JOHNBULL OYINBO v. INSPECTOR GENERAL OF POLICE (2019)

JOHNBULL OYINBO v. INSPECTOR GENERAL OF POLICE

(2019)LCN/13438(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2019

CA/B/255CB/2017

RATIO

WHETHER THE PROVISIONS OF THE LAW AS REGARDS AMENDMENT OF A CHARGE MUST BE STRICTLY COMPLIED WITH
While speaking on the nature of the said sections, the Supreme Court in Princent & Anor v. State (2002) LPELR-2925 (SC) per Iguh JSC, Page 18-19, Para. B held as follows:
“In this regard, the various sections of the Criminal Procedure Act Cap 80, Laws of the Federation of Nigeria 1990 such as Sections 164 and 165 and those of the Criminal Procedure Code Cap 30, Laws of the Northern Nigeria such as Sections 208(2),209,210 and 211, all of which prescribe the necessary procedure a Court shall adopt on granting the amendment of a charge must be strictly complied with. These, to a large extent, are to ensure that the accused person is neither prejudiced nor suffers any injustice by virtue of the amendment. See R. v. Kano and Another (supra).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

IF THE PROVISIONS CONCERNING AMENDMENT OF CHARGES ARE NOT COMPLIED WITH, THEN THE JUDGMENT WILL BE RENDERRED VOID
In interpreting the provisions of Sections 163 and 164 of the Criminal Procedure Act as well as Section 208 of the Criminal Procedure Code, it has been held that the provisions are mandatory and the failure to comply with the said sections would render any judgment delivered void. See PML (Nig) Ltd v. FRN (2017) LPELR-43480 (SC); Uguru v. State (2002) 9 NWLR (Pt. 771) Pg. 90; Attah v. State 1993 LPELR- 598 (SC). Thus, where an amendment is made to a charge sheet without the accused person taking a new plea, any proceeding rendered thereof would be a nullity.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

THE EFFECT OF SECTION 218(1)OF ACJA 2015, ON 217(1) OF ACJA 2015
However, while giving consideration to this, it should be borne in mind that unlike the respective provision of the Criminal Procedure Act, the mandatory provision of Section 217(1) of the Administration of Criminal Justice Act of 2015 has been watered down by that of Section 218(1) that provides thus:
Where the charge as revised under Section 216 or 217 of this Act is such that proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the defendant in his defence or the prosecutor, as the case may be, in the conduct of the case, the Court may in its discretion forthwith proceed with the trial as if the charge so revised had been the original charge.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

APPEAL: WHEN THE APPELLATE COURT WILL INTERFERE IN THE DISCRETION OF THE TRIAL COURT
Generally, an appellate Court will not interfere with the discretion exercised by a trial judge except it is found wanting. The Supreme Court in R. Lauwers Import-Export v. Jozebson Industries Co. Ltd (1988) LPELR-2934 (SC) Per Nnamani JSC, at Page 47-48, Para. C-B held:
being a discretion of the Court of appeal, this Court would only upset it on set principles. It is for instance settled that an appellate Court would not set aside the exercise of discretion because if the matter were before it, it would have exercised it differently. See Olaniyan Supra at p.317. Also, University of Lagos and 1 Or. V. M.I Aigoro (1985) 1 NWLR 143, 148; Nigeria Construction Ltd v. Okugbeni (1987) 4 NWLR Pt. 67 287. An appellate Court will also not interfere unless it can be shown that the exercise of the discretion was done not judicially and judiciously but was arbitrary, reckless and done while taking into consideration irrelevant matters. See Aigoro?s case (supra) and Solanke v. Ajibola (1968) 1 All NLR 46; Hastrup Din v. Attorney-General of the Federation (1986) 1 NWLR 471; Williams v. Williams (1987) 2 NWLR 6682.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

HOW TO DETERMINE WHETHER A TRIAL JUDGE EXERCISED HIS DISCRETION JUDICIOUSLY AN JUDICIALLY

Now, let us ask the question as to whether the learned trial judge acted judicially and judiciously in the exercise of the discretion conferred on him by the provisions of Section 218(1) of the Administration of Criminal Justice Act of 2015. In so doing, the effect of the amended charge would be gleaned against the backdrop of the evidence placed before the Court and whether it amounts to injustice and a breach of the Appellants right to fair-hearing for not taking his plea anew.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CONFESSION: TEST TO DETERMINE WHETHER A RETRACTED JUDICIAL STATEMENT WILL CONVICT AN ACCUSED PERSON
The Supreme Court in Ogudo v State 2011 LPELR- 860; (2011) 18 NWLR, Pt. 1278, Per Rhodes-Vivour, JSC at Pp. 20-21, Paras. D-B held and set out the tests to administer before relying on a retracted extra judicial statement to convict an accused person:
“A Court can convict on the retracted confessional statement of an accused person, but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions: (a) Is there anything outside the confession to show that it is true (b) Is it corroborated (c) Are the relevant statements made in it of facts true as far as they can be tested (d) Did the accused person have the opportunity of committing the offence charged (e) Is the confession possible (f) Is the confession consistent with other facts which have been ascertained and have been proved See. Kanu & Anor v. King (1952) 14 WACA p. Mbenu v. State (1988) 3 NWLR (pt. 84) p. 615 Stephen V. State (1986) 5 NWLR (pt. 46) p. 978.”PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

INVESTIGATION: WHEN A SUSPECT WILL BE PROSECUTED BASED ON AN INVESTIGATION

The process of investigation involves an inquiry so as to gather evidence in relation to a set of facts. Generally, sufficient evidence must have been gathered by way of a thorough investigation before a suspect should be prosecuted. Also, investigations are carried out based on the strength of the information available at the disposal of the investigator. Usually, the manner of carrying out the said investigation is often left at the discretion of the prosecuting agency involved. See IGP & Anor v. Ubah LPELR-23968 (CA); Fawehinmi v. IGP (2002) 7 NWLR, Pt. 767, Pg. 606. Investigations are often aimed at procuring a hands-on evidence to be used in grounding a person?s conviction for an offence. i.e. any evidence gathered from the investigation of a case can be used in proof of a criminal offence or to ground a charge.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

THE INCONSISTENCY RULE DOES NOT APPLY TO AN ACCUSED PERSON

However, it is trite law that the inconsistency rule does not apply to an accused person. See Kolade v. State (2017) LPELR 42362 (SC). Thus, a Court can convict based on the retracted extra judicial statement of an accused person which was voluntarily made but is inconsistent with subsequent evidence or his evidence on oath. See Asimi v. State (2016) LPELR-40436 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

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

WHEN TWO OR MORE PERSONS ARE CHARGED ON THE SAME OFFENCE,THE DISCHARGE OF ONE COULD LEAD TO THE DISCHARGED OF THE OTHER

It is trite law that where two or more persons are charged with the commission of an offence, and there is similarity in the evidence against which all the accused persons were charged with in the commission of an offence, the discharge of one as a matter of law would affect the discharge of the others. This is because if one of the accused persons is discharged for lack of evidence, others would be affected. Thus, it follows that since their evidences are tied together, the other accused persons would also be discharged. See Okoro v. State (2012) LPELR-7846 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

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

Between

JOHNBULL OYINBO Appellant(s)

AND

INSPECTOR GENERAL OF POLICE Respondent(s)

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

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

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

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

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

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

Osarode Eli