FRANCIS NKEMJIRIKA v. INSPECTOR GENERAL OF POLICE (2019)

FRANCIS NKEMJIRIKA v. INSPECTOR GENERAL OF POLICE

(2019)LCN/13433(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2019

CA/B/255CA/2017

RATIO

PROCEDURE FOR AMENDEMENT OF A CHARGE UNDER SECTION 216(1) AND (4) OF THE CRIMINAL PROCEDURE ACT
Section 216(1) and (4) allows a charge to be amended by either the Court suo motu or the prosecution at any time before the delivery of judgment. And when this is done, Section 217(1) contains a mandatory provision to the effect that the Defendant shall be called upon to take his plea afresh.
While speaking on the nature of the said sections, the Supreme Court in Princent & Anor v. State (2002) LPELR-2925 (SC) per Iguh JSC, Page 18-19, Para. B held as follows:
“In this regard, the various sections of the Criminal Procedure Act Cap 80, Laws of the Federation of Nigeria 1990 such as Sections 164 and 165 and those of the Criminal Procedure Code Cap 30, Laws of the Northern Nigeria such as Sections 208(2),209,210 and 211, all of which prescribe the necessary procedure a Court shalladopt on granting the amendment of a charge must be strictly complied with. These, to a large extent, are to ensure that the accused person is neither prejudiced nor suffers any injustice by virtue of the amendment. See R. v. Kano and Anor (supra). These procedure which, inter alia, include the reading and explaining of the amended charge to the accused person, the taking of his plea thereto, finding out from the accused whether he is ready to proceed with his trial on such an amended charge immediately or whether he would thereby be prejudiced in which case the trial shall be adjourned and granting the accused and indeed, the prosecution the opportunity to recall any witnesses who may have testified for further examination or cross-examination in the light of such amended charge must be strictly complied with. See Okonofua v. The State (1981) 12 NSCC 233; Okegbu v. The State (1979) 11 SC 1 etc. Accordingly, an amendment to a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code Cap 30 may be at the instance of either the prosecution or, suo motu by the Court. However, once the charge is amended, a host of rights inure to the accused as carefully laid down in Section 208(2),209,210, and 211 of the Criminal Procedure Code.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

THE PROVISIONS FOR AMENDMENT OF CHARGES UNDER THE RELEVANT CRIMINAL PROCEDURE ACT SECTIONS ARE MANDATORY IN NATURE
In interpreting the provisions of Sections 163and 164 of the Criminal Procedure Act as well as Section 208 of the Criminal Procedure Code, it has been held that the provisions are mandatory and the failure to comply with the said sections would render any judgment delivered void. See PML (Nig) Ltd v. FRN (2017) LPELR-43480 (SC); Uguru v. State (2002) 9 NWLR (Pt. 771) Pg. 90;Attah v. State 1993 LPELR- 598 (SC). Thus, where an amendment is made to a charge sheet without the accused person taking a new plea, any proceeding rendered thereof would be a nullity.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

FRANCIS NKEMJIRIKA Appellant(s)

AND

INSPECTOR GENERAL OF POLICE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Asaba delivered by Honourable Justice A.O Faji on 13/03/2017 wherein the learned trial judge convicted and sentenced the Appellant on the indictments against him.

The facts that lead to this appeal are as follows:
The Appellant and 9 others who were employees of African Sky Shipping Agency Limited with its office address at No. 7B Marine Road, Apapa, Lagos State left Lagos for Calabar on the 4/12/15 on board the African Sky (one of the convicts at trial) which is a vessel, for its repair and maintenance.

The Appellant, the other nine (9) crew members and the vessel were subsequently arrested by the Nigeria Navy Ship Delta (NNS Delta) on the 14/12/15 and were handed over to the Respondent (the Inspector General of Police) on the 16/2/16.

On 10/3/16, the Appellant and the ten (10) others were arraigned on a four-count charge to wit:
COUNT 1
That you Captain John Fregene . Osarode Elijah , Williams Udeme , John bull Oyinbo

, Francis Nkemjirika , Kingsley Eso , Adela Sunday , Emmanuel Udo , Jacob Ojubeli , Felix Okoh and MT. Eyuwa AKA African Sky and others now at large on the 13th day of December, 2015 at Forcados Water Ways in the Burutu Local Government Area within this jurisdiction of this Honourable Court conspired among yourselves to commit felony to wit: Possession of Petroleum products without authorization or license and thereby committed an offence punishable under Section 516 of the Criminal Code Act of Cap C38 Laws of the Federation of Nigeria 2004.
COUNT 2
That you Captain John Fregene . Osarode Elijah , Williams Udeme , John bull Oyinbo , Francis Nkemjirika , Kingsley Eso , Adela Sunday , Emmanuel Udo , Jacob Ojubeli , Felix Okoh and MT. Eyuwa AKA African Sky and others now at large on the 14th day of December, 2015 at Forcados Water Ways in the Burutu Local Government Area within this jurisdiction of

this Honourable Court without lawful authority or appropriate license had in your possession Petroleum Products (Crude Oil) of 670 metric tons and thereby committed an offence punishable under Section 1(7)(b) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004.
COUNT 3
That you Captain John Fregene ?m?. Osarode Elijah ?m?, Williams Udeme ?m?, John bull Oyinbo ?m?, Francis Nkemjirika ?m?, Kingsley Eso ?m?, Adela Sunday ?m?, Emmanuel Udo ?m?, Jacob Ojubeli ?m?, Felix Okoh ?m? and MT. Eyuwa AKA African Sky and others now at large on the 13th day of December, 2015 at Forcados Water Ways in the Burutu Local Government Area within this jurisdiction of this Honourable Court stole Petroleum Products (Crude Oil) of 670 metric tons value yet to be determined and property of the Federal Government of Nigeria and thereby committed an offence punishable under Section 390(9) of the Criminal Code Act of Cap C38 Laws of the Federation of Nigeria 2004.
COUNT 4
That you Captain John Fregene ?m?.

Osarode Elijah ?m?, Williams Udeme ?m?, John bull Oyinbo ?m?, Francis Nkemjirika ?m?, Kingsley Eso ?m?, Adela Sunday ?m?, Emmanuel Udo ?m?, Jacob Ojubeli ?m?, Felix Okoh ?m? and MT. Eyuwa AKA African Sky and others now at large on the 13th day of December, 2015 at Forcados Water Wats in the Burutu Local Government Area within this jurisdiction of this Honourable Court, with the intent to defraud the Federal Government vandalized and siphoned crude oil from the oil pipe laid across the Forcados River and thereby committed an offence punishable under Section 1(7)(a) of the Miscellaneous Offences Act of Cap M17 Laws of the Federation of Nigeria 2004.

In proof of its case, the Prosecution now Respondent called five witnesses as follows:
1. Onyisi Christopher- The Investigating Police Officer (PW1)
2. Bello Musa- – The 2nd Investigating Police Officer (PW2)
3. Damisa Clement – An officer of the navy and the Master Warrant Officer who arrested the vessel (PW3)
4. Bello Hakeem Owolabi – An officer of the navy at NNS Delta Warri (PW4)

5. Oluwa Gbotemi Adesoye – An employee of the Department of Petroleum Resources who gave expert opinion to the Court (PW5)
The Appellant called three witnesses as follows:
1. Micheal Odion – An ex-employee of African Sky Shipping Agency Ltd (DW1)
2. Captain John Fregene ? The captain of the vessel (DW2)
3. Osarode Elijah ? A crew member who was acquitted at the trial court. (DW3)

At the end of the trial, the Appellant was discharged and acquitted on counts 3 and 4 but was convicted and sentenced on counts 1 and 2.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 7/4/17 and an amended Notice of Appeal was filed on 24/9/18. Record was transmitted on 7/6/17. The Appellant filed his brief of argument on 19/7/17. The Respondent?s brief of argument was filed on 8/9/17.

The Appellant in the brief settled by Reverend Tunji Aruya Esq., Charles Ewo- Micheals Esq., and Osemeku Clive Odion Esq., identified five issues for determination of the appeal to wit:
1. Having regard to the provision of the Administration of Criminal Justice Act, 2015, whether a trial judge can in his judgment amend

a charge suo motu without fresh plea and convict on the amended charge without violating the accused person?s right to fair hearing and accessioning a miscarriage of justice
2. Considering the entire judgment, whether the trial judge had applied the proper test for a retracted trail-judicial statement as required by law
3. Having regards to the testimonies of the Investigation Naval Officer (PW3) and Investigating Police Officer (PW1) whether their failure to investigate the defence of the Accused persons is not fatal to the case of the prosecution.
4. Considering the totality of the evidence of the witnesses before the Court, whether the judgment of the trial judge is supported by the evidence adduced
5. In view of the judgment of the trial judge discharging other co-accused persons, whether the appellants can be guilty of the offence of conspiracy in the same offence that they are jointly charged.

DSP College Bob Esq., who settled the Respondents brief adopted the issues set out above by the Appellant.

In the determination of this appeal, I will recouch the issues set forth in the Appellant?s brief in a way that

would not be duplicity of issues and would address all the Appellant?s complaints as follows:
1. Whether the learned trial judge was right to convict the Appellant on a fresh charge suo motu without first taking a fresh plea of the Appellant.
2. Whether the learned trial judge gave the proper probative value to the retracted extra judicial statement of the Appellant.
3. Whether the failure of the prosecution to investigate the alibi of the Appellant has not occasioned a miscarriage of justice
4. Whether the findings and judgment of the trial Court are supported by the evidence led.

ISSUE ONE
Whether the learned trial judge was right to convict the Appellant on a fresh charge suo motu without first taking a fresh plea of the Appellant.

Appellant?s Counsel argued that by the provisions of Section 1(7)(b) of the Miscellaneous Offences Act, CAP M17, Laws of the Federation of Nigeria 2004, it is clear that it is an offence to obstruct, damage, destroy, tamper or interfere with the free flow of any crude oil or refined petroleum product through any oil pipeline. Counsel argued that the section was stated under count 2 of

the charge sheet which was filed at the trial Court and it was on that basis that the Appellant and the 10 other persons he was charged with pleaded not guilty at the trial.

Counsel further argued that during the address stage at the trial Court, the Appellant?s counsel in their joint address drew the Respondent?s and the Court?s attention to the fact that the Appellant and 10 others were charged under a wrong section of the law in count 2. Counsel argued that the Respondent made it clear that he never intended to amend count 2 or the Section of the law under the count. This is because in his address, it was made clear that the Appellant with others were charged under Section 1(7)(b) of the Miscellaneous Offences Act, CAP M17, Laws of the Federation of Nigeria, 2004. Counsel argued that contrary to the Respondent?s intention, the Trial Judge amended the charge suo motu without taking plea from the Appellants or without having recourse to the provisions of Section 216(1)(4) and 217(1) of the Administration of Criminal Justice Act (ACJA) 2015.

Counsel argued that based on the new amended altered section of the act which the

Appellant and 4 others were not originally charged with, the learned trial Judge went ahead to find that the Appellants and 4 others were guilty under count 2. Counsel further submitted that the amendment of count 2 by the Court suo motu occasioned injustice as the Appellants were confronted with two sections on the same charge under count 2 for which they only pleaded and defended one section while being convicted upon an amended or altered charge for which they did not plead or defend.

Counsel submitted that a charge or an indictment must be clear so that the party to be tried will understand the complaint against him. Counsel cited Abacha & Ors v. State (2002) 11 NSCM 12.

Counsel further submitted that although after the address of a Counsel, a Court has the power to amend or alter a charge suo motu, such a power must not occasion injustice. Counsel cited Princent & Ors v. State (2003) 2 SCM, 191.

Counsel argued that for a charge to be amended suo motu by the Court after Counsel?s address and without any form of explanation to the parties or further address from the counsel, injustice would be occasioned and the Appellants

would be placed in a disadvantaged state of defenselessness. Counsel cited Chukwuma Ogudo v. State (2012) 15 WRN 1 at 49, Lines 5-154.

Respondent?s Counsel in reply argued that it is not in doubt that the Appellants were charged under Section 1(7)(b) of the Miscellaneous Offences Act. However, the judge acted within the confines of the law as provided under Section 216(1) of the Administration of Criminal Justice Act 2015 which explicitly states that a Court may permit an alteration or amendment to a charge or framing of a new charge at any time before judgment is pronounced.

Counsel submitted that the learned trial?s judge?s judgment that said it was obvious from count 2 that the charging and punishment Section is Section 1(17)(b) of the Miscellaneous Offence Act Cap M17, LFN, 2004 and not Section 1(7)(b) referenced the Respondent?s submission in the final address at the lower Court which said that the reference by the defence counsel to count 2 not being consistent with the evidence proffered seems to have been clarified by the Court?s reference to Section 1(17) of the Miscellaneous Offences Act. ?

Counsel further submitted that the trial Court only referred to the Respondent?s submission in the final address and as such, a reference cannot be taken as an alteration or amendment. Counsel further argued that without conceding, where the reference was taken as an alteration or an amendment, the trial judge acted within the confines of the law as provided under Section 216(1) of the Administration of Criminal Justice Act, 2015.

OPINION
It is the Appellants Counsels argument that the learned trial judge failed to take the plea of the Appellant after amending the charge as required by the provision of Section 216(1), (4) and 217 (1) of the Administration of Criminal Justice Act of 2015. The foregoing sections provide as follows:
216 (1) A Court may permit an alteration or addition to a charge or framing of a new charge at any time before judgment is pronounced.
(4) Where any Defendant is committed for trial without a charge or an imperfect or erroneous charge, the Court may frame a charge or add or alter the charge as the case may be having regards to the provisions of this act.
217 (1) Where a new charge is framed or alteration

made to a charge under the provisions of Section 216 of this act, the Court shall call on the Defendant to plead to the new or altered charge as if he has been arraigned for the first time.
Section 216(1) and (4) allows a charge to be amended by either the Court suo motu or the prosecution at any time before the delivery of judgment. And when this is done, Section 217(1) contains a mandatory provision to the effect that the Defendant shall be called upon to take his plea afresh. The provision of Section 217(1)is in pari materia with Sections 163 and 164(1) of the Criminal Procedure Act of 1945 and Section 208 of the Criminal Procedure Code of 1960.
While speaking on the nature of the said sections, the Supreme Court in Princent & Anor v. State (2002) LPELR-2925 (SC) per Iguh JSC, Page 18-19, Para. B held as follows:
“In this regard, the various sections of the Criminal Procedure Act Cap 80, Laws of the Federation of Nigeria 1990 such as Sections 164 and 165 and those of the Criminal Procedure Code Cap 30, Laws of the Northern Nigeria such as Sections 208(2),209,210 and 211, all of which prescribe the necessary procedure a Court shall

adopt on granting the amendment of a charge must be strictly complied with. These, to a large extent, are to ensure that the accused person is neither prejudiced nor suffers any injustice by virtue of the amendment. See R. v. Kano and Anor (supra). These procedure which, inter alia, include the reading and explaining of the amended charge to the accused person, the taking of his plea thereto, finding out from the accused whether he is ready to proceed with his trial on such an amended charge immediately or whether he would thereby be prejudiced in which case the trial shall be adjourned and granting the accused and indeed, the prosecution the opportunity to recall any witnesses who may have testified for further examination or cross-examination in the light of such amended charge must be strictly complied with. See Okonofua v. The State (1981) 12 NSCC 233; Okegbu v. The State (1979) 11 SC 1 etc. Accordingly, an amendment to a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code Cap 30 may be at the instance of either the prosecution or, suo motu by the Court. However, once the charge is amended, a host of rights inure to the

accused as carefully laid down in Section 208(2),209,210, and 211 of the Criminal Procedure Code. Those rights, it seems to me are inbuilt safeguards with a view to ensuring that an accused person by virtue of an amendment is not thereby prejudiced or misled, that no injustice is occasioned to him and that his constitutional right to fair hearing pursuant to the provisions of the Constitution is fully preserved. See too Okosun v. The State (1979) 3-4 SC 36.
In interpreting the provisions of Sections 163and 164 of the Criminal Procedure Act as well as Section 208 of the Criminal Procedure Code, it has been held that the provisions are mandatory and the failure to comply with the said sections would render any judgment delivered void. See PML (Nig) Ltd v. FRN (2017) LPELR-43480 (SC); Uguru v. State (2002) 9 NWLR (Pt. 771) Pg. 90;Attah v. State 1993 LPELR- 598 (SC). Thus, where an amendment is made to a charge sheet without the accused person taking a new plea, any proceeding rendered thereof would be a nullity.
However, while giving consideration to this, it should be borne in mind that unlike the respective provision of the Criminal Procedure Act,

the mandatory provision of Section 217(1) of the Administration of Criminal Justice Act of 2015 has been watered down by that of Section 218(1) that provides thus:
Where the charge as revised under Section 216 or 217 of this Act is such that proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the defendant in his defence or the prosecutor, as the case may be, in the conduct of the case, the Court may in its discretion forthwith proceed with the trial as if the charge so revised had been the original charge.?
Section 209 of the Criminal Procedure Code has a similar provision. This section allows a trial Court to exercise its discretionary powers in continuing with the trial of an accused person upon the establishment of the fact that he will not be unfairly prejudiced. Generally, an appellate Court will not interfere with the discretion exercised by a trial judge except it is found wanting. The Supreme Court in R. Lauwers Import-Export v. Jozebson Industries Co. Ltd (1988) LPELR-2934 (SC) Per Nnamani JSC, at Page 47-48, Para. C-B held:
being a discretion of the Court of appeal,

this Court would only upset it on set principles. It is for instance settled that an appellate Court would not set aside the exercise of discretion because if the matter were before it, it would have exercised it differently. See University of Lagos v. Olaniyan Supra at p.317. Also, University of Lagos and 1 Or. V. M.I Aigoro (1985) 1 NWLR 143, 148; Niger Construction Ltd v. Okugbeni (1987) 4 NWLR Pt. 67 287. An appellate Court will also not interfere unless it can be shown that the exercise of the discretion was done not judicially and judiciously but was arbitrary, reckless and done while taking into consideration irrelevant matters. See Aigoro?s case (supra) and Solanke v. Ajibola (1968) 1 All NLR 46; Mangtup Din v. Attorney-General of the Federation(1986) 1 NWLR 471; Williams v. Williams (1987) 2 NWLR 6682.?
See also Nwobodo v. M.O Nyiam (2014) LPELR-22668 (CA); Adaramaja v. Adaramaja (1962) LPELR-25011 (SC).
It should be noted that the old law, both statutory and decision law, were rigid. They did not allow room for the discretion of the trial judge in respect of circumstances where it may or may not be necessary to call on the accused to take a fresh

plea after amendment of a charge. By Section 218(1) of the Administration of Criminal Justice Act of 2015, even though the learned trial judge has discretion, a learned trial judge is not empowered to consider circumstances of the amendment to the charge. For example, where radical amendment has been made to the charge in the sense that ingredients to prove the original charge are different from the ingredients to prove the present charge, then the learned trial judge is obliged to call upon the accused to take a fresh plea.
Now, let us ask the question as to whether the learned trial judge acted judicially and judiciously in the exercise of the discretion conferred on him by the provisions of Section 218(1) of the Administration of Criminal Justice Act of 2015. In so doing, the effect of the amended charge would be gleaned against the backdrop of the evidence placed before the Court and whether it amounts to injustice and a breach of the Appellant?s right to fair-hearing for not taking his plea anew.
At pages 108 of the record, the learned trial judge in the judgment held:
?As regards count 2, it is obvious that the charging and

punishment section is Section 1(17)b of the Miscellaneous Offences Act Cap M17, LFN 2004 and not Section 1(7)b as reflected. The act punishes any act for which a license is required under the Petroleum Act. Section 4(1) and (2) of the Petroleum Act punishes storage of more than 500 litres of petroleum products in this case crude oil. It is a known fact that an ocean going vessel such as 11th Defendants is not just a carrier, but a means of storage. The things on board the vessel are in the possession of those to whose knowledge they are board.
There is no dispute that 670 metric tonnes of Crude Oil were at all material times on board the 11th defendant. There is a small story told by the 1st, 4th, 5th and 9th Defendants on how it got there. They said in their statement to the Navy that the crude oil was put on board by some boys they were instructed to meet by Mr. Robinson. Should they be caught, they are to say their vessel was attacked by pirates who put the oil on board. Two months later, in their statement to the police (apparently since Mr. Robinson did not sort out the security angle) they now changed their story and said armed pirates attacked

their vessel and put the crude oil on board?It is therefore clear that the crude oil got on board with the active participation of the 1st, 4th, 5th and 9th Defendants.?
The evidence on record shows that the evidence for which the plea was sustained under Section 1(7)b of the Miscellaneous Offences Act can also be used for Section 1(17)b of the same act. Let me replicate the provisions of the two sections:
Section 1(7)b:
?Anyone who obstructs, damages, destroys, tampers or interferes with the free flow of crude oil or refined petroleum through any oil pipeline shall be guilty of an offence and be liable on conviction to imprisonment for life.?
Section 1(17)b:
?Any person who without lawful authority or an appropriate licence does any act for which a licence is required under the Petroleum Act, shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.?
Exhibit M5, the statement of the Appellant, tendered by PW4 on page 241 of the record links the Appellant to the amended offence in the charge sheet found under Section 1(17)b of the Miscellaneous Offences Act.

The exhibits showed that the Appellant was not oblivious of the fact that they were going to load crude oil into the tanks aboard the vessel. More so, particularly because the Appellant?s statement is in tandem with Exhibits M1, M4 and M9 which are the extra judicial statements of the other convicted persons. Here, it was revealed that the Captain, John Fregene received a phone call from one Mr. Robinson who was termed the owner of the vessel, informing him to change the direction the vessel was headed to Forcados and upon which the vessel would then be loaded with crude oil.
Exhibit M5 which is the Appellant?s extra judicial statement made to the navy stated the following:
“On Friday 4 Dec., 2015, my manager employer Mr. Robinson who lives in warri, isoko by tribe called my capt my John Fregene that he should proceed to calabar for maintenance, on our way, the same capt robinson called my captain that he should divert and move to OGULAHA in Forcados area?that some people there which I dont know waiting for to load the vessel with crude oil. The captain asked the owner of the vessel that he was afraid. The owner said that

he should not worry he has settled the security. On getting to the said area?they brought hose out and load us with 66mt of crude oil into 6 tanks of 12 tanks (sic)
This reveals the mens rea of the Appellant and the fact that he had no lawful authority or license to deal with the crude oil that was recovered by the navy. Particularly, because he was privy to the information only the other convicted accused persons had which is the fact that Mr. Robinson, the owner of the vessel called captain John Fregene to divert the ship which would then be loaded with crude oil. More so, on page 213 of the record, Exhibit K1 tendered by PW3 showed that the captain of the vessel was asked if there were valid documents for the cargo i.e. the crude oil but he could not produce any.
I agree with the learned trial judge on page 109 of the record when he held as follows:
?The evidence of the nature of the cargo being crude oil was eloquently supplied by PW-5- an official of the Department of Petroleum. Indeed, 6th to 8th Defendants were clear in their statement that 11th Defendant had no license for dealing in petroleum products. In any

event, the plan was to go from Calabar from Lagos to effect repairs on the 11th Defendant?s leaking part and star board tank 4. Only 1st, 4th, 5th and 9th Defendants were aware of and actively participated in carrying out the plot to divert the 11th Defendant for an unlawful purpose. This shows clearly that the loading of the crude oil was not the purpose of the voyage so there was no license for dealing in the product? furthermore, their defence was a tacit admission that they had no license to wit: the crude was put on board by pirates. That defence having crumbled, it is clear to me that there was no license to deal in petroleum products.?
In my humble view, the similarity between the ingredients to prove both sections of the law makes it such that the same facts would prove both counts. In such circumstances, the learned trial judge was entitled to exercise the discretion granted by Section 218(1) of the Administration of Criminal Justice Act, 2015. I do not agree the Learned Appellant?s Counsel that amending the charge to read Section 1(17)(b) in place of 1(7)(b) without taking a new plea from the Appellant amounted to a

breach of his right to fair hearing for which he suffered.
A point worthy of being noted is the fact that even though the trial judge could amend the charge suo motu, he never did. The comment made obiter never amounted to a formal amendment by the trial judge.
Thus, it cannot be said that the failure to take the Appellant?s plea occasioned a miscarriage of justice which also amounted to a breach of his right to fair hearing. In view of the foregoing, this issue is resolved against the Appellant.

ISSUE TWO
Whether the learned trial judge gave the proper probative value to the retracted extra judicial statement of the Appellant.

Learned Appellant Counsel had also argued that the Appellant and the ten (10) other persons he was charged with at trial retracted the statement that was purportedly said to have been made to the Navy when it was sought to be tendered by the Respondent. Counsel argued that the objections amounted to a complete retraction of the extra-judicial statement that was purportedly made by the Appellants to the Navy.
?
Counsel further argued that a retracted statement is not inadmissible but must be subject to

certain legal tests. Counsel argued that in confirming the veracity of a retracted extrajudicial confessional statement, recourse must be had to whether there was anything to show that the confession was true, whether the statement was corroborated, whether the statement is of fact made can be tested as true, whether the accused person had the opportunity of committing the offence charged, whether the confession of the accused was possible and whether the confession was consistent with other facts which have been ascertained and proved at trial. Counsel cited Ogudo v. State (2012) 15 WRN, 1 at 20 lines 30-45; Iweka v. FRN (2011) 12 WRN 37 at P. 91, Lines 35-45. Counsel submitted that the retracted extra judicial confessional statements that was purportedly made to the Navy does not meet the required tests.

Counsel argued that in determining whether there was any true evidence outside the confessional statement, the Respondents did not establish by oral or documentary evidence how the Appellants came to be in possession of the crude oil or how the Appellants conspired among themselves.
?
Counsel argued that the Appellants cannot be said to have

obtained the crude oil in their possession in the absence of stealing, vandalizing and siphoning it from an oil pipeline which they were discharged and acquitted of in counts 3 and 4 at the trial Court.

In reply, learned Respondent?s Counsel argued that in order to verify the retracted extra-judicial statement, regards must be had to whether there was anything to show that the confession was true, whether the statement was corroborated, whether the statement is of a fact that can be tested as true, whether the accused person had the opportunity of committing the offence charged, whether the confession of the accused was possible and whether the confession was consistent with other facts which have been ascertained and proved at trial. Counsel cited Ogudo v. State (2012) 15 WRN, 1 at 20 lines 30-45. Counsel further submitted that the retracted extra judicial statement made to the Navy met the laid down tests.
?
Counsel further argued that before convicting the Appellant of the offences charged, the Trial Judge evaluated the available evidence and applied the proper tests to verify a retracted extra judicial statement as required by law.<br< p=””

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OPINION
Let us now consider the weight to be attached to the retracted extra judicial statement that was made by the Appellant at the naval station. On page 241 of the record, the learned trial judge admitted Exhibit M5 which is the extra judicial confessional statement of the accused person. In so doing, the trial judge predicated the test for admitting the Appellant?s retracted extra judicial statement on relevancy. The trial Court was quite right to decide that since the Appellant based the objection to its admissibility on a flat-out denial of making the statements, the issue of voluntariness did not arise and the statement Exhibit M5, was admissible. It is only the matter of the weight to be attached to it.
The Supreme Court in Ogudo v State 2011 LPELR- 860; (2011) 18 NWLR, Pt. 1278, Per Rhodes-Vivour, JSC at Pp. 20-21, Paras. D-B held and set out the tests to administer before relying on a retracted extra judicial statement to convict an accused person:
“A Court can convict on the retracted confessional statement of an accused person, but before this is properly done, the trial Judge should evaluate the confession and testimony of

the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions: (a) Is there anything outside the confession to show that it is true (b) Is it corroborated (c) Are the relevant statements made in it of facts true as far as they can be tested (d) Did the accused person have the opportunity of committing the offence charged (e) Is the confession possible (f) Is the confession consistent with other facts which have been ascertained and have been proved See. Kanu & anor v. King (1952) 14 WACA p. Mbenu v. State (1988) 3 NWLR (pt. 84) p. 615 Stephen V. State (1986) 5 NWLR (pt. 46) p. 978.”
See also Bature v. State (1994) LPELR-760 (SC); Idowu v. State LPELR-1429 (SC).
Also, in Nwachukwu v. State 2007 LPELR-8075 (SC), Per Ogbuagu, JSC Pg. 36, Paras. A-E, the tests for determining the truth or weight to attach to a confessional statement before grounding a conviction was stated thus:
“It needs be emphasised as this is also settled that it is desirable to have

outside the accused person’s confession, some corroborative evidence no matter how slight, of circumstances which make it probable that the confession is true and correct, as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Onochie & Ors. v. The Republic (1966) NMLR 307 and R v. Sykes (1913) 8 CAR 233 @ 236. The test would also include the Court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial. See Queen v. Obiasa (1962) 1 ANLR 65; (1962) 2 SCNLR 402; Ikpasa v. Attorney-General of Bendel State (1981) 9 SC 7 and Akpan v. The State (1992) 6 NWLR (Pt.248) 439 @ 460; (1992) 7 SCNJ. 22 and many others.”
This brings us to the question of whether there is the existence of any corroborative evidence outside the retracted extra judicial statement. The evidence on oath of PW3 on page 212-213 of the record corroborates the facts as stated by the Appellant in his retracted extra-judicial statement, Exhibit M5 tendered by PW4 on page 241 of the

record as follows:
?Capt Robinson called my captain that we should divert and move to Ogulaha Forcados area that some people are there which I dont know waiting for to load the vessel with crude oil?on getting to the said area we where moved in to the creek by unknown men, they brought hose out from the mangrove and load us with 66mt of crude oil into 6 tanks of 12 tanks we then moved into the sea to come back to the same loading point to complete the remaining 6 tanks. However on our way back to the loading point we were intercepted by some naval patrol team and subsequently we were brought the naval base.? (sic)
The testimony of PW3 on page 212 showed that when he went on board the vessel, he saw it was carrying some oil products whereupon the OIC directed him to arrest the vessel. Subsequently, the vessel was taken down to the base and PW3 further stated on page 213 of the record that petroleum product officers were invited to check what was loaded on the vessel. In so doing, Exhibits Q1 and Q2, the certified true copy of the report made from the Department of Petroleum Resources, which was tendered by PW5 and found on page 260

of the record, revealed the fact that the substance recovered from the vessel was crude oil. This shows consistency with the retracted extra judicial statement of the Appellant. More so, Exhibit K1 tendered by PW3, found on page 213 of the record showed that when asked, John Fregene who was the captain of the vessel could not produce any valid document for the cargo and in this case the crude oil, on board the vessel.
Also, I humbly believe that the Appellant had the opportunity of committing the offence for which he was charged. Exhibits M1, M4 and M9 shows a link between the role played by the Appellant and the other convicted accused persons at trial in having the fore knowledge of preparing to load the vessel with crude oil.
Similarly, I believe in the truthfulness of the statement which was retracted. The possibility of being untrue is close to nil. This is because the statement was made almost immediately after the arrest of the Appellant. To this extent, there would be no ample time to concoct facts. Particularly as the retracted statement can be found to be in tandem with the extra judicial statements of the other persons arrested on the

vessel and taken to the naval station. Also, it would be observed that on page 189 of the record, Exhibits D and D1, the statement made at the police station which was tendered by PW1, was admitted without any objection. I agree with the learned trial judge that to say that the statement was not made by the Appellant voluntarily was an afterthought because a period of 2 months had lapsed before the statement at the police station was made. I believe the learned trial judge gave the proper probative value to Exhibit M5. It is my humble view that this issue be against the Appellant.

ISSUE 3
Whether the failure of the prosecution to investigate the alibi of the Appellant has not occasioned a miscarriage of justice.

Appellant?s Counsel argued that the failure of the Respondent and the Navy to investigate the Appellant?s defence as to the fact that they were attacked by pirates who transloaded crude oil from a faulty vessel to the Appellants? vessel was fatal to the Respondent?s case.

?Counsel argued that it was clear from the evidence of PW1, PW3 and PW4 that the defence was not investigated and so in the absence of

any investigation made, it was impossible for the learned trial judge to conclude that the defence of hijack and piracy were false.

Counsel further argued that any spurious or stupid defence put up by an accused person must be thoroughly investigated in order to render it false or unlikely. Counsel cited Aigbadion v. State (2001) 2 ACLR, 48 at 60, lines 25-30.

Counsel further argued that the failure to investigate the defence has casted a reasonable doubt which created a gap on the Respondent?s case, and the gap created can only be filled by the appellant?s defence that they were hijacked and attacked by pirates who transloaded crude oil into the Appellants vessel. Counsel argued that courts are not allowed to speculate to cover up the gaps in the prosecution?s case. Counsel cited Abu v. State (200) All FWLR (Pt. 447) 126 at Para. 139 A-C.

Respondent?s Counsel argued that the defence put forward by the Appellants at the trial Court was thoroughly investigated by all the witnesses that was called by them.
?
Counsel further argued that even if there was a hijack, without conceding to it, none of the Appellants or their

witnesses could establish that fact.

OPINION
Appellant?s Counsel contended that the Appellant?s defence of being hijacked by pirates was not thoroughly investigated by the navy and the police. The process of investigation involves an inquiry so as to gather evidence in relation to a set of facts. Generally, sufficient evidence must have been gathered by way of a thorough investigation before a suspect should be prosecuted. Also, investigations are carried out based on the strength of the information available at the disposal of the investigator. Usually, the manner of carrying out the said investigation is often left at the discretion of the prosecuting agency involved. See IGP & Anor V. Ubah LPELR-23968 (CA); Fawehinmi v. IGP (2002) 7 NWLR, Pt. 767, Pg. 606. Investigations are often aimed at procuring a hands-on evidence to be used in grounding a person?s conviction for an offence. i.e. any evidence gathered from the investigation of a case can be used in proof of a criminal offence or to ground a charge.

The question now is whether there was sufficient evidence on record to substantiate the Appellant?s defence. The

learned trial judge found that the defence raised by the Appellant that the vessel was hijacked by pirates was an afterthought. As observed, there were inconsistencies between the Appellant?s statement made at the navy and that made at the police station. Generally, on the basis of the consistency rule, where a witness is shown to have made a previous statement which is inconsistent with a subsequent one, both will be discarded and treated as being unreliable. See Smart v. State (2016) LPELR-40827 (SC). However, it is trite law that the inconsistency rule does not apply to an accused person. See Kolade v. State (2017) LPELR 42362 (SC). Thus, a Court can convict based on the retracted extra judicial statement of an accused person which was voluntarily made but is inconsistent with subsequent evidence or his evidence on oath. See Asimi v. State (2016) LPELR-40436 (SC).
On the face of the record, the retracted statement of the Appellant was unequivocal and was made voluntarily. This is because at the point the statement was being tendered by PW4, the Appellant?s Counsel only endeavored to retract the statement on the basis that the Appellant was

not the maker. More so, Exhibits M1, M4, and M9 tendered also by PW4 and found on page 241 further show the fact that they were aware that Mr. Robinson, the owner of the vessel wanted them to divert its course for the purpose of loading crude oil on her.
Before the Appellant was handed over to the civil authorities, he had made Exhibit M5 to the investigating naval team. The naval team would have been in a position to investigate the story of whether or not their vessel was hijacked and taken over by pirates. The Nigerian Police – civil authorities to whom the later story was told did not investigate same. I am with respect inclined to agree with the learned trial judge that having not put up the defence of hijack by pirates at the earliest opportunity after his arrest by the naval authorities, the defence put up later while in police custody was an afterthought which was rightly considered and rejected by the learned trial judge.
To this extent and has been pointed out earlier, the Appellant?s defence about pirates hijacking the vessel was clearly and manifestly an afterthought which is not credible. Accordingly, I resolve this issue against

the Appellant.]

ISSUE 4
Whether the findings and judgment of the trial Court is supported by the evidence led.

Appellant?s Counsel argued that in all criminal cases, the prosecution has to prove its case beyond reasonable doubt by way of cogent and credible evidence. Counsel cited Alimi v. State (2009) 44 WRN 1 at 32, lines 10-20. Counsel argued that the Respondent did not prove their case beyond reasonable doubt. Counsel cited Zuru v. Chief Naval Staff (2008) 32 WRN, 86 at pages 100-101, lines 40-45.

Counsel submitted that it was clear from the totality of oral and documentary evidence of the witnesses at trial that the trial judge?s judgment wasn?t supported by the evidence adduced.

Counsel argued that there was no material difference in the statements made by the Defendants who were discharged and acquitted and those that were convicted. Counsel argued that in a criminal case, where evidence against two or more accused persons is the same and doubt is resolved by the trial judge in favour of one of the accused persons, the same should be resolved in favour of the others. Counsel cited Chief Emmanuel Ebri v. State

(2004) 8 MJSC, 74 at 81, 82, paras. A-C. Counsel then submitted that the evidence found credible in discharging and acquitting the 6 other accused persons should also be used in discharging and acquitting the Appellant.

Counsel argued that contrary to Section 135 of the Evidence Act, 2011, the Respondent failed to call the necessary witnesses to prove that the Appellant acted without lawful authority or with an appropriate license. Counsel argued that the Respondent failed to prove this fact because it would be detrimental to the Respondent?s allegations. Counsel cited Section 149(d) of the Evidence act 2011 andIweka v. FRN (2011) 14 WRN, 33 at page 94-95.

Appellant?s Counsel argued that the Respondent was not able to establish the offence of conspiracy. Counsel argued that although conspiracy is a matter from which the Court can make an inference, the Respondent had failed to lead evidence from which the trial Court can infer that there was an agreement to carry out an unlawful act or a lawful act by an unlawful means. Counsel cited Section 135 of the Evidence Act, 2011.
?
Counsel argued that where two or more persons are charged

with the offence of conspiracy and trial is conducted on the same evidence, a discharge and acquittal of one must also have the same end result for the others.

Counsel argued that the statement made by all the persons arrested to the police weren?t different in any material form. Counsel argued that the testimony of the Appellant and DW3 were materially the same but on the strength of the said testimonies, the learned trial judge discharged and acquitted some and convicted some under counts 1 and 2 while it was obvious that they had the same interest, conduct, intention and object.

Counsel further argued that this Court should examine the statements of the discharged and acquitted persons alongside those of the convicted persons because the statements are not materially different.
?
Learned Respondent?s Counsel argued that the offence of conspiracy was established because the Appellants were in the vessel that carried the crude oil as confirmed by the Department of Petroleum Resources. Counsel argued that the resultant effect of the conspiracy was the possession of crude oil which the Department of Petroleum Resources confirmed as

such and upon which the analytical result was tendered in evidence.

Counsel argued that the Respondent was able to show the existence of an agreement to commit offences as charged between Captain Robinson, the Appellant and some other crew members.

Respondent?s Counsel argued that the Respondent established the offence of conspiracy because the Appellants had a common intention of diverting the vessel to Forcados for the purpose of carrying out the illegal business of siphoning crude oil.

Counsel argued that the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences and so it is the duty of the Court to ascertain the complex evidence of any of those charged with the offence of conspiracy. Counsel cited Abacha v. the State (2003) 3 ACLR 333 at page 388 paragraph 40.

Respondent?s Counsel urged this Court to consider the existence of contradictions in the statements made to the police. Counsel argued that the scrutiny of the statements showed that while Osarode Elijah (DW3) and one Williams Udeme alluded to a group of boys, the 1st Appellant testified that their vessel was hijacked by

armed sea pirates. Counsel further argued that in the face of such contradictions, the trial judge was bound to find against the Appellant.

Learned Respondent?s Counsel opined that an evaluation of the oral and documentary evidence of the witnesses at trial showed that the trial Court?s judgment was supported by the evidence adduced.

OPINION
Conspiracy is an agreement between two or more persons to do an unlawful act or do a lawful act by an unlawful means. See Ajuluchukwu v. State (2014) LPELR-23024 (SC). Here, the persons involved have to be ad idem which can be inferred from an act or omission that was done in furtherance of the said offence of conspiracy. See Busari v. State (2015) LPELR-24279 (SC). Thus, there must be a meeting of two or more minds to carry out an unlawful or illegal act which is an offence. A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective. See Kaza v. State (2008) LPELR-1683 (SC).

It is trite law that where two or more persons are charged with the commission

of an offence, and there is similarity in the evidence against which all the accused persons were charged with in the commission of an offence, the discharge of one as a matter of law would affect the discharge of the others. This is because if one of the accused persons is discharged for lack of evidence, others would be affected. Thus, it follows that since their evidences are tied together, the other accused persons would also be discharged. See Okoro v. State (2012) LPELR-7846 (SC).
The evidence before the trial Court would be examined in giving consideration to whether or not the Appellant alongside the other persons charged can be guilty of the offence of conspiracy. The evidence on record showed that the acquittal of some of the accused persons at trial was premised on the basis that they were oblivious of the fact that they were heading for Forcados to load crude oil. Thus, contrary to the argument of the learned Appellant?s Counsel, there is a disparity between the confessional statements made by the Appellant and the others who were convicted on the one hand and the statements of the other accused persons at trial who were later discharged

and acquitted.
The statements of the Appellant and the other accused persons which were made at the Naval offices revealed the fact that they had knowledge of the facts and circumstances of how the crude oil got onboard the vessel. The statements of the Appellant made to the navy revealed the fact that the act of loading crude oil was premeditated. The Appellant in his statement marked as Exhibit M5, tendered by PW4 on page 241 of the record stated that the Captain of the vessel, John Fregene, was called and instructed by Mr. Robinson to proceed to Forcados as there are some people there waiting for their vessel to be loaded with crude oil. He even went as far as saying that the captain expressed his fear to the said Mr. Robinson who gave the captain the assurance that the security personnel had been settled. And upon getting to the meeting point, the vessel was loaded with crude oil.
On Exhibit M1 tendered by PW4 on page 241 of the record, the Captain of the vessel, John Fregene, categorically stated that on the 7th of December 2015, he received a call from Mr. Robinson, the owner of the vessel informing him to head to Forcados where he would meet

up with some persons and where they ended up loading crude oil. He further stated that the said Mr. Robinson called him again to proceed ?outside bar and await further directives.?
One of the other convicted accused persons, Mr. John Bull in his own confessional statement marked as Exhibit M4, tendered by PW4 and found on page 241 of the record, corroborated the Appellant?s confessional statement when he said Mr. Robinson called them to head to Forcados to load so as to be taken to Ghana. He further stated they were only able to load six out of 12 tanks before they were intercepted by the navy.
Interestingly, on page 241 of the record, Exhibit M9 tendered by PW4, which also happened to be a statement of one of the convicted accused persons, Jacob Olugbeli reiterated the above stated facts. He stated that the manager, Mr. Robinson called the captain asking him to divert the vessel to Forcados and upon which the said Mr. Robinson called them to inform them that they would meet up with some persons so as to load the vessel with crude oil.
The statement of the Appellant and the other convicted persons which were made at the navy

are all in sync. It points to one fact, that the offence was premeditated by the appellant and these other convicted persons.
It would be observed that the statement of the other acquitted persons differed materially from those of the Appellant and the other convicts. As stated earlier, they had no fore knowledge about the act of loading crude oil onboard the vessel. The fate of those acquitted was the case of being at the wrong place at the wrong time. Elijah Osarode whose statement was marked as Exhibit M2, and which was tendered by PW4 on page 241 of the record stated that they were moving when some group of boys entered their vessel upon which they were taken to a loading point and the vessel was thereafter loaded with crude oil.
Williams Udeme in his own statement found on page 241 of the record, which was tendered by PW4 and marked as Exhibit M3 said that they were instructed by the captain of the vessel to proceed for loading and having regards to his position as an oiler, he had to obey the order of the captain of the vessel. Thereafter, the vessel was loaded with tanks of crude oil. It is crucial to know that upon their arrest by the navy,

the captain informed them to say they were hijacked by sea pirates who forced them to load.
In his own statement, Kingsley Eso said in Exhibit M6, tendered by PW4 and found on page 241 of the record that when he asked the captain where they were heading to, he was told by him not to ask questions. Subsequently, they were taken to a loading point by some boys who joined them on the vessel and who later took them to load crude oil. Kingsley Eso also stated that they were instructed by the captain that when asked, they should say they were hijacked by sea pirates.
Adela Sunday on his part said in his statement, Exhibit M7, tendered by PW4 on page 241 of the record that the captain diverted the vessel for another operation which he had not heard before.
Emmanuel Udon in his own statement tendered by PW4 on page 241 of the record and marked as Exhibit M8, said the captain requested that they pump out water from the tank and also prepare for loading upon which ?they entered Forcados water to Ugulaha where they loaded.?
Lastly, in the statement of Felix Ukoh, marked as Exhibit M10 and tendered by PW4 on page 241 of the record, it was

found that he was a cook who stood in for a friend of his. He stated that he saw some men come out from somewhere who then connected a hose to their vessel and upon which the vessel was later loaded with crude oil.
From the foregoing statements of the acquitted persons, it would be understood that they had no hand in the offence charged. Thus, it cannot be said that the Appellant, the other convicts and the acquitted persons had the same evidence adduced against them.
To this extent, and for the purpose of proving the offence of conspiracy, it can be inferred and deductively concluded that based on the statement of the Appellant and the other convicted persons that was made at the navy, they were engaged in accomplishing a common object or objective of committing the offence of unlawfully loading some crude oil onboard the vessel. In so finding, I resolve this issue against the Appellant.

All the issues for determination having been resolved against the Appellant, I have to dismiss the appeal as lacking in merit. That portion of the judgment of Honourable Justice A.O Faji in relation to this Appellant delivered on 13/03/2017 in

FHC/AS3/12C/2016 is hereby affirmed.
Appeal Dismissed.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.

I agree that this appeal deserves to be dismissed as all the issues for determination are resolved against the appellant.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the Judgment of my learned brother, Helen Moronkeji Ogunwumiju, JCA, just delivered.

I agree with my learned brother that the offences of conspiracy and unlawful possession were proved beyond reasonable doubt, by the respondent, as required by law.

It is for all the reasons given by my learned brother that I dismiss this appeal, as it lacks merit.

I affirm the judgment of the trial Court delivered by the Federal High Court, sitting at Asaba, per Hon. Justice A.O. Faji on 13/03/2017 in suit No: FHC/ASB/12C/2016.

Appearances:

C.O. OsemeiluFor Appellant(s)

Respondent Absent
For Respondent(s)

Appearances

C.O. OsemeiluFor Appellant

AND

Respondent AbsentFor Respondent