YUSHA’U HAMISU v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13620(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/YL/165C/17
RATIO
CONSPIRACY: HOW TO PROVE THE OFFENCE OF CONSPIRACY
On the proof of the offence of conspiracy, it is enough once it is shown that the accused persons have a common criminal design or agreement (by two or more people) to do certain things. The crime is complete merely on the agreement to commit an unlawful act or perform a lawful act by an unlawful means. See, STATE VS. SALAWU (2011) LPELR – 8252 (SC) PP.38-39, Paragraphs E-A, KAYODE VS. STATE (2016) LPELR 40028 (SC) P. 66, Paragraphs E-F and AJAYI VS. STATE (2013) LPELR 199941 (SC) P. 28, Paragraph C. PER CHIDI NWAOMA UWA, J.C.A.
CONSPIRACY: HOW TO PROVE
On the proof of the offence of conspiracy, it is enough once it is shown that the accused persons have a common criminal design or agreement (by two or more people) to do certain things. The crime is complete merely on the agreement to commit an unlawful act or perform a lawful act by an unlawful means. See, STATE VS. SALAWU (2011) LPELR – 8252 (SC) PP.38-39, Paragraphs E-A, KAYODE VS. STATE (2016) LPELR ? 40028 (SC) P. 66, Paragraphs E-F and AJAYI VS. STATE (2013) LPELR 199941 (SC) P. 28, Paragraph C. PER CHIDI NWAOMA UWA, J.C.A.
CONFESSIONAL STATEMENT: THEY CAN LEAD TO CONVICTION
On the appellant?s confessional statement, it is trite that the Court can convict on the confessional statement of an accused alone without more. It is the best evidence, in that the accused in his own words has admitted committing the offence as long as the confession is free, voluntarily made, direct and positive. It is the best proof of what he has done. See, KAMILA VS. STATE (2018) LPELR- 45603 (SC), HASSAN VS. STATE (2001) LPELR 1358 (SC), ALABI VS. STATE (1993) 7 NWLR (PT. 307) 5, FABIYI VS. STATE (2015) 6-7 (SC) (PT.1) 83 and DOGO VS. THE STATE (2013) 2-3 SC (PT.II) 75 at 92 -94. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
YUSHAU HAMISU Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Federal High Court, Yola delivered on 9/5/16, presided over by B. B. Aliyu, J (as he then was) wherein the Court convicted and sentenced the appellant as charged.
The background facts are that the Appellant was arraigned alongside seven (7) others on a seven count charge, in which he was convicted and sentenced on the basis of counts I and II of Conspiracy and Obstruction of officers of the National Drug Law Enforcement Agency (NDLEA) from carrying out their lawful duty. When the Appellant was arraigned before the trial Court with seven others, he pleaded not guilty. At the trial, the Respondent as prosecution called ten (10) witnesses, all officers of the NDLEA.
?The appellant in his defence testified as the DW4, denied knowing the 1st defendant before his arrest and made out that he was at a different place on the day of the incident, 21/3/12. The Appellant also denied knowing any of the other seven defendants, and made out that he did not confess to participating in the obstruction of NDLEA officers as appears in Exhibit
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?PW5 B?, he also denied mentioning any of the other defendants as participating in the obstruction of the NDLEA officers. The other defendants also gave evidence in their respective defences, denying knowledge of each other. It was made out by the appellant that the defendants did not incriminate each other.
The Appellant who was dissatisfied with his conviction formulated four (4) issues for the determination of the appeal thus:
1. ?Whether the trial Court was not wrong in law, when it declared the statement of the Appellant as confessional in spite of all evidence led at the trial within trial session (Distilled from ground 4 of the Notice of Appeal).
2. Having regard to the evidence adduced by the Appellant and the entire circumstances and the approach adopted by the trial Court in this case, in delivering the Judgment, whether the trial Court was right in convicting and sentencing the Appellant as charged (Distilled from ground 1 of the Notice of Appeal).
3. Whether the Respondent proved the case of conspiracy and obstruction of officers of the National Drug Law Enforcement Agency in carrying out their duty beyond
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reasonable doubt against the Appellant as charged, as required by law to ground the conviction and sentence of the Appellant. (Distilled from grounds 2, 3 and 5 of the Notice of Appeal)
4. Whether the trial Court was not wrong in law, to have rejected the plea of Alibi raised by the Appellant. (Distilled from ground 5 of the Notice of Appeal).?
The Respondent on its part also formulated four issues for the determination of the appeal as follows:
i. ?Whether from the facts and circumstances of this case the learned trial judge properly admitted the confessional statement of the Appellant herein, as 1st Defendant in the trial Court, in evidence. This issue is distilled from Ground 4 of the Notice of Appeal.
ii. Whether from the facts and circumstances of this case the Prosecution proved its case beyond reasonable doubt to establish the guilt of the Appellant as required by law. This issue is distilled from Ground 2 of the Notice of Appeal.
iii. Whether in arriving at the decision to convict the Appellant, the Learned Trial Judge properly evaluated the evidence in line with the principles of natural justice and fair hearing as
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required by law. This issue is distilled from Grounds 1 and 3 of the Notice of Appeal.
iv. Whether the Appellant is deemed to have abandoned Ground 5 of his Notice of Appeal by his failure to formulate and argue any competent issue on that ground in his Appellant?s Brief.?
In arguing the appeal, the learned counsel to the Appellant L.O. Fagbemi Esq. adopted and relied on his brief of argument filed on 19/1/18 but, deemed properly filed on 14/11/18 as his argument in this appeal in urging us to allow same. Before the appeal was argued, the learned counsel to the appellant abandoned his issue four without objection, same was struck out. Ground 4 as appears to have been part of the grounds from which issue three was formulated was sought to be deleted therefrom, the application was granted and amendment allowed. The figure 6 as appears in issue three was also amended to read ground 5 as forming part of the grounds from which issue three (3) was formulated. In arguing his issue one (1), it was submitted that when the PW5 sought to tender the confessional statement of the appellant during the trial, same was objected to by the appellant on
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the basis that it was not voluntarily made which led to the trial within trial conducted at the lower Court. It was submitted that while the prosecution made out that the statement was voluntarily made, the appellant made out that he was beaten up to change his age from 17 to 18 and forced to sign the statement. It was submitted that the evidence to this effect adduced by the appellant was not challenged by the prosecution and that the trial Court ought not to have admitted the confessional statement in evidence as Exhibit PW5B. It was argued that the prosecution failed to prove by credible evidence that Exhibit PW5B was voluntarily made. The learned counsel submitted that since there was evidence that the appellant was tortured, beaten and maltreated before he was forced to sign the confessional statement, same ought to have been rejected by the trial Court. We were urged to treat the unchallenged evidence as the truth. See,ZUBERU VS. STATE (2015) 16 NWLR (PT. 1486) 504 at 527, Paragraphs. B-C, OKOEBOR VS. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444 AT 483, Paragraphs D-G, OFORLETE VS. STATE (2000) 12 NWLR (PT. 681) 415 at 436; (2000) 7 NWLR (PT. 86) at 90
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AND 109 and GAJI VS. STATE (2003) 8 NWLR (PT. 523) 583 AT 60. It was submitted that the trial Court in overruling the Appellant on the voluntariness of the statement shut its eyes to the obvious and took into account inadmissible evidence which are extraneous by admitting the said statement as Exhibit PW5B in the face of the unchallenged and uncontroverted evidence led by the Appellant, thus making it perverse which ought to be reversed by the Court. See, ATOLAGBE VS. SHORUN (1985) NWLR (PT. 2) PAGE 30, OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81 amongst others. It was concluded on this issue that the confessional statement of the appellant did not qualify as one, having been obtained through torture, beating and threats as shown by the appellant. The admission of the confessional statement as an Exhibit was said to be perverse, we were urged to expunge same.
In arguing his issue two, it was submitted that the trial Court in convicting and sentencing the appellant only considered the case of the Respondent. It was argued that the evidence adduced by the appellant was not considered by the trial Court in arriving at its decision. It was submitted that
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the law requires that evidence adduced by both parties be considered. See, HON. BASHIR ADEYELA VS. OLAJIDE ADEYEYE & ORS (2010) LPELR ? 3618, C-A, JIMOH AWOPEJO VS. THE STATE (2001) 18 NWLR (PT. 745) 430; LPELR ? 656 SC; BENIGNUS DURU & ANOR VS. JONATHAN NWOSU & ORS (1989) 7 SC and MOGAJI & ORS VS. RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93. It was argued that, the trial Court?s failure to consider the evidence led by all the parties led to a miscarriage of justice and was fatal to the prosecution?s case. See, ADEWALE JOSEPH VS. THE STATE (2011) 6-7 (PT V) 1, KOLADE VS. STATE (2017) 8 NWLR (PT. 1566) 60 AT 97 Paragraphs G-H. Also, EDIBO VS. STATE (2007) 13 NWLR (PT. 1051) 306 at 322, Paragraphs A-C. It was also argued that all the defences put up by an accused person ought to be considered no matter how worthless it may seem. See, OGUNYE V. STATE (1999) 5 NWLR (PT. 604) 518 and ONUOHA VS. STATE (1988) 3 NWLR (PT. 83) 460. We were urged to interfere with the decision of the trial Court in which the evidence before the Court was not properly evaluated. See, ADELEKE VS. IYANDA (2001) 13 NWLR (PT. 729) 1 at PAGE 20,
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BORNO HOLDINGS LTD V. BOGOCO (1971) 1 ALL NLR 324 at 330.
In arguing his issue three (3), it was submitted that the onus of proof was on the Respondent to prove through evidence a link between the appellant and the offences allegedly committed by the appellant. It was submitted that the appellant is presumed innocent until proved guilty and that the burden of proof cannot be shifted to the appellant. See, BABATUNDE VS. STATE (2014) 2 NWLR (PT. 1391) 298 at 343, Paragraphs A-B, OBI VS. STATE (2013) 5 NWLR (PT. 1346) 68 at 87, Paragraphs D-F, AIKHADUEKI VS. STATE (2014) 15 NWLR (PT. 1431) 530 at 546 Paragraphs F.G. It was the contention of the learned counsel to the appellant that the appellant is entitled to a discharge and acquittal where the evidence of the prosecution has been discredited. See, AFOLALU VS. STATE (2010) 16 NWLR (PT. 1220) PAGE 584 and AKPAN VS. STATE (1991) 3 NWLR (PT. 182) PAGE 695. Further, that the prosecution in discharging its burden of proof, cannot rely on the weakness of the evidence of the accused person, such evidence would not be taken as guilt. See, UDOSEN VS. STATE (2007) 4 NWLR (PT. 1023) 125 at 150, Paragraphs D-E and
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UCHE ? WILLIAMS VS. THE STATE (1992) 10 SCNJ 74 amongst others. Also, that where there is no credible evidence in proof of the offence, doubt is cast on the prosecution?s case. See, IKOMI VS. STATE (1986) 3 NWLR (PT. 28) 340 and AL-MUSTAPHA VS. STATE (2013) 17 NWLR (PT. 1383) 350 at 405, Paragraph A. It was submitted that the prosecution failed to prove the offences charged beyond reasonable doubt, therefore doubt in the prosecution?s case should be resolved in favour of the appellant.
It was contended that out of the ten witnesses called by the Respondent at the trial only PW1, PW2, PW3, PW7 and PW9 were present at the scene of crime on the 21/3/12, the day of the incident. It was argued that none of the witnesses gave evidence of the presence of the Appellant at the scene of crime on the day of the incident to show that the Appellant participated in the obstruction of the officers from carrying out their lawful duty as contained in the charge. Further, that the PW5 only recorded the statement of the Appellant as the 4th defendant and those of the other defendants at the trial Court. It was submitted that the evidence of the PW5 alleging
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that the other defendants made statements against the appellant is the evidence of a co-accused person which would not affect the other accused person unless he was confronted with it, which was not done in this case. See, ADISA VS. STATE (2013) 14 NWLR (PT. 1375) 567 at 579 Paragraphs G-H and SUBERU VS. STATE (2010) 8 NWLR (PT. 1197) 586 at PAGES 602 ? 603 Paragraphs. H-F. It was argued that there was nothing in the evidence of the other witnesses, PW4, PW6, PW8 and PW10 which linked the Appellant to the commission of the offences alleged in the charge. It was contended that there was no evidence against the Appellant to justify the findings and conclusions reached by the trial Court. It was submitted that the Appellant is entitled to a discharge and acquittal in the present case where the prosecution is alleged not to have proved its case beyond reasonable doubt. Further, that the trial Court in its judgment relied on the appellant?s retracted statement to convict and sentence him without putting Exhibit PW5B to legal test to ascertain the truthfulness and veracity by examining the contents in the light of other evidence adduced at the trial. It
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was conceded that the Court is entitled to act on a confessional statement whether retracted or not and convict an accused person on it but, that the Court must test the veracity or the truthfulness of the contents of the confessional statement and examine same in line with the available credible evidence at the trial before acting on the said confessional statement. Further, that where the confessional statement is not consistent with the available credible evidence then the statement cannot be acted upon. See, OKANLAWON VS. STATE (2015) 17 NWLR (PT. 1489) 445 at 480 Paragraphs A-D and KOLAWOLE VS. STATE (2015) 9 NWLR (PT. 1460) 134 at 165, Paragraphs. C-G. It was submitted that the appellant ought not to have been convicted on exhibit PW5B since all the evidence before the Court are inconsistent with the said confessional statement. It was argued that the statement was not corroborated in any way. It was submitted that the Court ought to examine any defence available to an accused person which is disclosed in evidence before the Court in that the appellant had made out that he was not present at the scene at the time of the incident. See,
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EDIBO VS. STATE (2007) 13 NWLR (PT. 1051) 306 at 322, Paragraphs A-C, OGUNYE VS. STATE (1999) 5 NWLR (PT. 604) 518 and ONUOHA VS. STATE (1988) 3 NWLR (PT. 83) 460.
It was submitted further that the procedure in which a photograph of an injured NDLEA officer admitted in evidence after conviction but, before sentence of the Appellant is a procedure unknown to law. Further, that the trial judge lumped up the evidence adduced by the Respondent against all the Defendants without identifying the quantum of evidence against each of the defendants, the appellant in particular. We were urged to intervene and set aside the finding of fact of the learned trial judge based on the facts and circumstances of this appeal. It was concluded that the trial Court convicted the appellant on inadmissible evidence which created doubt in the prosecution?s case. We were urged to discharge and acquit the appellant; the Respondent having failed to prove its case at the trial Court beyond reasonable doubt.
?In response, the learned counsel to the Respondent K. Tawum Esq. Deputy Commander of Narcotics, Prosecution and Legal Services, NDLEA, Yola adopted and relied on his brief of argument
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filed on 21/1/19 but, deemed properly filed and served on 20/2/19. In arguing his first issue, it was submitted that the trial Court was right to have admitted the appellant?s statement in evidence in view of the facts that admissibility of a confessional statement is voluntariness which determines the relevance of a confessional statement. It was submitted that a confessional statement which is voluntarily made is admissible in evidence while a statement that is induced and not voluntarily made is irrelevant and inadmissible in evidence. See, OLABODE VS. THE STATE (2009) LPELR ? 2542 (SC); (2009) 11 NWLR (PT. 1152) 254, ASUQUO VS. STATE (2016) ALL FWLR (PT. 857) 533 at 560. It was submitted that the method adopted in obtaining the appellant?s statement was proper. The learned counsel reviewed the evidence adduced by some of the prosecution witnesses in the Trial Within Trial (TWT) conducted by the trial Court following the objection by the learned counsel to the appellant that the statement was not voluntarily made. At the close of the Trial within trial, the trial Court found the appellant?s statement to have been voluntarily made. It
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was submitted that since the findings are not perverse it ought not to be tampered with by this Court. See, ADAMU VS. STATE (2018) ALL FWLR (PT. 925) 48 at 78, AKPAN VS. THE STATE (2001) 7 NSCQR 235 at PAGE 250. It was concluded that the trial Court rightly admitted and relied on Exhibit PW4B, the confessional statement of the Appellant. See, EMEKA VS. STATE (2001) 7 NSCQR 582 at 595; IDOWU VS. THE STATE (2000) 3 NSCQR 96 and NWACHUKWU VS. THE STATE (2007) 31 NSCQR 312.
In arguing his second issue, it was submitted that the Respondent at the trial Court discharged the burden placed upon it by law beyond reasonable doubt. It was submitted that the standard of proof is not beyond every iota of doubt. See, MILLER VS. MINISTER FOR PENSION (1947) 3 ALL ER, NASIRU VS. STATE (1999) 2 NWLR (PT. 589) 87; (1999) 1 SCNJ 83; (1999) 1 S.C. 1 and SUNDAY ANI & ANOR VS. THE STATE (2009) 16 NWLR (PT. 1168) 443 at 458; (2009)6 SCNJ 98. It was argued that the prosecution at the trial Court led credible evidence consisting of the Appellant?s confessional statement, evidence of eye witnesses and circumstantial evidence to establish the guilt of the Appellant beyond
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reasonable doubt. The learned counsel defined the offence of conspiracy as the existence of a criminal design to commit an unlawful act or perform a lawful act by an unlawful means amongst other definitions highlighted, while relying on the following authorities ODUNEYE VS. THE STATE (2001) 2 NWLR (PT. 697) 311 at 325, PATRICK NJOVENS & ORS VS. THE STATE (1973) 5 SC 17, DABO & ANOR VS. THE STATE (1977) 5 SC 197, GABRIEL ERIM VS. THE STATE (1994) 5 NWLR (PT. 346) 522; (1994) 6 SCNJ 104 and YARO VS. THE STATE (2007) 18 NWLR (PT. 1066) 215; (2007) 7-10 SC 77.
The learned counsel highlighted what is required to be proved in the charge for which the appellant was convicted. The evidence adduced by the PW1, PW2, PW3, PW5, PW7 and PW9 was highlighted, the witnesses were eye witnesses except the PW5 who interacted with the appellant after his arrest and obtained his confessional statement during his investigation.
The learned counsel contended that the evidence before the trial Court were numerous and that the Court was right to have held that the prosecution proved its case beyond reasonable doubt. Also, that the confessional statement of the
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appellant was consistent with the other evidence called by the prosecution in proof of the offences of conspiracy and obstruction of NDLEA officers. We were urged to hold that the trial Court was right to have relied on the appellant?s confessional statement as it is the best form of evidence.
The Respondent?s third issue is on evaluation of evidence which was also covered by issue two.
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The learned counsel to the Respondent submitted that the learned trial judge sufficiently analyzed the evidence adduced by the parties before arriving at his decision as required by law. Further, that the appellant had no defence put forward before the trial Court but, merely retracted his confessional statement.
On the Respondent?s fourth issue, it was submitted that the appellant was in error when he lumped ground 5 with grounds 2, 3 and 4 of the Notice of Appeal to formulate his issue number 3 for determination which dealt with whether the Respondent as prosecution proved its case beyond reasonable doubt. It was submitted that ground five (5) deals with sentencing hearing in respect of exercising the sentencing discretion by the trial Court.
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It was argued that issue 3 as formulated by the Appellant in his brief of argument does not cover or relate to Ground 5 of the Notice of Appeal. It was argued that it is the content and substance of the issue formulated that would determine its relationship with the ground of appeal that is said to be covered by the issue. We were urged to hold that ground 5 of the Notice of Appeal has been abandoned. See,NWANEZIE VS. IDRIS (1993) 2 SCNJ 139 at 146, DAIRO VS. U.B.N. PLC (2007) 16 NWLR (PT. 1059) 99 and ACTION CONGRESS OF NIGERIA VS. JIMOH AFIZ ADELOWO & ORS (2012) LPELR ? 19718 (CA).
The points argued in the appellant?s reply brief were adequately argued in the appellant?s brief earlier reviewed in this judgment.
The issues formulated by the parties are similar, I would reformulate and summarize the issues into a sole issue thus:
Whether the Respondent proved the case of conspiracy and obstruction of officers of the National Drug Law Enforcement Agency (NDLEA) while carrying out their duty, beyond reasonable doubt to have warranted the conviction and sentence of the Appellant.
?The confessional statement of the
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appellant Exhibit PW5B (Hausa version) and Exhibit PW5C (English version) at pages 235 and 233-234 of the printed record of appeal was made a major point of contention by the parties. At the trial Court the learned counsel to the Appellant objected to the tendering in evidence the confessional statement of the Appellant alleging that it was not voluntarily made, for this reason the learned trial judge conducted a trial within trial (TWT) which was proper. The PW5 (Christopher Iortyer Adabo) the investigating officer, testified as the PW1 in the trial within trial, he gave a detailed account of how the statement was obtained from the Appellant voluntarily before he took same to his superior officer, Shehu Mohammed Dankolo, who endorsed the said statement; pages 324 to 326 of the printed record of appeal. The evidence of the PW8 (Shehu Mohammed Dankolo) who testified as the PW3 in the trial within trial gave evidence that corroborated that of the PW5. The PW8 gave evidence confirming the voluntariness of Exhibit PW5B and C in that he read over the statement to the Appellant who agreed that it was his, voluntarily made before he endorsed it, pages 330 -331 of the
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printed record of appeal. Part of his testimony at the trial within trial is as follows:
?On 22/3/12, the 4th defendant was brought to my office by one Christopher Adabo (A.S.N.). he came with the 4th defendant with two statements one in Hausa and the other in English. I asked the 4th accused person to sit down. I then read to him the Hausa statement. I asked him if he understood what I read to him. He said yes, he understood and that was what he gave as statement. I then endorsed the statement at the bottom of the statement stating that the defendant was brought before me and I read his statement to him. I told the defendant that the 2nd statement contained the English translation of the Hausa statement. He said yes that it was the same English translation of his statement. I had read the English version to him as well. I also endorsed the English translation at the bottom of the statement sheet. After I read the English version, I interpreted it to him in Hausa…
When the 4th defendant was brought to me I did not see any sign of torture or beating on him. The 4th defendant did not make any complaint to me of beating
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of (sic) torture?
Under cross examination he testified thus:
?I am not aware that any suspect is beaten or tortured in my office. Since I know that no one is beaten in my office and I did not see any sign of beating on him, I did not ask him whether he was beaten or not before he gave his statement?.
The evidence of the PW8 is to the effect that the appellant was not tortured before his statement was recorded otherwise he would have observed it when he countersigned the confessional statement and there was no complaint of torture, as alleged by the learned counsel to the appellant that the appellant was tortured before his confessional statement was obtained.
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On the part of the appellant as the DW3 in the trial within trial he gave evidence that he did not make any statement but, was forced to thumbprint the statement which was pre-written. The Appellant testified at pages 345-346 as follows:
?Then I was taken outside and placed on a pavement (?dankali?) then one man took a bench and started hitting me with it. Then their superior officer asked them to stop beating me. It was four officers that beat
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me up…in the evening, they came with a paper and asked me to sign the paper, I said I will not sign since I did not know what was on the paper. Then one officer came from behind me and forcefully made me thumb print on the paper. In the process he injured my hand with the handcuff. At that time, I was still in handcuff since the day I was brought to the office. I see this document, (Statement tendered by prosecution said to be that of the 4th defendant), it is not true that I gave this statement willingly…
I did not make this statement voluntarily. The people who came and asked my name, age, biography and left. They had no biro or paper in their hands when they asked me these questions. I showed the prison officer I was injured by handcuffs and they saw the wound. I was treated.?
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From the appellant?s testimony at the trial within trial, he retracted making the confessional statement by saying he was not the person that wrote it. At the same time, he testified that he was tortured, handcuff throughout while in custody before he made the statement, he
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gave evidence that the superior officer that counter signed and other officers saw that he was wounded and that he was treated. As it is, in one breath the appellant denied making Exhibit PW5B and C, in another breath, he testified that he made it involuntarily after he was tortured. The evidence is inconsistent. There is no evidence on record to show that the appellant was beaten up and tortured before he made the confessional statement. The appellant alleged that the officers saw the wounds, there was no evidence to that effect. Also, that he was treated, there was no evidence from the medical personnel that treated him. If anything, the prison nurse, who testified as the DW2, (Rika Tenku) in the trial with trial gave evidence that the appellant had no documentation of any treatment as is the procedure in the prison, page 341 of the printed record of appeal.
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As rightly submitted by the learned counsel to the Respondent, the learned trial Judge saw and heard the witnesses, also observed their demeanor before his findings and ascribed probative value to their evidence before admitting the confessional statement in evidence. The procedure adopted by the
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trial Court in admitting the appellant?s statement was proper. The learned trial Judge having found the statement admissible and admitted same in evidence, I would not interfere with the trial Court?s findings since there is no evidence to show that such findings are perverse or that an improper procedure was followed. The trial Court was right to have admitted and relied on the confessional statement of the appellant, Exhibits PW5C and B.
The learned trial Judge having admitted the confessional statement in evidence, it became part of the case of the prosecution which the Court was bound to consider for its probative value. The fact that it was retracted is immaterial, otherwise any accused person that has confessed to committing an offence, if he changes his mind, would retract same and go scot free. In IDOWU VS. STATE (2000) LPELR-1429 (SC) at PP 44 – 45, Paragraphs F-A, Wali, JSC in respect of a retracted confessional statement held thus:
mere retraction of a voluntary confessional statement by an accused person does not render it inadmissible or worthless and untrue in considering his guilt. See: R VS. SYKES (1913) 8
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CR. ADP 233 and KANU VS. THE KING 14 WACA 30. If the confessional statement is satisfactorily proved, a conviction founded on it without more, will be sustained by an appellate Court. See: THE QUEEN VS. OBIASA (1962) 1 ALL NLR 645; PAUL ONOCHIE & 7 ORS VS. THE REPUBLIC (1966) NMLR 307; OBUE VS. THE STATE (1976) 2 SC 141 and JIMOH-YESUFU VS. THE STATE (1976) 6 SC 167.?
See also DARLINTON VS. FRN (2018) LPELR-43 850 (SC) PP. 17-18, Paragraphs D-A and MUMUNI & ORS VS. STATE (1975) LPELR- 1926 (SC) P. 18, Paragraphs D-E. I hold that the confessional statement of the Appellant, Exhibit PW5B and PW5C were voluntarily made and properly admitted in evidence by the trial Court.
On the proof of the offence of conspiracy, it is enough once it is shown that the accused persons have a common criminal design or agreement (by two or more people) to do certain things. The crime is complete merely on the agreement to commit an unlawful act or perform a lawful act by an unlawful means. See, STATE VS. SALAWU (2011) LPELR – 8252 (SC) PP.38-39, Paragraphs E-A, KAYODE VS. STATE (2016) LPELR ? 40028 (SC) P. 66, Paragraphs E-F and AJAYI VS. STATE (2013)
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LPELR ? 199941 (SC) P. 28, Paragraph C.
The PW5 gave evidence of his interaction with the appellant and how he obtained his statement, which was tendered as Exhibit PW5C. The confessional statement gave account of the role the Appellant played on the day of the incident. The PW5 gave evidence to the effect that the appellant confessed to him that he was part of the mob that attacked and obstructed the NDLEA officers, he was arrested and handed over to the PW5. His evidence as to the Appellant?s participation with others to obstruct the NDLEA officers from performing their duty of arresting those dealing with Narcotics in Loko, village. The evidence adduced by the PW5 was not challenged under cross examination, the trial Court was therefore bound to act on such unchallenged evidence, page 353 of the printed record of appeal. See,OMOREGBE VS. LAWANI (1980) LPELR ? 2655 (SC) P. 16, Paragraphs A-D, MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD. (2019) LPELR ? 47042 (SC) PP. 53-54, Paragraphs B-C and SIMON EZECHUKWU & ANOR VS. I.O.C. ONWUKA (2016) LPELR ? 26055 (SC) P. 19, Paragraphs A-C. In Exhibit PW5C, the Appellant gave
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an account of the role he played at the scene of the incident, his confessional statement tallied with the evidence of the PW5. At page 233, part of the confessional statement of the Appellant read thus:
?The time the trouble started I was at Angwan Gobarwa working at the house of one Hamido Wanzam when I hear people shouting. I rushed to the place and I saw some villagers beating one drug officer, he was wearing his red jacket uniform so me too picked a stone and hit him on the head and blood started rushing out and he fell down. He was seriously beaten with blood all over his body. Suddenly (sic) Operation Tsaro Soldier were coming towards us. They were shooting so people started running (sic) away and they rescued the officer. They run after us and arrested some of us. They put me in their vehicle. They also carry this officer we were beating. Before I came to where they were this officer some officer went and brought the operation Tsaro soldier who arrested us. They brought us to NDLEA office Yola.?. (Underlining mine for emphasis)
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From the above, the appellant clearly confessed to the offences of conspiracy and obstruction of the
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NDLEA officer from performing their lawful duty of arrests. He confessed to participating in the beating up of an NDLEA officer who he also stoned and the officer was critically injured before the appellant and his colleagues were arrested. At page 564 of the printed record of appeal, the learned trial judge held as follows:
?So, it is in this case, that evidence has shown that all the defendants acted in concert with the others to attack and even kill the NDLEA officers on that day in order to prevent the officers from arresting them. They achieved that objective and they are equally responsible for that act of obstruction regardless of what act each one of them did to achieve their common purpose.?
The learned trial judge rightly found that the appellant and his colleagues acted as one in obstructing the NDLEA officers on the day of the incident, they had a common goal which they achieved, that is the obstruction.
On the appellant?s confessional statement, it is trite that the Court can convict on the confessional statement of an accused alone without more. It is the best evidence, in that the accused in his own words has
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admitted committing the offence as long as the confession is free, voluntarily made, direct and positive. It is the best proof of what he has done. See, KAMILA VS. STATE (2018) LPELR- 45603 (SC), HASSAN VS. STATE (2001) LPELR 1358 (SC), ALABI VS. STATE (1993) 7 NWLR (PT. 307) 5, FABIYI VS. STATE (2015) 6-7 (SC) (PT.1) 83 and DOGO VS. THE STATE (2013) 2-3 SC (PT.II) 75 at 92 -94. I held earlier in this judgment that the learned trial judge was right to have found that the appellant?s confessional statement was voluntarily made.
I hold that the appellant was unable to extricate himself from the offences for which he was convicted and sentenced at the trial Court; he had no defence.
The learned trial judge at page 565 of the printed record rightly found that the prosecution had proved the offences of conspiracy to obstruct and obstruction of NDLEA officers carrying out their lawful duty on 21/3/12 at Loko village as charged, beyond reasonable doubt. This finding is unassailable, I cannot fault it.
?
In sum, I resolve the sole issue as reformulated against the appellant. The appeal is unmeritorious, it is hereby dismissed. The judgment of the
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trial Court is hereby affirmed.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
I agree with his reasoning and conclusions in the lead judgment.
For the reasons contained in the lead judgment, I too dismiss the appeal.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
L. O. Fagbemi, Esq.For Appellant(s)
K. Tawum, Esq. (Deputy Commander of Narcotics, Prosecution and Legal Services NDLEA, Yola) holding the brief of J. N. SundayFor Respondent(s)
Appearances
L. O. Fagbemi, Esq.For Appellant
AND
K. Tawum, Esq. (Deputy Commander of Narcotics, Prosecution and Legal Services NDLEA, Yola) holding the brief of J. N. SundayFor Respondent
