GAMBO ALIYU WANZAM v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13614(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/YL/189C/2017
RATIO
AN ACCUSED IS PRESUMED INNOCENT BEFORE PROVEN GUILTY BY THE PROSECUTION
In criminal proceedings, the accused is presumed innocent until the contrary is proved by the prosecution. The onus of proof is therefore on the prosecution and it never shifts. The accused person needs not say anything in his defence. The burden throughout in a criminal trial is on the prosecution to prove the guilt of the accused. See Igabele V. State (2006) 6 NWLR (Pt. 975) 100. PER JAMES SHEHU ABIRIYI, J.C.A.
BURDEN OF PROOF IN CRIMINAL PROCEEDINGS: BEYOND REASONABLE DOUBT
The case against the accused person must be proved beyond reasonable doubt. Any doubt in the prosecution?s case must be resolved in favour of the accused person. See the decisions of this Court in Baruwa V. State (1996) 7 NWLR (Pt. 460) 302 and Onuoha V. State (1998) 5 NWLR 118. PER JAMES SHEHU ABIRIYI, J.C.A.
LIMITATION OF PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the society if it admitted of fanciful possibilities to deflect the course of justice. The doubt should be real. In Abeke V. State (2007) LPELR -31 at page 31 Tobi JSC stated thus:
The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There would be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there. PER JAMES SHEHU ABIRIYI, J.C.A.
CONSPIRACY: DEFINITION
Conspiracy is an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement?s objective. See Black?s Law Dictionary 10th Edition. Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between or among the accused persons. The conspirators need not know themselves and may not have agreed to commit the offence of conspiracy at the same time. Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or inactions of the parties concerned. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the accused persons. See Adekoya V. State (2017) 1 SCNJ 62 at 83. PER JAMES SHEHU ABIRIYI, J.C.A.
HOW TO PROVE THE GUILT OF AN ACCUSED
The guilt of an accused person can be proved by:
a) The confessional statement of the accused person or
b) Circumstantial evidence; or
c) Evidence of the witness of the crime. PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
GAMBO ALIYU WANZAM
(a.k.a Heavy D) – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 9th May, 2016 in the Federal High Court, Yola Judicial Division holden at Yola wherein the Appellant and seven others were tried, convicted for conspiracy to obstruct and obstruction of officers of National Drug Law Enforcement Agency (NDLEA) from carrying out their lawful duty contrary to Sections 14 (b) and 49 (a) of the National Drug Law Enforcement Agency Act.
?The Respondent?s case against the Appellant at the Federal High Court (the Court below) was that consequent upon an earlier surveillance over the Appellant?s shop and other drug dealers, officers of the NDLEA undertook an operation which was aborted because while Pw1 who was in the advanced team was already in the shop of the Appellant, incognito waiting, somebody ran and told the Appellant that NDLEA officers were around. The Appellant then took a cutlass and ran out. According to Pw1 the Appellant was shouting ?thief, thief? as he ran into someone?s compound. But the Pw2 said he saw the Appellant with the cutlass chanting NDLEA
1
officers are here, they cannot succeed as he moved from one place to another mobilizing people. Then a mob surged and attacked the NDLEA officers leaving their leader and another officer of the NDLEA dead.
Although he had earlier made a clean breast of the offence charged in a statement to the police, the Appellant in his testimony in Court made a U-turn and stated that he was in his house on the date of the incident. On that day, the hard drug dealers had a fight with the officers of NDLEA inside the market. The day was a market day. People were running out of the market. He was having his bath. He wore his clothes and came out. He did not have a shop in the market and did not sell Indian Hemp. It is not true that Pw1 was in his shop on that day. People were leaving the market. ?It was a huge trouble.? He did not see the NDLEA officers. It is not true that he picked a cutlass and said ?customer find your way? and started shouting ?thief, thief.? It is not correct that he was followed and he jumped into someone?s compound. The Respondent?s witnesses only told the Court what they wanted. He wondered how he
2
could use a cow horn on someone holding a gun.
After the trouble, he and other people left the village.
After considering the evidence adduced by the parties and addresses of learned counsel, the Court below found the Appellant and the others guilty on both counts, convicted and sentenced him to a prison term of twenty (20) years for conspiracy to obstruct officers of the NDLEA from discharging their lawful duties and another twenty (20) years prison term for the offence of obstruction of NDLEA officers from carrying out their lawful duties in the process of which two officers lost their lives and two others were seriously injured. Both sentences are to run concurrently.
The Appellant sought for and was granted extension of time within which to appeal. Upon the grant of the application, the Appellant on 19th January, 2018 filed a notice of appeal which was deemed duly filed and served on 14th November, 2018. The notice of appeal contains five grounds of appeal.
From the five grounds of appeal, the Appellant presented the following three issues for determination:
?1. Whether the learned trial judge was not wrong in law and
3
occasioned a miscarriage of justice against the Appellant, when he admitted the confessional statement of the Appellant in evidence as voluntary confessional statement in spite of all overwhelming evidence led by the Appellant at the trial within trial session. (Distilled from ground 4 of the Appellant?s Notice of Appeal).
2. Having regard to the evidence adduced by the Appellant and the entire circumstances and the approach adopted by the trial Court in this case, in delivering the judgment, whether the trial Court was right in convicting and sentencing the Appellant as charged. (Distilled from ground 1 of the Notice of Appeal).
3. Whether the Respondent proved the case of conspiracy and obstruction of officer(sic) of the National Drug Law Enforcement Agency in carrying out their duty beyond reasonable doubt against the Appellant as charged, as required by law to ground the conviction and sentence of the Appellant. (Distilled from grounds 2, 3 and 5 of the Notice of Appeal).?
?The Respondent submitted four issues for determination. They are reproduced immediately hereunder:
4
?i. Whether from the facts and circumstances of this case the learned trial judge properly admitted the confessional statement of the Appellant herein, as 1st Defendant in the trial Court, in evidence. This issue is distilled from Ground 4 of the Notice of Appeal.
ii. Whether from the facts and circumstances of this case the Prosecution proved its case beyond reasonable doubt to establish the guilt of the Appellant as required by law. This issue is distilled from ground 2 of the Notice of Appeal.
iii. Whether in arriving at the decision to convict the Appellant, the Learned Trial Judge properly evaluated the evidence in line with the principle of natural justice and fair hearing as required by law. This issue is distilled from grounds 1 and 3 of the Notice of Appeal.
iv. Whether the Appellant is deemed to have abandoned Ground 5 of his Notice of Appeal by his failure to formulate and argue any competent issue on that ground in his Appellant?s Brief.
Although Appellant has formulated issue 3 from grounds 2, 3 and 5, I will consider the appeal on the three issues presented by the Appellant for determination.
On issue 1, learned counsel for the
5
Appellant submitted that the admissibility or otherwise of any confessional statement is governed by Section 29 of the Evidence Act, 2011. The Court was referred particularly to Sub-section 5 of Section 29 of the Evidence Act. The Court was referred to the evidence led at the trial within trial in respect of the confessional statement of the Appellant at pages 335-349 vol. II of the record.
Evidence adduced at trial within trial by the Appellant, it was submitted, was not challenged or controverted and that the Respondent failed to prove that the statement of the Appellant was voluntary.
It was clear from the record, it was submitted, that the Appellant was taken into custody in good health and without any wound. Learned counsel for the Appellant asked how come suddenly there was a change in the Appellant?s health. These are things he contended that ought to have swayed the Court below to believe the evidence of the Appellant that he was forced to give the statement and was tortured in the process. There was also evidence of the medical officer which buttresses the Appellant?s evidence, it was submitted.
?On issue 2, learned counsel
6
for the Appellant contended that the Court below considered only the evidence of the Respondent without giving any consideration to the evidence of the Appellant adduced at the trial. It was submitted that failure to consider the Appellant?s case is a denial of justice and is fatal to the case of the Respondent.
On issue 3, it was submitted that the burden of proof in criminal cases lies throughout on the prosecution and never shifts. This is because the Appellant is presumed innocent until his guilt is established. The Court was referred to Babatunde v. The State (2014) 2 NWLR (Pt. 1391) 298 at 343.
The standard of proof, it was submitted, is proof beyond reasonable doubt. The Court was referred to Afolalu V. State (2010) 16 NWLR (Pt. 1220) 584 and Akpan Vs State (1991) 3 NWLR (Pt. 182) 1695. Every ingredient of the offence alleged, it was submitted, must be established by credible evidence. The Court was referred to Ikomi V. State (1986) 3 NWLR (Pt. 28) 340 and Mustapha V. State (2013) 17 NWLR (Pt. 1383) 350 at 405.
The Respondent, it was submitted, failed to discharge the burden placed on it by virtue of Section 135 (1) and (2) of the Evidence Act
7
That the Pw1 claimed to have met the Appellant in his shop before he escaped. This evidence was contradicted by the evidence of Pw2 who said he met the Appellant at the scene, it was contended.
It was contended that the evidence of Pw1 ought to have been corroborated moreso that the affected party is pained by what happened. The evidence was not corroborated, it was argued and therefore, it was wrong to convict the Appellant.
From the foregoing alone, the Appellant, it was contended, ought to have been discharged and acquitted.
But that is not all, it was argued. The Court below, it was submitted, relied on confessional statements of the co-accused persons which implicated the Appellant in finding the Appellant guilty. It was submitted that before the evidence of a co-accused will be used against another co-accused, that co-accused must be confronted with the said evidence and the co-accused accepts such evidence against himself. The Court was referred to Adisa V. State (2013) 14NWLR (Pt. 1375) 567 at 579, Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 at 602- 603 and Duru V. State (2017) 4 NWLR (Pt. 1554) 1 at 26. The
8
Appellant in this case was not confronted with the evidence of the co-accused; it was submitted.
The Court was also urged to allow the appeal on this score.
It was further submitted that the confessional statement of the Appellant was not tested to ascertain the truthfulness and veracity by examining the contents in the light of other credible available evidence led at the trial. The Court was referred to Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445 at 480, Akpan v. State (Supra) and Kolawole V. State (2015) 9 NWLR (Pt. 1460) 134 at 165.
It was again submitted that there was no evidence in proof of the allegation against the Appellant neither was Exhibit Pw5A corroborated in any way. It was submitted that there is virtually nothing outside the said Exhibit Pw5A to show that it is true. It was submitted that the Court below erred when it held that the said confessional statement was consistent with other evidence called by the prosecution.
?It was contended that in spite of the fact that the Respondent failed to prove the offence charged beyond reasonable doubt, the Appellant still entered his defence and gave evidence that he did not
9
have a shop in the market and also denied meeting Pw1 at the scene of crime on 21st March, 2012 when the incident happened and he did not know any of the co-accused persons. That all other co-accused testified and said they did not know the Appellant. This evidence, it was argued, was not challenged. It was submitted that any unchallenged evidence is deemed admitted. The Court was referred to Zubairu v. State (2015) 16 NWLR (Pt. 1486) 504 at 527.
Learned counsel for the Appellant stated that a photograph of the alleged officer who was injured at the scene of the incident was tendered after the applicant?s allocutus after conviction and before sentence. It was submitted that this is a procedure unknown to law. Furthermore the photograph, it was argued, is a computer generated document and Section 84 of the Evidence Act ought to have been complied with. This was not complied with, it was submitted.
It was submitted further that the Court below only lumped up the evidence adduced by the Respondent against all the Defendants without identifying the quantum of evidence against each of the Defendants to ascertain the extent of the
10
involvement of each, particularly the Appellant.
It was submitted that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt.
Learned counsel for the Respondent on issue 1, submitted that the procedure adopted by the lower Court in admitting the confessional statement of the Appellant Exhibit Pw5B was proper. It was contended that the objection to the admissibility of the confessional statement was itself contradictory. That the Appellant suggested that he was forced to make the statement and at the same time suggested that he was forced to thumb print a pre-written statement he did not make. The trial Court nonetheless ordered a trial within trial as the issue of oppression was apparently raised. The Appellant, it was submitted, prevaricated between not making a statement voluntarily and not making a statement at all. The Court was referred to pages 336 and 337 of the record. The Court was also referred to pages 1 to 20, particularly 17 ? 20 of additional record containing the ruling of the Court below which observed the demeanour of the witnesses in the trial within trial and ascribed probative value to them before
11
admitting the statement in evidence. It was submitted that the Court below rightly admitted and relied on Exhibit Pw5B, the confessional statement of the Appellant. The Court was referred to Emeka V. State (2001) 7 NSCQR 582 at 595 and Idowu V. State (2000) 3 NSCQR 96, Nwachukwu V. The State (2007) 31 NSCQR, 312 and Akpan V. State (2001) 7 NSCQR 235 at 250.
On Respondent?s issue 2, learned counsel for the Respondent submitted that proof beyond reasonable doubt does not on the authorities mean proof beyond all iota of doubt. The Court was referred toNasiru V. State (1999) 2 NWLR (Pt. 589) 87 and Ani & Anor V. State (2009) 6 SCNJ 98.
The prosecution, it was argued, established the guilt of the Appellant on his confessional statement, evidence of eye witnesses and circumstantial evidence.
It was contended that Pw1, Pw2 and Pw3 gave compelling eyewitnesses account of the involvement the Appellant in the obstruction and conspiracy to obstruct officers of the NDLEA from discharging their lawful duties. The Court was referred to pages 271 to 279 and 381 to 390 of the record. The Court was also referred to the confessional
12
statement of the Appellant.
It was submitted that minor variations in evidence of Respondent?s witnesses do not affect the substance of the activities of the Appellant as narrated by the witnesses. The Court was referred to Agbo V. State (2008) All FWLR (Pt. 309) 1380 at 1390 and Ochemaje V. State (2008) All FWLR (Pt. 435) 1661 at 1684.
On issue 3, it was submitted by learned counsel for the Respondent that both the Respondent?s case and the defence of the Appellant were well considered by the Court below before it arrived at its decisions.
The evidence relating to the Appellant, it was contended, was analysed at pages 554 to 556 and 559-560 and that it was on this basis that the Court below convicted the Appellant and his co-accused persons.
It was submitted that in taking into account, the principles enunciated by the Supreme Court and this Court relating to fair consideration of cases of all the parties in arriving at a balanced judgment, the judgment of the Court below cannot be faulted. The Court was referred to Sanusi V. Ameyogun (1992) NWLR (Pt. 237) 527.
?On Respondent?s issue 4 learned counsel for the
13
Respondent pointed out that ground 5 of the grounds of appeal relates to matters that occurred after the findings of the Court below that the Appellant was guilty. It was submitted that at that stage, the question of proof beyond reasonable doubt predicated on the principle of presumption of innocence enshrined in Section 36 of the 1999 Constitution FRN (as amended) did not arise as the guilt of the Appellant had already been established.
Be that as it may, the Court below, it was contended, did not take into account the materials contained in ground 5 before exercising its discretion to sentence the Appellant to imprisonment.
The Appellant?s reply brief did not deal with any new points arising from the brief of the Respondent. See Order 19 Rule 5(1) Court of Appeal Rule 2016. It is immaterial that the Appellant punctuated the reply brief with the following phrases ?we submit on point of law?, or ?we further submit on point of law.? These phrases by themselves do not justify the filing of the Appellant?s reply brief. I will therefore discountenance the Appellant?s reply brief.
14
An accused person must admit making the confessional statement before raising the issue of involuntariness or other vitiating circumstance in which the statement was made by him. A trial within trial will be unnecessary unless the issue of voluntariness vel non is clearly raised. Where an accused person initially objects to the admissibility on the ground of involuntariness but at the trial within trial denies making the statement or contends that he was forced to sign or thumbprint an already prepared statement, it will be unnecessary to continue with the trial within trial. The trial Court will then admit the statement in evidence. The trial Court labours in vain where the accused person belatedly disowns the statement at the trial within trial. See Lasisi V. State (2013) LPELR ? 20183 SC Page 29, Nwangbomu V. State (1994) LPELR SC; Yahaya v. State (2016) LPELR ? 40254 CA and Mohammed v. State (2014) LPELR ? 22318 CA. In the instant matter when the statement of the Appellant in both Hausa and English Languages was to be tendered in evidence, learned counsel for the Appellant raised the following objection to its being admitted in his own words:
15
?The 1st Defendant told me that the Statement was extracted from him after he was severely beaten and injured, fearing for his life, he thumb printed the statements.?
At the trial within trial, the Appellant in evidence-in-chief stated thus:
?The next day Mr. Kwatu came with many papers. I could not stand up. Mr. Kwatu came and forcefully put my thumb print on them. Because I was resisting, the thumb print was shaky and it show on the paper. I did not give that statement voluntarily. They threatened to kill me.?
Cross examined by the Respondent, the Appellant blurted thus:
?I don?t know anything about this statement that you show me. I did not ask anyone to write anything on it.?
?It is clear from the objection raised by the Appellant that he was merely playing a game of hide and seek. Unfortunately for him, justice is not a game of hide and seek. As learned counsel for the Respondent rightly pointed out, this game of hide and seek or what learned counsel for the Respondent referred to as obvious prevarications and inconsistencies were manifestations of a badly rehashed story concocted to
16
scuttle the admissibility of the statement. Thus the Court below was misled to labour in vain by trying the issue of whether or not the statement was voluntarily made by the Appellant. On the obvious prevarications and inconsistencies manifested in the objection, it was unnecessary for the Court below to conclude the trial within trial. It ought to have admitted the statement in evidence if not at the time the objection was first raised but certainly during the trial within trial. Unless an accused person owns up to the statement as his, the trial Court labours in vain where as in this matter, Appellant belatedly disowned it in clearer terms at the trial within trial. See Iheme v. State (2013) 2 SCNJ 1012 at 1037, Lasisi V. State (Supra) and Mohammed v. State (Supra). The voir dire proceeding was unnecessary.
From the foregoing, the Court will not labour in vain considering the evidence led at the trial within trial and ruling of the Court below on the voluntariness vel non of the statement.
Issue 1 is resolved against the Appellant and in favour of the Respondent.
?It is trite that it is the sole duty of the prosecution to prove
17
its case beyond reasonable doubt by calling all material witnesses. This onus of proof must be discharged. Even where an accused person in his statement to the police admitted committing the offence the prosecution is not relieved of that burden so that a wrong person will not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Attah & Ors v. State (2009) LPELR ? 8802 CA. Learned counsel for the Appellant contended that the Court below considered only the Respondent?s case without giving any consideration to the Appellant?s defence. Did it? To start with, the Court below pointed out the requirement of the law on the Respondent in its judgment at page 553 paragraph 2 of the record of appeal. The Court below then produced the evidence led by the Respondent against the Appellant, that is, evidence of Pw1, pw2 and pw3 at pages 554 and 555 of the record. Appellant?s defence was considered by the Court below at pages 559-560 and 566 of the record.
It is therefore not correct to say that the Court below considered only the case of the Respondent without giving a consideration to the
18
Appellant?s defence.
Issue 2 is also resolved against the Appellant and in favour of the Respondent.
An accused person?s confession is only evidence against him. The law is that a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See Ozaki V. State (1990) LPELR- 2888 SC and State V. Gwangwan (2015) LPELR ? 24837 SC. See also Section 29 (4) of the Evidence Act 2011 which provides as follows:
?Where more persons than one are charged jointly with an offence and a confession is made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.?
Learned counsel for the Appellant did not point out which confessional statement of the co-accused the Court below held implicated the Appellant. I have looked at the judgment and it appears to me that it was the confessional statement of the 2nd Defendant only that the Court below held
19
implicated the Appellant. This is what the Court below said:
?Exhibit ?Pw7A? and ?Pw7B? are the confessional statements of the 2nd defendant Nasiru Awwalu … He admitted to participating in the Loko attack of the NDELA officers but blamed the 1st defendant (Gambo Aliyu Wanzam Lawal) for mobilizing the attack. 2nd defendant said 1st defendant told him to gang up to kill the officers that came to arrest him. He and Gambo killed the first senior officer with a cow horn and a big stick.? See page 560 ? 561 of the record.
Although the Court below erred when it relied on the confessional statement of the 2nd defendant as implicating the Appellant, this error alone is no reason for allowing the appeal as urged by learned counsel for the Appellant instead, the portion of the judgment suggesting the confessional statement of the 2nd defendant implicates the Appellant is hereby discountenanced.
?Learned counsel for the Appellant complained that the Respondent tendered a photograph of an officer of NDLEA injured in the incident after judgment and allocutus by the Appellant. The record does not show that
20
the photograph was admitted in evidence. This is partly because Appellant?s counsel objected to the photograph being shown to the Court. In any case, it was not intended to be tendered as an exhibit by the Respondent as the language used by both the Respondent?s and the Appellant?s counsel was ?show/showing? of the photograph to the Court. As learned counsel for the Respondent pointed out, the Court below in sentencing the Appellant to a prison term of the twenty (20) years did not take the photograph into consideration.
Ground 5 from which this issue was argued reproduced immediately hereunder reads thus:
?The learned trial Court erred in law and occasioned a miscarriage of justice by admitting in evidence the picture tendered by the prosecution after the stage of allocutus?.
The above complaint is saying what is not. That means that the ground of appeal is far from the truth. The photograph as the record shows was not admitted in evidence.
Respondent did not even apply to tender it in evidence.
?So the argument by learned counsel for the Appellant on the photograph is much ado about nothing.
21
Sections 14(b) and 49(a) of the National Drug Law Enforcement Agency Act Cap 30 LFRN 2004 provide as follows:
?14 Any person who-
(a) – – – – – – – – –
(b) Conspires with, aids, abets, counsels, attempts to commit or is an accessory to any act or offence referred to in this Act,
Shall be guilty of an offence under this Act and liable upon conviction to be sentenced to imprisonment for a term not less than fifteen years and not exceeding 25 years.
49 Any person who-
(a) Wilfully obstructs the Agency or any authorised officer of the Agency in the exercise of any of the powers conferred on the Agency by this Act or
(b) – – – – – – – – –
Shall be guilty of an offence under this Act and shall be liable on conviction to imprisonment for a term not exceeding five
22
years or to a fine of N20,000 or to both such imprisonment and fine.?
In criminal proceedings, the accused is presumed innocent until the contrary is proved by the prosecution. The onus of proof is therefore on the prosecution and it never shifts. The accused person needs not say anything in his defence. The burden throughout in a criminal trial is on the prosecution to prove the guilt of the accused. See Igabele V. State (2006) 6 NWLR (Pt. 975) 100.
The case against the accused person must be proved beyond reasonable doubt. Any doubt in the prosecution?s case must be resolved in favour of the accused person. See the decisions of this Court in Baruwa V. State (1996) 7 NWLR (Pt. 460) 302 and Onuoha V. State (1998) 5 NWLR 118.
Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the society if it admitted of fanciful possibilities to deflect the course of justice. The doubt should be real. In Abeke V. State (2007) LPELR -31 at page 31 Tobi JSC stated thus:
?The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence
23
before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There would be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.?
Conspiracy is an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement?s objective. See Black?s Law Dictionary 10th Edition. Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between or among the accused persons. The conspirators need not know themselves and may not have agreed to commit the offence of conspiracy at the same time. Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or inactions of the parties concerned. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the accused persons. See Adekoya V. State (2017) 1 SCNJ 62 at 83,
24
Oduneye V. State (2001) 13 WRN 88, Marlow v. State (1997) Crim, LR 897 CA, Kayode V. State (2016) LPELR-40028 SC and Alufohai V. State (2014) LPELR-24215 SC.
The guilt of an accused person can be proved by:
a) The confessional statement of the accused person or
b) Circumstantial evidence; or
c) Evidence of the witness of the crime.
In the instant case, the Court below in my view rightly found that the Pw1, Pw2 and Pw3 were eye witnesses to the attack by the mob on the NDLEA officers. Pw1?s evidence that the Appellant ran out with a cutlass shouting ?thief thief? is strengthened by the sudden surge of the mob which attacked the NDLEA officers. The Appellant knew that they were not thieves. He was told by the person who announced the presence of the NDLEA officers that NDLEA officers were around. So he shouted ?thief thief? only to get a quick response. From the evidence of pw1, pw2 and pw3 when he had succeeded in mobilizing the mob, he was now chanting that the people were NDLEA officers and that they would not succeed. Pw2 and Pw3 confirmed the evidence of the Pw1 who was already in the Appellant?s
25
shop incognito when the Appellant ran out of the shop with a cutlass that they saw him in the throng with a cutlass.
Learned counsel for the Appellant contended that the Appellant could not have been among the mob that descended on the NDLEA officers because Pw1 said the Appellant ran into a compound. That argument is unacceptable. It is inconceivable that after mobilizing the mob he would not be part of it. He would not even mobilize the mob from within a compound.
Evidence of Pw1, Pw2 and Pw3 was not demolished under cross examination.
The Appellant himself in his defence in Court lent more credence to the evidence of pw1, pw2 and pw3 by acknowledging that there was a fight between hard drugs dealers and NDLEA officials. This is what he said:
?On 21/3/12, I remember I was at my house at Loko village. The hard drug dealers had a fight with officers of NDLEA.
– – – – – – – – – – –
I know that there was a fight in the market between drug
26
dealers and NDLEA officers because people were running out from the market.?
Pw1, Pw2 and Pw3 were therefore credible witnesses.
On the evidence of the Pw1, the Appellant was one of the drug dealers on whom the NDLEA had earlier carried a surveillance. So he was undoubtedly one of the drug dealers who ?had a fight? with the NDLEA officers. Under cross examination, the Appellant said ?it was a market day and even some Fulanis participated.? This clearly buttresses the fact that the Appellant participated in the attack on the NDLEA officers who went to arrest drug dealers in Loko village, one of them being the Appellant. If he was not present at the scene he would not have known that even Fulanis participated in the ?fight.?
As I pointed out earlier, the Court below also relied on the retracted confessional statement of the Appellant. The law allows it. It is trite law that mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See Ihuebeka V. State (2000) 4 SC (Pt. 1) 203 and
27
Idowu V. State (2000) 7 SC (Pt. 11) 50. However since 1913 when R v. Sykes was decided, the Courts have adopted the practice of subjecting the confessional statement of an accused person to some scrutiny before relying on it as a basis for conviction. See R V. Sykes (2013) 8 CA R 233 and F.R.N. V. Barminas (2013) 15 NWLR (Pt. 1588) 177 at 214-215.
Learned counsel for the Appellant contended that the Court below did not test the confessional statement of the Appellant. At page 559 of the record, the Court below in my view tested the confessional statement of the Appellant when it found that in the statement the Appellant stated that even Fulanis participated in the attack on the NDLEA officers and this fact was repeated by the Appellant under cross examination. The Court below therefore rightly relied on the confessional statement of the Appellant Exhibit Pw5B also as proving the guilt of the Appellant in addition to the evidence of the eye witnesses, Pw1, Pw2 and Pw3.
?The evidence was cast iron and overwhelming against the Appellant. There is overwhelming evidence that the criminal design alleged was common to Appellant, the other accused persons and
28
the throng that attacked the NDLEA officers in order to obstruct them from arresting the suspected drug dealers. This they successfully did by the violent attack on the NDLEA officers leading to the death of two of the officers.
It is clear from the record of the Court below at pages 554, 555 and 559 that the Court below considered the evidence against the Appellant separately to ascertain the extent of his involvement.
Issue 3 is therefore resolved against the Appellant and in favour of the Respondent.
All three issues having been resolved against the Appellant, the appeal should be dismissed.
It is accordingly hereby dismissed by me.
I have observed the Appellant was sentenced to a prison term of twenty (20) years on count 2. Twenty (20) years prison term in respect of count 2, however, is in excess of the five years or fine of N20,000 or both such imprisonment or fine provided for under Section 49 (a) of the Act.
By virtue of Section 36 (8) 1999 Constitution FRN (as amended), no penalty shall be imposed for a criminal offence heavier than in force at the time the offence was committed. See decision of this Court in
29
Iortim V. State (1997) 2 NWLR (Pt. 490) 711. The Court below erred when it imposed a prison term of twenty years on count 2 when the law provided for a prison term of not more than five years or fine of N20, 000 or both such imprisonment or fine.
CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with his reasoning and conclusion arrived at in holding that the appeal is without merit, I adopt same as mine in also dismissing it and affirming the decision of the trial Court.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
30
Appearances:
Lukman O. Fagbemi, Esq.For Appellant(s)
K. Tawum Esq. (Deputy Commander of Narcotics, Prosecutions and Legal Services, NDLEA ,Yola) holding the brief of J. N. Sunday, Esq.For Respondent(s)
Appearances
Lukman O. Fagbemi, Esq.For Appellant
AND
K. Tawum Esq. (Deputy Commander of Narcotics, Prosecutions and Legal Services, NDLEA ,Yola) holding the brief of J. N. Sunday, Esq.For Respondent
