CAPTAIN JOHN FREGENE v. INSPECTOR GENERAL OF POLICE
(2019)LCN/13427(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
RATIO
APPEAL: WHEN AN APPELLATE COURT WILL INTERFERE IN THE DISCRETION OF THE LOWER COURT
It is for instance settled that an appellate Court would not set aside the exercise of discretion because if the matter were before it, it would have exercised it differently. See University of Lagos v Olaniyan Supra at p. 317. Also, University of Lagos and 1 Or. V. M.I Aigoro (1985) 1 NWLR 143, 148; Niger Construction Ltd v. Okugbeni (1987) 4 NWLR Pt. 67 287. An appellate Court will also not interfere unless it can be shown that the exercise of the discretion was done not judicially and judiciously but was arbitrary, reckless and done while taking into consideration irrelevant matters. See Aigoros case (supra) and Solanke v. Ajibola (1968) 1 All NLR 46; Mangtup Din v. Attorney-General of the Federation (1986) 1 NWLR 471; Williams v. Williams (1987) 2 NWLR 6682.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EXTRA JUDICIAL STATEMENT: HOW THE COURT WILL DETERMINE WHETHER TO RELY ON THIS STATEMENT
The Supreme Court in Ogudo v State 2011 LPELR- 860; (2011) 18 NWLR, Pt. 1278, Per Rhodes-Vivour, JSC at Pp. 20-21, Paras. D-B held and set out the tests to administer before relying on a retracted extra judicial statement to convict an accused person:
“A Court can convict on the retracted confessional statement of an accused person, but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions: (a) Is there anything outside the confession to show that it is true (b) Is it corroborated (c) Are the relevant statements made in it of facts true as far as they can be tested (d) Did the accused person have the opportunity of committing the offence charged (e) Is the confession possible (f) Is the confession consistent with other facts which have been ascertained and have been proved See. Kanu & Anor v. King (1952) 14 WACA p. Mbenu v. State (1988) 3 NWLR (pt. 84) p. 615 Stephen V. State (1986) 5 NWLR (pt. 46) p. 978.”PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: WITNESSES: THE INCONSISTENCY RULE
Generally, on the basis of the consistency rule, where a witness is shown to have made a previous statement which is inconsistent with a subsequent one, both will be discarded and treated as being unreliable. See Smart v. State (2016) LPELR-40827 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
THE INCONSISTENCY RULE DOES NOT APPLY TO AN ACCUSED PERSON
However, it is trite law that the inconsistency rule does not apply to an accused person. See Kolade v. State (2017) LPELR 42362 (SC). Thus, a Court can convict based on the retracted extra judicial statement of an accused person which was voluntarily made but is inconsistent with subsequent evidence or his evidence on oath. See Asimi v. State (2016) LPELR-40436 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CONSPIRACY: DEFINITION
Conspiracy is an agreement between two or more persons to do an unlawful act or do a lawful act by an unlawful means. See Ajuluchukwu v. State (2014) LPELR-23024 (SC). Here, the persons involved have to be ad idem which can be inferred from an act or omission that was done in furtherance of the said offence of conspiracy. SeeBusari v. State (2015) LPELR-24279 (SC). Thus, there must be a meeting of two or more minds to carry out an unlawful or illegal act which is an offence. A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective. SeeKaza v. State (2008) LPELR-1683 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
WHERE TWO OR MORE PERSONS ARE CHARGED WITH THE COMMISSION OF AN OFFENCE, THE DISCHARGE OF ON WILL LEAD TO THE DISCHARGE OF OTHERS
It is trite law that where two or more persons are charged with the commission of an offence, and there is similarity in the evidence against which all the accused persons were charged with in the commission of an offence, the discharge of one as a matter of law would affect the discharge of the others. This is because if one of the accused persons is discharged for lack of evidence, others would be affected. Thus, it follows that since their evidences are tied together, the other accused persons would also be discharged. See Okoro v. State (2012) LPELR-7846 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Asaba delivered by Honourable Justice A.O Faji on 13/03/2017 wherein the learned trial judge convicted and sentenced the Appellant in respect of the indictments against him.
The facts that lead to this appeal are as follows:
The Appellant and 9 others who were employees of African Sky Shipping Agency Limited with its office address at No. 7B Marine Road, Apapa, Lagos State left Lagos for Calabar on the 4/12/15 on board the African Sky (one of the convicts at trial) which is a vessel, for its repair and maintenance.
The Appellant, the other nine (9) crew members and the vessel were subsequently arrested by the Nigeria Navy Ship Delta (NNS Delta) on the 14/12/15 and were handed over to the Respondent (the Inspector General of Police) on the 16/2/16.
On 10/3/16 the Appellant and the ten (10) others were arraigned on a four-count charge to wit:
COUNT 1
That you Captain John Fregene m. Osarode Elijah m, Williams Udeme m, John bull Oyinbo m, Francis Nkemjirika m, Kingsley Eso m, Adela Sunday m, Emmanuel Udo m, Jacob Ojubeli m, Felix Okoh m and MT. Eyuwa AKA African Sky and others now at large on the 13th day of December, 2015 at Forcados Water Ways in the Burutu Local Government Area within this jurisdiction of this Honourable Court conspired among yourselves to commit felony to wit: Possession of Petroleum products without authorization or license and thereby committed an offence punishable under Section 516 of the Criminal Code Act of Cap C38 Laws of the Federation of Nigeria 2004.
COUNT 2
That you Captain John Fregene m. Osarode Elijah m, Williams Udeme m, John bull Oyinbo m, Francis Nkemjirika m, Kingsley Eso m, Adela Sunday m, Emmanuel Udo m, Jacob Ojubeli m, Felix Okoh m and MT. Eyuwa AKA African Sky and others now at large on the 14th day of December, 2015 at Forcados Water Ways in the Burutu Local Government Area within this jurisdiction of this Honourable Court without lawful authority or appropriate license had in your possession Petroleum Products (Crude Oil) of 670 metric tons and thereby committed an offence punishable under Section 1(7)(b) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004.
COUNT 3
That you Captain John Fregene m. Osarode Elijah m, Williams Udeme m, John bull Oyinbo m Francis Nkemjirika m, Kingsley Eso m, Adela Sunday m, Emmanuel Udo m, Jacob Ojubeli m, Felix Okoh m and MT. Eyuwa AKA African Sky and others now at large on the 13th day of December, 2015 at Forcados Water Ways in the Burutu Local Government Area within this jurisdiction of this Honourable Court stole Petroleum Products (Crude Oil) of 670 metric tons value yet to be determined and property of the Federal Government of Nigeria and thereby committed an offence punishable under Section 390(9) of the Criminal Code Act of Cap C38 Laws of the Federation of Nigeria 2004.
COUNT 4
That you Captain John Fregenem. Osarode Elijah m, Williams Udeme m, John bull Oyinbo m, Francis Nkemjirika m, Kingsley Eso m, Adela Sunday m, Emmanuel Udo m, Jacob Ojubeli m, Felix Okoh m and MT. Eyuwa AKA African Sky and others now at large on the 13th day of December, 2015 at Forcados Water Wats in the Burutu Local Government Area within this jurisdiction of this Honourable Court, with the intent to defraud the Federal Government vandalized and siphoned crude oil from the oil pipe laid across the Forcados River and thereby committed an offence punishable under Section 1(7)(a) of the Miscellaneous Offences Act of Cap M17 Laws of the Federation of Nigeria 2004.
In proof of its case, the Prosecution now Respondent called five witnesses as follows:
1. Onyisi Christopher- The Investigating Police Officer (PW1)
2. Bello Musa- – The 2nd Investigating Police Officer (PW2)
3. Damisa Clement – An officer of the navy and the Master Warrant Officer who arrested the vessel (PW3)
4. Bello Hakeem Owolabi – An officer of the navy at NNS Delta Warri (PW4)
5. Oluwa Gbotemi Adesoye – An employee of the Department of Petroleum Resources who gave expert opinion to the Court (PW5)
The Appellant as DW2 testified in his own defense and in addition, called two other witnesses as follows:
1. Micheal Odion – An ex-employee of African Sky Shipping Agency Ltd (DW1)
2. Osarode Elijah One of the acquitted persons that was charged at the trial Court. (DW3)
At the end of the trial, the Appellant was discharged and acquitted on counts 3 and 4 but was convicted and sentenced on counts 1 and 2.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 7/4/17 and an amended Notice of Appeal was filed on 24/9/18. Record was transmitted on 7/6/17. The Appellant filed his brief of argument on 19/7/17. The Respondents brief of argument was filed on 8/9/17.
The Appellant in the brief settled by Reverend Tunji Aruya Esq., Charles Ewo- Micheals Esq. and Osemeku Clive Odion Esq. identified five issues for determination of the appeal to wit:
1. Having regard to the provision of the Administration of Criminal Justice Act, 2015, whether a trial judge can in his judgment amend a charge suo motu without fresh plea and convict on the amended charge without violating the accused persons right to fair hearing and accessioning a miscarriage of justice
2. Considering the entire judgment, whether the trial judge had applied the proper test for a retracted trial-judicial statement as required by law
3. Having regards to the testimonies of the Investigation Naval Officer (PW3) and Investigating Police Officer (PW1) whether their failure to investigate the defence of the Accused persons is not fatal to the case of the prosecution.
4. Considering the totality of the evidence of the witnesses before the Court, whether the judgment of the trial judge is supported by the evidence adduced
5. In view of the judgment of the trial judge discharging other co-accused persons, whether the appellants can be guilty of the offence of conspiracy in the same offence that they are jointly charged.
DSP College Bob Esq., who settled the Respondents brief adopted the issues set out above by the Appellant.
In the determination of this appeal, I will recouch the issues set forth in the
Appellants brief in a way that would not be duplicity of issues and would address all the Appellants complaints as follows:
1. Whether the learned trial judge was right to convict the Appellant on a fresh charge suo motu without first taking a fresh plea of the Appellant
2. Whether the learned trial judge gave the proper probative value to the retracted extra judicial statement of the Appellant
3. Whether the failure of the prosecution to investigate the alibi of the Appellant has not occasioned a miscarriage of justice
4. Whether the findings and judgment of the trial Court are supported by the evidence led.
ISSUE ONE
Whether the learned trial judge was right to convict the Appellant on a fresh charge suo motu without first taking a fresh plea of the Appellant.
Appellants Counsel argued that by the provisions of Section 1(7)(b) of the Miscellaneous Offences Act, CAP M17, Laws of the Federation of Nigeria 2004, it is clear that it is an offence to obstruct, damage, destroy, tamper or interfere with the free flow of any crude oil or refined petroleum product through any oil pipeline. Counsel argued that the section was stated under count 2 of the charge sheet which was filed at the trial Court and it was on that basis that the Appellant and the 10 other persons he was charged with pleaded not guilty at the trial.
Counsel further argued that during the address stage at the trial Court, the Appellant?s counsel in their joint address drew the Respondents and the Courts attention to the fact that the Appellant and 10 others were charged under a wrong section of the law in count 2. Counsel argued that the Respondent made it clear that he never intended to amend count 2 or the Section of the law under the count. This is because in his address, it was made clear that the Appellant with others were charged under Section 1(7)(b) of the Miscellaneous Offences Act, CAP M17, Laws of the Federation of Nigeria, 2004. Counsel argued that contrary to the Respondents intention, the Trial Judge amended the charge suo motu without taking plea from the Appellants or without having recourse to the provisions of Secti
