NASIRU AUWALU v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13616(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/YL/190C/17
RATIO
CONSPIRACY: DEFINITION
Starting with the offence of conspiracy, it has been generally defined as an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement?s objective. It is simply put as a meeting of two or more minds to plan an unlawful or illegal act or to carry out a legal act through illegal means. See STATE VS. SALAWU (2011) 12 SC (PT IV) P. 19; 18 NWLR (PT 1279) P. 580; (2011) LPELR 8252 (SC); KAYODE VS. STATE(2016) LPELR 40028 (SC), BOUWOR VS. STATE (2016) LPELR ? 26054 (SC) and AJAYI VS. STATE (2013) LPELR 19941 (SC). PER CHIDI NWAOMA UWA, J.C.A.
CONSPIRACY: PROOF
The mere agreement constitutes the offence. The proof of conspiracy need not be direct as it can be inferred from circumstantial evidence. PER CHIDI NWAOMA UWA, J.C.A.
CONFESSIONAL STATEMENT: DEFINITION
See, KAMILA VS. THE STATE (2018) LPELR ? 43603 (SC) P. 14, Paragraphs A-E where His Lordship Sanusi, JSC held thus:
A confessional statement can simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act, 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntary, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. SeeALABI VS. STATE(1993) 7 NWLR (PT 307) 5; FABIYI VS. STATE (2015) 6-7 SC (PT 1) 83. OSETOLA & ANOR VS. STATE (2012) 6 SCNJ 321; NWACHUKWU VS. THE STATE(2002) 7 SC NJ 230; DOGO VS. THE STATE (2013) 2-3 SC (PT 11) 75 at 92-94. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
NASIRU AUWALU
(A.k.a Dan Mako or Barack Obama) Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Federal High Court, Yola delivered on the 9th day of May, 2015 by B. B. Aliyu, J (as he then was) in which the Appellant as the 2nd defendant at the trial Court who stood trial with seven (7) others was convicted as charged and sentenced to twenty (20) years imprisonment for conspiracy and obstruction of officers of the National Drug Law Enforcement Agency (NDLEA) from carrying out their lawful duty.
?The background facts are that the operatives of the National Drug Law Enforcement Agency (NDLEA) Adamawa State command with their headquarters in Yola carried out an operation to arrest illicit dealers in narcotic drugs after surveillance. It was alleged that after the Appellant mobilized others, they formed a mob that mobilized youths and others in the community to resist and frustrate their arrest. This resulted in the attack of the NDLEA operatives by the mob (including the Appellant) who were said to have been armed with dangerous weapons and two operatives of the NDLEA were killed while the rest escaped to seek reinforcement from a nearby military
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checking point. With the assistance of the Soldiers and the Policemen, the NDLEA operatives were able to overcome the mob and succeeded in arresting the 3rd, 4th, 5th and 6th Defendants at the trial Court and others who were later released after investigation.
The 7th Defendant who was shot on the leg by one of the NDLEA operatives was later arrested the day after the incident of 21st March, 2012. The 1st Defendant who was arrested by the NDLEA operatives at Dumne was said to have led the security operatives to the arrest of some of his boys along with the 8th Defendant who was alleged to have planted cannabis at his house. The Appellant who was said to have fled the town was not found at home but, was later arrested at Belel. The Appellant was alleged to have confessed his participation to the village head of Jamatari in the Loko mob attack in which two NDLEA officers were killed. The Appellant was said to have been found in possession of 2 grammes of Diazepam and 18 grammes of Tramadol (Tramol).
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At the trial, the prosecution called a total of ten (10) witnesses and tendered the English and Hausa versions of the confessional statement of the
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defendants in evidence. The Defence on their part, also called ten (10) witnesses, each of the Defendants testified and the 8th defendant called two additional witnesses. At the close of the trial, the appellant was found guilty, convicted and sentenced. Thus, this appeal challenging the conviction and sentence of the Appellant. The following two (2) issues were distilled for the determination of the appeal thus:
1. ?Having regard to the evidence adduced by the Appellant and the entire circumstances and the approach adopted by the trial Court in this case, in delivering the Judgment, whether the trial Court was right in convicting and sentencing the Appellant as charged. (Distilled from ground 1 of the Notice of Appeal.)
2. Whether the Respondent proved the case of conspiracy and obstruction of officer of the National Drug Law Enforcement Agency in carrying out their duty beyond reasonable doubt against the Appellant as charged, as required by law to ground the conviction and sentence of the Appellant.? (Distilled from grounds 2, 3, 4 and 5 of the Notice of Appeal)
The Respondent on its part distilled the following four (4) issues
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for the determination of the appeal thus:
i. ?Whether from the facts and circumstances of this case the learned trial judge was right in admitting and relying on the retracted confessional statement of the Appellant herein, as 2nd Defendant in the trial Court in convicting him. This issue is distilled from Ground 4 of the Notice of Appeal.
ii. Whether from the facts and circumstances of this case the Prosecution proved its case beyond reasonable doubt to establish the guilt of the Appellant as required by law. This issue is distilled from Ground 2 of the Notice of Appeal.
iii. Whether in arriving at the decision to convict the Appellant, the Learned Trial Judge properly evaluated the evidence in line with the principles of natural justice and fair hearing as required by law. This issue is distilled from Grounds 1 and 3 of the Notice of Appeal.
iv. Whether the Appellant is deemed to have abandoned Ground 5 of his Notice of Appeal by his failure to formulate and argue any competent issue on that ground in his Appellant?s Brief.?
In arguing the appeal, the learned counsel to the Appellant L. O. Fagbemi Esq., relied on his
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brief of argument filed on 19/1/18, deemed properly filed and served on 14/11/18 and his reply brief filed on 6/3/19. In arguing his first issue, it was submitted that the trial Court erroneously considered the Respondent?s case without consideration of the Appellant?s case at the trial. It was also argued that the trial Court did not give reasons for believing the evidence of the Respondent against that of the Appellant. Further, that the trial Court ought to have considered the evidence adduced by both parties, made findings of fact based on the evidence adduced by the parties, apply the relevant law before arriving at its conclusion, reliance was placed on the cases of HON. BASHIR ADEYELA VS. OLAJIDE ADEYEYE & ORS (2010) LPELR ? 3618 (C.A), JIMOH AWOPEJO VS. THE STATE (2001) 18 NWLR (PT 745) 430 ? LPELR ? 656 (SC), BENIGNUS DURU & ANOR VS. JONATHAN NWOSU & ORS (1989) 7 SC and MOGAJI & ORS VS. RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93. It was submitted that all the evidence adduced by the parties ought to have been considered. See,JOHN OGBU & ANOR VS. THE STATE (2007) 2 SC NJ 319. It was submitted that
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there was a miscarriage of justice. See, C.P.C VS. INEC & 41 ORS(2011) 12 SC (PT V) 80. The Appellant was said to have been denied a fair hearing, reliance was placed on the cases of ADEWALE JOSEPH VS. THE STATE (2011) 6-7 (PT V) 1, KOLADE VS. STATE (2017) 8 NWLR (PT 1566) 60 at 97 PARAGRAPHS G-H, EDIBO VS. STATE (2007) 13 NWLR (PT 1051) 306 at 322 Paragraphs A-C, OGUNYE VS. STATE (1999) 5 NWLR (PT 604) 518 and ONUOHA VS. STATE (1988) 3 NWLR (PT 83) 460. We were urged to interfere with the decision of the trial Court, discharge and acquit the appellant, while reliance was placed on the cases of EHOLOR VS. OSAYANDE (1992) LPELR ? 8053 (SC) PAGE 43 ? 44, Paragraphs G-A, ADELEKE VS. IYANDA (2001) 13 NWLR (PT 729) I at PAGE 20, BORNU HOLDINGS LTD VS. BOGOCO (1971) 1 ALL NLR 324 at 330. In arguing his issue two, it was submitted that the onus of proof is on the prosecution by direct evidence, or indirect means, through circumstantial evidence linking the appellant to the offences allegedly committed. See BABATUNDE VS. STATE (2014) 2 NWLR (PT 1391) 298 at 343, Paragraphs A-B, OBI VS. STATE (2013) 5 NWLR (PT 1346) 68 at 87, Paragraphs D-F and
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AIKHADUEKI VS. STATE (2014) 15 NWLR (PT 1431) 530 at 546 Paragraphs F-G. It was submitted that before an accused person standing trial could be convicted for any offence, the prosecution is under a duty to prove the commission of the offence beyond reasonable doubt by leading cogent and credible evidence, otherwise the accused would be entitled to a discharge. See AFOLALU VS. STATE (2010) 16 NWLR (PT 1220) PAGE 584 and AKPAN VS. STATE (1991) 3 NWLR (PT 182) PAGE 695. It was submitted that the trial Court ought not to rely on discredited evidence. See SHOFOLAHAN VS. STATE (2013) 17 NWLR (PT 1383) 281 at 310 ? 311, Paragraphs G-A, AL-MUSTAPHA VS. STATE (2013) 17 NWLR (PT 1383) 350 and BAKARE VS. STATE (1987) 1 NWLR (PT 52) 597. It was argued that in proof of its case the prosecution ought not to rely on the weakness of the evidence of the accused person. See UDOSEN VS. STATE (2007) 4 NWLR (PT 1023) 125 at 150, Paragraphs D-E, UCHE WILLIAMS VS. THE STATE (1992) 10 SC NJ 74; IBEZIAKO VS. C.O.P. (1963) NSCC VOL.3, PAGE 47 and WOOLMINGTON VS. DPP (1935) A. C. 462. It was argued that all the ingredients establishing the offence must be proved to establish
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the prosecution?s case. See IKOMI VS. STATE (1986) 3 NWLR (PT 28) 340. It was submitted that the Appellant did not establish the offences charged under Sections 14(b) and 49(a) of the NDLEA Act, Laws Federation of Nigeria and failed to discharge the burden placed on it by Section 135 (1) and (2) of the Evidence Act, 2011. It was argued that the Appellant was not linked to the alleged offences for which he stood trial. It was argued that out of the ten (10) witnesses called by the Respondent at the trial, only PW1, PW2, PW3, PW7 and PW9 were present at the scene of the crime and that only the PW7 and PW9 gave evidence of the presence of the Appellant. It was submitted that the crux of the evidence of the PW7 was that he recorded the Appellant?s confessional statement which was admitted in evidence as Exhibits ?PW7A? and ?PW7B?. It was argued that there was a contradiction between the evidence of the PW7 and PW9 in that while the PW7 testified that he saw the Appellant at the scene running to finish up one of the NDLEA officers lying on the ground, the PW9 testified that he saw the Appellant in a starlet car which disappeared
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when he saw the PW9 and others. It was argued that this contradiction created doubt in the case of the prosecution. See CHUKWU VS. STATE (1996) 7 NWLR (PT 463) 686 at 701 Paragraphs G-H, ADETONA VS. STATE (2009) ALL FWLR (PT 454) 1450 at 1499 Paragraphs D-G. It was argued that the village head of Jamatari before whom the PW10 testified that the Appellant made his confessional statement should have been called to testify. It was submitted that the evidence of the PW10 is hearsay, not legally admissible and required corroboration. See,CPL ISAH AHMED VS. THE NIGERIAN ARMY (2011) 1 NWLR (PT 1227) 89 at 96, GABRIEL VS. STATE (2010) 6 NWLR (PT 1160) 280 at 290 and IKO VS. STATE(2001) 14 NWLR (PT 732) 22. The learned counsel to the Appellant conceded the position of the law to the effect that the Court could convict on the evidence of a sole witness which learned counsel argued must be corroborated. See STATE VS. AZEEZ (2008) LPELR ? 3215, PAGES 41, Paragraphs F-G. It was submitted that the evidence of the 1st, 3rd, 4th, 5th and 7th Defendants which implicated the Appellant leading to the decision of the trial Court is evidence of co-accused persons which
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is only admissible against the maker and not the co-accused person. See ADISA VS. STATE (2013) 14 NWLR (PT 1375) 567 at PAGE 579 Paragraphs G-H. It was argued that the Appellant was never confronted with the statements of the co-accused persons and he did not admit it, as required by law, reference was made to the evidence of the PW5 and page 561 lines 11-16 of the judgment of the trial court. See SUBERU VS. STATE (2010) 8 NWLR (PT 1197) 586 at PAGES 602 ? 603, Paragraphs N-F and DURU VS. STATE (2017) 4 NWLR (PT 1554) 1 at 26, Paragraphs F-H and PAGE 27, B-D, 28 Paragraphs D-F. It was the contention of the learned counsel to the Appellant that the appellant retracted the confessional statement, Exhibits PW7A and PW7B in the course of the trial. It was conceded that the Court could act on a retracted confessional statement and convict on it but, that the Court must test the veracity or the truthfulness of the contents of that confessional statement and examine same with credible evidence led at the trial Court. It was submitted that the retracted confessional statement is not consistent with credible evidence led at the trial. See OKANLAWON VS. STATE
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(2015) 17 NWLR (PT 1489) 445 at 480 Paragraphs A-D and KOLAWOLE VS. STATE (2015) 9 NWLR (PT 1460) 134 at 165, Paragraphs C-G. It was the contention of the learned counsel to the Appellant that the trial Court was wrong to have convicted and sentenced the appellant based on the confessional statement, since there was nothing outside Exhibits PW7A and PW7B to prove that the Appellant committed the alleged offences for which he stood trial and that the said Exhibits are true. See STATE VS. AZEEZ (2008) 14 NWLR (PT 1108) 439 at 477, Paragraphs E-H.
It was argued that the Respondent did not contradict the evidence of the Appellant that he was not at the scene of the crime on 21/3/12 when the incident took place and that he did not know the other defendants he was charged along with. See ZUBERU VS. STATE (2015) 16 NWLR (PT 1486) 504 at 527, Paragraphs B-C. It was contended by the learned counsel that the lower Court lumped up the evidence adduced by the Respondent against all the defendants without identifying the quantum of evidence against each of the defendants, particularly the Appellant, failure of which occasioned a miscarriage of justice against the
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Appellant. It was argued that there was doubt in the case of the prosecution which ought to have been resolved in favour of the appellant. See BOLANLE VS. STATE (2005) 7 NWLR (PT 925) 431 and IGABELE VS. STATE (2005) 7 NWLR (PT 925) 431. It was concluded that the trial Court took into account inadmissible evidence in convicting and sentencing the Appellant. See ATOLAGBE VS. SHORUN (1985) NWLR (PT 2) PAGE 30 and OSUJI VS. EKEOCHA (2009) 16 NWLR (PT 1166) 81 amongst others.
In response, the learned counsel to the Respondent K. Tawum Esq. Deputy Commander of Narcotics, Prosecution and Legal Services, NDLEA, Yola who held the brief of J. N. Sunday relied on his Brief of Argument filed on 21/1/19, deemed properly filed and served on 21/2/19. In arguing his first issue, it was submitted that the trial Court was right to have admitted the statement of the Appellant in evidence in that it was voluntarily made and relevant in the case at hand. See Section 29 (1) (2) and (5) of the Evidence Act, 2011, OLABODE VS. THE STATE (2009) LPELR ? 2542 (SC); (2009) 11 NWLR (PT 1152) 254, ASUQUO VS. STATE (2016) ALL FWLR (PT 857) 533 at 560, EGBOGHONOME VS. STATE
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(2001) ACLR 262 at 292. It was submitted that the admission of Exhibit PW7B in evidence was proper as a retracted statement is admissible without requiring a trial within trial. See ADAMU VS. STATE (2018) ALL FWLR (PT 925) 48 at 78, AKPAN VS. THE STATE (2001) 7 NSCQR 235 at PAGE 250, EMEKA VS. STATE (2001) 7 NSCQR 582 at 595, IDOWU VS. THE STATE (2000) 3 NSCQR 96 and NWACHUKWU VS. THE STATE (2007) 31 NSCQR 312.
On the Respondent?s issue two, it was submitted that the trial Court was right to have convicted the appellant, the prosecution having proved its case beyond reasonable doubt. It was argued that proof beyond reasonable doubt is not proof beyond all iota of doubt. See MILLER VS. MINISTER OF PENSION (1947) 3 ALL E R, NASIRU VS. STATE (1999) 2 NWLR (PT 589) 87; (1999) 1 SC NJ 83; (1999) 1 SC 1 and SUNDAY ANI & ANOR VS. THE STATE (2009) 16 NWLR (PT 1168) 443 at 458; (2009) 6 SC NJ 98. The learned counsel reviewed Sections 14(b) and 49(a) of the NDLEA, Act Cap N30 LFN, 2004 under which the appellant was tried and convicted. Also, Section 21(2) of the Act which defines what constitutes the offence. The offence of conspiracy was defined, while
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reliance was placed on ODUNEYE VS. THE STATE (2001) 2 NWLR (PT 697) 311 at 325, PATRICK NJOVENS & ORS VS. THE STATE (1973) 5 SC 17, DABOH & ANOR VS. THE STATE (1977) 5 SC 197 and GABRIEL ERIM VS. THE STATE (1994) 5 NWLR (PT 346) 522; (1994) 6 SC NJ 104. Also, YARO VS. STATE (2007) 18 NWLR (PT. 1066) 215; (2007) 7 ? 10 SC 77. The learned counsel defined conspiracy and submitted that to prove the offence of conspiracy as charged in count I, the prosecution needed to prove the following:
a) The criminal design to obstruct officers of the NDLEA; and
b) The ad-idem of the Appellant and his co-conspirators to obstruct the officers of the NDLEA from carrying out their lawful duty of arresting the Appellant and any other person(s).
While in count II, the burden on the prosecution was to prove the following:
a) NDLEA officers were in the course of discharging their lawful duties to arrest suspected drug offenders; and
b) They were willfully obstructed by the Appellant and other Defendants.
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It was submitted that the prosecution led evidence at the trial to establish the above ingredients of the offences as required by law.
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The evidence of the PW5, PW7 and PW10 was reviewed to the effect that it was strong enough to have resulted in the conviction of the Appellant. The PW7 was said to have given an eye witness account of the appellant?s involvement in the conspiracy and obstruction of officers of NDLEA from discharging their lawful duties, he also tendered the statement of the appellant Exhibit PW7B. Further, that the PW5 also gave evidence of his investigation and interaction with the appellant, the PW10 gave account of the arrest of the appellant at Belel and how the appellant confessed to the village head of Jamatarri and that the retracted confessional statement of the Appellant Exhibit PW7B gave account of the role the appellant played in the offences charged. It was argued that from the evidence of the Appellant as the DW2, there was an attack by a mob on the officers of the Agency who were on lawful duty, to prevent the arrest of drug dealers which led to the death of two NDLEA officers, the dispute being only to determine whether the appellant was part of the mob that obstructed the officers of the NDLEA in course of their lawful duty to arrest the drug dealers of
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which the Appellant was a principal target. It was submitted that the evidence of the PW9 an eye witness corroborated the evidence of the PW7 on the presence and participation of the Appellant and his escape in a starlet car when the PW7 also saw the appellant with a big stick trying to finish an NDLEA officer that was badly injured. It was submitted that the alleged discrepancy in the evidence of the PW7, PW9 and PW5 is immaterial and cannot vitiate the trial. See AGBO VS. STATE (2008) ALL FWLR (PT 309) 1380 at PAGE 1398, OCHEMAJE VS. STATE (2008) ALL FWLR (PT 435) 1661 at 1684. It was submitted that minor variations in the evidence of the witnesses are immaterial. It was argued that the trial Court was right to have acted on the appellant?s confessional statement which had been admitted in evidence. See AKPAN VS. STATE (2001) 7 NSCQR 235 at 250.
In arguing his issue three, it was submitted that the trial Court properly evaluated the evidence before the Court, before arriving at its decision. We were urged to discountenance the argument of the learned counsel to the Appellant challenging the evaluation of evidence by the trial Court. It was
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submitted that the style of judgment writing varies. See, ALHAJA OLADOJA SANUSI VS. OREITAN ISHOLA AMEYOGUN (1992) NWLR (PT 237) 527.
In arguing his fourth issue, it was submitted that ground 5 of the Appellant?s Notice of Appeal challenged the sentencing hearing which dealt with the procedure for the exercising of sentencing discretion of the trial Court and not proof of the guilt of the Appellant. It was submitted that at the sentencing stage the proof of guilt of the Appellant was no longer in issue as he had been found guilty already before sentence therefore that the appellant?s second issue does not relate to ground 5 of the Notice of Appeal, does not relate to the appellant?s issue two even though it was indicated to have formed part of the grounds from which issue two was formulated. It was the contention of the learned counsel to the Respondent that the judgment of the trial Court was a balanced and a well considered one in that the case of the prosecution and defence were well considered. It was submitted that the appellant?s ground five of the appeal from which no issue was formulated should be deemed abandoned. See,
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NWANEZIE VS. IDRIS (1993) 2 SCNJ 139 at 146, DAIRO VS. U.B.N PLC (2007) 16 NWLR (PT 1059) 99 and ACTION CONGRESS OF NIGERIA VS. JIMOH AFIZ ADELOWO & ORS (2012) LPELR ? 19718 (C.A).
In the Appellant?s Reply Brief, it was resubmitted that the appellant?s confessional statement ought not to have been admitted in evidence by the trial Court as same was not made by the appellant. It was submitted that the Appellant?s trial was based on suspicion that the appellant participated or was involved in the commission of the alleged offence with which the appellant was charged. It was argued that suspicion cannot ground a conviction. See OKEREKE VS. STATE (NO. 1) (2016) 5 NWLR (PT 1504) 69. We were urged to set aside the conviction and sentence of the Appellant since the Respondent failed to prove the prior abetment of the Appellant with the other accused persons. It was reargued that the trial Court in its judgment did not summarize the evidence adduced by the parties in appropriate order and that the trial Court did not summarize the legal arguments of both parties.
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It was alleged that there was no analysis of the evidence adduced
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and the legal argument of counsel. It was reargued that in sentencing, the trial Court was influenced by unsatisfactory and inadmissible evidence in that the picture was tendered and admitted in evidence after the conviction of the appellant but before sentencing. We were urged to tamper with the exercise of the discretion of the trial Court which was said not to have been judicially exercised.
Looking at the issues formulated by the parties, the issues are on the evaluation of the evidence adduced before the trial Court which led to the conviction and sentence of the Appellant. I would summarize and re-formulate the issues thus:
Was the trial Court right to have held that the Respondent proved the case of conspiracy and obstruction of officers of the National Drug Law Enforcement Agency in carrying out their duty beyond reasonable doubt against the Appellant as charged to ground the conviction and sentence of the Appellant?
In count one (1) of the charge at the trial Court, the appellant was charged with the offence of conspiring with seven other persons to obstruct officers of the NDLEA in the course of carrying out their lawful duties
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contrary to Section 14(b) of the NDLEA, Act, Cap. N30 Laws of the Federation (LFN) 2004 hereinafter referred to as the Act. While in count two (2) he was charged with the seven others for the offence of actually obstructing officers of the NDLEA in the course of carrying out their lawful duties contrary to Section 49(a) of the NDLEA Act.
Starting with the offence of conspiracy, it has been generally defined as an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement?s objective. It is simply put as a meeting of two or more minds to plan an unlawful or illegal act or to carry out a legal act through illegal means. See STATE VS. SALAWU (2011) 12 SC (PT IV) P. 19; 18 NWLR (PT 1279) P. 580; (2011) LPELR ? 8252 (SC); KAYODE VS. STATE(2016) LPELR ? 40028 (SC), BOUWOR VS. STATE (2016) LPELR ? 26054 (SC) and AJAYI VS. STATE (2013) LPELR ? 19941 (SC). The mere agreement constitutes the offence. The proof of conspiracy need not be direct as it can be inferred from circumstantial evidence. Further, where the defendants are
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present at the scene of the crime, the act of each of them in furtherance of their common criminal intention is taken to be the act of each and everyone of them. In count one, the duty of the prosecution was to prove the common design of the appellant and the other defendants or co-conspirators to obstruct the officers of the NDLEA from carrying out their lawful duty of arresting the Appellant and any other person. While in respect of count two (2) the prosecution was to prove that the NDLEA officers were willfully obstructed by the appellant and others while in the course of discharging their lawful duties to arrest suspected drug offenders. The learned counsel to the appellant in his Brief of Argument argued that out of the ten (10) witnesses called by the prosecution only PW1, PW2, PW3, PW7 and PW10 were eye witnesses. The PW7 (Mohammed Adamu Kwatu) as an eye witness gave an account of what he saw in his testimony before the trial Court. I will reproduce part of the evidence of the PW7 at pages 382 ? 388 of the printed records of appeal thus:
?I was in mufti and not identified as NDLEA officer. Then the attackers were pursuing the officers
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of NDLEA towards an Army check point. I also ran ahead of the mob attackers because they thought I was among them. Then as I passed them I brought out my pistol. There was a starlet car coming and I stopped it and begged the driver to carry the NDLEA officers to the Army check point. Among the attackers, one came towards me with a stick (sanda) wanting to hit one of the NDLEA officers left there. I wanted that if he (sic) hit the officer I would shoot him. He refused and was advancing towards the officer; I shot on the leg. Then other mob attackers were scared off. I then got a motorcycle and together with the officer that we ran to the Army check point for reinforcement. As we returned with the soldiers, there was a red starlet car coming with five (5) people in the starlet, and they quickly turned and I saw the 2nd defendant Nasiru in the boot of the starlet car. The boot of the car was opened and the 2nd defendant and one other were in the boot of the car. As we were pursuing them with the Army Officers, we saw our officer on the ground with his legs broken in three (3) places. His name is Mamuda. We had to stop pursuing the car and picked the officer and
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put him in the Army van and rushed him to the hospital because he was almost dying. While in hospital I was called by the officers we left at Loko that, officer Allen Asor and Yohanna have been killed?.
On 10/9/12, while I was in my office, one suspect was brought to my office by our officer Wasa K. Tari. I later knew the suspects as Nasiru Auwalu Danmako (2nd defendant) with some sachets of capsules marked ?Tramadol? and ?Diazepam?. I asked the 2nd defendant the owner of the two (2) drugs which are controlled; he said to me that he was the owner. I then recorded his statement?.
If I see the statements I recorded for the 2nd defendant I will recognize it through my handwriting, signature, date and name of the defendant. I see these statements; they are the statement, the Hausa one and its English translation.?
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The statement of the appellant recorded by the PW7 was admitted in evidence as Exhibits ?PW7A? and ?PW7B?. The PW7 gave a detailed account of what he saw at the scene, in this case the role the appellant played in the conspiracy to obstruct officers of the NDLEA from
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discharging their lawful duties and the actual obstruction. The PW7 identified the appellant as part of the mob that rushed to finish up the NDLEA officer, Mamuda who was lying down on the ground wounded and also gave an account of how the appellant and others escaped from the scene with the appellant sitting in the boot of a starlet car. Exhibits ?PW7A? and ?PW7B? the retracted confessional statement of the Appellant was admitted in evidence through the PW7. In part of Exhibit ?PWB? (the English version of the Appellant?s statement on pages 221 ? 224 of the Printed Record of Appeal, it was stated as follows:
?While I was with my friends seating inside one shade at Jamatari some officers came and picked me. They searched me and some sachets of tramol and diazepam concealed inside color (sic) nilon (sic). From there I was arrested and brought to NDFLEA office Yola alongside with my Exhibit. Immediately we reach at office the exhibit recovered from my pocket was held and tested in my presence proved positive for psychotonic substance was held, diazepam 2 grms and tramol 18 grms. On Wednesday I was among
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the people that participated in the killing of NDLEA offices at Loko. The killing was headed by one Gambo Heavy D who said we should all gang up together and kill the NDLEA officer that came to work in Loko that very day. The Gambo Heavy D sells Indian hemp and tramol. We pursued one NDLEA officer he ran and entered one vigilante man house, we asked the man to bring him out or we would joined them together to kill. The man now push the NDLEA officer out of his house. Gambo Heavy D stapped him cow horn and matchete out his hand the pistol fell out of the NDLEA officer hand and one Olando picked, later came chairman and as Aliyu collected it and also one B-2-k picked ammunition and hand cuff. I only used stick to finished him. If for the incident some people said when NDLEA officers came Loko, they met one boy called Dan Alhaji spread tramol in the market selling, they officer wanted to arrest Dan Alhaji with the tramol, one Murtala came from nowhere and said nobody will arrest anybody from Loko. He went and carried stick, he wanted to hit NDLEA officer, immediately Murtala lifted Dan Alhaji and he fell down. Then the NDLEA was waving Murtala not to hit him with
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the stick, Murtala persisted and lifted the NDLEA officer, the NDLEA officer hit a vehicle, he thought it was someone that held him at back he now released a shot?.
I hited with stick up to three times before the officer die.? (Underlined my for emphasis).
The above retracted confessional statement of the appellant gave details of the role the appellant played in conspiracy with others to obstruct and obstructed the NDLEA officers in the course of their lawful duties. It is immaterial that the appellant retracted Exhibit PW7B, he was part of the mob that obstructed and attacked the officers of NDLEA and prevented the arrest of drugs dealers in Loko village.
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The learned counsel to the appellant also acknowledge the PW9 (Sa?ad Bala) as an eye witness to the incident. The witness gave a graphic account of what he saw that transpired at the scene and the role the appellant played. At page 394 of the printed record, part of the PW9?s evidence stated thus:
?I was among the NDLEA officers who went to Loko village to arrest hard drugs dealers. The team was led by late Allen Asor (S. N) on reaching the place, I was in
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the advance team (1st team to reach the scene). We took positions close to our targets. One of the suspected drug dealers came in and announced that ?drug officers are around?. Then we were obstructed. Some suspected targets came out of their shops carrying cutlasses, sticks and were shouting ?no any bastard?. As the confusion continues we quickly withdrew. I suddenly found myself in the mist (sic) of the suspected drug dealers?
Then I saw the 2nd defendant inside a starlet car with other people. When they saw us, they reversed and disappeared. I saw the 2nd defendant with a big stick. We then rushed to one of our officers Aliyu Mohammed who was badly injured by the suspected drug dealers. We took him to hospital at Yola…
I can remember that as we were withdrawing from the scene, I saw a group of people following us with sticks and matchetes, Mohammed Kwatu (PW7) warned them not to come nearer. One of them told PW7 ?shoot it will not enter us?. He still warned them. Then PW7 shoot one of them in the leg and I saw the person fell on the ground.?
?
The evidence of the PW7 and PW9 who were eye
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witnesses fixed the appellant at the scene of the incident. Further, the PW5 (Christopher Iortyer Adabo) then of the NDLEA Adamawa State Command, from his findings following his investigations testified at pages 351 ? 355 and 359 -360 of the Printed Records of Appeal to the role the appellant played to mobilize youths in Loko village to resist the NDLEA officers? arrest and how the appellant was subsequently arrested. He gave account of the appellant?s admission of participating in killing the NDLEA officers at Loko village and how he mobilized youths in the market on that day to obstruct the NDLEA officers from carrying out their lawful duty.
The evidence of the PW5, PW7 and PW9 tallied with the contents of Exhibit PW7B where the appellant confessed that he was asked by the 1st Defendant (Gambo Heavy D) to mobilize youths to resist the NDLEA operatives. The Appellant also confessed to participating in the mob action that resulted in the killing of two NDLEA officers. This is contrary to the argument of the learned counsel to the appellant that submitted that there were discrepancies between the evidence of the PW7 and PW9 as well as
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that of the PW5. It is the law that where there are minor variations in the evidence of witnesses which are not material or substantial, it goes to no issue and would be considered as different versions or descriptions of the same event. The important thing is that the account given by the different witnesses boil down to the same thing, in this case, the active participation of the appellant at the scene and the particular role he played in conspiracy with others and actually obstructed the NDLEA officers who were on their lawful duty. It is not in all cases where there are discrepancies or contradictions in the prosecution?s case that an accused person would be entitled to an acquittal. But, where the contradictions or discrepancies are on material points in the prosecution?s case which create doubt, then the accused person would be entitled to benefit there from. Minor differences/discrepancies cannot be fatal to the case of the prosecution. In this case whether the appellant was seen sitting in the starlet car getting away from the scene after the incident or obstructed and participated in the attack and then got away from the scene with the
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starlet car, it is immaterial. The important thing is that he was at the scene, participated in obstructing the NDLEA officers from performing their lawful duty along with others, got away with the starlet car and was later arrested. He thereafter confessed to the role he played and gave a graphic account of the incident at the scene and how the youths were mobilized for the obstruction and attack that followed. See IREGU EJIMA HASSAN VS. THE STATE (2016) LPELR ? 42554 (SC) PP. 28-29, Paragraphs F-B, ABOKOKUYANRO VS. STATE (2016)LPELR ? 40107 (SC) PP. 25 ? 26, Paragraphs D-A, OLOYE VS. STATE (2018) LPELR ? 44775 (SC) PP. 39-41, Paragraphs E-A, GABRIEL VS. THE STATE (1989) 5 NWLR (PT 457) 468 at 469 and JERRY IKUEPENIKAN VS. THE STATE (2011) 2 NWLR (PT 1229) 449.
?
Similarly, the evidence of the PW10 (Suleman Adamu) then an NDLEA Officer of Adamawa Command gave an account of his encounter with the appellant where he confessed to participating in the incident that took place in Loko, in the presence of the village head at Jamatarri, page 397 of the printed Record of Appeal. The PW10 testified to how the appellant resisted arrest, and
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attacked the PW10 before he was over powered. At page 561 of the Record of Appeal, the learned trial judge concerning the confessional statement of the appellant held thus:
?This confession of the 2nd defendant is corroborated by the testimonies of the eye witnesses who had seen him at the attack site as stated supra.”
At pages 561, 562, 564 and 565 of the record, the learned trial judge rightly found that the prosecution proved beyond reasonable doubt that the appellant and his colleagues conspired to obstruct the NDLEA officers and obstructed the NDLEA officers from arresting them at Loko and this act led to the death of two officers and injuries on another officer. Also, the holding that the appellant and his colleagues had a common intention to achieve a common purpose and indeed achieved their purpose of obstructing the NDLEA officers from performing their lawful duty of arrests in Loko on that fateful day.
?
On the confessional statement made by the appellant, Exhibits PW7A and PW7B, the learned trial judge was right to have taken the contents into consideration in arriving at his decision, pages 560 ? 561 of the printed
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records. The confessional statement was rightly considered as part of the case of the prosecution. The fact that the statements were retracted is immaterial. A confessional statement is a firsthand account of the incident given by an accused person, no evidence can be better than that. On the other hand, the Court can convict on the confessional statement of an accused person alone once it is believed to be true, in this case it was also corroborated by the evidence of eye witnesses and investigators. The utilization of the confessional statement cannot be faulted. See, KAMILA VS. THE STATE (2018) LPELR ? 43603 (SC) P. 14, Paragraphs A-E where His Lordship Sanusi, JSC held thus:
?A confessional statement can simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act, 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntary, is sufficient to ground a
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conviction, since a confession always remains the best proof of what he had done. SeeALABI VS. STATE(1993) 7 NWLR (PT 307) 5; FABIYI VS. STATE (2015) 6-7 SC (PT 1) 83. OSETOLA & ANOR VS. STATE (2012) 6 SCNJ 321; NWACHUKWU VS. THE STATE(2002) 7 SC NJ 230; DOGO VS. THE STATE (2013) 2-3 SC (PT 11) 75 at 92-94.?
See alsoHASSAN VS. STATE (2001) LPELR ? 1358 (SC) P.16, Paragraphs C-F, ALTINE VS. STATE (2018) LPELR ? 45965 (CA) PP. 17-19, Paragraphs D-E, ISAH VS. STATE (2017) LPELR ? 43472 (SC) PP.10-11, Paragraphs F-A and FULANI VS. STATE (2018) LPELR ? 45195 (SC) P. 15 Paragraphs B-F.
I hold that the learned trial judge was right to have convicted and sentenced the appellant for the offences of conspiracy and obstruction of officers of the National Drug Law Enforcement Agency (NDLEA) from carrying out their lawful duty, I cannot fault same.
In the final analysis, I resolve the sole issue as reformulated against the appellant. I hold that the appeal lacks merit and it is hereby dismissed. I affirm the decision of the trial Court.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead
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judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
I too agree that the appeal is devoid of merit and should be dismissed for the reasons contained in the lead judgment which I adopt as mine.
The appeal is dismissed.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
L. O. Fagbemi, Esq.For Appellant(s)
K. Tawun, Esq. (Deputy Commander, Narcotics, Prosecution and Legal Services, NDLEA, Yola) holding the brief of J. N. SundayFor Respondent(s)
Appearances
L. O. Fagbemi, Esq.For Appellant
AND
K. Tawun, Esq. (Deputy Commander, Narcotics, Prosecution and Legal Services, NDLEA, Yola) holding the brief of J. N. SundayFor Respondent
