ABDULLAHI MUSTAPHA BERENDE v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13102(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2019
CA/A/354C/2018
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI MUSTAPHA BERENDE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT
In law a Court of law is entitled to convict a Defendant based on his confession. See the Supreme Court case of ULUEBEKA VS. STATE (2000) 7 NWLR PART 665, Page 404 at page 428 paragraphs E ? F, where it was held thus:-
“A free and voluntary confession of guilt whether judicial or extra judicial if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession.”
See also Section 28 of the Evidence Act, 2011. PER AGIM, J.C.A.
WHETHER OR NOT THE COURT MUST CONSIDER THE CASE PRESENTED BY ALL PARTIES BEFORE IT
It is trite law that a Court must equally consider the case presented by all parties to the case before it. In a situation where evidence is elicited by the two parties, it must evaluate or assess and pronounce upon the probative value of the evidence of each party before drawing any inference or conclusion on such evidence. It cannot consider the evidence of only one side, ignore the evidence of the other side and proceed to decide the case only on the said evidence of one party. This certainly violates the rule of even handedness and equality of arms in adjudication that is the indicator of a fair trial. See Newswatch Comm. Ltd v. Atta (2006) 4 SC (Pt 11) 114. PER AGIM, J.C.A.
WHETHER OR NOT IT IS EVERY ERROR COMMITTED BY THE COURT THAT LEADS TO A REVERSAL OF THE JUDGEMENT OF THAT COURT
The Supreme Court in Bayol v. Ahemba (1999) 7 SC (Pt. 1) 92 held that “But it must be emphasized that it is not every slip or error committed by the Court that leads to reversal of the judgment of that Court by an appellant Court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or slip in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice.”
It is not every error in the proceedings of a Court that violates the fair hearing of the case that would vitiate the proceedings in which it was made. If the error is in the form of lack of evaluation or improper evaluation of the evidence of a party as in this case or the failure to hear and determine a motion on notice before proceeding with the trial, the approach of the Court is to consider if such error has occasioned a miscarriage of justice. In Emeka v. Okadigbo & Ors (2012) LPELR ? 9338 (SC), the Supreme Court held thusly- “it is not in all cases that failure of the trial Court to hear a pending motion before delivery of judgment is fatal to the proceedings. It is the duty of an Appeal Court to examine the motion that was pending and ensure that failure of the trial judge to take it as not led to a denial of fair hearing or/and miscarriage of justice.”
In cases where the error is in the form of lack of evaluation or lack of proper evaluation of the evidence of a party, the established appellate practice is for the appellate Court to carry out the evaluation or proper evaluation that the trial Court failed to do and if it finds that the evaluation or proper evaluation of the evidence has affected or changed the judgment in the case, then the error is said to have occasioned a miscarriage of justice. In Abusomwan v. MBN LTD (1987) 6 SC 570 the Supreme Court held that “It is our law that where there is ample evidence and the trial Judge failed to evaluate it and make correct findings, the Court of Appeal is at liberty to evaluate such evidence and make proper findings, unless the findings rest on the credibility of witnesses”. See also Onykwelu v. Elf Petroleum Nig. Ltd (2009) 2 ? 3 SC 181. PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/354c/2018 was commenced on 26-3-2018 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court at Abuja in charge No. FHC/ABJ/CR/128/2013 delivered on 24-1-2018 by A.R. Mohammed J. The notice of appeal contains 5 grounds of appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.
The appellant’s brief raised the following issues for determination-
1. Whether in view of the facts and circumstances surrounding the military training allegedly received by the Appellant in Iran, the learned trial Judge was correct in convicting the Appellant under Section 5 of the Terrorism (Prevention) Act 2011 as amended for supporting acts of terrorism; (distilled from Ground 1 of the grounds of appeal);
?2. Whether the learned trial judge was right in convicting the Appellant when he relied only on the prosecution’s case without considering the evidence of the Appellant and whether the appellant was not thereby denied his constitutional
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right to fair hearing; (distilled from ground 2 and 5 of the grounds of appeal);
3. Whether the judgment of the trial Court is not a nullity for failure of the learned trial Judge to address his mind to and/or state the point or points for determination in this cases; (Ground 3 of the Grounds of Appeal);
4. Was the learned trial Judge right when he relied on the evidence of PW6 (expert witness) as corroboration of the Appellant’s confessional statements and whether this occasioned a miscarriage of justice.” (distilled from ground 4 of the grounds of appeal)
The respondent’s brief raised the following issues for determination-
1. Whether this Court can re-evaluate the evidence before the lower Court in the circumstances of this case generally, and with particular emphasis on the trial-within-trial?
2. Whether the application of the test in Alarape v. The State (2001) 5 NWLR (Pt. 705) 79 @ 98 and eventual admission of the Appellant’s confessional statement in the circumstances of this case occasioned any miscarriage of justice.
3. Whether the decision of the trial Court in convicting the Appellant under
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Section 5 of the Terrorism (Prevention) Act 2011 (as amended) for supporting acts of terrorism in the circumstances of this case was proper?
4. Whether the Appellant in the circumstances of this case was denied fair hearing?
5. Whether the decision of the trial Court can be supported on the strength of the evidence before it?
Let me start with issue No. 1 which asks- “Whether in view of the facts and circumstances surrounding the military training allegedly received by the Appellant in Iran, the learned trial Judge was correct in convicting the Appellant under Section 5 of the Terrorism (Prevention) Act 2011 as amended for supporting acts of terrorism”.
Learned Counsel for the appellant argued that the trial Court relied solely on the extra judicial statements of the appellant, exhibits B and B1 found by the trial Court to be confessional, to decide that count 1 was proved, that there is nothing in exhibits B1 and B2 that proves or suggests that the appellant engaged in the training in Iran to support acts of terrorism or that he knowingly or intended to receive the training to support terrorist activities in Nigeria, that the statements rather show that
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the appellant who was in Iran to study Islamic Culture and Civilization, was deceived and lured by his host into training in the use of arms and explosive against his will and under compulsion, that the appellant did not commit the offence in S.5(1)(a) of the Terrorism (Prevention) Act.
Learned Counsel for the respondent argued that the appellant had every opportunity to report what transpired in Iran to the Nigerian Security agencies on his return to Nigeria or simply back out of the terrorist arrangement or plan upon his return to Nigeria, that he did not and rather went ahead to recruit, PW7 and others at large and was about recruiting PW8 to support the Iranian terrorist group plans in Nigeria, that the trial Court found the evidence of PW6, PW7 and PW8 corroborative of the contents of exhibits B1 and B2, the confessional statements, that PW1 testified about his findings based on intelligence and investigation, that the appellant was recruited by the Iranian Revolutionary Guard Corps (a terrorist group based in Iran) and trained to carry out terrorist activities against Western and Israeli interests in Nigeria, including recruiting and training other
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Nigerians for that purpose.
Let me now consider the merits of the arguments of both sides.
Issue number 1 in the appellant’s brief complains about the conviction of the appellant for the offence of terrorism created by S.5 of the Terrorism (Prevention) Act 2011 as amended, for supporting acts of terrorism. The appellant was charged with, tried and convicted for that offence in count 1 of the charge sheet which alleged thusly-
“That you Abdullahi Mustapha Berende, between September 2011 and December 2012 at Tehran in Iran render support for act of Terrorism to wit: by the provision of material assistance and terrorist training together with other now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1)a of the Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.”
In exhibits B1 and B2, the appellant admitted that he was in Iran at the instance of Amir, a terrorist suspect, now at large and underwent terrorist training together with others now at large on the use of firearms, explosives and other related weapons. This evidence
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discloses the actus reus of the offence in S.5(1) of the Terrorism (Prevention) Act as it admits that the appellant entered or remained in Iran for the benefit of or at the direction of or in association with a terrorist group. The actus reus consist of rendering support to a terrorist group by being in Iran at their direction to associate with them, undergoing their training obviously for their benefit. See S. 5(1) and (2)(d) of the Terrorism (Prevention) Act which provides thusly-
“5(1)” Any person who knowingly, in any manner directly or indirectly solicits or render support-
(a) For the commission of an act of terrorism or
(b) To a terrorist group
Commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than twenty years.
(2) For the purposes of Subsection (1) of this section, “support’ includes:
(d) Entering or remaining in a country for the benefit of or at the direction of or in association with a terrorist group; or.”
The argument of Learned Counsel that exhibits B1 and B2 show that he did not knowingly receive or did not intend to receive the training in the use of
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firearms, explosives and other related weapons is defeated by the appellant’s admission in exhibits B1 and B2 that he intended to receive training or lessons on cultural aspects of Islam, that on the fourth or fifth day after the commencement of lesson on Islamic culture, lessons on the use of explosives and detonators started and extended to lessons in the use and shooting of pistols, rifles, AK 47, machine guns and missiles, tear gases and hand grenades lasting about 3 weeks in various places, and the fact that even though he admitted that the training was dangerous to him and his home country, when he returned to Nigeria he did not report his experience to the Nigerian Security officials and did not stop relating with the Iranians.
It is clear from exhibits B1 and B2 that, apart from merely expressing their dissatisfaction with the length of the period of training, their confinement to a particular section of the school, the seizure of their phones and laptops and the dangerous nature of the content of the course, the appellant and the others with him willingly participated in the training. He did not say that they were forced to undergo the training.
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He did not say that they refused to participate in the training and were compelled to do so. The appellant admitted that each of the trainees was, after the training given various sums of money as follows- 500 US dollars in Riab for transport and accommodation, 500 US Dollars in Riab for general shopping, 1,300 US Dollars for transportation from Murtala Muhammed Airport to their various destinations in Nigeria. The appellant also admitted that he shared the 1500 US Dollars amongst others according to the distance of their destinations. He also admitted that his friend, Amir gave him 4000 US Dollars for his upkeep at home and helped him see a doctor concerning his eye problem. When they returned to Nigeria, the appellant and others did not inform or report to the Nigeria Security authorities that they were forced in Iran to undergo such dangerous training. After returning to Nigeria the appellant admitted maintaining friendship with Amir and Ali, two of the terrorists he associated with in Iran during training, that he maintained extensive communications with them, undertook to investigate Israeli presence and activities in Chabbad and other spots in Lagos,
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preparing and submitting a report of the investigation to Amir, again met Amir in Dubai where he received money gifts and other assistance from him and visited the Island of Kish in Iran on the invitation of Amir. He admitted being trained again on how to get information, that Amir again gave him 20,000 US Dollars, that Amir gave him further assignment to investigate Max Zim and A.A. companies in Nigeria and report to him, that he promised to do so and that when he returned to Nigeria, he carried out the assignments.
?It is clear from the foregoing and the more detailed accounts of the relationship between appellant and Amir and other Iranians, his repeated visits there, the huge cash gifts he kept receiving from Amir, the appellant’s acceptance to investigate Israeli, American and other Western interests in Nigeria and gather information about them for Amir, that the appellant knowingly participated in the training on the use of firearms, explosives and related weapons in Iran at the direction of and in association with a terrorist group. The intention or knowledge with which a person carries out an act can be expressed by him and if not so expressed can
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be deduced from his conduct or activities or other connected circumstances.
Exhibits B1 and B2 contained detailed accounts of the activities of the appellant and his Iranian friends particularly Amir that establish clearly that he knowingly participated in that training in Iran at the direction of and in association with the terrorist group. The statements in exhibits B1 and B2 admitted the essential ingredients of the offence in S.5(1)(a) of the Terrorism (Prevention) Act. Therefore the trial Court was correct in describing the statements as confessional.
The argument of Learned Counsel for the appellant that the trial Court relied solely on exhibits B1 and B2 to convict the appellant for the offence in Court 1 is not correct. The trial Court expressly stated thusly- “I find the evidence of PW6, PW7 and PW8 very corroborative of the confessional statements made by 1st defendant on the allegations made against him in the charge”. The finding of the trial Court that the testimonies of PW6, PW7 and PW8 corroborate exhibits B1 and B2 is correct. The finding shows that the trial Court did not rely only on exhibits B1 and B2 to convict the appellant.<br< p=””
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PW6 gave a detailed explanation of how his forensic investigation of the mobile phones, laptops, digital camera, Internet modem and external storage device recovered from the appellant and his co-accused confirmed appellant’s communications with Amir and his engagement of 2nd defendant to gather information as to “to the sensitivity, the vulnerability of a target location, how to access the area, what cover to use, type of dress to be used, the best route to access the area and a photograph snapped of the entrance to the target location.”
PW7 testified that “he met the 1st Defendant while the witness was looking for job, how the 1st Defendant offered him the job of monitoring locations where the Jews and white men are residing in Lagos, how 1st Defendant promised to take the witness to Iran and Dubai, how 1st Defendant gave him the sum of N21,000 to secure international passport, how the 2nd Defendant came to PW7 and take the international passport for the purpose of securing Iranian visa for the witness, how the witness reported to the assignment given to him by 1st Defendant that he did not notice any Jew or white
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men in the locations described to him in Lagos.”
PW8 testified that “That he came to know the two Defendants as undergraduates in the University of Ilorin, and that they have been friends since that time. That in September, 2012, 1st Defendant came to PW8 house in Kaduna and told him that he will get him a better job and he told PW8 about a friend of his in Iran. That 1st Defendant told PW8 that his Iranian friend asked him to gather information about some individuals and that he will inform his friend concerning PW8. That when PW8 asked 1st Defendant whether the nature of the information that he was asked to gather was not espionage activities, the 1st Defendant said he did not think so. When some months later PW8 called 1st Defendant and asked him about his friend, 1st Defendant said his friend didn’t give him a positive response concerning PW8. That 1st Defendant then travelled to Dubai. That PW8 didn’t hear from the 1st Defendant until he heard that he was arrested along with two others and that PW8 was among the group formed. PW8 then reported himself at the DSS office in Kaduna from where he was brought to the DSS Headquarters in Abuja.
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During cross examination by 1st Defendant’s counsel, PW8 stated that he truly believed that the information to be gathered would amount espionage or unlawful activity.”
The testimony of the 2nd defendant equally corroborated certain parts of exhibit B1 and B2. He testified that “That in October, 2012, the 1st Defendant asked him to locate a company called AA Consulting which he did and told him that the said AA consulting is on No. 6B, Saka Abuka Street, Opebi, Lagos. The 1st Defendant asked him to generally describe the place to him and he did through E-mail. That as part of the description, 2nd Defendant made a sketch map of the street and the entrance with his phone. That 2nd Defendant took picture of the entrance of the street with the belief that it will aid the 1st Defendant to locate the street. That he sent the description to the 1st Defendant through 2nd Defendant’s e-mail Rotmans 07 at gmail.com. The 2nd Defendant also stated that he had the intention of making a pilgrimage to MASHAD SHERIFF in Iran to the Mosque of Moseleum of Imam Ali Ridoh. That because of that intention, he submitted an application for visa at the Iranian Embassy in Abuja. That he
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did not dedicate his phones to the 1st Defendant or anybody.
Sometime in December, 2012, 2nd Defendant said he received a strange call from an individual who introduced himself as Amir who said he was calling from Gum. The said Amir asked him if he know the 1st Defendant and he said he did. That he asked him if he has heard of the 1st Defendant recently and 2nd Defendant said he has not heard of 1st Defendant to return Amir’s calls. That he got to know Saka Olayinka through 1st Defendant and that he had helped him financially because 1st Defendant said he had financial difficulties. On the mode of communication by sketch 2nd Defendant said he had earlier used the same method for some of their companies. 2nd Defendant also stated that he has never been to Iran before or any Arabic Country.”
In the light of the foregoing, I resolve issue No. 1 in favour of the respondent.
Let me now consider issue No. 2 which asks- “Whether the learned trial judge was right in convicting the Appellant when he relied only on the prosecution’s case without considering the evidence of the Appellant and whether the appellant was
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not thereby denied his constitutional right to fair hearing.”
Learned counsel for the appellant argued that the trial Court after restating the summary of the evidence and arguments of both sides considered only the evidence of the prosecution and did not consider the defence of the appellant before convicting him of all the offences he was charged with, that the trial Court should have considered the defence of the appellant, however stupid or unreasonable, it may appear, to find out if it established reasonable doubt in the case made by the prosecution, that the trial Court was carried away by the appellant’s confessional statements in Exhibits B1 and B2 and forgot to look at the evidence of the appellant.
Learned Counsel for the respondent argued in reply that the trial Court diligently considered and articulated the defence put forward by the Appellant in delivering its well-considered judgment, that in considering the defence of the Appellant, it became very obvious that the Appellant had decided to sing a new song in contradiction to his written statement, thereby compelling the Court to follow the only logical course in obedience to the
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injunction of the Supreme Court in Egboghonome vs. State (1993) 7 NWLR (Pt. 306) 383 to the effect that where a witness’ statement to the Police contradicts his evidence in Court, the Court should regard him as an unreliable witness and discountenance his testimony in Court.
Let me now determine the merits of the above arguments of both sides.
I agree with the argument of Learned Counsel for the appellant that the trial Court, after restating the summary of the evidence adduced by both sides through their respective witnesses and the final written addresses of both sides, it considered the confessional statements of the appellant, exhibits B1 and B2 and the testimonies of PW6, PW7 and PW8 that corroborated them and without considering or evaluating the evidence of the appellant, proceeded to convict him on all counts. As held by the Supreme Court in Anyanwu v. Uzowuaka (2009) LPELR-515 (SC) the summary or restatement of the evidence presented by the parties is not the same thing as evaluation of evidence.
?The exact of the part of the judgment pronouncing on the evidence before it and convicting the appellant thereon,
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reads thusly- “Having read the final written addresses of the parties, it is to be noted that in proof of the charge against the Defendants, the prosecution tendered their respective statements which were admitted in evidence as exhibits B1 and B2 (for the 1st Defendant) and exhibits C1 and C2 (for the 2nd Defendant). Reading through the statements of 1st Defendant, it can be seen how he described the military training he received in Iran on how to shoot pistols, rifles, AK 47, machine gun and missiles, tear gasses and hand grenades. 1st Defendant also stated in his statement that after the training, they were given various sums of money in US Dollars for shopping and upkeep. See pages 4, 5 and 6 exhibits B. Now, the question is, what is the status of those statements in law? I must quickly answer the question by describing those statements as confessions of crime. In law a Court of law is entitled to convict a Defendant based on his confession. See the Supreme Court case of ULUEBEKA VS. STATE (2000) 7 NWLR PART 665, Page 404 at page 428 paragraphs E ? F, where it was held thus:-
“A free and voluntary confession of guilt whether judicial or extra
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judicial if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession.”
See also Section 28 of the Evidence Act, 2011.
Although learned 1st Defendant’s counsel has argued that a confessional statement must be corroborated by another evidence, I find the evidence of PW6, PW7 and PW8 very corroborative of the confessional statement made by 1st Defendant on the allegations made against him in the charge. For the 2nd Defendant, his confessional statements constituted in exhibits C1 and C2 have shown unequivocally the role he played in assisting the 1st Defendant in locating locations for the purpose of gathering information relating to terrorism activities. The 2nd Defendant is also involved by the description of the unlawful actions he carried out in the circumstances of this case.
On the whole, I find the 1st Defendant- Abdullahi Mustapha Berende guilty on counts one, two, three, four, five and six of the charge dated and filed on 12th July, 2013.
For the 2nd Defendant, I hereby found him guilty on counts five and
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six of the charge dated and filed on 12th July, 2013. The Prosecution has therefore proved the charge beyond reasonable doubt as required by law.”
The restatement of Tobi JSC in Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 947, cited by Learned Counsel for the appellant, concerning a situation similar to this case is instructive here. It reads thusly- “in the assessment of evidence the learned trial Judge was only involved in the evidence of PW1, PW2, and PW3. I ask what of the evidence of DW1, DW2 and DW3? It is our law that a trial Court is bound to consider equally in his assessment or evaluation, the evidence of both the Plaintiff and the Defendant. And that is the role he plays like an umpire of a game. I have the impression that because the learned trial judge parochially assessed only the evidence of the Plaintiffs that he was carried away by it and failed to examine the detailed counter claim.” See also Adamu & Ors v. The State (1991) 6 SC 17.”
I agree with the submission of Learned Counsel for the appellant that the trial Court was carried away by the appellant’s confessions in exhibits B1 and B2 and did not border to assess and
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pronounce upon the evidence of the appellant to find out if it established reasonable doubt in the case of the prosecution or any defence thereto. It is trite law that a Court must equally consider the case presented by all parties to the case before it. In a situation where evidence is elicited by the two parties, it must evaluate or assess and pronounce upon the probative value of the evidence of each party before drawing any inference or conclusion on such evidence. It cannot consider the evidence of only one side, ignore the evidence of the other side and proceed to decide the case only on the said evidence of one party. This certainly violates the rule of even handedness and equality of arms in adjudication that is the indicator of a fair trial. See Newswatch Comm. Ltd v. Atta (2006) 4 SC (Pt 11) 114.
?Issue No. 2 as couched has merit in the essence that the appellant has established the existence of the error complained about. The question that arises at this juncture is whether this appeal should be allowed on the basis of this issue? The answer to this question is simply that the success of a ground of appeal or issue in an appeal would result in
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the appeal being allowed only if the error complained of, occasioned a substantial miscarriage of justice in the sense that the judgment would have been different if the error was not made. See Anyanwu v. Mbara (1992) 6 SCNJ 90, Adejumo v Ayantegbe (1989) 6 SC (Pt. 1) 76, Teriba v. Adeyemo (2010) LPELR – 3143 (SC). The Supreme Court in Bayol v. Ahemba (1999) 7 SC (Pt. 1) 92 held that “But it must be emphasized that it is not every slip or error committed by the Court that leads to reversal of the judgment of that Court by an appellant Court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or slip in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice.”
It is not every error in the proceedings of a Court that violates the fair hearing of the case that would vitiate the proceedings in which it was made. If the error is in the form of lack of evaluation or improper evaluation of the evidence of a party as in this case or the failure to hear and determine a motion
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on notice before proceeding with the trial, the approach of the Court is to consider if such error has occasioned a miscarriage of justice. In Emeka v. Okadigbo & Ors (2012) LPELR ? 9338 (SC), the Supreme Court held thusly- “it is not in all cases that failure of the trial Court to hear a pending motion before delivery of judgment is fatal to the proceedings. It is the duty of an Appeal Court to examine the motion that was pending and ensure that failure of the trial judge to take it as not led to a denial of fair hearing or/and miscarriage of justice.”
In cases where the error is in the form of lack of evaluation or lack of proper evaluation of the evidence of a party, the established appellate practice is for the appellate Court to carry out the evaluation or proper evaluation that the trial Court failed to do and if it finds that the evaluation or proper evaluation of the evidence has affected or changed the judgment in the case, then the error is said to have occasioned a miscarriage of justice. In Abusomwan v. MBN LTD (1987) 6 SC 570 the Supreme Court held that “It is our law that where there is ample evidence and the trial Judge failed to
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evaluate it and make correct findings, the Court of Appeal is at liberty to evaluate such evidence and make proper findings, unless the findings rest on the credibility of witnesses”. See also Onykwelu v. Elf Petroleum Nig. Ltd (2009) 2 ? 3 SC 181.
Since the trial Court did not evaluate the evidence elicited by the appellant in defence of the charge against him, this is an appropriate case for this Court to interfere and do what the trial Court failed to do, by evaluating the appellant’s evidence to find out if it casts reasonable doubt in the prosecution’s case or discloses a valid defence to the charge.
Let me now consider the evidence of the appellant. The appellant testified as DW1 in his own defence. I have carefully read and considered his testimony in open Court.
The trial Court had, following the trial within trial of the voluntariness of the appellant’s confessional statements in exhibit B1 and B2, held that they were voluntarily made and therefore admitted them in evidence as exhibits B1 and B2.
In his testimony in open Court as DW1, the appellant retracted the confessions in exhibits B1 and B2 by testifying that the contents
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are not true account of what transpired between him and the 2nd defendant, his friend Amir, Sala Olayinka (PW2) and Bonyamin Yusuf (PW8). The confessional statements did not become inadmissible because of this retraction. They remained admissible evidence. See Akpan v. The State (1992) 7 SCNJ 22.
Equally this retraction did not prevent the trial Court from acting upon them to decide the case as the circumstances of the case justify. See Nwachukwu v. The State (2002) 7 SC (Pt. 1) 124 in which the Supreme Court held that the fact that the accused subsequently retracted his confession, does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify it.
Although the appellant in his testimony in open Court denied knowing a place called Chabbad, Nook, Tiamiyu Savage, Victoria Island, Lagos, denied discussing terrorism with either PW7 and PW8, denied that his and 2nd defendant’s nokia were bought in the same store, denied that the laptop found in his house is his own and denied knowing where the emails therein came from, denied being recruited by Iranian Revolutionary Guard or anybody to carry out any
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activity in Nigeria, denied that he was trained to use any weapon, denied that Amir gave him any money, denied that after training he was mandated to come back to Nigeria and recruit more people for terrorist activities, denied recruiting anybody in Nigeria or anywhere for such activities, denied that he was about sending the recruited men to Iran when he was arrested, denied communicating with Amir, his friend in Iran, by email, denied engaging PW7 to spy on Jews staying in Lagos on a salary of 1000 Dollars a month, denied that his business of selling phones was a cover for his terrorist activities, denied giving PW7 N21,000.00 to secure international Passport, denied knowing Avenue Hotel and denied sending PW7 to Avenue Hotel to look for Jews, denied that Amir gave him any code for sending e-mail to him or vice versa, denied sending 2nd defendant to locate AA company or snap pictures of it, his admission of other facts in exhibits B1 and B2, such as the fact that Amir is his friend and they communicate by phone, the fact that the testimonies of PW7, PW8, the 2nd accused and the forensic investigation of the mobile phones, laptops, digital camera, internet
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modem corroborate several aspects of the contents of exhibits B1 and B2 show that the contents of exhibits B1 and B2 are true and that the appellant had opportunity of committing the said terrorist crimes. Exhibits B1 and B2 satisfy the tests on the weight to attach to confessional statements, retracted or not retracted laid down in Shazali v. State (1988) 12 sc (Pt 11) 58 thusly- “the issue of weight to be attached to confessional statements retracted or not retracted? the tests to be applied and or followed were laid down in R v. Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30. And I regard them as sound and golden. The questions a Judge must ask himself are:-
(1) is there anything outside the confession to show that it is true? (2) Is it corroborated? (3) Are the relevant statements made in it of facts, true as far as they can be tested? (4) Was the prisoner one who had the opportunity of committing the murder? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes
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these tests satisfactorily, a condition founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.”
?See also Kareem v FRN (No. 2) (2002) 4 SC (Pt. 11) 42 and Ikpo v. The State (1995) LPELR ? 1488 (SC).
In any case the trial Court had held in its ruling of 22-1-2014 on the voluntariness of the said statements that they passed the tests laid down by the Supreme Court in Alarape v. State (2001) 5 NWLR (Pt. 705) 79 at 98 thusly “The test, however, for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true”. See R. V. Sykes (1913) 8 CAR 233 at 236 where Ridley, J. suggested the tests to be applied to an accused person’s confession in the determination of its veracity as follows:-
1. Whether there is anything outside the confession to show that it is true.
2. Whether the statement is corroborated, no matter how slightly.
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3. Whether the facts contended therein, so far as can be tested, are true.
4. Whether the accused person had the opportunity of committing the offence.
5. Whether the confession of the accused person was possible.
6. Whether the confession was consistent with other facts which have been ascertained and proved in the matter.”
Apart from denying some facts in exhibit B1 and B2 in his testimony in open Court, the appellant did not elicit any evidence that cast reasonable doubt on the case of the prosecution or that establish any defence to the case established against him by the evidence of the prosecution. Rather his admission in open Court of his friendship with Amir, a terrorist suspect, from the Iranian City of Qum, one of the places the terrorist training took place and whom he met severally during the training in Iran and even after the training, strengthened the case of the prosecution.
In the light of the foregoing, it is obvious that even if the trial Court had evaluated the evidence of the appellant, it would still have convicted the appellant as it did. Therefore its error in not considering the evidence of the appellant before convicting
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him, did not occasion a miscarriage of justice.
Therefore issue No. 2 is resolved in favour of the respondent.
Let me now determine issue No. 3 which asks “Whether the judgment of the trial Court is not a nullity for failure of the learned trial Judge to address his mind to and/or state the point or points for determination in this case.”
The argument of Learned Counsel for the appellant that the judgment of the trial court did not state the point or points for determination is correct, even though the judgment considered the written addresses of the parties which contained the points for determination. But it states the decision and the reason therefore, even though tersely. It is signed and dated by the trial Judge. So it substantially complies with S.308(1) and (2) of the Administration of Criminal Justice Act 2015 which provides that
“308(1) The Judge or magistrate shall record his judgment in writing and every judgment shall contain the point or points for determination, the decision and the reasons for the decision and shall be dated and signed by the judge or Magistrate at the time of pronouncing it.
308(2) The Magistrate instead of
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writing the judgment may record briefly in the book his decision or finding and his reason for the decision and then deliver an oral Judgment.”
It is clear from the express terms of the judgment that the reason stated therein for the conviction of the appellant is his admission of commission of the crimes in his confessional statements, exhibits B1 and B2, and the corroboration of the confessional statements by the evidence of PW6, PW7 and PW8. There is no doubt that the reasons are not elaborate. As terse as they are, they show the basis for the decision of the trial Court.
The decisions in Aigbe v. The State (1976) 9 ? 10 SC 46 at 53, Yakubu v. Chief of Naval Staff (2004) 1 NWLR (Pt 853) 94, Anyankpele v Chief of Naval Staff (2000) 12 NWLR (Pt 684) 209 at 226 and Akwa v. COP (2003) 4 NWLR (Pt. 811) 461 are distinguishable from our present case as the relevant facts are different. In those cases the compliance with provisions similar to S.308 of the ACJA was not substantial. Example, in Aigbe v. The State (supra), the judgment, in addition to the failure to show a consideration of the evidence of both sides, failed to
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state the point for determination, the decision thereon and the reasons for the decision.
I do not think that the omission to state the point or points for determination in the judgment should vitiate it in the peculiar circumstances of this case in which the appellant has not shown what prejudice or injustice it has suffered because of that omission, especially, as the judgment is supported by the evidence. It would amount to arid legalism and an undue regard for technical rules of procedure to allow such omission vitiate a judgment and result in a trial denovo, when it is clear from the tenor of the judgment that the point it determined are whether exhibits B1 and B2 are confessional statements, whether they were corroborated by the evidence of PW6, PW7 and PW8 and whether the appellant could be convicted on the basis of exhibits B1 and B2 as corroborated by evidence of PW6, PW7 and PW8.
In the light of the foregoing, issue No. 3 is resolved in favour of the respondent.
Let me now determine issue No. 4 which asks “Was the learned trial Judge right when he relied on the evidence of PW6 (expert witness) as corroborative of the Appellant’s
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confessional statements and whether this occasioned a miscarriage of justice.”
I have carefully read and considered the arguments of both sides on this issue.
PW6, Aliyu Usman, a Certified Forensic Examiner with the Counter Terrorism Investigation Department of the Department of State Services, National Headquarters, Abuja, gave detailed explanation of his forensic investigation of the contents of mobile phones, laptops, digital camera, Internet modem and external storage devices recovered from the appellant and his co-accused and made a written report of his investigation which was tendered in evidence as exhibit H. Clearly, PW6 was an officer of the Department of State Services that investigated this case. He testified about what he did and observed while carrying out the forensic examination of electronic devices recovered from the appellant and his co-accused. His testimony of what he did is direct evidence of the conduct of the forensic investigation. The probative value of this part of his testimony is not in doubt. What is in doubt is the probative value and maybe the admissibility, of his testimony and exhibit H relating to the content of
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the electronic devices investigated by him. His opinion of the content of the said electronic devices qualify as expert opinion in that it is opinion on a point of science or technology that require specialised knowledge to unravel and interpret is admissible in evidence by virtue of S.68 of the Evidence Act 2011. Be that as it is, it is not the evidence of the person who imputed the data in the electronic devices or made the statements contained therein. The probative value of this opinion is heavily diminished for this reason and the further and more weighty reason that most of the materials upon which the findings contained therein were based, were not tendered in evidence before the Court. The call data record of the telephone conversations which exhibit H analysed, the e-mail accounts listed in exhibit H as allegedly opened by the Appellant and even the extracts of the E-mails that were copiously attached to the proof of evidence served on the Appellant, were not tendered in evidence at the trial. The conclusions of the PW6 had no evidential foundation and were therefore not verifiable. Therefore they had no probative value. In Idudhe v. Eseh (1996) 5 NWLR
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pt 451 750, at 758 this Court held that “The duty of the expert is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions so as to enable the Judge or Jury to form their own independent judgment by the application of the criteria to the facts proved in evidence before them”.
In Elukpo v FHA (1991) 3 NWLR Pt 179 322 this principle was applied thusly- “The mere fact that a document is prepared or tendered by an expert does not mean that the Court must accept and act on any or everything that it contains. The Court has a duty to consider the weight, if any, to be attached to any documentary evidence, even when tendered by an expert, before coming to a conclusion as to whether or not it establishes the fact stated therein. In the present case, there was some sort of confusion in the appellant’s case, as presented. The issue of the nature or quantum of the work allegedly done by the appellant was lumped together with the issue of the valuation of the work after its nature or quantum had been determined. Valuation of the work after the nature or quantum had been determined was a matter for an expert, for
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example, a quantity surveyor like the appellant’s only witness. However, the nature or quantum of the work allegedly done by the appellant was a question of fact to be determined by the learned trial Judge on the basis of the evidence, if any, led by the appellant. There was nothing scientific or technical, requiring the evidence of an expert, about it. Those who could testify, on the point, were the persons who actually took part in the execution of the work or those who saw them doing so. They were the ones who could give the best evidence on the issue. There was no evidence that quantity Surveyor was one of such people. What the quantity surveyor did was a valuation of the work which the appellant showed or caused to be shown to him as the work allegedly done by the appellant. In short, that aspect of the matter dealt with in the valuation report, Exhibit P.9, was based on hearsay, which is not admissible. The proper thing, which should have been done, was that whoever gave the information to the quantity Surveyor should have come to the Court to testify so that his evidence might be tested by cross-examination by the learned counsel for the respondent. The
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legal position is that if what purports to be an expert report is, in fact, hearsay evidence or was, on a particular point, based on hearsay evidence, it can be perfectly rejected. Expert evidence, if admitted and it is unchallenged by way of cross-examination or contradictory evidence, does not become inevitably acceptable merely because it is an expert evidence which has not been contradicted or challenged. It should be accepted only if there is no good reason to reject it, and, in the process of scrutinizing it, could be rejected if there is reason so to do.”
The trial Court’s reliance on the evidence of PW6 did not occasion any miscarriage of justice because the trial Court’s conviction of the appellant was not based solely or mainly on that evidence and the conviction can be sustained without it. The trial Court relied mainly on exhibits B1 and B2, the confessional statements of the appellant for its decision and merely relied on the testimony of PW6 as part of the evidence that corroborated the said confessional statements. The other evidence the trial Court relied on as corroborative of the confessions are the testimonies of PW7 and PW8.
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PW7 testified in examination in chief that-
“My name is Mr. A.A. I know the two Defendants in this case. I came to know Mr. Berende, whom we usually called Ustaz through my association with him in an organisation which we belonged together in Ilorin. The name of the Association is AHLUL BAIT ISLAMIC ASSOCIATION based in Ilorin.
The 2nd Defendant, Mr. Saheed, I came to know him through Mr. Berende who told me about him and introduced him to me in 2011. That was a point in time when I need financial assistance and Mr. Saheed was recommended by Mr. Berende to be of help to me.
In the year 2012, precisely on Friday 25th August, 2012, I received a call from Mr. Berende who asked me to meet him at Mr. Sheriff’s place in Tin Can Island, Lagos. The call was in respect of a job on which I needed at that time and which he had offered to help me secure. On Saturday, the following day, I went over to meet Mr. Berende at the venue in Tin Can Island. Upon reaching the house and the room, he told me to hold on until Mr. Sheriff (who is the owner of the apartment) would have a reason to leave the room.
Thereafter Mr. Berende told me that the discussion which he
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was going to have with me was supposed to be a private affair between the two of us and which he did not want Mr. Sheriff to have knowledge about it.
At first, he told me the job was a Reporter’s job and I became happy on hearing this information. But in the course of our discussion later on, he made me to understand that the job was actually to spy on the Jews residing in Lagos. Then he told me that the Iranians traced him to a conference which he attended in Dubai from where they picked interest in him and then they asked him to organise some people in Nigeria who would serve the purpose of spying. Mr. Berende also mentioned that after a short while, before I start the job fully that I would have to travel to Iran to receive all briefing on the job which I was to do, and that along the way, I would stop over in Dubai, where I would meet a friend of his.
He told me that for the purpose of the travel, I would need an International Passport and by that time, he would be travelling to Iran that day, but by the time he comes back, he would prepare me for my own trip to Iran. He however warned me not to let anybody know the details either at home or
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anywhere else. That was the discussion we had on August 25th, 2012.
On November 4th, 2012 I received a call again from Mr. Berende in which he told him that he was back from his trip to Iran and that he was already in Lagos lodging in one hotel and that the name of the Hotel was “Country Own Guest House”, in Ikeja, Lagos. On the following day, 5th November, 2012, I went over to the Hotel Mr. Berende told me about with my friend and when I met him, he told me that we needed to move over to the Hotel compound to hold the discussion together. He said he would not want my friend to be aware of what we are going to talk about.
When we got outside, Mr. Berende told me that some of the details of the job have been given to him. He also said that he had been directed to be my Boss on that job in Lagos. He told me that I would be placed on a salary of 1000 dollars per month which would be paid every two or three months. Then he said I have to think of a proper story which I will tell people that will not make them aware of the true nature of the job which I will be doing with him. He told me that for himself, the cover he was going to use was that he would
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rent a house in Lagos where he would be staying and around the vicinity of the house, he would also be selling phones. Then he told me to get a specific line different from our phone lines which we will be using to communicate between us. He also told me to open new E-mail different from the original mail I used, also for the purpose of communication. Then he gave me the sum of N21,000.00 which he said I should use to secure an International Passport and a new phone line. The same day, he gave the address of the particular place and the name of the place, the place is a Hotel. The name of the Hotel THE AVENUE HOTEL. He told me that the hotel is almost opposite another structure which is situated on No. 100, Tiamiyu Savage Street, Victoria Island, Lagos. He told me to go to these two places and to look out for the movement of Jews in and out of these buildings. He told me to take a count of the number of those individuals. That was the discussion we had for that day.
At that stage, after our meeting, I have gotten very scared of that job. Upon returning home, out of fear of the unknown, I had to relate it to my friend, who advised me to be very careful,
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but I told her not to let any other person know about it. I also mentioned to my friend, that the version of the story about the job which I would relate to people was different. That version was made up by me and when I discussed that version with Mr. Berende, he told me it was fine. The version of that job was that his friend in Dubai whom he told me I would need when I stopped over in Dubai is into the business of sending electronics into Nigeria, so he employed me to oversee the sales and distributions of those electronics in Nigeria. That was the discussion we had on the second day we met.
By the following week, on Saturday, the 10th or thereabout of November, 2012, I went to those two locations which he told me about. According to his instructions, I stayed in that vicinity to look out for the movement in and out of the Jews but did not find anyone to take count of. He had also told to take photographs of those building, but out of fear, I did not take any photograph and I quickly left the vicinity of those two buildings.
On Monday, the 12th of November, 2012, I called him to tell him that the International Passport was ready and he told me to
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keep it. When I was about to tell him of the visit of the assignment, he told me not to discuss it on the phone until he came around to Lagos. That same time, he gave me the second assignment to carry out.
When we finished talking on the phone on 12th November, 2012 concerning the first task he gave to me, then he gave me the address of another location, I am referring to Mr. Berende, where he told me to visit and check out for the persons and activities, if there were any of white people. The address of that place is No. 3, Alhaji Salman Close, Adeoye Estate, in Agungi town, along Lekki ? Epe Express Way, Lagos State.
On Wednesday, 14th of November, 2012, he called me again to take my International Passport to Mr. Saheed, 2nd Defendant, who would take it for processing for visa in Abuja. Because I did not have enough funds on me, I pleaded with Mr. Saheed to come to my place to pick the Passport, which he did. The visa is to go to Iran. Saheed came around to my place and picked the Passport that same day.
On Thursday 15th November, 2012, I visited the second location of the assignment Mr. Brende gave to me but I did not see anybody who
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was white. I also did not see any water manufacturing company within the location, when I again told him of my visit; Mr. Berende said we will discuss it when next he came to Lagos. On 22nd of November, 2012, Mr. Berende called me and told me that he was already in Lagos. On 23rd of November, 2012, Mr. Berende and I met at the chicken Republic which is located within Festac town Lagos. There, I gave him the feedback of the assignment that he had given to me and that is my evidence. The international passport was not returned to me and up to now, I have not sighted it.”
PW8 testified in examination in Chief that –
“PW8, male, adult, Muslim, affirms and states as follows: My name BB. I work at Regal Quality Farms. I know the two Defendants in this case.
I came to know the two Defendants as undergraduates in the University of Ilorin. We have been friends since that time. In September, 2012, one of the Defendants, Mustapha Berende called me on phone and he told me that he was travelling to Kano. That on his way back, he would branch at my place to see my family in Kaduna. When he came, we discussed lot of issues and one of them was my work. He promised me to get me a better job. It was then
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he now told me about a friend of his in Iran. He said the friend asked him to gather information about some individuals. That he will inform his friend concerning me. When he told me this, I asked him whether the nature of the information that he was asked gather was not espionage activities, but he said he did not think so. We left the matter like that.
Berende later travelled to Dubai.
Some months later, I called Berende and asked him how far about his friend, he said his friend had not given him a positive response conserving me. I didn’t hear anything from him again, until I heard he was arrested. Two other people were also arrested with Berende. That I was among the group that Berende formed, and that I was at large. When I read this in the Newspaper, I went to report myself at the SSS Office in Kaduna. From there, I was brought to the SSS Headquarters in Abuja.”
?It is clear from the foregoing that in the absence of the testimony of PW6, the contents of the confessional statements were sufficiently corroborated by the testimonies of PW7 and PW8 and the conviction of the appellant on his confessional statements would have remained sustained.
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For the above reasons issue No. 4 is resolved in favour of the respondent.
Let me observe obiter, that although the offence creating section under which the appellant was charged, tried and convicted prescribes a minimum custodial sentence of 20 years, the trial Court imposed a sentence of 5 years and gave no reason for not sentencing the appellant in keeping with the said offence creating section. Just as the trial Court lacks the power to levy a sentence above the statutorily prescribed maximum, it lacks the power to levy a sentence below the statutorily prescribed minimum. The legal effect of the statute prescribing minimum and maximum sentences is to limit the sentencing discretion of the trial Court to the limits prescribed in the statute. The offence of terrorism being a very serious crime, ordinarily, should attract a very high sentence as a deterrence. This is because of the very far reaching destructive impact of the crime on the society. If the crime takes root in any society, experience has shown that it destroys the society, through large scale killings of human beings, genocide, large scale violation of human rights, overthrow
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of rule of law and resulting absolute lawlessness and a state of terror. In a state of terror, life becomes unpredictable, nasty, brutish, short, hopeless and helpless. Witness the Boko Haram terrorist activities in the North Eastern part of Nigeria. So a sentence that will deter the further commission of such an offence is what is reasonable in the circumstance. That is the intention of the legislature in enacting a minimum sentence of 20 years in S.5 of the Terrorism (Prevention) Act as punishment for such offence. The custodial sentence of 5 years defeats the legislative intention of that statutory provision.
It is noteworthy that the prosecution did not bother to cross appeal against this sentence. This kind of prosecutorial indifference to the trial Court’s brazen and inexplicable violation of S. 5 of the Terrorism (Prevention) Act that defeats the objective of deterring the further commission of such a very serious crime that experience has shown can unleash an irreversible reign of terror on the entire society, is worrisome and saddening. I had thought that in view of the serious nature of this crime, and the fact that it is threatening the very
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existence of this country. As it is, since there is no appeal on sentence, I will not say more.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the Federal High Court delivered in Charge No. FHC/ABJ/CR/128/2013 on 24-1-2018 by A.R. Mohammed J is hereby affirmed and upheld.
ABDU ABOKI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my Learned Brother EMMANUEL AKOMAYE AGIM, JCA. His Lordship has adequately reviewed the facts leading to this appeal and I also agree with the reasoning in respect of the issues raised for the determination of the appeal which resulted in the dismissal of the appeal in its entirety.
For all the reasons so advanced in the lead judgment, I also find the appeal to be wholly unmeritorious and same is dismissed accordingly.
I also abide by the consequential orders contained in the lead judgment.
ADAMU JAURO, J.C.A.: I was opportuned to have read in advance a copy of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA.
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I am in complete agreement with the reasoning and conclusion contained therein to the effect, that the appeal is lacking in merit and ought to be dismissed.
I adopt the said judgment as mine and join my brother in dismissing the appeal. I abide by the consequential order made. Appeal Dismissed.
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Appearances:
M.I. Hanafi, Esq. with him, M.N. Njama, Esq. and Yusuf Kadiri, Esq.For Appellant(s)
Chioma Onuegbu, Esq. (ADPP) with him, Aniekan Ekow, Esq. (SSC, Fed. Ministry of Justice)For Respondent(s)
Appearances
M.I. Hanafi, Esq. with him, M.N. Njama, Esq. and Yusuf Kadiri, Esq.For Appellant
AND
Chioma Onuegbu, Esq. (ADPP) with him, Aniekan Ekow, Esq. (SSC, Fed. Ministry of Justice)For Respondent
