ALI MUSA v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13612(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/YL/195C/17
RATIO
EFFECT OF RETRACTING A CONFESSIONAL STATEMENT
The fact that the statement was retracted is immaterial otherwise, any accused person that confesses to having committed a crime would easily retract such statement to go scot free by the mere retraction of his confessional statement. See, AKPAN VS. STATE (2001) LPELR ? 383 (SC) P.21, Paragraphs C-E; (2001) 15 NWLR (PT 737) P. 745, IDOWU VS. STATE (2000) LPELR ? 1429 (SC) PP. 44-45, Paragraphs F-A, MUMUNI & ORS VS. STATE (1975) LPELR ? 1926 (SC) P. 18, Paragraphs D-E and DARLINTON VS. FRN (2018) LPELR 43850 (SC) PP. 17-18, Paragraphs D-A. PER CHIDI NWAOMA UWA, J.C.A.
CRIMINAL LAW AND PROCEDURE: BURDEN OF PROOF ON PROSECUTION BEYOND REASONABLE DOUBT
On proof of the prosecutions case, the burden of proof on the prosecution is not to prove its case beyond every iota of doubt but, beyond reasonable doubt. I am of the firm view that the evidence led by the prosecution established the guilt of the Appellant by the evidence adduced by the eye witnesses, the confessional statement and circumstantial evidence. PER CHIDI NWAOMA UWA, J.C.A.
DEFINITION OF CONSPIRACY AND HOW TO PROVE IT
With the offence of conspiracy, it is seldom proved by direct evidence. The offence was adequately defined by the learned counsel to the Respondent as the agreement by two or more people to do an act at once, on a future date or certain time in agreement with a common goal to achieve their objective, then the offence is complete. The substantive offence need not have been committed. To omit to do an act criminally also constitutes the offence. See STATE VS. SALAWU (2011) LPELR ? 8252 (SC) PP. 38 ? 39, Paragraphs E ? A, KAYODE VS. STATE (2016) LPELR ? 40028 (SC) P. 32, Paragraphs A ? B, ACN & ANOR VS. INEC & ORS (2013) LPELR 20300 (SC) P. 18, Paragraphs C-D and ADELEKE VS. STATE (2013) LPELR ? 20971 (SC) PP. 38-39, Paragraphs G-A. 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
ALI MUSA 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, sitting in Yola, presided over by B. B. Aliyu, J (as he then was) delivered on 9/5/16 wherein the appellant was convicted as charged. The Appellant as the 8th accused person was charged, arraigned, tried and convicted alongside seven other accused persons with the offences of conspiracy and obstruction of officers of the National Drug Law Enforcement Agency (NDLEA) from carrying out their lawful duty. It was contended by the appellant that the charges were not proved beyond reasonable doubt as required by law and that the trial Court was wrong in its conclusion and decision.
On arraignment, the appellant and the seven others pleaded not guilty to the charge. The prosecution in proof of its case at the trial called ten (10) witnesses, all officers of the NDLEA. At the close of the prosecution?s case, the appellant entered his defence and testified as the DW2 wherein he denied being at the scene of the crime on 21/3/12. All the other defendants gave evidence in their respective defences denying committing the offences charged.
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Dissatisfied with the judgment of the trial Judge, the appellant appealed to this Court. Three issues were distilled for the determination of the appeal thus:
1) ?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)
2) 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 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, 4 and 6 of the Notice of Appeal)
3) 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 distilled four (4) issues for the determination of the appeal as follows:
i. ?Whether from the facts and circumstances
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of this case the learned trial judge properly admitted the confessional statement of the Appellant herein, as 8th 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 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 filed on 14/11/15 and his reply brief filed on 6/3/19 as his argument in
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this appeal in urging us to allow same, discharge and acquit the appellant. In arguing his issue one, it was submitted that the trial Court was wrong to have convicted and sentenced the Appellant as charged having regard to the entire evidence adduced by the parties in this case. It was alleged that the trial Court considered only the Respondent?s case without giving any consideration to the case of the appellant in respect of the evidence adduced at the trial. It was also alleged that the trial Court did not give any reason for preferring the evidence of the Respondent against that of the Appellant. It was submitted that the Court is duty bound to evaluate evidence adduced by the parties before it before arriving at its conclusion. See HON. BASHIR ADEYELA VS. OLAJIDE ADEYEYE & ORS (2010) LPELR ? 3618 (CA), JIMOH AWOPEJO VS. THE STATE (2001) 18 NWLR (PT 745) 430 0R LPELR ? 656 SC, JOHN OGBU & ANOR VS. THE STATE (2007) 2 SCNJ 319 and CPC VS. INEC & 41 ORS (2011) 12 SC (PT V) 80.
It was submitted that failure to consider and evaluate the accused person?s case as occurred in this case, is a denial of justice and fatal
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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 and EDIBO VS. STATE (2007) 13 NWLR (PT 1051) 306 at 322 Paragraphs A-C. Further, that any defence raised by an accused person should be considered before the Court dismisses it. See OGUNYE VS. STATE (1999) 5 NWLR (PT 604) 518 and ONUOHA VS. STATE (1988) 3 NWLR (PT 83) 460. It was argued that this is a perfect situation where this Court should interfere with the decision of the lower Court based on the facts and circumstances of this case. See EBOLOR VS. OSAYANDE (1992) LPELR ? 8053 (SC) PAGE 43 ? 44, Paragraphs G-A, ADELEKE VS. IYANDA (2001) 13 NWLR (PT 729) 1 at PAGE 204 and BORNU HOLDINGS LTD VS. BOGOCO (1971) 1 ALL NLR 324 at 330.
On the Appellant?s second issue, it was submitted that the onus of proof was on the Respondent to prove by evidence a link between the Appellant and the offences allegedly committed by the Appellant for the reason that the appellant is presumed innocent until his guilt is established. See BABATUNDE VS. STATE (2014) 2 NWLR (PT 1391) 298 at 343, Paragraphs
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A-B, OBI VS. STATE (2013) 5 NWLR (PT 1346) 68 at 87, Paragraphs D-F, AIKHADUEKI VS. STATE (2014) 15 NWLR (PT 1341) 530 at 546 Paragraphs F-G. It was reargued that the burden of proof in any criminal trial is on the prosecution, while reliance was placed on the case of AFOLALU VS. STATE (2010) 16 NWLR (PT 1220) PAGE 584 and AKPAN VS. STATE (1991) 3 NWLR (PT 182) PAGE 695. It was submitted that the prosecution in discharging the burden of proof required by law cannot rely on the weakness of the evidence of the accused person. See UDOSEN VS. STATE (2007) 4 NWLR (PT 1023) 125 at 150, Paragraphs D-E, UCHE WILLIAMS VS. THE STATE (1992) 10 SCNJ 74 and WOOLMINGTON VS. DPP (1935) A. C. 462. Further, that the ingredients that make up the offences charged must be proved by credible evidence before the Court, failure of which create doubt in the case of the prosecution. 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 argued that the evidence before the trial Court did not link the appellant with the offences charged. It was submitted that out of the ten (10) witnesses called by the
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prosecution only PW1, PW2, PW3, PW7 and PW9 were present at the scene of the crime on the 21st day of March, 2012 and that none of them gave evidence of the presence of the Appellant at the scene of crime to show that the appellant participated in the obstruction of the officers from carrying out their lawful duty. It was argued that the PW5 only gave evidence alleging that the 1st, 3rd and 4th Defendants at the trial Court implicated the appellant in course of the investigation, which is evidence of co-accused persons. The evidence of the PW8 and PW10 did not also link the appellant with the offences charged. It was alleged that the findings of the trial Court and its decision are perverse and occasioned a miscarriage of justice.
It was submitted that the evidence of the 1st, 3rd, and 4th defendants is that of a co-accused which is only admissible against the maker and not the co-accused person. See, ADISA VS. STATE (2013) 14 NWLR (PT 1375) 567 at PAGE 579, Paragraphs G-H. It was submitted that the confessional statements of the co-accused persons were not shown to the Appellant, therefore not admissible against the accused person but only against the
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maker. See SUBERU VS. STATE (2010) 8 NWLR (PT 1197) 586 at PAGES 602 ? 603, Paragraphs H-F AND DURU VS. STATE (2017) 4 NWLR (PT 1554) 1 at 26, paragraphs F-H and PAGE 27 B-D, 28 paragraphs D-F.
On the confessional statement of the Appellant, PW6A and PW6B relied upon by the learned trial judge, it was submitted that the trial Court ought not to have relied on the confessional statement of the Appellant which was retracted. It was conceded that the Court is empowered to act on a retracted confessional statement and convict upon it but, that the veracity or the truthfulness of the contents must be examined in line with available credible evidence led at the trial Court, before it could be acted on. Further, that if the retracted statement is not consistent with the available evidence led at the trial, 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 there was no evidence to corroborate the contents of Exhibits PW6A and PW6B to show that the appellant committed the offence with which he was
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charged. See STATE VS. AZEEZ (2008) 14 NWLR (PT 1108) 439 at 477, Paragraphs E-H. It was argued that the evidence adduced by the appellant was not challenged and should be deemed admitted.
It was also argued that the Court is bound to consider the defence set up by an accused person no matter how worthless before the Court can dismiss it. See OGUNYE VS. STATE (1999) 5 NWLR (PT 604) 518. Further, that the prosecution ought not to have adduced further evidence by tendering photographs after the conviction of the appellant but, before conviction. It was argued that the photographs were admitted in evidence without compliance with Section 84 of the Evidence Act, 2011. See AMAECHI VS. INEC (2008) ALL FWLR (PT 407) 1 at 98, Paragraphs C-D and OLANIYAN VS. OYEWOLE (2008) ALL FWLR (PT 399) 503 at 522, Paragraphs F-G.
It was the contention of the learned counsel that the quantum of the evidence against the appellant was not considered but, the trial Court lumped up the evidence against all the defendants which occasioned a miscarriage of justice. We were urged to set aside the judgment of the trial Court. It was concluded that there was reasonable doubt
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in the case of the prosecution at the trial Court which ought to have been resolved in favour of the appellant. See BOLANLE VS. STATE (2005) 7 NWLR (PT 925) 431 and IGABELE VS. STATE (2005) 7 NWLR (PT 925) 431.
On the appellant?s third issue, it was submitted that the Appellant as the DW10 gave evidence to the effect that he was arrested on 9/9/12, several months after the alleged incident occurred at Loko on 21st March, 2012. Further, that the Appellant was not at Loko village on 21/3/12 when the incident took place and that he was in his village at Yamaltu Local Government Area of Gombe State at the time and was not at the scene of the crime, reference was made to the evidence of his wife who testified as the DW8 and his elder brother who testified as DW9 who gave evidence to the effect that he was in Gombe State when the incident took place.
On the appellant?s defence, it was submitted that the Appellant timeously raised the defence of alibi during the period of his interrogation by the prosecution and that the trial Court?s refusal to uphold the defence of alibi is perverse. See AKINDIPE VS. STATE (2016) 15 NWLR (PT 1536) 470
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at 502, Paragraph F, IDEMUDIA VS. STATE (2015) 17 NWLR (PT 1488) PAGE 375 at 396, Paragraphs E-F, ANI VS. STATE (2009) 16 NWLR (PT 1168) 443 at 457, Paragraphs B-F, ADEBIYI VS. STATE (2016) 8 NWLR (PT 1555) 459 at 475 ? 476, Paragraphs H-F. It was argued that the obligation to call additional evidence where the defence of alibi is raised is on the Respondent and not the appellant but, he still called the DW8 and DW9 to show that he was not within the vicinity of the scene of crime on the day of the incident. See ABUDU VS. STATE (1985) 1 NWLR (PT 1) 55 at 59.
Further, that there is no credible evidence adduced by the Respondent which fixed the appellant to the scene of crime, in such situation the plea of alibi would avail the appellant. See STATE VS. EKANEM (2017) 4 NWLR (PT 1554) PAGE 85 at 96, Paragraphs D-F. It was argued that the Respondent did not prove the offence charged beyond reasonable doubt to demolish the plea of alibi which was timeously raised. The trial Court was said to be wrong to have held that the plea of alibi was belated and not acceptable, the appellant having been fixed at the scene of crime. It was concluded that there was
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no evidence that warranted the conviction and sentence of the appellant. We were urged to discharge and acquit the appellant.
In response, the learned counsel to the Respondent K. Tawum Esq., Deputy Commander of Narcotics, Prosecution and Legal Services NDLEA, Yola holding the brief of J. N. Sunday for the Respondent adopted and relied on his brief of argument filed on 21/1/19 but, deemed properly filed and served on 20/2/19 as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the trial Court. In arguing his first issue, it was submitted that a confessional statement is said to be relevant when it is voluntarily made and therefore admissible in evidence and where not voluntarily made, it becomes 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 procedure adopted by the learned trial judge in admitting the confessional statement as Exhibits PW6A and PW6B was proper and in order. Further, that the appellant?s case is that he did not make any statement but
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was made to thumb print papers that were neither made by him nor read to him, which is a retraction. It was submitted that the appellant?s allegation of torture in the trial within trial (TWT) was baseless as it was not directed at Ali Baba Alhaji or Mohammed Adamu Kwatu who were concerned with the recording of the statement and the allegations were said not to have been substantiated. It was submitted that the content of Exhibits PW6A and PW6B is in tandem with the evidence of the PW5 and PW7, pages 353 to 355, 363 to 364 and 384 to 385. We were urged not to interfere with the findings of the trial Court in absence of any evidence that is perverse. 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 on this issue that the trial Court was right to have admitted in evidence Exhibits PW6A and PW6B, the Hausa and English versions of the appellant?s confessional statement.
In arguing his issue two, it was submitted that the Respondent as the Prosecution before the trial Court discharged the burden placed upon it by law and proved its case beyond reasonable doubt. Proof,
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it was argued is not proof beyond all shadow of doubt. See MILLER VS. MINISTER OF PENSION (1947) 3 ALL ER, NASIRU VS. STATE (1999) 2 NWLR (PT 589) 87 and SUNDAY ANI & ANOR VS. THE STATE (2009) 16 NWLR (PT 1168) 443 at 458; (2009) 6 SC NJ 98.
Further, the learned counsel defined the offence of conspiracy as two or more people having a common criminal design or agreement to do or to omit to do an act criminally. Nothing more than the agreement need be done for the offence to be complete. See ODUNEYE VS. THE STATE (2001) 2 NWLR (PT 697) 311 at 325, PATRICK NJOVENS & ORS VS. THE STATE (1973) 5 SC 17 and GABRIEL ERIM VS. THE STATE (1994) SNWLR (PT 346) 522; (1994) 6 SC NJ 104. The act of one of the conspirators is said to be the act of each and everyone of them. See YARO VS. STATE (2007) 18 NWLR (PT 1066) 215; (2007) 7-10 SC 77. The important requirement is the mind of the conspirators to have a common goal.
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It was submitted that the prosecution led evidence to establish the ingredients of the offences charged, the second count being that the officers of the NDLEA were obstructed from carrying out their duty to arrest suspected drug offenders.
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Further, that PW5, PW6, and PW7 gave a clear account of how the appellant was implicated by the 1st defendant at the trial in respect of the conspiracy and obstruction of NDLEA officers from discharging their duty. The appellant was said to have given an account of his interaction with the witness and that at the appellant?s house the appellant was seen to have planted cannabis and some illicit drugs was found on him. The evidence of the PW6 who tendered the appellant?s confessional statement was reviewed. Further, that the DW7 (the 7th Defendant at the trial) confirmed the appellant?s participation in the mob action which was not countered under Cross Examination. It was concluded on this issue that the evidence of the DW8, DW9 and DW10 was unreliable and inadmissible hearsay in some areas which could not remove the appellant from the scene. See IKECHUKWU SUNDAY VS. THE STATE (2010) LPELR ? 1470 (SC); (2010) 18 NWLR (PT 1224) 223.
In arguing his third issue, it was submitted that the trial judge critically analyzed the pertinent issues in a balanced and dispassionate manner and that the case of both parties was well considered.
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It was submitted that the judgment of the trial Court cannot be faulted and that we should discountenance the submissions of the learned counsel to the appellant. See ALHAJA OLADOJA SANUSI VS. OREITAN ISHOLA AMEYOGUN (1992) NWLR (PT 237) 527.
On the Respondent?s fourth issue, it was submitted that the appellant was wrong to have lumped ground 5 of the Notice of Appeal with grounds 2, 3 and 4 to formulate his issue 3 for determination dealing with whether the Respondent as prosecution proved it case against the appellant beyond reasonable doubt whereas, ground 5 relates to sentencing hearing after the conviction of the appellant and the plea of allocutus in mitigation of punishment. It was argued that issue 3 as formulated by the Appellant in his brief of argument does not relate to ground 5 of the Notice of Appeal even though it states that it relates to that ground. Further, that the law is that where a ground of appeal is not covered by any issue in the appellant?s brief, such ground of appeal is deemed abandoned. See NWANEZIE VS. IDRIS (1993) 2 SC NJ 139 at 146, DAIRO VS. UBN PLC (2007) 16 NWLR (PT 1059) 99 and ACTION CONGRESS OF NIGERIA VS. JIMOH AFIZ ADELOWO & ORS
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(2012) LPELR ? 19718 (CA). It was concluded on this issue that the trial Court in exercising his sentencing discretion did not take into account the materials complained of in ground 5 before exercising discretion to sentence the appellant to the terms of imprisonment. We were urged not to tamper with the sentence, since there is no appeal against same. See, EKPO VS. FRN (1982) ALL NLR 146, (1982) SC 10 and AKEEM VS. FRN (2017) ALL FWLR (PT 872) 1518.
The Appellant?s reply brief is a reargument of points already argued in the appellant?s brief of argument.
I have examined the issues formulated by the parties, for the determination of the appeal, they are similar, I would reformulate the issues into a sole issue thus:
Whether the trial Court was right to have found the appellant guilty of the offences for which he was tried and convicted, considering the circumstances of this case?
The learned counsel to the Appellant has argued that the trial Court ought not to have admitted the statement of the appellant in evidence. It is on record that when the admissibility of the appellant?s
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statement was objected to the learned trial judge rightly ordered a trial within trial (TWT) to ascertain its admissibility. The PW6 (Ali Baba Alhaji) testified as the PW1 at the trial within trial gave a detailed account of how he obtained the Appellant?s statement which was confessional in nature, before he took him to his superior Mohammed Adamu Kwatu for endorsement. The PW6 testified that the appellant?s statement was voluntarily made and that there was no reason to have tortured him and that he was not tortured, pages 639-371 of the printed record of appeal. The PW7 (Mohammed Adamu Kwatu) testified as the PW2 at the trial within trial and gave evidence along the same line as the PW6 to the effect that the appellant made his statement voluntarily and he confirmed same before him, before he counter signed. The PW6 testified that the appellant was arrested with a fresh plant of cannabis sativa, dried weed of cannabis sativa and small quantity of tramadol capsules before he was taken to their office in Yola. The evidence of the appellant at the trial within trial was that he was tortured but, he could not substantiate the allegation by giving
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details of who tortured him, where and the nature of the torture meted out to him, failure of which I hereby discountenance the allegation that the appellant was tortured before he made Exhibits PW6A and PW6B (Hausa and English versions of the appellant?s statement). On the other hand, the appellant?s contention in his evidence in the trial within trial is that he did not make any statement but, was made to thumb print papers of which he did know what was contained therein and who made it, which is a retraction. Part of the evidence of the appellant at the trial within trial at pages 376-377 is as follows:
?I saw a man with many papers. .. He called my name and I came. He opened a stamp pad, he said where ever he shows me I should put my thumb on the ink pad and thumb print. It is not correct as stated in the statement that I came out with a machete and assisted in attacking the NDLEA officers. I did not tell them what was in the statement sheet. I see this statement, it is not my statement. In the statement, I thumb printed, the ink was shaky because I was afraid.?
?
The above evidence is a retraction and not an allegation of
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involuntarily making a statement under torture. The appellant?s evidence is inconsistent, page 377-378 of the printed record of appeal.
The learned trial judge observed the witnesses and saw their demeanor before ascribing probative value to their evidence and admitted the appellant?s statement in evidence, which is not perverse as rightly argued by the learned counsel to the Respondent. The wrong procedure was not followed and the finding was supported by evidence therefore, this Court would not tamper with same. The confessional statement was rightly admitted in evidence as Exhibits PW6A and PW6B, and became part of the case of the prosecution which the learned trial judge rightly considered in its judgment. The fact that the statement was retracted is immaterial otherwise, any accused person that confesses to having committed a crime would easily retract such statement to go scot free by the mere retraction of his confessional statement. See, AKPAN VS. STATE (2001) LPELR ? 383 (SC) P.21, Paragraphs C-E; (2001) 15 NWLR (PT 737) P. 745, IDOWU VS. STATE (2000) LPELR ? 1429 (SC) PP. 44-45, Paragraphs F-A, MUMUNI & ORS VS. STATE
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(1975) LPELR ? 1926 (SC) P. 18, Paragraphs D-E and DARLINTON VS. FRN (2018) LPELR 43850 (SC) PP. 17-18, Paragraphs D-A.
On proof of the prosecution?s case, the burden of proof on the prosecution is not to prove its case beyond every iota of doubt but, beyond reasonable doubt. I am of the firm view that the evidence led by the prosecution established the guilt of the Appellant by the evidence adduced by the eye witnesses, the confessional statement and circumstantial evidence.
With the offence of conspiracy, it is seldom proved by direct evidence. The offence was adequately defined by the learned counsel to the Respondent as the agreement by two or more people to do an act at once, on a future date or certain time in agreement with a common goal to achieve their objective, then the offence is complete. The substantive offence need not have been committed. To omit to do an act criminally also constitutes the offence. See STATE VS. SALAWU (2011) LPELR ? 8252 (SC) PP. 38 ? 39, Paragraphs E ? A, KAYODE VS. STATE (2016) LPELR ? 40028 (SC) P. 32, Paragraphs A ? B, ACN & ANOR VS. INEC & ORS (2013) LPELR
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? 20300 (SC) P. 18, Paragraphs C-D and ADELEKE VS. STATE (2013) LPELR ? 20971 (SC) PP. 38-39, Paragraphs G-A. The important thing is the common intent of the defendants working in common to achieve their common criminal objective where the accused person is pinned to the scene of the offence charged the act of each of them in furtherance of their common criminal intention is taken to be the act of each and everyone of them. In the present case, did the appellant and his colleagues have a common design to obstruct officers of the NDLEA and did they obstruct the NDLEA officers from discharging their lawful duty to arrest suspected drug dealers? The evidence of the PW5 gave an account of the appellant?s role, the appellant was arrested with hard drugs and he had cannabis planted at his house. From his investigation, the PW5 found out that the appellant was one of those that came out to the market on the market day and attacked the NDLEA officers when one was about to be killed in support of the rest of the mob. He affected the arrest of the appellant (the 8th defendant at the trial) at his house in Loko. The PW5 gave a compelling account of his
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interaction with the appellant in course of investigation. PW6 (Ali Baba Alhaji) was part of the investigating team that arrested the appellant, he tendered the appellant?s statements which he obtained from him. Exhibits PW6A and PW6B which were rightly admitted in evidence. At page 255 of the printed record of appeal is part of the confessional statement in which the appellant stated as follows:
?I have been smoking Indian hemp about seven year ago (sic) and I started selling about six month ago, I usually get my supply of Indian hemp from Gambo Heavy D, he last supplied me with kilogramme of Indian hemp yesterday at the cost price of N5000 around 2 pm. I also planted Indian hemp in my house. On the Loko incidence, I actually took part because I came out of my house with a matchet and also assisted in mobilizing the youth to attack the NDLEA officers, on the same issue, I also heard that my oga Gambo Havy D, is the person that used cutlass…
I was also told that my oga Gambo Havy D stone one of the officers with a cow horn and that Wasini Danmaka also said that they had attempted burning the NDLEA vehicle but before they could
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get to where it is the Driver took off, also Langalanga Sule, Dan Alhaji, are fulanis suspected to be armed robber and they are friend to my oga Gambo Havy D. Today 09-09-2012, around 5.30am I was in the house, when some people pushed my door open and introduce themselves as NDLEA officers they demanded to search my room which I obliged and on the process some wraps of Indian hemp were found and also within the compound some were uprooted and admitted ownership of the Indian hemp found in my house, I was then brought to the office where my Exhibit proved positive for Indian hemp weight of 600gms for dried weeds and 2kgs for fresh plant. Tablets of Diazepam 12gms, Tramol 100gms.? (Underlined mine for emphasis).
The appellant in his confessional statement gave a detailed account of the role he played, that is: he came out of his house armed with a matchet to the scene and mobilized the youths to come out to join in obstructing the NDLEA officers from the arrest of the drug dealers. The appellant acted with the mob and is responsible for whatever happened on the day of the incident at the village square in Loko.
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The DW7 (Mohammed Adamu Kwatu) also
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gave account of how the 1st defendant led his team to the house of the appellant where they found that the appellant planted Indian hemp and was in possession of other hard drugs. The appellant made his Exhibits PW6A and PW6B in his office which he endorsed as a confessional statement. There was nothing in the evidence of the PW8 and PW9 called by the appellant that extricated him from the scene of crime and active participation. On the other hand, Exhibits PW6A and PW6B made it clear that the appellant was at the scene of crime and played an active role of mobilizing youths and was armed with a matchet at the scene, he was part of the mob that attacked the NDLEA officers on the fateful day and thereby obstructed the officers from performing their lawful duties. The Appellant and the rest of the mob acted in agreement and with a common goal of obstructing the officers from arresting drug dealers in Loko village moreso, the appellant confessed to be one of the dealers in his confessional statement. The evidence of the PW5, PW6 and PW7 was not shaken under cross examination, therefore remains unchallenged.
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I am at one with the view of the learned trial
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judge that in Exhibits PW6A and PW6B the appellant admitted participating in the Loko attack. At page 560 of the printed record of appeal, the learned trial judge after evaluating the contents of the appellant?s statement held thus:
?Exhibit ?PW6A? and ?PW6B? are confessional statements of the 8th Defendant Ali Musa. He admitted to participating in the Loko attack that prevented the NDLEA officers from arresting some suspects. He used a machete in the attack in aid of the 1st defendant who was his boss.?
Further, at pages 561-562 of the record of appeal the trial Court held as follows:
?I find that their confessional statements are consistent with the other evidence called by the prosecution in proof of the offences of conspiracy and obstruction of NDLEA officers from arresting the 1st and 2nd defendants at Loko….
I have scrutinized the confessional statements of the defendants and compared with the available credible evidence. I am of the view that the confessional statements of the defendants have all satisfied the acceptability test stated in the Okanlawon vs. State (supra). I therefore
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accept them as true in the circumstances of this case. I have watched closely, the demeanor of the prosecution?s witnesses, particularly the officers that were at Loko on the day of the incident. I believe they were telling the truth of what happened on that day to them and their colleagues. It is glaringly clear from all the testimonies of these witnesses that the defendants along with others at large led by 1st and 2nd defendants did conspire to obstruct the NDLEA officers from arresting them at Loko, and this act led to the death of the two officers and injury to others as stated in the charge.?
Further, at page 565 of the printed record of appeal the learned trial judge after evaluating the evidence before the Court held thus:
?I therefore find that the prosecution has proved the offences of conspiracy to obstruct and obstruction of NDLEA officers from carrying out their lawful duty on 21/3/2012 at Loko village as charged in counts I and II of the charge beyond reasonable doubt against the 8 defendants.?
I cannot fault the view of learned trial judge, it is unassailable. I hold that the trial Court evaluated the
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evidence before the Court before arriving at its decision. It is a balanced and well considered judgment.
In respect of the defence of alibi argued in the appellant?s brief, to the effect that the appellant was elsewhere and not at the scene of crime, it was not established by the PW8, PW9 and the appellant as PW10 in that it was not timeously raised and the fact that the prosecution witnesses gave evidence that fixed the appellant at the scene of crime. The appellant?s statement Exhibits PW6A and PW6B fixed him at the scene of crime armed with a machete and he mobilized youths to come out and resist/attack the NDLEA officers who were on duty to arrest drug dealers in the area. Therefore, the defence of alibi raised in Court at the defence stage was belated and the trial Court was right to have rejected same when at pages 567-568 of the record of appeal, he held thus:
?…… all the defendants had made confessional statements to being present at the attack scene and I have found credible eyewitnesses? evidence that fixed them on the scene of the crime. Therefore, their plea of alibi is belated and not accepted I do not
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ascribe any value to the testimony of the elder brother of the 8th defendant who could not say exact date or year that he had met the 8th defendant present in their home village. The evidence of wife of the 8th defendant as to his absence on the day of the incidence still amounts to alibi, which was not raised until at the point of defence. I also do not accept her evidence on that issue in the circumstances.?
?I agree with the view held by the learned trial judge that the defence of alibi was belatedly raised. As rightly observed by the learned trial judge, the defence of alibi was raised in the appellant?s defence as the DW10 to the effect that he was not in town when the incident took place but, in his village. The appellant did not give details of whom he was with on the date of the incident and the time, to enable the prosecution investigates his whereabouts on the date of the incident. The defence was also raised late as it ought to have been brought at the earliest opportunity which would have given the prosecution enough time to investigate it to debunk or affirm it. Failure to raise the defence of alibi timeously rendered same
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unsuccessful. See, EHIMIYEIN VS. STATE (2016) LPELR ? 40841 (SC) PP. 17-18, Paragraphs D-B; ADEYEMI VS. STATE (2017) LPELR ? 42584 (SC) P. 16, Paragraphs A-D, ABDULLAHI VS. STATE (2018) LPELR-44491 (CA) PP. 39 ? 40, Paragraphs D ? A, EYISI VS. THE STATE (2000) 15 NWLR (PT. 691) 555 at 596 and SALAMI VS. THE STATE (1988) 3 NWLR (PT. 85) 670 at 677.
On the sentencing discretion exercised by the trial Court, it is a non issue since there is no appeal against the sentence meted out by the trial Court so as to consider whether the evidence adduced after conviction affected the trial Court?s discretion or not.
In sum, I resolve the sole issue as re-formulated against the appellant. I hold that the appeal is unmeritorious. I dismiss it. I affirm the judgment of the trial Court.
JAMES SHEHU ABIRIYI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA.
For the reasons contained in the said 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
