supreme Court held
A combined reading of provisions of Section 33(8) and 33(12) of Constitution 1979 suggest that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated.
The Court further held that although it does no credit to the prosecution to describe or set out incorrectly the title of the Act under which an offence is charged, it will be falling into serious error in law and unreasonable depth of technicality occasioning grave miscarriage of justice to hold that the offence does not exist by virtue of the mis-description of the applicable provision of the law.
Thus, a mere mis-description of the law under which a charge has been brought does not necessarily render the offence charged unknown to law at the time of the commission of the offence. Therefore, as long as the offence charged discloses an offence in a written law and such a law is in existence at the time of the commission of the act(s) alleged in the charge, the charge is defective, but valid. Consequently, even though the 2004 Act had been repealed by the 2006 Act, the offences of criminal conspiracy and obtaining goods by false pretences under the extant Act were offences known to the law in the 2006 Act, which was the law applicable at the time of the commission of the offences in 2013.
The law is settled that it is the law in force at the time the cause of action arose or when the offence was committed that becomes the applicable law.
In addition to the above, Section 382 of the Criminal Procedure Code provides as follows
Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal procedure Code unless the appeal Court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.
In the explanatory notes to the provision, it is added as follows
EXPLANATION. In determining whether any error, omission or irregularity in any proceeding under this Criminal Procedure Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
As rightly pointed out by learned Counsel for the Respondent, even though the Appellant was ably represented by Counsel all throughout the trial before the lower Court, no objection was raised that the Appellant was charged under the repealed Act of 2004, instead of the Act of 2006. Therefore, Counsel having not shown how this error has misled the Appellant, and also having not raised an objection during the proceedings before the trial Court on this ground, no miscarriage of justice has been shown to have been occasioned.
I therefore endorse the findings of the learned trial Judge that the Federal High Court had jurisdiction to try the Appellant for the offences. The mis-description of the law in the charge was not fatal to the proceedings as the facts stated in the charge disclosed offences known to a law that was in existence at the time the Appellant was charged, tried and convicted. In addition, there is no evidence to show that the Appellant was misled by this defect in the charge, which is a mere

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irregularity/misnomer, and so no miscarriage of justice has been occasioned thereby. Issue two is therefore resolved in favour of the Respondent.
Issue three – Whether the learned trial Judge was right when he failed to deliver separate verdicts in counts 1, 2, 3, 4, 5, 6, and 7 of the charge while passing the sentences.

Under this issue, learned Counsel for the Appellant submits that by Section 269(2) of the Criminal Procedure Code, if a judgment is a judgment of conviction, it shall specify the offence and section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. It is his contention that in the instant case, there was no compliance with that provision. For the principles guiding sentencing, reliance is placed on Garba V COP (2007) 16 NWLR (Pt. 1060) 378 at 407-408, paras G-B & 414, paras B-C. It is therefore submitted that since the trial Judge failed to separate the sentences and lumped the offences together, it occasioned a miscarriage of justice against the Appellant and the Court is urged to declare the Judgment a nullity. The Court is also urged to resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent submits that the failure of the trial Judge to deliver separate verdicts on counts 1, 2, 3, 4, 5, 6 and 7 of the charge while passing sentence on the Appellant is not fatal and does not occasion any miscarriage of justice, hence this Court should not interfere with it. Reliance is placed onOnyejekwe V State (1992) NWLR (PT 230) 444 at 453 SC. In Bankole V State (1980) 1 NCR 334, the Court held that although a verdict must be given on each count and a separate sentence passed in respect of each count of offence for which there was a conviction, the irregularity was however rectified by the Court of Appeal which confirmed a sentence of death on both counts separately. In the light of these decisions, the Court is urged to jettison the submissions of Appellant’s Counsel as the inability of the trial Court to deliver separate verdicts on the separate counts did not occasion any miscarriage of justice to the Appellant.
In his Reply Brief of argument, the Appellants Counsel submits that the failure to record the conviction or sentence is not a mere irregularity but a fundamental defect.
Findings –
It is indeed the law that where an accused person is charged under several counts of charge, separate verdicts are required to be passed on each head/count of charge. Section 296(2) of the Criminal procedure Code provides as follows
269 (1) Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the Court in open Court at the time of pronouncing it.
(2) If the judgment is a judgment of conviction it shall specify the offence of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced.
The law has been reiterated and reinforced by several judicial pronouncements from the apex Court as well as from this Court. Nonetheless, since the ultimate objective of every Court is to do substantive justice and as much as possible, not to sacrifice justice on the altar of technicalities, the Supreme Court in giving recognition to this policy and philosophy of justice, has held that it is not in all cases that such an error will be fatal to the case.
For instance, in the case of Solola V State (2005) LPELR-3101(SC) 20, paras D-G, the Supreme Court per Edozie, JSC held as follows
Where several persons are tried together, separate verdicts must be returned in respect of each of the accused persons and where there are several counts of information, separate verdicts must be delivered in respect of the several counts. However, the error in failing to return a separate verdict on each count against each accused will not result in quashing of the verdict, where as in the instant case, no miscarriage of justice has occurred. See City Engineering (Nig.) Ltd V NPA (1999) 11 NWLR (Pt. 625) 76 at 89; Eyisi V State (2000) 15 NWLR (Pt. 691) 555 to 574. (Emphasis supplied)
Again in Onyejekwe V State (1992) LPELR-2731(SC) 12-13;(1992) NWLR (PT. 230) 444 at 453 SC, the Supreme Court per Omo, JSC, held Once it is clear, from the evidence led and/or findings of the trial Judge that the

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appellant has been found to have committed the offence charged, the failure to record the conviction should not prevent the appellate Court from so holding.
It should be regarded as an irregularity/slip and not an illegality. The decision of Baker Ag. CJ in Seedi’s case (supra) seems to me still correct when he held that The omission is one of procedure and might be described as a mere technicality and which in our opinion cannot be considered fatal and is within the power and duty of the Court to remedy so that substantial justice may be done.
Further, in exercise of its powers under Section 16 of the Court of Appeal Act 1976 and Section 22 of the Supreme Court Act, the Court of Appeal and the Supreme Court respectively can enter the correct conviction or sentence as the case may be, without sending the case back to the trial Court for the record to be corrected. (Emphasis supplied)
In his own contribution to the Judgment of the Court, Belgore, JSC (as he then was) added to the discussion as follows at page 15 of the E-Report –
Once evidence is clear and is supported by law the mere fact that the sentence based on the conviction is not in line with the appropriate statutory wording should be regarded as a mere irregularity not vitiating the conviction. (Emphasis supplied)
In the instant case, the learned trial Judge, at pages 141 to 142 of the Record, found as follows:
I therefore find you Kingsely Adijeh guilty of conspiracy with one Chinyere Ogbonna to obtain drugs by false pretence worth 507, 400.00 (Five Hundred and Seven Thousand, Four Hundred Naira) as shown on invoice number 1254 from God is able pharmacy Masaka, Karu Local Government Area and absconded without paying for the said drugs, contrary to Section 8 and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act CAP A6 Laws of the Federation of Nigeria 2004.
I also find you guilty of committing the offences in counts 2, 3, 4, 5, 6 & 7 of the charge. I convict you on all the count (sic).
From the above, it is evident that while a separate verdict was pronounced in respect of count one of the charge, it is still deficient as a separate sentence was not pronounced; while separate verdicts were not entered at all in counts 2 to 7 of the charge. There was therefore non-compliance with the law in that the learned trial Judge lumped the verdicts and the sentences together.
However, in view of the law and the decisions of the apex Court, I find the failure of the trial Court to pronounce separate verdicts on each count of the counts of charge an irregularity/slip against procedure which is not fatal to the proceedings, as it is within the power and duty of this Court to remedy so that substantial justice may be done.
It is also the law that an appellate Court should not and would not interfere with the verdict of the trial Court unless such verdict is shown to be perverse or is not the result of a proper appraisal of the evidence. See Ahmed V State (1999) LPELR-263(SC) 76 per Achike, JSC; & Otumbere V State (2013) LPELR-22875(CA) 17. A verdict of a Court is only perverse when it runs counter to the evidence and the pleadings before it or where a Court takes into account matters it ought not to take into consideration, or where a Court shuts its eyes to the evidence, or where it has occasioned a miscarriage of justice. See Unilorin V Abegunde (2013) LPELR-21375(CA) 40; Momoh V Umoru (2011) 15 NWLR (Pt. 1270) 217; Onyekwelu V Elfpet(2009) 5 NWLR (Pt. 1133) 181; Lagga V Sarhuna (2008) 16 NWLR (Pt. 1114) 427.
In the instant case, the overall findings of the trial Court convicting the Appellant on all counts of charge for the offences of conspiracy and obtaining properties under false pretences under Section 8 and Section 1(1) (c) of the Advance Fee Fraud and other Related Offences, 2006, have not been shown to be perverse. However, in view of the failure of the lower Court to deliver separate verdicts on each of counts 1 2, 3, 4, 5, 6 and 7 of the charge, I hereby set aside the verdicts on that ground alone. I therefore resolve this issue in part in favour of the Appellant.
Issue four Whether the Federal High Court was right when it ordered the Appellant to return

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the drugs, the subject matter of the charge, when the quantity of the drugs and their monetary value was not proved.
Learned Counsel for the Appellant submits that the nominal complainants were unable to prove with certainty the monetary value of the drugs returned and the quantity of drugs brought from Aba to New Nyanya. Reference is made in this regard to the evidence of PW4, the investigating Police Officer. The inventory of the goods and drugs returned by the Appellant upon his arrest and released to PW1 or the owners of the drugs was not tendered in Court. The quantity and the monetary value of the drugs were also not stated in the evidence of the prosecution. The three invoices in Exhibit PI only stated the products supplied to the Appellant and not the products recovered from him. In addition, the Appellant’s statements while in the custody of the Police at New Nyanya and the State CID in Lafia were not tendered.
In addition, it is contended that the Appellant could not also tell how much he owed the PW1, PW2 and PW3 because he needed to check the quantity of the drugs recovered before he could reconcile the accounts with them. This is in addition to the fact that he refunded some money. It is therefore contended that there is an uncertainty in respect of the outstanding amount in the business transactions between the PW1, PW2 and PW3 and the Appellant. Consequently, it would be unfair to order the Appellant to return drugs which had been recovered and part of the money recovered from Diamond Bank while he was in detention. It is thus submitted that the order is perverse and should be set aside.
In response, the Respondent submits that during the trial, the prosecution led cogent evidence to establish the quantity and monetary value of the drugs which the Appellant defrauded the PW1, PW2 and PW3 of. Thus, that the lower Court was right in convicting the Appellant for defrauding the complainants and in ordering restitution of the drugs or their monetary value. It is contended that even the Appellant in his testimony conceded to the value of the drugs. Since the Appellant’s Counsel did not cross-examine the prosecution witnesses on the value of the drugs, it is fatal to their case, and the evidence on same is deemed admitted. Reliance is placed on Babarinde V State (supra). The Court is therefore urged to resolve this issue in favour of the Respondent.
In a reply on points of law, Counsel for the Appellant made submissions on facts and not on any new points of law arising. Same is therefore discountenanced.
Findings
The contention of the Appellant’s Counsel under this issue is that the trial Court was wrong when it made an order of restitution in line with the provisions of the Advance Fee Fraud Act when there was uncertainty over the exact quantity of drugs in his custody as well as the amount of money paid by him during investigations. Firstly, there is no doubt that the lower Court was possessed of jurisdiction to make an order of restitution by law.Section 11 of the Advance Fee Fraud Act of 2006, provides as follows
11. (1) In addition to any other penalty prescribed under this Act, the High Court shall order a person convicted of an offence under this Act to make restitution to the victim of the false pretence or fraud by directing that person –
(a) Where the property involved is money, to pay to the victim an amount equivalent to the loss sustained by the victim; in any other case (i) to return the property to the victim or to a person designated by him; or (ii) to pay an amount equal to the value of the property, where the property is impossible or impracticable.
From the evidence adduced before the lower Court, PW1, PW2 and PW3 gave explicit evidence on the drugs and goods which the Appellant collected from them under the guise of being a salesman. They gave him specific instructions on who and where to deliver the drugs to based on the LPO’s collected from such persons and/or businesses. In addition, the witnesses testified to the monetary value of these goods. For instance, PW1 stated in his evidence that the total amount which the Appellant was supposed to return to him as the cost of the drugs given to him (Appellant) to supply

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as per the invoices in Exhibit P1, was N12, 287, 087.00 (Twelve Million Two Hundred and Eighty Seven Thousand Eighty Naira only). See also the evidence of the PW2 and PW3 on this.
Upon the arrest of the Appellant however, each of these witnesses agreed that some money was recovered from the Appellant to the tune of N2, 500,000.00 (Two Million, Five Hundred Thousand Naira only) and it was shared among them by the Police, in addition to some drugs which were retrieved and returned to them, quantity unspecified. These witnesses/victims also gave evidence on the monetary value of the drugs remaining outstanding which were collected from them by the Appellant. For instance, PW1 (Boniface Ado Otokpa of Crown Pharmaceutical & Chemicals Nig. Ltd) testified (at pages 51-52 of the Record) as follows:-
The summative (sic) of the goods returned and the money returned and the money returned (sic) to me was four Million, One Hundred and Ninety Two Thousand, Nine Hundred and Ninety Naira. There is balance of Eight Million, Ninety Four Thousand, Seven Hundred and Ninety Naira is yet outstanding.(Emphasis supplied)
PW2, (Idenyi Joseph Ugwu of Minaco Pharmacy Nig. Ltd) on his part, testified at page 54 of the Record thus
With the Police he was taken to Court in Mararaba for order to de-freeze his account when the account in Diamond Bank was de-freeze (sic), he transferred N2.8 m in Pharmacy Otorkpa’s account; out of which two hundred and fifty seven thousand four hundred naira, was given to me as part payment of my own amount. Remaining outstanding balance of N250, 000.00 only.(Emphasis supplied)
Finally, PW3 (Chukwuma Ikpete of God is Able Pharmacy Ltd) testified at pages 55-56 of the Record thus
The last order I gave him around September was three hundred and sixty thousand and seven hundred naira.He did not pay I brought duplicate of the invoice I issued to him where he signed and his name was here that is the Invoice of N360, 000.00 to the Police. It was then he admitted and said part of the money was still with him He told the Police he will bring part of the money and that some of the drugs were still with him. We went to Diamond Bank, Mararaba with the Police and the Accused. There he transferred some money to Pharm Otorkpa’s account, out of which I was given One Hundred and Eighty Thousand, Seven Hundred Naira. (Emphasis supplied)
From the Record of Appeal, the evidence of these witnesses on the monies outstanding to be paid to them by the Appellant (after the deduction of the monetary refunds and the drugs returned while he was under arrest), was neither challenged under cross-examination nor controverted by any other evidence to the contrary. Instead, all that the Appellant could say about the sums of money he was charged with obtaining under false pretences from the businesses of PW1, PW2 and PW3 is as follows at page 65 of the Record-
The goods supplied to me by Crown Pharmacy is worth about twelve million naira. I do not know how much that has been refunded I cannot really say how much I am owing him. Minaco Pharmacy, his balance with me is hundred and something, out of nine hundred thousand. God is able Pharmacy his balance with me is two hundred and something thousand out of five hundred and something thousand. Emphasis supplied)
There is therefore incontrovertible evidence of the monies the Appellant obtained from the complainants under false pretences, less the monies and drugs subsequently recovered by the Police from the Appellant. The Appellant, who has now challenged the order of restitution made, was unable to state the exact amount of money and drugs which was recovered from him. Instead, he admitted to not knowing how much money was still outstanding against him from the drugs he obtained under false pretences.
Consequently, in the light of positive evidence from the PW1, PW2 and PW3 in respect of the exact monetary value of the drugs and goods collected from them by the Appellant under false pretences, the restitution ordered should have been limited to the drugs or their monetary value remaining unrecovered from the Appellant which was proved by credible evidence adduced through the PW1 PW2 and PW3. I therefore set aside the Order of restitution in the terms made by the lower Court; same shall be varied and substituted to bring it in line with the quantity of drugs and their monetary value proved by credible evidence. Issue four is therefore resolved in part in favour of the Appellant.

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Issue five Whether the charge under which the Appellant was convicted is bad for misjoinder of offenders and has resulted in a breach of the Appellant’s right to fair hearing.
Learned Counsel for the Appellant readily admits that this issue was not raised at the lower Court and is therefore being raised for the first time before this Court, with leave sought and obtained. Counsel contends that the trial Court erred in law when it failed to separate counts 1, 2 and 3 of the charge from counts 4, 5, 6, and 7, which incidents were reported by different persons on different dates and in respect of various transactions. Counts 1, 2 and 3 consist of a complaint laid by PW2 in respect of a transaction by the Appellant with God is Able Pharmacy in Masaka at Karu which took place on or about 17-10-13. PW1 on the other hand is the proprietor of Crown Pharmaceutical and Chemical Nigeria Ltd in Karu Local Government Area of Nasarawa State and the offences in counts 4, 5, 6 and 7 took place between August, September and October, 2013.
It is therefore contended that the charge is bad for misjoinder of offences as the Appellant ought to have been tried separately for the different offences. Failing to do so amounted to a violation of the Appellant’s right to fair hearing as the charge is bad for misjoinder of offences. The Court is therefore urged to resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent submits that the trial Court was right in convicting the Appellant on counts 1, 2, and 3 with counts 4, 5, 6, and 7 reported by different persons for various transactions within a period of 12 months, and thus the charge is not bad for misjoinder of offences. Reliance is placed on Section 157 of the Criminal Procedure Act, LFN 2010 and Section 209 of the Administration of Criminal Justice Act, 2015. It is contended that the case was prosecuted by the office of the Attorney General of the Federation, in conjunction with the Commissioner of Police, Nasarawa State as complainant, and the PW1, PW2, and PW3 as informants to the Police.
It is further submitted that the rule against misjoinder of offences is not static but admits of certain exceptions. One of such is that a person accused of more than one offence within a period of 12 months may be charged with more than three of such offences in the same charge sheet. It is immaterial that the three offences were committed against the same persons or in respect of the same thing. The Court is therefore urged to hold that the lower Court was right in convicting the Appellant on all counts of the charge in respect of three offences committed within a period of 12 months and reported by three different persons and the charge is not bad for misjoinder of offences. It is further contended that the defence waived their right to complain on any defect in the charge (if any) as they did not raise the issue timeously.
The Appellant’s submissions in his Reply Brief were a rehash of the arguments in the Appellant’s Brief. They are therefore discountenanced as that is not the function of a Reply Brief.
Findings –
In the consideration of this issue, I have been hard put to comprehend the complaint of learned Counsel for the Appellant. His complaint is essentially that the charge is bad for misjoinder of offenders Yet the sum total of his arguments thereunder complains that the allegations from different complainants, to wit: PW1, PW2 and PW3, were brought together under different counts of the same charge. The complaint of a misjoinder of offenders is quite different from the content of the complaint of the Appellant in his Brief of argument. This is clearly because PW1, PW2 and PW3, being the complainants to the Police, cannot by any stretch of the imagination be referred to as offenders. The Oxford Advanced Learners Dictionary at page 1018 defines an offender as:
1. a person who commits a crime, 2. A person or thing that does something wrong.
I therefore find the submissions of Counsel under this issue misplaced.
From a cursory examination of the Criminal procedure Code (CPC) applicable to States in the northern part of Nigeria (as opposed to the Criminal Procedure Act (CPA), provision is made for offences which may or may not be tried together, as well as offenders (accused persons) who may be tried together. For ease of reference, the relevant provisions of the CPC are set out hereunder:

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212. For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in Section 213, 214, 215, 216 and 221.
An example of this is where A is accused of theft on one occasion and of causing grievous hurt on another occasion. A must be separately charged separately tried for the theft and for causing grievous hurt.
The exceptions referred to in Section 212 provide as follows:
213. Where a person is accused of several offences of the same or similar character he may be charged with and tried at one trial for any number of them; but if the Court, before the trial or at any stage of the trial before judgment is pronounced, considers that he may be prejudiced or embarrassed in his defence by such procedure or that for any other reason it is desirable to do so, the Court may order a separate trial of any one or more of such charges.
214. (1) If a series of acts so connected together as to form the same transaction is alleged the accused may be charged with and tried at one trial for every offence which he would have committed if all such acts or some or more of them without the rest were proved.
215. If a series of acts is of such a nature that it appears that an offence was committed on one or several occasions but it is doubtful whether the facts which can be proved will show on which occasion an offence was committed the accused may be charged with having committed an offence alternatively on one or other of such occasions.
216. If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed one or other of the said offences.
Thereafter, Section 221 of the CPC provides seven (7) groups of offenders who may be charged and tried together.
From the submissions of learned Counsel for the Appellant, the complaints made to the Police were made by the three different Pharmacies/businesses owned by PW1, PW2 and PW3 on different dates and for various drugs of differing monetary values. In other words, his complaint is that he was charged of having obtained drugs under false pretences from the various businesses owned separately by PW1, PW2 and PW3 when he should have been charged separately. However, by complaining of misjoinder of offenders the complaint is actually that the Appellant was wrongly tried along with other offenders, to wit persons also alleged to have committed crimes. However, aside from count one of the charge where the Appellant was charged along with Chinyere Ogbonanya, still at large, all other six counts of charge were against the Appellant alone.
Nevertheless, even if the intention of the Appellant was to complain that the complaints made by the three complainants, PW1, PW2 and PW3 should have constituted separate charges, I agree with the submission of learned Counsel for the Respondent that the law in this regard is not on his side.
Section 209 of the Administration of Criminal Justice Act, provides as follows
For every distinct offence with which a defendant is accused, there shall be a separate charge and every charge shall be tried separately except in the following circumstances:
(a) any three offences committed by a defendant within 12 months whether or not they are of the same or similar character or whether or not they are in respect of the same person or persons; or
(b) any number of the same type of offence committed by a defendant; or
(c) any number of offence committed by a defendant in the course of the same transaction having regard to the proximity of the time and place, continuity of action and community of purpose.
On all counts therefore, I find this issue as framed misconceived. It is accordingly resolved against the Appellant.

Issue six Whether the prosecution has proved its case beyond reasonable doubt.
Under this issue, it is submitted by Counsel for the Appellant that from the evidence on record, the prosecution failed to prove its case beyond reasonable doubt.

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It is contended that the failure to tender the statement of the Appellant in Court amounted to withholding evidence which is capable of creating doubt in the mind of the Court as to the veracity of the allegations in the charge against him. He argues that the Appellant should be accorded the benefit of this doubt and Section 167(d) of the Evidence Act, 2011 should also be invoked against the Respondent. Reliance is placed on Aroyewun V COP Ogun State; Ogudo V State (2011) 18 NWLR (Pt. 1278) 12 at 31, paras E-G per Rhodes Vivour, JSC; & Majema v State (1967) NMLR 56.

In addition, it is contended that since all that the PW4 (IPO) did in this case was to recover debts for the PW1, PW2 and PW3, it is illegal for the Police to be involved in debt collection or the enforcement of contracts, which is a civil and not a criminal matter. Reliance is placed on Umar V Abdulsalam (2001) 1 CHR 413 at 43; Re: G.B. Olowu (1971) 2 All NLR 147 at 152; Mclaren V Jennings (2003) 5 FWLR 107 at 114; & Afribank Nig. PLC V Oyima.

It is further contended that all that the prosecution proved was that goods were supplied to the Appellant which he could not pay for before he was arrested on 05-11-13.
PW1 admitted that payments were to be made on the 22nd of every month. This corroborates the reason given by the Appellant for his non-payment, which was that the payment was not due at the time of his arrest. PW1, PW2 and PW3 all stated that they wanted the Court to recover their money. It is also contended that the Appellant, as a Sales Representative, travelled to Lagos for the annual rendering of account and so did not abscond. In addition, it was not proved that Appellant’s phone was not lost, as he explained. It was also not proved that the Appellant diverted any money received from the sales of the goods/drugs meant to be paid to PW1, PW2 and PW3. Instead, it was evident that the money received was still in the Appellant’s account, while the customers to whom he supplied the drugs were yet to pay for the goods collected.
Counsel also contended that the allegation of conspiracy was not proved since only the Appellant was charged for conspiracy and one man alone cannot conspire with himself. In addition, the offence of false pretence was not proved as no element of recklessness or fraud was shown. It is therefore contended that the entire allegations were based on suspicion, which cannot ground a conviction. Reliance is placed on Emiowe V State (2000) 1 NWLR (Pt. 641) page 408 CA. The Court is therefore urged to resolve this issue in favour of the Appellant.
On its part, learned Counsel for the Respondent, relying on Section 135 of the Evidence Act, submits that the prosecution discharged the burden of proof placed on her by proving the case against the Appellant beyond reasonable doubt. Reference is made to the evidence adduced through the PW1 who testified that, before engaging the Appellant to sell drugs for him, the Appellant informed him that he had resigned from Tyonx and promised to sell the drugs/pharmaceutical products of the PW1; whereupon PW1 engaged the Appellant as a salesman to sell his products in the Nasarawa and Federal Capital Territory axis to his customers. The Appellant was to remit the proceeds of the sale of the drugs to him on or before the 22nd day of every month, but the Appellant failed to comply. PW1 further testified that the Appellant issued or supplied the drugs to persons not agreed upon between him and the Appellant. It is contended that since this evidence was not controverted, the trial Court was right in relying on it in convicting the Appellant.
It is submitted that PW2 also testified that the Appellant came to his Pharmaceutical company on 17-10-13 with one Chinyere Ogbonna whom he introduced as his business partner. They obtained drugs from him which they sold to one Mr. Goodness at Nyanya and promised to bring the cheque as payment for the drugs the next day. They however defaulted.
PW3 testified that the Appellant introduced PW1 to him as his Manager. He gave the Appellant drugs which the Appellant promised to pay for within two weeks. He failed to do so and whenever PW3 called him on phone, the Appellant would promise to pay the next day. On 23-09-13, the Appellant switched off his phone lines and could not be traced. When the Appellant was eventually arrested, the Appellant told the Police at Nyanya, Gwandara Police Station that he did not know the PW3. It was only when PW3 showed the Police the invoice signed by the Appellant that he then admitted doing business with PW3. Thus, it is contended that his intention was to defraud PW3.

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It is therefore submitted that the evidence adduced by the prosecution was unequivocal that the Appellant obtained drugs from PW1, PW2 and PW3 and absconded without paying for them. He switched off his phone lines and vacated his residence in Nasarawa State to an unknown destination without informing PW1, PW2 and PW3 of his whereabouts. It is therefore submitted that this showed his intention to abscond with the drugs and money of the PW1, PW2 and PW3.
Furthermore, it is submitted that the Appellant admitted that he had sold the drugs and was paid various sums of money. He also admitted obtaining the drugs mentioned in the exhibits (invoices) tendered in evidence. He admitted to being paid for the drugs and that the money was paid into his Bank accounts either with First Bank or Diamond Bank. It is therefore submitted that the Appellant obtained drugs from PW1, PW2 and PW3 with the false intention that they were to be supplied to the persons or customers mentioned in the invoices, but he eventually converted and diverted the drugs to his own customers at destinations unknown to PW1, PW2 and PW3 and those not mentioned in the invoices. Therefore, that the prosecution successfully proved the ingredients of the offences charged.
It was denied that the charge before the trial Court was a money recovery exercise. Instead that it was a case of fraud contrary to the provisions of the extant laws. The Court is therefore urged to discountenance submissions of the Appellant’s Counsel as same is a desperate attempt to exculpate the Appellant from culpability. The findings of the trial Court were not perverse and so an appellate Court will not interfere with such findings. The Court is therefore urged to resolve this issue in favour of the Respondent.
In his Reply Brief, the Appellant’s Counsel again rehashed the arguments in his Appellant’s Brief.
Findings
The term false pretences denotes the offence of knowingly obtaining another person’s property by misrepresenting a fact and/or facts with the intent to defraud that person. The offence of obtaining money by false pretences has been aptly defined under the Advance Fee Fraud and Fraud Related offences Act, 2006 thus:
20. In this Act -false pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present which representation is false in fact or law, which the person making it knows to be false or does not believe to be true.
It is settled that the fundamental ingredients that are required to be proved to establish the charge of obtaining money or property by false pretences are as follows:
(a) That there was a pretence;
(b) That the pretence emanated from the accused person;
(c) That the pretence was false;
(d) That the accused person knew of the falsity of the pretence, did not believe its truth;
(e) That there was an intention to defraud;
(f) That the property or thing is capable of being stolen;
(g) That the accused person induced the owner to transfer his whole interest in the property.
See Odiawe V FRN All FWLR (Pt. 439) 436; Onwudiwe V FRN (2006) All FWLR (Pt. 319) 774 at 812 to 813, paras G-F, per Tobi, JSC.

In the instant case, there was ample evidence from the PW1, PW2 and PW3 that the Appellant held himself out to be a salesman for Pharmaceutical Companies who collects Local Purchase Orders (LPOs) for the supply of drugs, etc. from various companies and is given drugs to supply to the companies; and then to pay the money for the drugs so supplied to their owners. The PW1 had previously dealt with the Appellant when he was a salesman for Orange Pharmaceutical Drugs Company. After the Appellant left the company, he presented himself as a freelance salesman who was still in the business of farming out drugs, etc on behalf of Pharmaceutical Companies.

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Consequently, over a period of three months, August, September and October, 2013, PW1 gave the Appellant drugs to the tune of N12 million as evidenced by the invoices admitted as Exhibit P1 before the Court; while PW2 and PW3 also gave the Appellant drugs, etc, for varying sums of money. In particular, the PW1’s agreement with the Appellant was that the drugs were to be supplied to specific persons from whom the Appellant had collected LPOs within the Nasarawa State axis, and upon receiving payment for the supplies made, he was mandated to pay the money to the PW1 by the 22nd of every month. The PW2 and PW3 had similar agreements with the Appellant.
On this fateful occasion however, after duly receiving the drugs and other goods such as drips, condoms, etc, from PW1, PW2 and PW3, the Appellant moved out of his house at his known address at Nyanya in Karu Local Government Area, relocated to Lagos, switched off his phone lines and became incommunicado. After trying to get in touch with him to no avail, the PW1, PW2 and PW3 laid formal complaints to the Police. The Police carried out investigations to the extent of procuring a Court order to freeze the Appellant’s account. It was therefore when the Appellant approached his Bankers, Diamond Bank, at its Itire Branch in Lagos, that he was detained and successfully arrested.
Upon being confronted by PW1, PW2 and PW3 at the Police Station in Nyanya in Karu LGA, the Appellants first reaction was to completely deny knowing any of them. However, when he was confronted with evidence such as his signature on the invoices, etc, he admitted collection the complainants goods, supplying them to persons other than those agreed on, and failing to pay the owners the money received from the sales. His account was then unfrozen and he transferred the sum of N2.8million into the PW1’s account as a partial refund for the drugs collected, which money was shared among the three victims. In addition, he recalled some of the drugs from some of the persons he had sent the drugs to, such as one Uche at Aba, and the drugs are said to be held in the custody of the Police at the time of trial.
The Appellant, having admitted the allegations made in the complaints of the victims and having admitted to making a partial refund in cash and in kind, was however unable to say how much was still outstanding in his possession, while PW1, PW2 and PW3 gave evidence of exactly how much was outstanding with the Appellant. However, PW4, the investigating Police Officer in his evidence was less than categorical on the quantity of the drugs recovered from the Appellant. At page 60 of the Record, PW4 stated as follows-
Part of the goods was recovered. They were Pharmaceutical goods. Some were drugs. We recovered some of them and released them to the owners, the Complainant. Some were recovered in Jabi Park in Abuja.

Since it is the duty of the prosecution to prove the ingredients of the charge beyond reasonable doubt, I am of the view that the restitution ordered by the lower Court in respect of the entire quantity of drugs collected by the Appellant as set out in counts 1 to 7 of the charge or their monetary value, is not supported by the evidence adduced before the trial Court. I adopt my findings under issue 4 above in this regard.
However, from a totality of the evidence adduced by the prosecution, it is evident that the ingredients of the offence of obtaining properties by false pretences as charged in counts 2 to 7 of the charge were proved against the Appellant. The Appellant presented LPOs to the complainants, PW1, PW2 and PW3, and collected drugs and goods to the tune of millions of Naira on the false pretence that he was going to supply them to the persons who issued the LPOs. Upon receiving the goods as set out in the invoices Exhibit P1, he apparently supplied some of the goods, albeit not to the owners of the LPOs, collected payments for them, absconded and then deliberately rendered himself incommunicado and inaccessible to the owners of the properties. All these clearly establish his intention to defraud the complainants of their properties which they entrusted to him because he held himself out as a freelance salesman for Pharmaceutical companies, and so induced them to part with their properties to him under a false pretence. Thus, the prosecution proved the offence of obtaining properties by false pretences beyond reasonable doubt.

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On the count of conspiracy, the evidence adduced by the prosecution was similarly cogent and as direct as is possible in offences of such nature, taking into account that the offence is usually proved by circumstantial evidence since conspiracy is usually shrouded in secrecy. PW1, PW2 and PW3 all testified that the Appellant approached them in company of one Chinyere Ogbonnaya, whom he introduced to them as his business partner and fiance. Thereafter, upon his arrest, she also disappeared but he was still able to get in touch with her and instructed her to retrieve some of the drugs which she had sent to one Uche at Aba which was worth N811, 650.00.
In his defence, the Appellant tried to convey the impression that this was an instance of legitimate business gone bad and was only a case of bad debts owed to the PW1 PW2 and PW3 when he could not pay them the monies owed for the goods collected, as and when due. This explanation could have been plausible but for the subsequent actions of the Appellant in absconding from his known residence in Nyanya, leaving town and even the State, relocating completely to Lagos, and rendering himself incommunicado for an unreasonable length of time to persons from whom he had collected goods worth a vast amount of money. In addition to these, upon his arrest in Lagos and return to Nyanya, he bold-facedly denied knowing the PW1, PW2 and PW3 until he was confronted with hard evidence. Finally, even his own witness, DW2, testified on his dubious actions as follows at pages 68-69 of the Record –
I know the Accused person. He is my elder brother. Formerly, he lived at Mobi Street, Nyanya and later moved to No. 17, Lucky Oyaire Street, New Nyanya. He called me to help move his items to the new address sometime between 21st and 25th October, 2013. He later made a trip to Lagos. When he travelled, we tried to reach him, but his number was not going through.
Therefore, from the totality of the evidence adduced before the lower Court, I am of the view that the Respondent satisfactorily proved the offences for which the Appellant was charged to the standard required by law, which is beyond reasonable doubt. I therefore decline to disturb the findings of the learned trial Judge. Consequently, issue six is also resolved in favour of the Respondent.
Having therefore resolved four out of six issues for determination in favour of the Respondent, with the exception of (i) issue five in respect of the pronouncements of separate verdicts for each of the seven counts of charge and (ii) issue four on the order of restitution, the Appeal succeeds and is allowed in part.
A. Accordingly, the Judgment of the Federal High Court holden at Lafia, in Charge No. FHC/LF/CR/16/13 between The Commissioner of Police V Kingsley Adijeh, delivered on May 4, 2015 by Okeke, J., is affirmed in part. The Appeal against the verdicts of the lower Court as well as the Order of restitution, succeeds in part. Accordingly, it is Ordered as follows:
I hereby exercise the power conferred on this Court by Section 15 of the Court of Appeal Act to enter separate verdicts on each of counts 1 to 7 of charge as follows:
1. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of conspiring with Chinyere Ogbonanya, now at large, of obtaining under false pretence drugs worth N507, 400.00 (Five Hundred and Seven Thousand, Four Hundred Naira) from God is Able Pharmacy, Masaka, Karu Local Government Area of Nasarawa State using invoice number 1254 on 17/10/2013, and absconding with the drugs contrary to Section 8 and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.
2. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of obtaining under false pretence drugs worth N507, 400.00 (Five Hundred and Seven Thousand, Four Hundred Naira) from God is Able Pharmacy, Masaka, Karu Local Government Area of Nasarawa State using invoice number 1254 on 17/10/2013, and absconding with the drugs contrary to Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.

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3. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of obtaining under false pretence drugs worth N367, 700.00 (Three Hundred and Sixty Seven Thousand, Seven Hundred Naira) from Minaco Pharmacy on 17/10/2013, and absconding with the drugs without paying for them contrary to Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.
4. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of obtaining under false pretence drugs worth N2, 529, 660.00 (Two Million, Five Hundred and Twenty Nine Thousand, Six Hundred and Sixty Naira) and N988, 720.00 (Nine Hundred and Eighty Eight Thousand, Seven Hundred and Twenty Naira) respectively from Crown Pharmaceutical and Chemicals Nig. Ltd sometime in August and September, 2013, and absconding with the drugs without paying for them contrary to Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.
5. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of obtaining under false pretence drugs worth N6, 051, 800.00 (Six Million, Fifty One thousand, Eight Hundred Naira) from Crown Pharmaceutical and Chemicals Nig. Ltd on or about the 1st of October, 2013 using invoice number 0015, and absconding with the drugs without paying for them contrary to Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.
6. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of obtaining under false pretence drugs worth N888, 000.00 (Eight Hundred and Eighty Eight Thousand Naira) from Crown Pharmaceutical and Chemicals Nig. Ltd on or about the 15th October, 2013 using invoice number 0021, and absconding with the drugs without paying for them contrary to Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.

7. That you KINSGLEY ADIJEH (male) of no. 130A Oniru Estate, Victoria Island Lagos, are hereby found guilty of obtaining under false pretence drugs worth N4, 977, 500.00 (Four Million, Nine Hundred and Seventy Seven Thousand, Five Hundred Naira) from Crown Pharmaceutical and Chemicals Nig. Ltd on or about the 16th October, 2013 using invoice number 0022, and absconding with the drugs without paying for them contrary to Section 1(1) (c) and punishable under Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. You are hereby sentenced to ten (10) years imprisonment.
All sentences are to run concurrently.
B. In addition, having set aside the Order of restitution made by the lower Court, I again invoke the power conferred on this Court by Section 15 of the Court of Appeal Act, 2004 to substitute the Order as follows:-
The Appellant is to make restitution to the following extent only:
(I) To Crown Pharmaceutical and Chemicals Nigeria Limited, drugs collected by the Appellant or their monetary value to the tune of N8,094, 790.00 (Eight Million, Ninety Four Thousand, Seven Hundred and Ninety Naira only);

(ii) To God is Able Pharmacy Limited, drugs collected by the Appellant or their monetary value to the tune of N250, 000.00 (Two Hundred and Fifty Thousand Naira only); and
(iii) To Minaco Pharmacy and Company Limited, drugs collected by the Appellant or their monetary value to the tune of N360, 700.00 (Three Hundred and Sixty Thousand, Seven Hundred Naira only) less the sum of 180, 700.00 (One Hundred and Eighty Thousand, Seven Hundred Naira only).
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now a draft copy of the lead Judgment just delivered by my learned Brother Jummai Hannatu Sankev. JCA, in which this appeal was allowed in part. I agree with, and adopt as mine, the resolution of the issues raised therein. I abide by the consequential orders made in the lead Judgment.
JOSEPH EYO EKANEM. J.C.A.: I had a preview of the lead judgment of my learned brother, Sankey, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal succeeds and be allowed in part. I abide by the consequential orders made in the lead judgment.