M.T. EYUWA v. INSPECTOR GENERAL OF POLICE
(2019)LCN/13440(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/B/255CD/2017
RATIO
MARITIME AND SHIPPING: BEFORE A SHIPPING BUSINESS CAN START, WHAT ARE THE REQUIREMENTS
Now, I will deal with the main issue on appeal. The principal law which governs and regulates the activities of ships and maritime vessels in Nigeria is the Merchant and Shipping Act of 2007. And usually, before a ship can commence activities within the territorial waters of Nigeria, it has to be registered by its owners who may either be an individual or a company. And ownership here may be sole or joint. Usually, upon registration, a ship would be entitled to fly the Nigerian flag with the implication of acquiring the nationality of Nigeria which becomes its flag state. On the other hand, a ship will not enjoy the benefits and privileges accruable to a Nigerian ship where it is not recognized as such. However, it will be liable for any acts or omissions incurred by it as if it were registered in Nigeria and recognized as a Nigerian ship. More so, by virtue of the provisions of the Admiralty Jurisdiction Act, the jurisdiction to handle criminal and civil actions in admiralty matters is exclusively conferred on the Federal High Court.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
A SHIP IS A JURISTIC PERSON
It should be noted that like a corporate body, a ship is considered a juristic person in the Nigerian legal system. Thus, it can sue and be sued in its registered name. Generally, it should be noted that a juristic person can be criminally culpable for an offence. However, being an artificial person, the alter-ego doctrine is often used as a yardstick for attaching criminal liability to a juristic person. The doctrine has its roots at common law. Hence, before a juristic can be made to be criminally liable for an offence, recourse would be had to the acts and omissions of person(s) who are its directing mind. Once the person(s) directing the mind of the juristic person is found culpable, the former would equally be found liable for the commission of an offence.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
M.T. EYUWA
(aka African Sky) Appellant(s)
AND
INSPECTOR GENERAL OF POLICE Respondent(s)
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 on the indictments against her.
The facts that lead to this appeal are as follows:
The Appellant, which is a vessel, carried 10 others as crew members who were employees of African Sky Shipping Agency Limited with its office address at No. 7B Marine Road, Apapa, Lagos State. They left Lagos for Calabar on the 4/12/15 on board the Appellant for its repair and maintenance.
The Appellant and the other ten (10) crew members 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
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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
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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 Fregene ?m?. Osarode Elijah
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?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)
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5. Oluwa Gbotemi Adesoye – An employee of the Department of Petroleum Resources who gave expert opinion to the Court (PW5).
The Appellant called three witnesses as follows:
1. Micheal Odion – An ex-employee of African Sky Shipping Agency Ltd (DW1)
2. Captain John Fregene ? The captain of the vessel (DW2)
3. Osarode Elijah ? A crew member who was acquitted at the trial court. (DW3)
At the end of the trial, the Appellant was discharged and acquitted on counts 1, 3 and 4 but was convicted and sentenced on count 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 her brief of argument on 19/7/17. The Respondent?s 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 as follows:
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
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suo motu without fresh plea and convict on the amended charge without violating the accused person?s 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 trail-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 Respondent?s brief adopted the issues set out above by the Appellant.
In the determination of this appeal, I will recouch and raise a sole issue that is necessary for the determination of this appeal:
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Whether there was enough evidence before the trial Court to convict the Appellant
?
SOLE ISSUE
Whether there was enough evidence before the trial Court to convict the Appellant.
Appellants Counsel argued that in all criminal cases, the prosecution has to prove its case beyond reasonable doubt by way of cogent and credible evidence. Counsel cited Alimi v. State (2009) 44 WRN 1 at 32, lines 10-20. Counsel argued that the Respondent did not prove its case beyond reasonable doubt. Counsel cited Zuru v. Chief Naval Staff (2008) 32 WRN, 86 at pages 100-101, lines 40-45.
Counsel submitted that it was clear from the totality of oral and documentary evidence of the witnesses at trial that the trial judge?s judgment wasn?t supported by the evidence adduced.
Counsel argued that there was no material difference in the statements made by the Defendants who were discharged and acquitted and those that were convicted. Counsel argued that in a criminal case, where evidence against two or more accused persons is the same and doubt is resolved by the trial judge in favour of one of the accused persons, the same should be
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resolved in favour of the others. Counsel cited Chief Emmanuel Ebri v. State (2004) 8 MJSC, 74 at 81, 82, paras. A-C. Counsel then submitted that the evidence found credible in discharging and acquitting the 6 other accused persons should also be used in discharging and acquitting the Appellant.
Counsel argued that contrary to Section 135 of the Evidence Act, 2011, the Respondent failed to call the necessary witnesses to prove that the Appellant acted without lawful authority or with an appropriate license. Counsel argued that the Respondent failed to prove this fact because it would be detrimental to the Respondent?s allegations. Counsel cited Section 149(d) of the Evidence Act 2011 and Iweka v. FRN (2011) 14 WRN, 33 at page 94-95.
Appellant?s Counsel argued that the Respondent was not able to establish the offence of conspiracy. Counsel argued that although conspiracy is a matter from which the Court can make an inference, the Respondent had failed to lead evidence from which the trial Court can infer that there was an agreement to carry out an unlawful act or a lawful act by an unlawful means. Counsel cited Section 135 of the Evidence Act, 2011. ?
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Counsel argued that where two or more persons are charged with the offence of conspiracy and trial is conducted on the same evidence, a discharge and acquittal of one must also have the same end result for the others.
Counsel argued that the statement made by all the persons arrested to the police weren?t different in any material form. Counsel argued that the testimony of the Appellant and DW3 were materially the same but on the strength of the said testimonies, the learned trial judge discharged and acquitted some and convicted some under counts 1 and 2 while it was obvious that they had the same interest, conduct, intention and object.
Counsel further argued that this Court should examine the statements of the discharged and acquitted persons alongside those of the convicted persons because the statements are not materially different.
Learned Respondent?s Counsel argued that the offence of conspiracy was established because the Appellants were in the vessel that carried the crude oil as confirmed by the Department of Petroleum Resources. Counsel argued that the resultant effect of the conspiracy was the
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possession of crude oil which the Department of Petroleum Resources confirmed as such and upon which the analytical result was tendered in evidence.
Counsel argued that the Respondent was able to show the existence of an agreement to commit offences as charged between Captain Robinson, the Appellant and some other crew members.
Respondents Counsel argued that the Respondent established the offence of conspiracy because the Appellant had a common intention of diverting the vessel to Forcados for the purpose of carrying out the illegal business of siphoning crude oil.
Counsel argued that the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences and so it is the duty of the Court to ascertain the complex evidence of any of those charged with the offence of conspiracy. Counsel cited Abacha v. The State (2003) 3 ACLR 333 at page 388 paragraph 40.
Respondents Counsel urged this Court to consider the existence of contradictions in the statements made to the police. Counsel argued that the scrutiny of the statements showed that while Osarode Elijah (DW3) and one Williams Udeme alluded to a
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group of boys, the 1st Appellant testified that their vessel was hijacked by armed sea pirates. Counsel further argued
