FRANK OPOKU ANIM & ORS v. FEDERAL REPUBLIC OF NIGERIA (2014)

FRANK OPOKU ANIM & ORS v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7314(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of June, 2014

CA/B/167C/2011

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

Afortiori,the onus (burden) of establishing a criminal charge against an accused person is squarely placed upon the prosecution. And by virtue of the provision of Section 138(1) of the Evidence Act, the onus of proof is one beyond reasonable doubt. See ARE VS. COP (1959) WRNLR 230 @ 231. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CRIMINAL LAW: OFFENCE OF CONSPIRACY; THE MEANING OF CONSPIRACY, WHEN IS THE OFFENCE OF CONSPIRACY CONSUMMATE AND HOW TO PROVE THE OFFENCE OF CONSPIRACY

Invariably, the term conspiracy denotes an agreement by two or more persons to commit an unlawful act (offence, crime), coupled with an intent to achieve the agreement’s objective. Conspiracy is a distinct offence from the crime that is the object of the conspiracy. See BLACKS LAW DICTIONARY 9th Edition, 2009 @ 361. In the case of KRULEWITCH vs. UNITED STATES, it was held by the Supreme Court to the following effect: When two or more persons combine for the purpose of inflicting upon another person an injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers damage, they commit the fort of conspiracy. See (1949) 336.45, 440, 445 – 40; 68 SC, 716, 719 – 20. In essence, the offence of conspiracy is completely consummated (committed) the very moment two or more persons have consented (agreed) that they will do, either immediately or at some future time, certain (unlawful) things. In order to complete the offence (of conspiracy), it’s not necessary that anyone thing should be done beyond the agreement reached by the conspirators. At that crucial stage, even if the conspirators repented and declined or had no opportunity to carry out their agreement, or they are prevented from, or failed in, achieving their unlawful objective, the offence is deemed a fait accompli. See MAJEKODUNMI vs. QUEEN (1952) 14 WACA 64; ERIM VS. STATE (1994) 5 NWLR (Pt.345) 522 @ 534 paragraphs A – B. Flowing from the foregoing authorities, the principle is well settled, that a person may involve himself in conspiracy by his mere assent to and encouragement of the design of the offence, although nothing may have been assigned thereto, or intended to be executed by him personally. Thus, in essence, it need not be intended that all the conspirators should actively take part in the offence as principals in the first or second degree. As aptly held by the Supreme Court – In order to prove conspiracy, it is not necessary that there should be direct communication between conspirator and every other, but the criminal design must be common to all… A person may involve himself in the crime of conspiracy by his mere assent intended to be executed by him personally. In other words, it need not be intended that all the conspirators should take part in the crime as in principals in the first or second degree. Per Ogwuegbe, JSC @ 535 paragraphs C E. See also LAW OF CRIMINAL CONSPIRACIES (1873) by Wright J. @ 70, referred to with approval in ERINA VS STATE (Supra). per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: PROOF OF CONSPIRACY; WHETHER THE PROOF OF CONSPIRACY IS ESSENTIALLY INFERENTIAL

I think, I cannot agree more with the above apt submission by the learned counsel to the Respondent. My view is solidly predicated upon the well established doctrine, to the effect that proof of conspiracy is essentially inferential. Thus, in order to prove conspiracy, it’s not necessary that there should be a direct link or communication between each and every conspirator involved therein. All that is required to be established is that the criminal design alleged is common to all the conspirators. In the case of ERUM VS. STATE (Supra), the Supreme Court aptly held that how the conspirators connected among themselves is not necessary, for there could even be cases where one conspirator may be in one town and the other in another town and they never have seen each other. But there would be acts on both sides which would the trial court to the inference. See also QUEEN VS. OYEDIRAN vs. REPUBLIC (1967) NMLR 122; HARUNA VS. STATE (1972) All NLR 738. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHETHER WHERE TWO OR MORE PERSONS ACT IN CONCERT IN COMMITTING AN OFFENCE, ANYONE OF THEM CAN BE CONVICTED FOR THAT OFFENCE

The Appellants, in my view were rightly convicted under the provision of Sections 7(b) and 8 of the Criminal Code (Supra) for the offence of conspiracy under count 1 of the charge in question. I think there is a need to reiterate the trite and well settled principle, to the effect thus:
Once a criminal act is committed by two or more persons acting in concert and furtherance of their common intention each and everyone of them is liable for the consequence of the act. It does not matter which, of the accused did what. In other words, where two or more persons act in concert in committing an offence, anyone of them can be convicted for that offence. See IDIOK V. STATE (2006) 12 NWLR (Pt.993) @ 23 – 24 paragraphs H – D. Per Omokri, JCA (of blessed memory); ALAGBA VS. R. (1950) 19 NLR 129; NWALI VS. STATE (1971) 1 NMLR 78; CULANI VS. STATE NA (1960) 1 All NLR 260; MIRI VS. STATE (1965) NMLR 119; ODIGIJI VS. STATE (1976) 7 SC 141. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: PROVING THE GUILT OF AN ACCUSED PERSON; WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

The settled state of the law is that there are three ways or methods of proving the guilt of an accused person.
These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence, and
3. By the evidence of eye witnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49 and OKUDO vs. THE STATE (2011) 3 NWLR (PT.1234) 209 at 236 D. It is by any one of the above ways or methods or a combination of them that the prosecution has to employ in order to discharge the onus thrust upon it by Section 135 of the Evidence Act 2011, id est, proving its case beyond reasonable doubt. Per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBT

But then, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. See ONI vs. THE STATE (2003) 31 WRN 104 at 122 and MILLER vs. MINISTER OF PENSION (1947) 2 ALL ER 372 at 373. Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced, no tribunal of justice would convict on it having regard to the evidence led in the case. The proof required to be beyond reasonable should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT.893) 340 at 379F – 380B. Per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. FRANK OPOKU ANIM
2. ERNEST ANIM
3. WELLINGTON ADOBA
4. KWESI EMISAND
5. SETH KPODISIME
6. ABRAHAM YAOAHIADOR
7. OCHUKO OMOREODE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering The Leading Judgment): The present appeal is consequent upon the Judgment of the Federal High Court, holden at Benin Judicial Division, Edo State, which was delivered on April 30, 2010 in Charge No. FHC/B/29C/2009. By the Judgment in question, the lower court, Coram M. B. Idris, J; convicted the Appellants upon two count-charge of conspiracy and oil bunkering, contrary to Sections 3 (6) and 1(17)(a) and punishable under Section 1(17) of the Miscellaneous Offences Act, CAP. M17 Laws of the Federation of Nigeria 2007. Not unexpectedly, the Appellants were dissatisfied with the said Judgment, thus filed the notice of appeal thereof on 16/1/10 in the court below.

BACKGROUND FACTS

On 24/02/09, the Appellants were arraigned before the court below upon a two count-charge viz:

CHARGE
That you Frank Opoku Anim (m), Ernest Anim (m), Wellington Adoba (m), Kwesi Eminsang (m), Seth Kpodisime (m), Abraham Yao Ahiador (m) being crew members of a vessel called MT ATHINA later changed to M. T. Hope and Ochuko Omoreode (m), a Nigerian Pilot and others at large on or about the 28th December 2008 at Chanomi Creek, near Escravos, Delta State within the jurisdiction of this Honourable Court did conspire among yourselves to commit felony to wit Dealing in Petroleum Products and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act CAP M17 of the Revised Edition (Laws of the Federation of Nigeria) 2007 and punishable under Section 1(17) of the same Act.

COUNT 2
That you Frank Opoku Anim (m), Ernest Anim (m), Wellington Adoba (m), Kwesi Eminsang (m), Seth Kpodisime (m), Abraham Yao Ahiador (m) being crew members of a vessel called MT ATHINA later changed to M. T. Hope and Ochuko Omoreode (m), a Nigerian Pilot and others at large on or about the 28th December 2008 at Chanomi Creek, near Escravos, Delta State within the jurisdiction of this Honourable Court did without authority deal in 4,000 metric tones of petroleum products suspected to be crude oil and bunkered it in a vessel called MT ATHINA later changed to M. T. Hope and thereby committed an offence contrary to Section 1 (17) (a) of the Miscellaneous Offences Act CAP M17 of the Revised Edition (Laws of the Federation of Nigeria) 2007 and punishable under Section 1(17) of the same Act.

As borne out by the record of appeal (pages 105 – 106), the seven Appellants pleaded not guilty to each of the two counts-charge in question. In the course of the trial, seven witnesses testified for the prosecution. On the part thereof, each of the Appellants testified in his own defence, but called no witness. At the end of the trial, the respective learned counsel addressed the lower court, thus resulting in adjourning the case for delivery of Judgment, which was delivered on 30/4/10 to the conclusive effect, thus:

I am of the view that the prosecution had led sufficient circumstantial evidence to prove the offences with which the accused persons are charged. I am satisfied from the evidence led that the accused persons and others at large dealt in 4,000 metric tones of petroleum product without lawful authority contrary to Section 1 (17)(a) of the Miscellaneous Offences Act…
Accordingly, I hold that the Accused Persons are guilty on both counts as charged.

I have listened to counsel to the accused persons and I have considered all that has been urged upon the court. In view of the submissions of counsel, it is hereby ordered that each of the accused persons namely – Frank Opoku Anim, Ernest Anim, Wellignton Adoba, Kwesi Emisang, Seth Kpodisime, Abraham Yaoahiador and Ochuko Omoreode are hereby convicted and sentenced to 8 years imprisonment on each count. The sentences shall begin to run from the date of their arrest and detention on 28th December 2008, and the sentences are to run concurrently. The vessel MT HOPE be and is hereby forfeited to the Federal Government.

Consequent upon the compilation and ultimate transmission of the Record of Appeal to this court, the learned counsel filed their respective briefs of argument. The Appellants’ brief was filed on 07/02/14 by Chief C. O. Ihensekhien. That of the Respondent was filed on 18/3/14 by G. O. Edobor, Esq.

At page 3 of the Appellants’ brief, three issues have been distilled from the five grounds of appeal, viz:

ISSUE 1 (GROUND 5)
Whether or not the prosecution proved its case beyond reasonable doubt as required by the Evidence Act on criminal prosecutions.

ISSUE 2 (GROUNDS 1 & 5)
Whether or not the circumstantial evidence upon which the 1st – 7th Accused/Appellants were convicted is sufficiently cogent, indisputable and strong and points irresistibly to the guilt of the Accused/Appellants as required by law.

ISSUE 3 (GROUND 4)
Whether in the circumstances of the cases, the defence of Alibi raised by the Accused/Appellants is enough to quash the charges against them.

Issues 1 and 2 were canvassed together at pages 3 – 17 of the said brief. In a nutshell, it’s submitted, from the outset, that the prosecution did not prove the case thereof beyond reasonable doubt, as required by Section 138 (1) of the Evidence Act, CAP 112 Laws of the Federation, 2009.
Further submitted, that it’s evident from Exhibits 1 & 2 that the case was not properly investigated before it was charged to court. Allegedly, by the said Exhibits, an agency in Ghana by the name Volt Consult of Tema State Fish Building, Tema Ghana, consulted the Appellants to repair a ship for one of their customers, Captain Ken. Exhibit 10, a ship formerly known as MT Hope, was allegedly owned by Captain Ken.

The testimonies of the PW1 – PW7, the various exhibits admitted at the trial, most especially Exhibits P1, P2, P3, P5, P6, P7, P8, P9 and P15A & B, EFCC4, were extensively referred to by the learned counsel. It was contended, that the prosecution failed to inform the officials, especially PW2, that they got in touch with Volt Consult in Ghana. However, the EFCC was able to do this in collaboration with the Ghana Embassy, in the presence of Ghana Embassy representative and the 1st Appellant.

Further contended, that the prosecution failed to present these facts or evidence of their findings to the lower court. Allegedly, the evidence is tantamount to withholding evidence by virtue of Section 149 (D) of the Evidence Act. Because, if the piece of evidence was produced, it would have been unfavourable to the prosecution. See WUAM VS. AKO (1999) 5 NWLR 150 @ 164 paragraphs B – F; STATE VS. ONYEAFOELU (2002) 3 LRCN CC 230; ONUOHA VS. STATE (1995) 3 NWLR (Pt. 385) 591; OKORONJI, VS. STATE (2005) CCC 279 @ 285.

The court is urged to hold that the vital witnesses needed to resolve the issue on whether or not the 1st – 6th Appellants were actually hired to service the ship, were not called. That, the prosecution’s failure to do this is a failure to prove the guilt of the Appellants beyond reasonable doubt.
Regarding the issue of the vessel having been hijacked, as alleged by the Appellants (Exhibits P1 & P2), no investigation whatsoever on these facts was carried out by the EFCC operatives. The prosecution allegedly conceded, vide PW5, to this fact.
Thus, having supplied sufficient particulars of their whereabouts and those present with them at the material time the offence was committed, the prosecution had a duty to disprove same. As contended by the learned counsel, failure to investigate same by the prosecution must lead to an acquittal of the Appellants. See YANOR vs. STATE (1965) NMLR 337; QUEEN VS. TURNER (1957) WRNLR 34; NWATUOCHA VS. STATE (2011) 2 – 3 SC (Pt ?).

Equally submitted, that there is no doubt that the onus is on the prosecution to prove the charge against an accused beyond reasonable doubt. See Section 138 (1) of the Evidence Act; Section 35 (5) of the 1999 Constitution; ARE VS. COP (1959) WRNLR 230 @ 231. The court is urged upon to properly evaluate the evidence in the ‘cold print of the record’, the lower court having failed to do so. Accordingly, the court is urged to accordingly resolve Issues 1 & 2 in favour of the Appellants.

On Issue No. 3, it was submitted that the Appellants had raised the defence of alibi vide Exhibits P1 – P9 at the earliest possible time and viva voce, that Exhibit 10 (the vessel)was hijacked and the crew members locked up in the mess room of the vessel. That, the boat was then loaded with crude oil by other unknown persons who came around in boats and barges and pumping machines and loaded Exhibit 10 with crude oil. This credible piece of evidence, confirmed by DW7 at page 209 lines 23 – 29 of the Record, not having been refuted by the prosecution, is unchallenged and therefore deemed admitted. Thus, the court was bound to act on it, as the failure to do so by the lower court has led to a miscarriage of justice. See OFORLETE VS. STATE (2000) 80 LRCN 267; BELLO VS. IWEKA (1981) 1 SC 101; MTA & SONS VS. FHA (1991) 8 NWLR (Pt.209) @ 295; AZEEZ VS. STATE (1986) 2 NWLR (Pt.23) @ 541; BROADLINE ENT. LTD .V. MONETARY MARITIME CORP. (1995) 33 LRCN 640; (1995) 9 NWLR 417.

That, it’s evident that the defence of alibi of the Appellants was not considered by the lower court in arriving at the conclusions thereof. It treated the defence of the Appellants with suspicion. See OGBA VS. STATE (2009) 7 LRCN CC 177; YAKI VS. STATE (2009) 7 LRCN CC 36; NWATURUOCHA VS. STATE (2011) 2 – 3 SC (Pt.1) 111.

The Appellants’ defence that they were hired to repair the vessel was not considered by the lower court. In criminal trials, the onus is on prosecution to prove, beyond reasonable doubt the guilt of the accused person. Failure to do so, will lead to the discharge of the accused person. Because, the accused is under no obligation whatsoever to prove his innocence, as the burden does not shift. He’s presumed innocent until proved guilty. He’s at liberty to say nothing in his defence at the trial. See ONUGBOGU vs. STATE (1974) 9 SC 1; STEPHEN VS. STATE (1986) 5 NWLR (Pt.46) 978; IKEMSON VS. STATE (1989) 3 NWLR (Pt.110) 455; ONAFOWOKAN VS. STATE (1987) 3 NWLR (Pt.61) 538; UDEDIBIA vs. STATE (1976) 11 SC 133.

Finally submitted, that the sentence and conviction passed on the Appellants was not based on the evaluation of the evidence that was before the lower court, which said failure led to a miscarriage of justice. The court is thus urged upon to evaluate the evidence, consider the defence of the Appellants, and resolve the Issue No. 3 in their favour.

Conclusively, the court is urged to set aside the Judgment of the lower court, and enter a verdict of not guilty on behalf of the Appellants.

On the other hand, the Respondent’s brief, filed on 18/3/14, spans a total of 19 pages. At pages 5 to 6 of the said brief, two issues have been formulated for determination, viz:

1. Whether the prosecution has proved beyond reasonable doubt the offence of conspiracy to deal in petroleum product without authority against the Appellants in count one of the charge before the lower court.
2. Whether the prosecution has proved beyond reasonable doubt the offence of dealing in petroleum product without authority against the Appellants in count two of the charge before the lower court.

On Issue No. 1, it’s submitted that in order to establish the offence of conspiracy, the prosecution must establish the element of agreement to do something unlawful or lawful by an unlawful means. And that conspirators do not need to know or meet with each other previously. See ERIM VS. STATE (1994) 5 NWLR (Pt.345) 522 @ 524; OMOTOLA VS. FRN (1999) 12 NWLR (Pt. 682) 483 @ 501 – 502.

Further submitted, that in the instant case, the Appellants being crew members of the vessel MT ATHINA later changed to MT HOPE, which act is a violation of Section 340 of the Merchant and Shipping Act, CAP. N 11 Laws of the Federation of Nigeria,2004. That it was with the knowledge and encouragement of their employer and owners of the vessel, Captain Ken, which constitutes an agreement to do an unlawful act by an unlawful means; notwithstanding that they were not on board the vessel with Captain Ken, but were in constant communication with each other to achieve the act.
So, in the present case, the mere fact that the Appellants were tried and convicted without Captain Ken did not diminish their criminal responsibility. That, the Appellants were caught by the provisions of Sections 7(b) and 8 of the Criminal Code, as laid down in DAVID IDIOK VS. STATE (2006) 12 NWLR (Pt.993).

The consistency with which the Appellants and co-conspirators planned and agreed to commit the act under the deception of repairing a vessel MT ATHINA later changed to MT HOPE from Ghana to Lagos Nigeria to Warri in order to create the opportunity to commit the crime, has been established and proven beyond reasonable doubt by the prosecution, as required by law. The court is urged to allow the finding of guilt of the lower court against the Appellants on count of conspiracy.

On Issue No. 2, it was submitted that to be found liable under Section 1(17) (a) of the Miscellaneous Offences Act CAP M, the Appellants must be shown to have dealt with or in crude oil or petroleum product in Nigeria without lawful authority. Further submitted, that the Appellants were found in possession of 4,000 metric tones of crude oil bunkered into their vessel MT HOPE from unauthorised and illegal sources.

Allegedly, it’s in evidence, that the Appellants had no appropriate licence or lawful authority to deal in petroleum product. That, the Appellants in connivance with their Captain (Ken) now at large, had the intention from the start of the voyage in Ghana to commit the offence as shown by credible evidence from the prosecution witnesses. The case was properly investigated by the Respondent. A trial court has a duty to rely on circumstantial evidence that is cogent, complete and unequivocal to convict an accused person. The facts of this case are very clear on this ground with the exhibits tendered, showing that the Appellants actually dealt in petroleum product without lawful authority. See OGIDI VS. STATE (2005) 5 MJSC 155; KITADA VS. REPUBLIC (1978) 2 CLR 132; NASAMO VS. STATE (1979) 12 NSCC 140.

That, the prosecution’s case is consistent with the facts and exhibits tendered before the lower court, that the Appellants did commit the offence as charged. The court is urged to so allow the said finding of guilt against the Appellants.

The PW1’s evidence was reiteratively alluded, to the effect that the Appellants did not tell him that they were hijacked. That evidence was unchallenged, therefore deemed admitted.

Finally, it was contended that the prosecution has been able to prove its case beyond reasonable doubt against the Appellants, as required by law. It is not the law, to prove beyond all iota of doubt. See BANNAFE VS. STATE (1987) 1 NWLR (Pt.52) 579.

The court is urged upon to accordingly affirm the finding of guilt (conviction), and sentence passed on the Appellants by the lower court in counts one and two of the charge.

PRELIMINARY OBSERVATION
It should be noted that the original notice of appeal of the Appellants is predicated upon six grounds, viz:
1. The learned trial judge of the Federal High Court, Benin City erred in law in convicting WELLINGTON ADOBA, the 3rd Accused/Appellant for the offence of conspiracy without any credible evidence showing the intention and the agreement to conspire between the 3rd Accused/Appellant and the 1st, 2nd, 4th, 5th, 6th and 7th Accused/Appellants.
…
2. The learned trial judge erred in law in convicting the 3rd Accused/Appellant of the offence of conspiracy and dealing unlawfully in petroleum product on the evidence of PW1 – PW7 which was manifestly unreliable, contradictory and speculative.
…
3. The learned trial judge erred in law in failing to resolve any doubt created in the mind of the court in favour of the 3rd Accused/Appellant thereby convicting the 3rd Accused/Appellant of the offence of conspiracy and dealing unlawfully in petroleum product.
…
4. The learned trial judge erred in law in failing to consider and uphold the defence raised by the 3rd Accused/Appellant to the effect that the ship was hijacked and products pumped into the ship by the hijackers without the prosecution showing evidence of investigation of same and without any evidence of the prosecution discrediting same.
5. The learned trial judge erred in law in convicting the 3rd Accused/Appellant when the prosecution failed to prove the offences as charged beyond reasonable doubt as required by law.
…
6. That the decision of the trial judge is therefore unwarranted, unreasonable having due regard to the weight of evidence.

However, as copiously alluded to above, the Appellants deemed it expedient to formulate only three issues for determination. The said three issues were related to only three of the six grounds of appeal, namely grounds 1, 4 & 5. Grounds 2, 3 & 6 have not been related to any of the three issues. Thus, the said unrelated grounds 2, 3 & 6 are deemed abandoned and liable to be discountenanced. And I so hold.

What’s more, ground 5 is related to both issues 1 and 2, which in my view amounts to a proliferation of issues. In the circumstance, therefore, the reference to ground 5 in Issue 2 ought to be, and is hereby, discountenanced.

Having outlined the submissions of the learned counsel contained in their respective briefs of argument, I have deemed it expedient to adopt the three issues formulated at page 3 of the Appellants’ brief for the determination of this appeal.

ISSUES NOS. 1 & 2:

The first issue raises the vexed question of whether or not the prosecution has proved its case beyond reasonable doubt [against the Appellants], as required by the Evidence Act on criminal prosecutions. The second issue raises the question of whether or not the circumstantial evidence upon which the 1st – 7th Appellants were convicted is sufficiently cogent, indisputable and strong, and points irresistibly to the guilt of the Appellants, as required by law.

By the combined effect of the provisions of Section 36 (1) & (5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, an accused person shall be entitled to right of fair hearing, within a reasonable time and be presumed to be innocent of the offence with which he is charged, until he is proved guilty. See the provisions of Section 36 (1) & (5) of the 1999 Constitution (Supra), thus:
36 – (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
…
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

In the case of KRULEWITCH vs. UNITED STATES, it was held by the Supreme Court to the following effect:
When two or more persons combine for the purpose of inflicting upon another person an injury which is
unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers damage, they commit the fort of conspiracy. See (1949) 336.45, 440, 445 – 40; 68 SC, 716, 719 – 20.
In essence, the offence of conspiracy is completely consummated (committed) the very moment two or more persons have consented (agreed) that they will do, either immediately or at some future time, certain (unlawful) things. In order to complete the offence (of conspiracy), it’s not necessary that anyone thing should be done beyond the agreement reached by the conspirators. At that crucial stage, even if the conspirators repented and declined or had no opportunity to carry out their agreement, or they are prevented from, or failed in, achieving their unlawful objective, the offence is deemed a fait accompli. See MAJEKODUNMI vs. QUEEN (1952) 14 WACA 64; ERIM VS. STATE (1994) 5 NWLR (Pt.345) 522 @ 534 paragraphs A – B.
Flowing from the foregoing authorities, the principle is well settled, that a person may involve himself in conspiracy by his mere assent to and encouragement of the design of the offence, although nothing may have been assigned thereto, or intended to be executed by him personally. Thus, in essence, it need not be intended that all the conspirators should actively take part in the offence as principals in the first or second degree. As aptly held by the Supreme Court –
In order to prove conspiracy, it is not necessary that there should be direct communication between conspirator and every other, but the criminal design must be common to all…
A person may involve himself in the crime of conspiracy by his mere assent intended to be executed by him personally. In other words, it need not be intended that all the conspirators should take part in the crime as in principals in the first or second degree. Per Ogwuegbe, JSC @ 535 paragraphs C E. See also LAW OF CRIMINAL CONSPIRACIES (1873) by Wright J. @ 70, referred to with approval in ERINA VS STATE (Supra).

In the instant case, the fact that the Appellants were arrested by the security operatives while on board of Exhibit 10, the vessel in question on 29/12/08 is not in doubt at all. The evidence on record is to the effect that on the said 29/12/08 at about 3.15am, the vessel was sighted by the PW1 and team coming out of Ihanomi Creeks. The PW1 testified inter alia, thus –
We allowed the ship to come into the open river and we followed them behind. At the open river we beamed our light on them and fired warning shots. We went close to the boot and told all the people in the boat to come to the deck. We circled the boat and they refused to come out and we fired warning shots again, then, one of them came out… Later, we had all of them, 5 Ghanaian and a Nigerian inside our boat. I asked them where they were coming from and they said they came in the rough Escravos and that they went to get crude oil, I asked them the name of the ship, and they said Sandra Valeta…

When I entered I asked what they were carrying and they said it was crude oil and they said it was about 4000 metric tones, See page 12 of the Record of Appeal.

Under cross-examination, the PW1 testified, inter alia, thus:

The vessel was carrying crude oil. I don’t know how the crude oil got into the vessel.., the accused told me that they haven’t been paid for about 6 months… They did not tell me that the vessel was undergoing repairs… I saw crude oil spread on the deck, See page 125 of the Record.

On the part thereof, each of the seven Appellants testified denying the charge. They denied having conspired with anyone to commit the offence or any offence for that matter. The 1st Appellant, who testified in his defence as DW1, told the lower court, inter alia, thus:
I know the 2nd – 6th accused persons, They are my crewmen, I don’t know the 7th accused. I got to know him on the day of the accident. I did not conspire with anybody to commit any offence. I did not deal in 4,000 metric tons of petroleum products or bunkered it.

The 2nd to 7th Appellants equally testified in like manner that they did not conspire with anyone to commit the offence in question.

In the instant case, the 1st Appellant had testified to the fact that the original name of the vessel was MT ATHINA. Curiously, however, the vessel’s name was changed overnight to MT HOPE. Hear the 1st Appellant (DW1) thus:
On 27/12/08, Captain Ken called in the morning and said he was sending a pilot on board with the permit and other documents.., Captain Ken said he had secured the documents of the ship and that the new name is MT HOPE, so I should let my crew paint the new name. We did in the morning.

In my considered view, the circumstances and motive that had warranted the changing of the vessel’s name from MT ATHENA to MT HOPE are mind boggling and very questionable. At page 708 paragraph 4.05 of the Respondent’s brief, it has been aptly postulated thus:
In the instant case the Appellants being crew members of the vessel MT ATHINA later changed to MT HOPE which act is a violation of Section 340 of the Merchant and Shipping Act CAP N11 LFN 2004 with the knowledge and encouragement of their employer and owners of the vessel (Captain Ken) constitutes an agreement to do an unlawful act by an unlawful means notwithstanding that they were not on board the vessel with Captain Ken but were in constant communication with each other to achieve the act.

In the present case, the fact that the said Captain Ken is still at large, thus has not been arraigned along with the Appellants to face the trial, notwithstanding. The Appellants, in my view were rightly convicted under the provision of Sections 7(b) and 8 of the Criminal Code (Supra) for the offence of conspiracy under count 1 of the charge in question. I think there is a need to reiterate the trite and well settled principle, to the effect thus:
Once a criminal act is committed by two or more persons acting in concert and furtherance of their common intention each and everyone of them is liable for the consequence of the act. It does not matter which, of the accused did what. In other words, where two or more persons act in concert in committing an offence, anyone of them can be convicted for that offence. See IDIOK V. STATE (2006) 12 NWLR (Pt.993) @ 23 – 24 paragraphs H – D. Per Omokri, JCA (of blessed memory); ALAGBA VS. R. (1950) 19 NLR 129; NWALI VS. STATE (1971) 1 NMLR 78; CULANI VS. STATE NA (1960) 1 All NLR 260; MIRI VS. STATE (1965) NMLR 119; ODIGIJI VS. STATE (1976) 7 SC 141.

It was vehemently submitted by the Appellants’ learned counsel, that the case was not properly investigated by the prosecution before it was charged to court. That submission in my considered view is baseless, and rather preposterous. As alluded to above, it’s evident on the records that Exhibit 10, the vessel in question, was originally registered as MT ATHENA. However, the Appellants surreptitiously and criminally decided to change the name of the vessel to MT HOPE contrary to Section 340 of the Merchant and Shipping Act, CAP N11, LFN, 2004.

Furthermore, the 1st – 6th Appellants failed to produce any evidence to establish that they were actually contracted by the alleged Captain Ken vide Volt Consult, to carry out the purported repairs of the vessel. Under cross-examination by the prosecution, the 1st Appellant was recorded to have testified thus:

I am a Sailor. I am a vessel repairer. The 2nd – 6th accused are also Sailors and vessel repairers. Volt Consult and Captain Ken consulted us, The consultation was not in writing…I had never met him before,
Captain did not tell when he was sending to the ship. I don’t know where Captain Ken is. See pages 189 to 190 of the Record.

The Appellants failed to give any reasonable explanation regarding the whereabouts of the purported employer or agent thereof – Captain Ken and Volt Consult. Thus, the Appellants’ claim that the case was not properly investigated by the prosecution is misconceived and utterly preposterous.
In my considered view, the evidence adduced at the trial on record was cogent and sufficient to warrant the lower court to convict the Appellants of the two count charge in question. See OGIDI VS. STATE (2005) 5 MJSC 155; NASAMO vs. STATE (1979) 72 NSCC 140.

The PW2 testified at page 129 of the Record, to the effect, inter alia, thus:
We tried to see if the accused persons will link the investigation to Captain Ken who they claimed is the owner of the vessel and the product contained in it, but the accused persons claimed they only met Captain in Ghana through an agent of which they do not know the address of Captain Ken or any other means of locating Captain Ken. From an investigation, the 7th Appellant was the pilot to the vessel, particularly on the day of the arrest.

Most regrettably, however, the above evidence of the PW2, which was not discredited under cross-examination by the defence, has been disparaged by the Appellants’ counsel at page 6 of the brief thereof, thus:
PW2 took the statements of the 1st and 2nd Accused/Appellant which he tendered as exhibit P1 & P2. He got in contact with the Ghana Embassy and Volt Consult in the presence of the Accused/Appellants during his investigations, but deliberately refused to disclose to the trial court what information he gathered from Volt Consult, He therefore lied when he testified that…

I would want to believe that, in view of the circumstances surrounding the case, and the totality of the evidence on record, the above allegation of the Appellants’ learned counsel is uncharitable and unethical, to say the least!

As reiteratively alluded to above, the fact that the Appellants were arrested by the PW1 and team on the 29/12/08 while on board of Exhibit 10 (MT Hope otherwise registered as MT Athena), is not at all in doubt. Equally not in doubt, is the fact that the said Exhibit 10 (the vessel) was discovered to be laden with 4000 metric tons of crude oil at the time the Appellants were arrested on board thereof.

To prove the offence in question, the prosecution must show that the Appellants had dealt with or in crude oil or petroleum product in Nigeria without lawful authority. As alluded to above, the prosecution had called a total of seven witnesses and tendered various Exhibits. Of the seven prosecution witnesses, the evidence of the PW1, Captain Haruna Jida is most instructive. The PW1, an Army Captain of Effurun Army Barracks, Warri, testified to the effect, inter alia, that he knew the Appellants. He stated that on 29/12/08 at about 3:15am, he and his team were on patrol duty on board of their gunboat between Forcados and Escravos River, when they sighted a vessel coming out of Chaunomi Creeks. They followed the ship up to the open river. The PW1 stated further thus:
At the open river, we beamed our light on them and fired warning shots. We went close to the boat and told all the people in the boat to come to the deck. We circled the boat and they refused to come out and we fired warning shots again, then one of them came out. We moved closer, anchored our boat and told the man to come into our boat. He came into our boat, and we anchored our gunboat with the ship. I climbed inside their ship with a soldier. We told them to come out and they refused. We fired shots and an additional 4 people came out. Later we had all of them; 5 Ghanaian and a Nigerian inside our boat, I asked them where they were coming from and they said they come in through Escravous and that they went to get crude oil. I asked them the name of the ship, and they said Sandra Valeta. At that point, I informed my commander who instructed to hold on with them there and that he is sending more gunboats. I remained there with the ship till about 6am when additional gunboats came, then, I handed the ship and the suspects over to Captain H. Umar, and I returned to my duty location at shell, Forcades.
When I entered I asked what they were carrying and they said it was crude oil. I saw the crude oil and they said it was 4000 metric tones. I asked the 7th accused person the question. It is not possible to enter the ship from a flying boat, unless the ship drops its lader.

Under cross-examination by the defence counsel, the PW1 told the court, inter alia, that an embargo was placed by the Delta State Government on movement of vessels at night. He said the modus operandi of the bunkerers normally was that speed boats would precede the vessel. The inference being that if the speed boat was attacked, the vessel would come out. The PW1 testified further thus –
The vessel was carrying crude oil. I don’t know how the crude oil got into the vessel, As I came on board the vessel, the accused told me a lot of things but I remember they told me that they haven’t been paid for about 6 months. They begged but I told them to reserve their statements to the investigators. They did not tell me that the vessel was hijacked. They did not tell me that the vessel was undergoing repairs. I saw crude oil spread on the deck…”
“The vessel was carrying crude oil… All I did was to arrest them and hand them over to Captain Umar. I saw crude oil spread on the deck.”

The PW5 was Captain Umar of the Nigerian Army attached to JTF Delta Company Escravous. He was infact the O/C of JTF company in charge of the sentry and security of the area under his command. It was equally his duty to check the menace of criminals and destroy illegal refineries along the waterways. He told the court that he knew all the seven Appellants. He stated that on 28/12/08, at about 8pm, the JTF Commander informed him that he got intelligence that bunkering was going on along Chanomi Creek and directed that all vessels be impounded. He further narrated thus:
I approached the O/C in charge of the Navy for their assistance, Around 4am, we proceeded, we trapped the accused persons. Before we got there, the accused persons had been arrested by Captain Jida (PW1). When I arrived Captain Jida told the JTF Commander that I had arrived, that the vessel and the accused persons should be handed over to me, and this was done. We got to Warri on 03/07/2009. In Warri, we handed them over to the Military Police, We handed over the vessel with suspected 4000 meters (sic) of crude oil and 1 Nigerian and 6 Ghanaian suspect on board.

Again, under cross-examination by the defence counsel, the PW5 testified thus:
I am not a Petrochemical Engineer. The product was suspected crude oil. I did not arrest the accused persons, Captain Jida handed the accused persons at the scene of the arrest. It took us 3 days to reach Warri because the vessel was grounded. I escorted the accused person from the point of arrest and handed them over to JTF Command.

The PW2, PW3, PW4 and PW6 were investigation operatives of the EFCC who each played an active role in the investigation of the case, thereby leading to the arraignment and trial of the Appellants. Most particularly, the PW2 was one Ogbu Chinedu Michael of EFCC, Port Harcourt Zonal Office. He told the court thus:
On 7/01/2009, I led a team of 3 other operatives to Joint Task Force, Warri, Delta State on investigation activities, Other team members include Kambai Matthew, Shehu Haruna Usmon, Bashin Mustapha Ringin. At the JTF Warri, Delta State, I recorded the statements of 1st and 2nd accused persons (1st and 2nd Appellants). Before their statement I cautioned them in English Language read it over to them and explained it.
The statements of the 1st and 2nd Appellants recorded by the PW2 were admitted as Exhibits P1 & P2. The PW2 further testified that efforts to link their investigation to Captain Ken, the alleged owner of the vessel, proved abortive. This is due to the fact that the Appellants said they met Captain Ken through an agent, and they did not know the agent’s or Captain Ken’s address. Under cross-examination by the defence counsel, the PW2 testified thus:
I have been investigating for about 3 years. After the accused statement, me and my team took the 1st and 7th accused to NPA, Warri Jetty where we took the sample of the product on the vessel in their presence and forward same to NNPC for laboratory analysis. That was all I did.

The PW3 was Bashir Mustapha Ringin, the EFCC operative mentioned by the PW2 in the testimony thereof. Essentially, the PW3 recorded the statement of the 4th Appellant, which was admitted as Exhibit P3. The PW3 equally testified further thus:
After recording the statement, and the 1st and 7th accused with some of the arresting officers went to NPA Jetty where the vessel was anchored and took the sample in their presence for laboratory analysis, I personally climbed on the vessel after the Captain identified the vessel and took the sample, in their presence. I did not do any other thinks.

The PW4, was Shehu Haruna Usman of EFCC, Port Harcourt Zonal Office. He testified that on 08/01/09, he recorded the statement of the 6th Appellant, which he identified as Exhibit P4. He also recorded the second statement of the 6th Appellant on 24/01/09, which he identified as Exhibit P5. Under cross-examination, the PW4 told the court that he did climb on the vessel, like the PW3 did. Nor did he personally collect the sample of the crude oil.

The PW6 was Kamfai Matthew Ignatius, an EFCC operative. The PW6 was equally involved in the investigation of the case. He was responsible for recording the statement of the 3rd, 5th and 7th Appellants, which were each admitted at the trial as Exhibits P6 (3rd Appellant), P7 (5th Appellant) and P8 (7th Appellant), respectively. Under cross-examination by the defence counsel, the PW6 testified further, thus:
It is not correct that my major work is to record the statement of the accused persons. I collected sample from the vessel. Apart from the evidence, there was nothing else I did.

The last but not the least prosecution witness, was the PW7, Mathias Elemchi; a Chief Research Engineer with NNPC. He has been with NNPC for 28 years, as at 06/10/09. He testified, inter alia, thus:
On 23/01/09 I was in the laboratory in my office and a client from EFCC came with a bottle of black substance, liquid reporting that we identify what it is. The bottle was labelled with the name of the sampler, date of sample, date of delivery. The sample source was a ship, MT HOPE. We documented the sample and went about our normal process of carrying out various tests to identify what it is. We gave the EFCC the result. The test was carried outranged from specific gravity, appearance, distillation, flash point, etc. We discovered that the liquid sample was crude oil, I issued a report. If I see the report I can identify it. Exhibit P12 is the report. We concluded that it was crude oil.

Crude oil cannot be used as it is. It comes from oil well or flew stations. We sell it to make money for the nation and also require. You can only bring it from the NNPC.

Under cross-examination by the defence counsel, the PW7 testified further thus:

I have up to 28 years experience. I am the Chief Research Engineer. I carried out the analysis. The result is that of the analysis, I am suppose to endorse it with my name. The signature on the right is mine. We write our signature. That is the corporate policy. A staff checked the result. Simeon checked the result. These is his signature. I made the remark on the result. In the oil industry, we work with specification. The characteristics refers to the specifications.

As alluded to above, each of the seven Appellants deemed it expedient to testify in his own defence. Their evidence is contained at pages 187 to 210 of the Record. Most particularly, the 1st Appellant testified that his name was Frank Opoku Anim. He lives at No. V35, Community 8, Tema, Ghana. He’s a Seaman. He knew the 2nd to 6th Respondents as his Crewmen. He got to know the 7th Respondent only on the day of the incident. He further testified thus:
I did not conspire with anybody to commit any offence. I did not deal in 4,000 metric tons of petroleum products or bunkered it. The ship was arrested on 28/2/08. In October 2008 an agency contracted me to meet the owner of MT Athena in the offices of the agency. The owners name of the vessel is Captain Ken.
We met in the offices of the agency in Tema, Ghana. The agency is Volt Consult, Captain asked me if I can assist repair the ship MT Athena which I said I could help. On 1/10/08 my crew members from the 2nd to 6th accused started repairing MT Athena… On 27/12/08, Captain Ken called in the morning and said he was sending a pilot on board with the permit and other documents, I then asked him about our wages, He said when we get to Warri we should be paid our wages. I told my crew that Captain Ken has told us to paint the ship and change its name. Captain Ken said he had I secured the documents of the ship and that the new name is MT Hope, so I should let my crew paint the new name. We did in the morning.

Testifying further, the DW1 said that on 28/12/08, as they sailed, another boat came alongside with 4 men with bags. The 4 men came on board the ship and said they were sent by Captain Ken to assist the Appellants with repairs in Warri. However, according to the DW1-

Suddenly they open their bags and brought out big guns – All AK 47 and others. They said they were taking over the ship for their business and they could thereafter leave the ship for us.

I told them the ship was undergoing repairs, They pointed the gun to me and threatened to kill us… I then saw 20 to 30 speedboats coming with men, armed men with barges being turned along. They tied along the ship and I could seem carrying hoses and pumping machines on board, and some on their barges. …They now asked us to stop the ship. After some hours while they were pumping whatever was on their barge on board the ship.., After some hours I could hear the crowd on board the ship shouting JTF and they started moving the barges.

“We saw the 7th accused with a boat saying follow me”. As the ship sailed, after some time we saw 2 bright lights on both sides beamed at us, Start shouting shots, saying “we are the JTF, stop, stop”. We stopped the engine and rushed out to them. They came alongside and I told them we were glad to see them. I told them that the hijackers and the pilot are upstairs… As we headed towards the bridge and get there, we only saw their jackers and shoes.

Under cross-examination by the prosecution counsel, the DW1 stated, inter alia, that since 28/12/08 he did not have any communication with Captain Ken. He testified further thus:
From Lagos to Escravos, I did not have any paper to, stay in Nigeria territorial waters. When we entered the country the vessel was MT Athena, Captain Ken was not there when we painted MT Athena to MT Hope, Before we painted we did not have any document to re-registration. The ship was repainted at Escravos, outside the bar. Outside bar is a place allocated for ships at every point of entry ay any part. When we repainted we have documents to continue with the new ship from Escravos to Bennet Island, The documents are with the arresting officers. If I see the document, I can identify it. (Witness identifies document – Exhibit P 15A).

From the totality of the evidence on record, it’s not in doubt that the Appellants were arrested by the PW1, PW5 and other soldiers under their command on the 29/12/08 while on board the vessel, MT Hope (surreptitiously changed from MT Athena). It is also not in doubt that the vessel was carrying 4000 metric tones of crude oil without lawful authority. Thus, the 1st and 2nd Issues ought to be, and are hereby, resolved against the Appellants.

ISSUE NO 3:

The third issue raises the question of whether in the circumstances of the case, the defence of alibi raised by the Appellants was enough to warrant the court to quash the charges against them. The issue is distilled from ground 4 of the notice of appeal. I think, there is every cogent reason for me to hold that having already resolved the 1st and 2nd Issues against the Appellants, there is no gainsaying the fact that the 3rd Issue ought to equally be resolved against them.

The case of the Appellants was that by virtue of the written statements thereof, admitted as Exhibits P1 – P9, they had raised the defence of alibi at the earliest possible time. It was equally the Appellants’ case that in their respective ipsi dixit they had testified to the effect that the vessel (Exhibit 10) was hijacked and the crew members on board were locked up in the mess room. That, it was then that the vessel was loaded with crude oil by the alleged unknown persons who came in boats and barges and pumping machines and loaded Exhibit 10 with crude oil.

The 7th Appellant testified as DW7 (at page 209 of the Record) to the effect, inter alia, thus:
By the time I was briefed by Captain Ken, the ship had problems. When I got to the vessel at about 10pm, I saw all the accused. I did not ask them why they had the problem. I asked for the Captain, and they pointed at the 1st accused. He said they were hijacked and locked up and forced into the room, I told them to wait for me to get to Captain Ken. I saw the hijackers. I did not ask them any question, I saw many speed boats and hand pulling boats alongside the vessel. When I saw the hijackers, I saw the barges. I can’t remember the number of persons I saw. Some of the hijackers were on top of the vessel and some in speed boats. I can’t tell if all of them were hijackers.

In view of the circumstances surrounding the case vis-a-vis the evidence on record, there is no doubt that the evidence of the DW7 alluded to above is utterly misleading, an afterthought and preposterous. The evidence of the PW1 which I believe is very credible, is to the effect, inter alia, thus:
When I entered I asked what they were carrying and they said, it was crude oil. I saw the crude oil and they said it was 4000 metric tones. I asked the 7th accused person the question, It is not possible to enter the ship from a flying boat, unless the ship drops its lader.

Under cross-examination by the defence counsel, the PW1 testified further thus:
The vessel was carrying crude oil. I don’t know how the crude oil got in to the vessel. As I came on board the vessel, the accused told me a lot of things but I remember they told me that they haven’t been paid for about 6 months. They begged but I told them to reserve their statements to the investigators. They did not tell me that the vessel was hijacked. They did not tell me that the vessel was undergoing repairs. I saw crude oil spread on the deck, See pages 125 to 126 of the Record.

Contrary to the submission of the Appellants’ learned counsel, the 7th Appellant could not, by any stretch of imagination, be considered as a rescuer of the 1st – 6th Appellants. Undoubtedly, in view of the evidence on record, the 7th Appellant is an accomplice to the crime in question. The evidence of the PW1 is aptly to the effect that he and his soldiers had arrested the 1st – 6th Appellants while on board the vessel (Exhibit 10) in question, and that they did not tell him that the vessel was hijacked. That piece of evidence of PW1 is in my view credible and rather unassailable. Interestingly, that evidence of the PW1 was not challenged under cross-examination by the defence counsel. Undoubtedly, the evidence that the vessel was hijacked, as alleged by the Appellants, was not supported by any credible evidence on record.

Indeed, it’s in evidence that the 7th Appellant went on board the vessel and told the 1st – 6th Appellants that he was instructed by Captain Ken, to sail the vessel and follow him. Incidentally, it was at that point in time that the PW1 and his soldiers intercepted and surrounded the vessel thus resulting in the timely arrest of the Appellants at the scene of crime. There is every cogent reason for me to hold that the prosecution has been able to discharge the burden of proving the two-count charge against the Appellants beyond reasonable doubt. See BAMONAFE VS. STATE (1987) 1 NWLR (Pt. 52) 579.

In the circumstance, the alleged defence of piracy is preposterous and a sheer afterthought, thus cannot avail the Appellants. Interestingly, it’s a notorious fact that the menace of piracy, most especially in the Gulf of Guinea, has transcended to an issue of global concern. Most regrettably, piracy in the Gulf of Guinea affects a number of countries in the West African Sub-Region, as well as the international community. Arguably, piracy acts interfere with the legitimate economic and security interests of the affected countries including Benin, Togo, Cote d’voire, Ghana, Nigeria, and the Democratic Republic of Congo. According to a WIKIPEDIA documentation –
Pirates in the Gulf of Guinea are often pan of heavily – armed criminal enterprises, who employ violent methods to steal oil cargo. In 2012, the International Maritime Bureau, Oceans Beyond Piracy and the Maritime Piracy Humanitarian Response Program reported that the number of vessels attacks by West African Pirates had reached a world high, with 966 seafarers attacked during the year. According to Control Risks, Pirate attacks in the Gulf of Guinea had by mid-November 2013 maintained a steady level of around 100 attempted hijackings in the year, a close second behind Southeast Asia. See WIKIPEDIA.

However, in the instant case, there is no doubt that in view of the credible evidence on record, the purported defence of piracy or pirates attack is baseless and highly preposterous, thus cannot in any way avail the Appellants. Contrariwise, the surreptitious and rather illegal changing of the name of the vessel from MT ATHINA to MT HOPE in the eleventh hour, the emergence of the 7th Appellant at the time of uploading the 4000 metric tones of the crude oil on board the vessel are unequivocal indications that the Appellants were premeditatively involved in the illegal oil bunkering in question.

In the circumstances, I have no hesitation in resolving the said Issue No. 3 against the Appellants.

Hence, having resolved all the three issues against the Appellants, there is no gainsaying the fact that the instant appeal is grossly unmeritorious, and it’s hereby dismissed by me. Consequently, the Judgment of the Federal High Court delivered by the Hon. Justice M. B. Idris on 30/4/2010, thereby convicting and sentencing the 1st to 7th Appellants upon the two count charge in question, is hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: My learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA, gave me the privilege of reading the draft of the judgment just delivered. The issues in the judgment have been well considered and I agree that the appeal is devoid of merit and substance. I consequently dismiss the appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my Lord, SAULAWA, JCA. The facts of the case have been duly appraised, analyzed and redacted in the lead judgment and I agree with his conclusion that the appeal is devoid of merit and should be dismissed.

Upon their conviction by the lower court, the Appellants lodged an appeal and in their brief of argument they distilled three issues for determination premised on whether the prosecution proved its case beyond reasonable doubt, whether the circumstantial evidence upon which they were convicted was sufficiently cogent and irresistibly pointed to their guilt and whether the defence of alibi which they raised was enough to quash the charges against them. These issues have been dutifully considered in the lead judgment and resolved against the Appellants.

The Appellants were convicted upon a two-count charge of conspiracy and oil bunkering. The settled state of the law is that there are three ways or methods of proving the guilt of an accused person.
These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence, and
3. By the evidence of eye witnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49 and OKUDO vs. THE STATE (2011) 3 NWLR (PT.1234) 209 at 236 D.

It is by any one of the above ways or methods or a combination of them that the prosecution has to employ in order to discharge the onus thrust upon it by Section 135 of the Evidence Act 2011, id est, proving its case beyond reasonable doubt. It is in this wise that Issue Numbers One and Two distilled by the Appellants are linked and interwoven. The question of whether the circumstantial evidence adduced is cogent and irresistible which is Issue Number Two is a factor in whether the case had been established beyond reasonable doubt which is Issue Number One. Happily, the said issues were argued together.

Now, our adversary criminal justice system is accusatorial. This is so on account of the provisions of Section 36 (5) of the 1999 Constitution which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. A necessary corollary of the presumption of innocence is the cardinal principle of law that the commission of a crime by a person must be proved beyond reasonable doubt, a burden which rests on the prosecution.

I have insightfully considered the Records of Appeal and the briefs of argument filed by learned counsel and I agree with the conclusion in the lead judgment that issue Numbers One and Two ought to be resolved against the Appellants as the evidence on record established the offences with which they were charged beyond reasonable doubt.

On the question of alibi which is the third issue raised by the Appellants, their contention is that they raised the defence of alibi at the earliest possible time.The term alibi is not defined in the Evidence Act. It is however a derivative of two Latin words ‘alius’ meaning ‘other’ and ‘ibi’ or ‘ubi’ meaning ‘there’ or ‘Where’. Its usage in criminal jurisprudence is a dexterous fusion of the first three letters in the word ‘alius’ and the last two letters in the word ‘ibi’ or ‘ubi’, hence the word alibi. See ALANI vs. THE STATE (1993) NWLR 112 at 114, THE STATE vs. FATAI AZEEZ (2008) 4 SC 188 and ADEWUMI vs. STATE (2012) LPELR 1 at 32 E – F. In simple terms, alibi means elsewhere other than the scene of crime at the relevant time: ATTAH vs. THE STATE (2010) 10 NWLR (PT.1201) 190.

The defence of alibi is to be raised at the earliest opportunity in order to afford the police the opportunity of investigating the alibi. See OZAKI vs. THE STATE (1990) 1 NWLR (PT.124) 92. The details and particulars of where the accused person claims to have been at the material time must be clearly stated: MUSTAPHA vs. THE STATE (2007) 12 NWLR (PT.1049) 637. Furthermore, the defence of alibi must not consist of vague accounts which are no more than make-belief pleas of that defence and which are completely devoid of material facts worthy of investigation. See EBRE vs. THE STATE (2001) 12 NWLR (PT.729) 617 at 636.

It is against the background of the above principles that I consider the alibi raised by the Appellants as ludicrous. There are no material facts on which the alleged hijack of the Ship by unknown persons, who the Appellants claimed locked them in the Mess Room of the ship, and then loaded the crude oil into the Ship, can be investigated in order to ascertain its veracity.

It is for the foregoing reasons and the more elaborate reasons articulated in the lead judgment that I also affirm the judgment of the lower court and dismiss the appeal.

Appearances

J. C. Nwokoro with N. MokwenyeFor Appellant

AND

G. O. EdoborFor Respondent