NIEGERIAN ARMY (2003) NWLR (pt. 807) P. 526 and a
number of other cases, Counsel listed the ingredients to be
proved by the prosecution to establish the offence of conspiracy
for which the 1st – 3rd Defendants were charged. He contended
that from the entire evidence before this Court, the prosecution
has failed to sustain the charge of conspiracy against the 1st, 2nd
and 3rd Defendants. Referring this Court to the case of
ONWUDIWE V. F.R.N. (2006) ALL FWLR (PT 319) P. 77.
Counsel also listed the ingredients which the prosecution must
prove in the charge of obtaining money by false pretence. He
submitted that the prosecution has failed to establish pretence by
the Defendants jointly or severally. He contended that the
evidence of PW2 is unreliable in view of Exhibits 12 and 12A. He
contended that the statements of the 1st, 2nd and 3rd Defendants
to the EFCC (admitted in evidence as exhibits) do not amount to
confessions. He submitted that the essential ingredient of the
offence of obtaining money under false pretence was not
successfully made out against the Defendants. He submitted that
the prosecution thus failed to place relevant facts before the
Honourable Court to warrant their conviction on all counts of the
charge. He urged this Court to discharge and acquit the
Defendants on all the three Counts charge.
In his address, Counsel to the 4th and 5th Defendants submitted
that the issue of whether the prosecution has discharged the
burden of proof required of them in this case must be answered
in the negative. He submitted that the prosecution must prove
that the Defendants had an intention to defraud in an allegation
of the offence of obtaining by false pretence. He cited the case of
ADIMORE V. AJUFO (1988) 3 NWLR PT. 80 P. 1 and a host of
others. He contended that the evidence of PW3 shows that the 4th
and 5th Defendants did not in any way defraud or intend to
defraud the nominal complainant as there was no transaction
between them. He posited failure to call a vital or material
witness is fatal to the case of the prosecution. He contended that
the nominal complainant was not called to testify to enable the
4th and 5th Defendants cross-examine her. His position is that the
presumption of withholding evidence is therefore against the
8