WARRANT OFFICER BANNI YAKUBU v. NIGERIAN ARMY (2014)

WARRANT OFFICER BANNI YAKUBU v. NIGERIAN ARMY

(2014)LCN/7636(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of December, 2014

CA/A/82C/2010

RATIO

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; THE ELEMENTS THAT CONSTITUTES CONSPIRACY

The offence of conspiracy consists not merely in the intention of two or more persons but in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. Where two or more persons agree to carry out an unlawful act, that by itself constitutes the offence of conspiracy. See ODUNEYE v. STATE (2001) 13 WRR 88 and SHURUMO V. STATE (2010) 19 NWLR (1226) 73, 104 and NGUME V. ATTORNEY-GENERAL OF IMO STATE (2014) 7 NWLR (1405) 119, 150.

The following elements must be present to constitute conspiracy;

(i) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means.

(ii) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.

(iii) Specifically that either of the accused persons individually participated in the conspiracy.

See STATE V. SALAWU (2011) 18 NWLR (1279) 580, 614 and YAKUBU V.STATE 12014) 8 NWLR (1408) 111, 123.

Conspiracy is rarely proved by direct evidence but by circumstantial evidence and inference from proved facts. per. JOSEPH E. EKANEM, J.C.A.

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

Between

WARRANT OFFICER BANNI YAKUBU – Appellant(s)

AND

NIGERIAN ARMY – Respondent(s)

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the General Court Martial that sat at the Defence Headquarters, Mogadishu cantonment, Asokoro, Abuja and which tried the appellant along with another person for Conspiracy contrary to Section 517 of the Criminal Code Act, punishable under Section 114 of the Armed Forces Act Cap. A 20 Laws of the Federation of Nigeria 2004.

The appellant and his co-accused person pleaded not guilty to the charge’ on 20th day of December, 2007, the General Court Martial found the appellant and his co-accused guilty and in its sentence reduced the appellant in rank to a Corporal.

The case of the respondent against the appellant and his co-accused person is that in or about 2000, while acting as the Chief clerk of the Army Headquarters DOAA, the appellant along with his co-accused who was a member of the (Army) promotion Board 2006 conspired with two other persons in getting the two persons promoted knowing fully well that it is an offence to do so.

To prove its case, the respondent called one witness and tendered four exhibits. The appellant testified for himself, denying the charge and did not call any other witness. Counsel on both sides addressed the court and the judge – advocate did a summing up. Thereafter, the General Court Martial, as earlier stated, found the accused persons guilty as charged and passed sentence on them accordingly.

Dissatisfied with the turn of events, the appellant has appealed to this court by way of an amended notice of appeal after being granted an extension of time to appeal. The amended notice of appeal contains grounds of appeal.

In his brief of argument, the appellant formulated one issue for the court’s determination of the appeal. The issue is as follows:

“Whether having regard to the admissible evidence adduced, the court below was not in error when it refused to accept the appellant’s defence and whether the judgment can be supported having regard to the totality of the evidence.’

The issue is stated to be distilled from grounds one and five of the amended notice of appeal.

On the other hand, the respondent formulated the following issues for the determination of the appeal;

“A. Whether the appellant has not abandoned grounds 2 and 4 of his amended notice of appeal; considering that he did not formulate issue on them or ague them in his brief as a result of which this Honourable Court should discountenance.

B. Whether the appellant’s sole issue for the determination of this appeal; being of competent and incompetent grounds of appeal is not contrary to law as a result of which this Honourable Court should declare the appeal incompetent.

ALTERNATIVELY:

C. Whether in view of the evidence before the General Court Martial it was right in law to give the verdict of guilt against the Appellant by the Respondent.

I must pause here to state that issues A and B in the respondent’s brief do not arise from any of the grounds of appeal. A respondent who has not filed a respondent’s notice or a cross-appeal cannot frame issues outside the grounds of appeal. What the respondent has done in respect of the issues under consideration is to couch a preliminary objection or an objection to grounds of appeal as an issue for determination in the appeal. This is incompetent and must be struck out.

See ARUM V. NWOBODO (2013) 10 NWLR (1362) 374, 396 and AYOADE V. SPRING BANK PLC (2014) 4 NWLR (1396) 93, 122.

I accordingly strike out issues A and B in the respondent’s brief along with the arguments thereon in the brief.

The sole issue identified by the appellant in his brief is a compound of two issues. In the case of UNITY BANK PLC V. OLATUNJI (2013) 15 NWLR (1378) 503, 539, it was held by this court that an issue for determination should not comprise of other issues and should not be a composition of two different issues. Consequently, I shall determine this appeal on issue C formulated by the respondent but with a slight moderation as follows;

Whether in view of the evidence before the General Court Martial, it was right in law to give the verdict of guilt against the appellant.

In arguing his lone issue, learned senior counsel for the appellant A. T. Kehinde, SAN, noted that the makers of Exhibits E3 and E4 were not called as witnesses, yet the General Court Martial relied heavily on them in convicting the appellant. This, he said, was particularly strange as the appellant vehemently denied conspiring with anyone to secure the promotion of W/O Shehu Ezekiel and Sgt. Jackson Alkali. He submitted that the verdict of the rower tribunal was based on the inadmissible evidence of the PW1 especially as encapsulated in Exhibits E3 and E4. Citing the cases of FLASH FIXED ODDS LTD v. AKATUGBA (2001) 9 NWLR (717) 46, 63 and BELGORE v. AHMED (2013) 8 NWLR (1355) 60, 100.

Learned Senior Counsel submitted further that a miscarriage of justice had been occasioned by the tribunal’s reliance on the said exhibits.

Continuing, learned senior counsel referred to parts of the evidence of PW1 in cross-examination and submitted that the witness prevaricated and vacillated, and should therefore have been disbelieved by the lower tribunal. He submitted further that the rule against hearsay is not only contained in Section 126 (a) – (d) of the Evidence Act but is of common law root and so it is not caught by Section 256 (1) (b) of the Evidence Act which excludes the applicability of the Evidence Act to proceedings before a Field General Court Martial. He went on to urge the court to apply Section 167 (d) of the Evidence Act against the respondent on account of withholding the evidence of the makers of Exhibits E3 and E4.

He finally urged the court to allow the appeal.

Muhammed Ibrahim Sanni, Esq; of counsel,for the respondent, arguing his surviving issue, submitted that, considering the evidence before the General court Martial, it was right in law to have given the verdict of guilt against the appellant. It was his view that the evidence of PW1 together with the testimonies of the 1st and 2nd accused persons was strong enough to support the verdict of guilt against the appellant. He noted that the 2nd accused person denied that he conspired with the appellant to secure promotion for anybody but in cross-examination ne stated that the names of warrant officer Shehu and Sgt. Alkali were mentioned to him by the appellant in a telephone conversation to assist them in the promotion exercise. He further noted that the appellant admitted that he directed those persons to the 2nd accused person for the purpose of being assisted to secure promotion.

Counsel went on to submit that the admissible piece of evidence as shown in the record of proceedings at the General Court Martial was strong enough to sustain the verdict of guilt handed to the appellant by the General Court Martial notwithstanding the contention of the Learned Senior Counsel for the appellant that makers of Exhibits E3 and E4 were not called as witnesses. He finally urged the court to dismiss the appeal.

Learned Senior Counsel for the appellant filed a reply brief touching on the respondent’s issues A and B which have been struck out in this judgment. The reply brief is therefore otiose.

I shall now consider the sore issue for determination of this appeal, namely;

Whether in view of the evidence before the General Court Martial, it was right in law to give the verdict of guilt against the appellant.The appellant, as earlier stated was charged with the offence of conspiracy.

The following elements must be present to constitute conspiracy;

(i) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means.

(ii) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.

(iii) Specifically that either of the accused persons individually participated in the conspiracy.

See STATE V. SALAWU (2011) 18 NWLR (1279) 580, 614 and YAKUBU V.STATE 12014) 8 NWLR (1408) 111, 123.

Conspiracy is rarely proved by direct evidence but by circumstantial evidence and inference from proved facts.

I should pause here to state that in a bid to prove conspiracy, the respondent tendered before the General court Martial several exhibits including Exhibits E3 and E4 through the pw1 who investigated the case. The exhibits were statements by the persons whom the appellant was said to have conspired with his co-accused to promote. The makers of the statements were not called as witnesses and so the statements became unreliable and no probative value ought to have been attached to them. I rely on the cases of FLASH FIXED ODDS LTD v. AKATUGBA (2001) 9 NWLR (717) 46, 63 and BELGORE V. AHMED (2013) 8 NWLR (1355) 60, 100, cited by appellant’s counsel for this position.

Counsel for the respondent contended that the remaining pieces of evidence after discountenancing Exhibits E3 and E4 were strong enough to ground the conviction of the appellant.

From the totality of the evidence led including Exhibits E1 and E2 what is clear is that the appellant was approached by two soldiers Warrant Officer Ezekiel Shehu and Sergeant Jackson Ari to gain promotion assist them not being in a position to assist them, he directed them to the 2nd accused person who said in his statement to the investigator that he considered it and assisted them.

It can be inferred from the above that there was an agreement between the appellant and his co-accused person to assist in the promotion of the two soldiers.

The promotion of a soldier or soldiers is not by itself an illegal act and so it cannot be held that there was an agreement to do or cause to be done an illegal act. The next point that inexorably follows is as to whether there was an agreement to secure the promotion by an illegal means. Neither in the charge (at page 136 of the record of appeal) nor in the evidence led is the means to secure the promotion particurarised or stated so as to show that it was illegal or unlawful. There can be no offence of conspiracy if the agreement is not to do an unlawful or illegal act, which is an offence or if the means agreed upon to do a lawful act is not unlawful. The burden of proof is always on the prosecution to prove its case beyond reasonable doubt since Section 36 (5) of the Constitution of Nigeria 1999 (as amended) presumes an accused person to be innocent until the contrary is proved.

The charge read against the accused is so defective and the evidence so scanty that there is no justification whatsoever for the conviction of the appellant by the General Court Martial. The charge with the particulars reads thus;

Statement of offence: Conspiracy, contrary to Section 517 of the Criminal Code and Punishable under Section 114 of the AFA CAP A 20 LFN 2004.

Particulars of the offence: In that they at AHQ Gar on or about 2006 white acting as the Chief clerk of AHQ DOAA and a member of the soldier’s promotion board 2006 respectively conspired with Ssgt. Shehu Ezekiel and CPL Jackson Alkali.

In R V. PHILIP 8 WACA 16, it was held that a charge in the like nature was bad for uncertainty as the accused persons should be given notice of the nature of the felony which it was alleged they conspired to commit.

I therefore answer the lone issue in the negative and resolve it in favour of the appellant.

On the whole, the appeal succeeds and I hereby set aside the verdict and the sentence of the General Court Martial entered on 20th December, 2007 and, in its place, I enter a verdict of not guilty. The appellant is accordingly discharged and acquitted.

ABUBAKAR DATTI YAHAYA, J.C.A.: I read before now, the lead judgment of my learned brother Ekanem JCA just delivered. I fully agree with the reasons and conclusion reached therein. The particulars of the offence are to the effect that the appellants “conspired with Sgt Shehu Ezekiel and Cpl Jackson Alkali.” What did they conspire to do? Further, does an agreement or a willingness to assist a person to get promotion, amount to an illegal act? Was the assistance given by means of an illegal act? The appellant ought not to have gone on trial, let alone, be convicted on such flimsy and uncertain charge. The whole thing was a travesty of justice and the punishment meted out to the appellant as a result of the trial, is wrong and totally unwarranted. It cannot be allowed to stand. Consequently, I too find the appeal meritorious and I allow it. The conviction and sentence of the appellant contained in the judgment of the General Court Martial delivered on the 20th of December 2007, are hereby quashed. The appellant is discharged and acquitted.

MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother – JOSEPH EKANEM, JCA.

I agree with my learned brother that a criminal allegation is required to be proved beyond reasonable doubt under Section 135(3) of the Evidence Act, 2011 (as amended). It makes no difference that the criminal trial is in a regular court of law, a court-martial or a general court-martial, as in this case.

The respondent woefully failed to prove the allegation of crime levelled against the appellant beyond reasonable doubt.

For these reasons and the fuller reasons given by my learned brother, EKANEM, JCA I also allow this appeal and set aside the conviction and sentence of the appellant by the General Court Martial.

The appellant is hereby discharged and acquitted.

Appearances

A. T. Kehinde (SAN) (With him, Messrs P. Agu, E. J. Okoye, I. Iherue and B. O. Amawu)For Appellant

AND

Ibrahim S. Mohammed, EsqFor Respondent