SLT A.A. MOHAMMED v. NIGERIAN NAVY
(2019)LCN/13133(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/B/435/2016
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI 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
SLT A.A. MOHAMMED Appellant(s)
AND
NIGERIAN NAVY Respondent(s)
RATIO
WHETHER OR NOT IT IS EVERY INACCURACY IN THE EVIDENCE OF PROSECUTION WITNESS THAT AMOUNTS TO CONTRACDITION
It is not any and every discrepancy or inaccuracy in the evidence of prosecution witnesses that amount to contradiction, especially where the witnesses are in substance saying the same thing. It is only material contradiction that is important. See GALADIMA VS. STATE (2017) LPELR 43469 (SC); DIBIE & ORS. VS. STATE (2007) 9 NWLR (PT. 1038) 30; In AYINDE VS. STATE (2018) LPELR 44761(SC). It was held that it is not every minor contradiction in evidence of witnesses that matters. For a Court to disbelieve a witness, the contradiction in his evidence must be on a material point. See also KALU VS. THE STATE (1988) 4 NWLR (PT. 90) 503 and ISAH VS. STATE (2017) LPELR ? 43472 (SC). PER OSEJI, J.C.A.
THE CRIMINAL OFFENCE OF CONSPIRACY
Conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do lawful act by unlawful means. See OBIAKOR VS. THE STATE (2002) 10 NWLR (PT. 776) 612; NWOSU VS. THE STATE (2004) 15 NWLR (PT. 897) 466. The offence of conspiracy is established byshowing that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact the conspirators need not know each other. They also do not need to start the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. By its nature a direct positive evidence of the plot among the conspirators is hardly provable, so the counts tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned. In other words conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See DABOH VS. STATE (1977) 5 SC 197; AITUMA VS. STATE (2006) 11 NWLR (PT. 989) 452; INNOCENT VS. STATE (2013) LPELR 21200 (CA). PER OSEJI, J.C.A.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Special Court Martial which sat at the Nigerian Navy Ship Delta (NNS Delta) conference room, delivered on the 31st day of March, 2016 wherein the Appellant was found guilty of a two count charge and convicted accordingly. The said conviction was subsequently confirmed by the Navy Council.
A summary of the facts as per the Respondent?s case is that the Appellant who is an officer of the Nigerian Navy NNS Delta Naval Base was appointed as a member of the naval standby force whose duty is to patrol the waters within their area of operation and arrest illegal oil bunkerers. On 28/11/2015, the Appellant was among the team led by LT CDR. S.W. Osinowo (1st accused) mustered on the direct orders of Commodore R.O. Mohammed to go after some oil bunkerers found in the area and arrest them together with their boats.
?On getting to Bennet Island, the Appellant with his team led by the said LT CDR Osinowo saw a cotonou boat loaded with crude oil beside a creek but there was nobody inside or around the boat.
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The Appellant was detailed with two other persons by the 1st accused as officer in-charge (OIC) to stay back and watch over the said boat while the 1st accused with others go in search of other illegal bunkerers in the area based on the information received from some informants who were also with them on the mission.
While the Appellant and his team stayed back as per the order of the 1st accused, the later went in search of and eventually rounded up two other boats and crew loaded with crude oil. The arrested crew phoned their ring leader who eventually came in another boat to meet the special force team led by the 1st accused. After negotiating with the ring leader he gave them the sum of N1,200,000.00 and the boats including the first one being watched over by the Appellant and his team were released to the illegal oil bunkerers. To cover up their track, they set fire on an abandoned boat, made a video recording of it and returned back to their base and reported to the commanding officer with the said video recording as the evidence of their genuine and patriotic exploits against the illegal oil bunkerers.
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Upon discovery of the said act of the special task
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force led by LT CDR Osinowo with the Appellant as second in command (2iC), the Appellant and five others were jointly arraigned before the Special Court Martial on the 26/2/2016.
At the joint trial, the Appellant was the 2nd defendant wherein he was charged with a two count of failure to perform military duties contrary to Section 62(b) of the Armed Forces Act and offence of perverting justice contrary to Section 126(1) of the Criminal Code Act and charged pursuant to Section 114(1) of the Armed forces Act.
To prove its case, the prosecution called a total of five witnesses and tendered seven exhibits, while the Appellant testified for himself as a sole witness in his defence.
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At the conclusion of trial and final address by counsel for the parties, judgment was subsequently delivered on the 31/3/2016 wherein all the defendants were found guilty for the various charges brought against them. The Appellant herein was convicted on the two count charge against him. He was sentenced to two years loss of seniority on count one and dismissal from service on count two. The said conviction and sentence was eventually confirmed by the Nigerian Navy Council
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on 8/6/2016.
Aggrieved with the decision of the Special Court Martial and confirmation of same by the Navy Council, the Appellant filed a notice of appeal dated 2/5/2018 sequel to the leave of Court granted on 24/4/2018. The said notice of appeal contains three grounds of appeal.
The parties? brief of argument filed and served in consonance with the rules of this Court were adopted and relied upon at the hearing of the appeal on 21/2/2019.
In the Appellant?s brief of argument filed on 3/5/2018, the following sole issue for determination was formulated:
?Whether the trial special Court martial was right in it?s conviction and sentence of the Appellant when it held that the 2 count charge had been proved beyond reasonable doubt, having regard to the totality of the evidence adduced before it.?
In the Respondent?s brief of argument filed on 24/10/2018, two issues were formulated for determination as follows:
?(1) Whether the trial special Court martial was right in its conviction and sentence of the Appellant when it held that the 2 count charge had been proved beyond reasonable doubt, having
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regard to the totality of the evidence adduced before it.
(2) Whether by the combined effect of Section 7(a ? d) of the Criminal Code Act, the conviction of the Appellant by the special Court martial is in accordance with the law.?
Given the similarity of the issue formulated by the parties, I will adopt the sole issue as raised by the Appellant in the determination of this appeal.
Arguing on the said issue, learned counsel for the Appellant referred to count 1 of the charge, which is failure to perform military duties under Section 62(b) of the Armed Forces Act and listed the requirements for the said offence to be proved as:
(1) That the accused is subject to service law.
(2) That the accused has a defined schedule of duties.
(3) That the accused neglected to perform or negligently performed the said duty.
On this he relied on the following cases: GAMI VS. NIGERIAN ARMY (2001) 28 WRN at 177 ? 178 and OLOWU VS. NIGERIAN NAVY (2011) 18 NWLR (PT. 1279) 659 at 686 to 687.
While conceding that the first ingredient which is that the Appellant is subject to service law is not in dispute, he however contended
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that the second and third ingredients were not proved beyond reasonable doubt by the prosecution having regard to the particulars of the offence charged.
It was then submitted that based on the review of the evidence of PW1, the order to pursue and arrest crude oil thieves and their boats laden with the products was given to the 1st accused as officer in-charge by the commander NNS Delta and not to the Appellant who was a junior to the 1st accused.
Learned counsel further referred to the evidence of PW2 and PW3 on the point that there was a specific order by the 1st accused to the Appellant and two other Naval ratings to remain by the abandoned but crude oil laden boat and keep watch over same while the 1st defendant and the others advance further into the island in pursuit of other illegal oil bunkering boats.
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He added that in that regard, the Appellant could not have been involved in the arrest of suspected oil thieves having been ordered to stay back and watch over the abandoned boat, in which case he cannot be found guilty of neglect in carrying out the instructions of the commander through the 1st accused as per count one of the charge.<br< p=””
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It was counsel?s further assertion that based on the evidence of PW2, the Appellant was not there when the 1st accused and others arrested the other two boats or when money was collected and shared because the Appellant and his team came to join them when the disused boat was being burnt.
Also referring to Exhibit ?6? (the written investigation report of PW5), learned counsel contended that the said report is a documentary hearsay evidence derived from information received from witnesses in the course of investigation.
He added that from the evidence of PW2 and PW3, the Appellant never took part nor was he aware of the subsequent arrest of the two boats and the receipt and sharing of money collected from the boat owner who later came to the place where the two boats were being held. Therefore, it was wrong for the special Court martial to ignore the evidence of PW2, PW3 and PW5 which exculpated the Appellant of the allegations stated in count one of the charge.
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On count two of the charge, which is the offence of perverting the course of justice contrary to Section 126(1) of the Criminal Code Act and charged pursuant to
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Section 114(1) of the Armed Forces Act, it was submitted that based on the evidence of the PW2, PW3, PW4 and PW5 all the prosecution witnesses were ad idem on the fact that the Appellant was stationed by the first boat with other two Naval Ratings on the instruction of the 1st accused while the 1st accused and other members of the team proceeded further into Bennet Island where they arrested the two boats and some oil thieves in the absence of the Appellant who only joined them later when the disused boat was being burnt.
On the issue of conspiracy, it was submitted that the prosecution did not establish beyond reasonable doubt that the Appellant conspired with others to obstruct, prevent or pervert the course of justice by the release of arrested suspected oil thieves and as such he ought not to be convicted on count two by the special Court martial which relied on the evidence of PW4 in disregard to that of PW2 and PW3 who testified that the Appellant arrived to the place where the boat is being burnt after the arrest, release and sharing of money had taken place.
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It was therefore contended that there is material contradictions in the evidence
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of PW2 and PW4 who were eye witnesses to the event of that day because, while PW2 testified that the arrested boats and suspects were released before the burning of the boat and that Appellant joined the rest of the team when the boat was being burnt, the PW4 on the other hand stated that the Appellant was physically present when the suspected oil thieves and their boats were released on the orders of the 1st accused.
Learned counsel also referred to Exhibit 4 to submit that the statement did not contain any jurat showing that it was recorded for Emmanuel Tony Ikoro who purports to be the maker but said to be an illiterate person.
It was then submitted that where an interpreter was used in taking down a confessional statement, such statement is inadmissible in evidence unless the interpreter is called as a witness as well as the recorder of the said statement. He cited the case of: OLALEKAN VS. THE STATE (2001) 12 SCNJ 94 at 109.
He added that Exhibits 4 and 5 being confessional statements but not made by the Appellant, it cannot be admitted and used against him because he is not the maker. Vide ADEBOWALE VS. THE STATE (2013) 16 NWLR (PT. 1379)
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104 and OZAKI VS THE STATE (1990) 1 NWLR (PT. 124) 92.
Upon further reference to the evidence of PW1, it was submitted that being a hearsay evidence, it is inadmissible and even where it has been wrongly admitted the Court is bound to reject such inadmissible evidence. He cited the following cases: OSUOHA VS THE STATE (2010) 16 NWLR (PT. 1219) 364 at 374; RAIMI VS. AKINTOYE (1986) 3 NWLR (PT. 26) ?; OKORO VS. THE STATE (1998) 14 NWLR (PT. 584) 181 at 208.
On the burden of proof in criminal cases, learned counsel referred to Section 36(5) of the 1999 Constitution as amended and Section 135(1) of the Evidence Act 2011 as well as the case of KALU VS. NIGERIAN ARMY (2010) 4 NWLR (PT. 1185) 433 and STEPHEN VS. THE STATE (2009) All FWLR (PT. 491) 962.
It was then urged on this Court to resolve the issue in favour of the Appellant and allow the appeal.
In their response as contained in the Respondent?s brief of argument, learned counsel for the Respondent referred to pages 174 to 205 of the record of appeal to submit that the Appellant?s conviction by the special Court martial was in accordance with the evidence adduced before the Court
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which shows that the prosecution proved its case beyond reasonable doubt.
He added that the burden was discharged through the evidence of PW1 at pages 59 to 62 of the record, PW2 at pages 117 ? 126; PW3 at pages 173 to 182 of the record and their evidence was not controverted by the Appellant.
Learned counsel referred specifically to the evidence of PW3 at page 185 which showed clearly that the Appellant and his team was among the other two boats behind which was stopped to partake in the sharing of the butty and this brings him within the ambit of Section 7 of the Criminal Code Act.
On the submission of Appellant?s counsel that the statement of the PW1 amounts to hearsay evidence and therefore inadmissible, it was submitted that the said statement of PW1 was corroborated by the testimonies of PW2, PW3 and PW4 and more particularly that of PW3.
On the ingredients of the offence as charged in count one, under Section 62(b) of the Armed Forces Act, learned counsel cited the case of OLABODE VS. STATE (2007) All FWLR (PT. 389) 1301 at 1323.
As per count two charged under Section 126(1) of the Criminal Code Act which deals more
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with conspiracy, he relied on the case of THE STATE VS. JAMES GWANGWAN (2015) LPELR 24837 (SC) to submit that the special Court martial rightly convicted the Appellant on the said count two.
Arguing further in their issue No. 2, learned counsel for the Respondent submitted that by virtue of the provisions of Section 7 of the Criminal Code Act, the trial Court martial was right in convicting the Appellant having regard to the stand of this Court on the said section as expounded in the case ofADEKOLA MUSTAPHA VS. THE STATE (2016) LPELR (40081) (CA) and ALAO VS. STATE (2011) LPELR 3700 CA) and that of the apex Court in IYARO VS. STATE (1988) 2 SC 167 or (1988) 1 NWLR (PT. 169) 256; STATE VS. EDEDEY (1972) 1 SC 140; ASHAMIYU VS. STATE (1982) 10 SC page 1.
Learned counsel further noted that the Appellant was among the officers of the Respondent appointed as standby force and he was the second in command (2i/C) of the said standby force sent by the commander to the Bennet island to arrest a boat laden with illegal petroleum products and he was with the team throughout the assignment leading to the collection of money and release of the boats earlier
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arrested as detailed in the evidence of PW3.
To this end, it was contended that the Appellant falls within the provisions of Section 7 of the Criminal Code Act and the special Court martial was correct in finding him guilty as charged.
This Court was then urged to resolve the issues against the Appellant and dismiss the appeal.
In every criminal trial inclusive of special Court martial, the presumption of innocence as guaranteed under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended, correlates with the burden placed on the prosecution to prove the guilt of an accused person beyond reasonable doubt. See also Section 135(1) of the Evidence Act 2011 which provides thus:
?135(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.?
?The burden on the prosecution is only discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed by the law generally on the statutes
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creating the offence. See OTEKI VS. A.G BENDEL STATE (1986) 2 NWRL (PT. 24) 648; OKORO VS. STATE (1988) 12 SC (PT. 110 88.
In the instant case, in a bid to prove its case beyond reasonable doubt against the Appellant, on the two counts, the prosecution called a total of five witnesses and tendered seven exhibits while the Appellant in his defence testified personally and did not call any other witness.
The Appellant?s first complaint in the submissions is that the evidence of PW1 including Exhibit 1 tendered through him is nothing but hearsay evidence and the same applies to the evidence of the PW4 which reliance upon by the special Court martial to convict the Appellant caused miscarriage of justice.
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I have carefully perused the evidence of PW1 as contained in pages 54 to 114 of the record of appeal as well as his statement to the police Exhibit I and what I can make of it is that apart from his testimony to the effect that he called the 1st accused who is the officer in-charge of the standby force on duty on 28/11/2015 to lead his team including the Appellant as the second in command (2i/C ) to go to Bennet Island to search out and
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arrest some illegal oil bunkerers with their boats which testimony is direct and positive, all other portions of his evidence are nothing but hearsay as they relate to what he was subsequently told by others with regard to what transpired at the Bennet Island. This is made clear at page 101 of the record during cross examination wherein he stated thus:
?Defence counsel 2: Okay sir what happened on Bennet Island that day was based on what Arikpo. Oshinowo, Pandi and may be Madaki told you?
PW1: It was based on several people, what Oshinowo told me, what Arikpo that sent the informant told me, what the three informants told me, what Madaki told me.?
It follows therefore and as rightly submitted by the Appellant?s counsel, the evidence of PW1 added little or no value to the ingredients of the offences for which the Appellant was charged because they constitute hearsay evidence which by law is inadmissible. Section 38 of the Evidence Act 2011 made it clear by providing that:
?38. Hearsay evidence is not admissible except as provided in this part or by or under any other provisions of this or other Act.?
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See also the case of BUHARI & ANOR. VS. OBASANJO & ORS. (2005) 13 NWLR (PT. 941) page 1, where it was held that hearsay evidence is not admissible to prove a fact or matter.
As per the evidence of PW4, as contained at pages 228 to 262 a perusal of same do not depict it as a hearsay evidence as contended by the Appellant?s counsel. It is in the main a direct evidence of what the PW4 saw and participated in and as such cannot in my view be classified as a hearsay evidence which the special Court martial is entitled to appraise and evaluate for the purpose of the charge against the Appellant.
The learned counsel for the Appellant also dwelt extensively on the alleged contradiction in the evidence of PW2 and PW4. He submitted as follows at page 20 paragraph 3.18 of the Appellant?s brief of argument:
?The eye witness account of PW2, which is to the effect that the arrested suspects were released before the burning of the boat and that the Appellant joined the OIC and the rest of his men when the wooden boat was being burnt stood in sharp contradiction with the evidence of PW4 who claimed that they all went back to that location
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of the first boat before everybody was released. The materiality or substance of this contradiction rest in the fact that same touched on the material ingredients of the offence of count 1 and 2 of the charge.?
The emphasis by the Appellant?s counsel on the materiality of the contradiction is premised on the fact that while the PW2 testified to the effect that the release of the suspected illegal oil bunkerers had already taken place before the Appellant joined the team led by the 1st accused, the PW4 on the other hand testified that the Appellant was physically present at the point of the release of the illegal oil bunkerers and it was the 1st accused who gave the order to which the rest of the team complied, thus making the Appellant fully complicit with regard to count 2 of the charge.
The learned counsel seem to have ignored the response of the PW4 during cross-examination by defence counsel 3 which read as follows at page 261 to 262 of the record:
?Defence Counsel 3: So in order words, the 200hp boat went to collect the money then went back to meet the 75hp boat?
PW4: The first boat we saw was the first to settle then
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the 75hp came and met us before the other 2 boats also settled.?
Defence counsel: So all the settlement took place at one spot?
PW4: yes.
Defence counsel: You said they released boats, who came and told them to release the boat?
PW4: it was everybody. ..
Member 2: Mr. Emmanuel I am concerned about your last statement. I just want to understand it. You said everybody, is it everybody that said we should release the boat, including yourself?
PW4: Yes, everybody released the boats because the OIC told us to release the boat and we did.
Member 2: Someone said it first, then all of you agreed?
PW4: Yes.
Earlier under cross-examination by defence counsel 2, PW4 stated at pages 254 to 258 as follows:
?Defence Counsel 2: Those people in that 75 boat, they did not release anybody you saw with your eyes?
PW4: When they released the first boat, they now followed us to the other place where the 2 boats were released.
Defence counsel 2: Those in the 75 now came back and joined you people?
PW4: Yes.
Defence Counsel 2: Confirm again to the Court. 75 boat later came and joined you people and all
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of you released the boats?
PW4: Yes.
Defence Counsel 2: Maybe you want to change your mind?
PW4: I?m not changing my mind.
Defence Counsel 2: Good. The people in that 75 boat, did they join to negotiate this money?
PW4: No, the OiC told the one in the 75 boat that this was what happened.
Defence Counsel 2: Did you hear him when he was telling him?
PW4: It was an open-air discussion.
Defence Counsel 2: In your own word, everyone met, had a meeting and released the people?
PW4: There was no meeting, when they gathered together, they agreed that the boats should be released and I couldn?t do anything because I wasn?t with a gun.
Defence Counsel 2: But you were all together when they released the boat?
PW4: Yes.?
I have compared the above set out portion of the testimony of PW4 and PW2 which in addition with those set out in the Appellant?s brief of argument and my humble view is that there are no material contradictions in their evidence and if anything, there are only minor discrepancies which are not fatal to the prosecution?s case, given that the manner of speech
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and presentation of facts varies with persons and it is really not expected that the evidence of witnesses must flow seamlessly in the same direction to the extent that questions will be asked if there was no previous rehearsals on the mode of presentation of their evidence.
It is not any and every discrepancy or inaccuracy in the evidence of prosecution witnesses that amount to contradiction, especially where the witnesses are in substance saying the same thing. It is only material contradiction that is important. See GALADIMA VS. STATE (2017) LPELR 43469 (SC); DIBIE & ORS. VS. STATE (2007) 9 NWLR (PT. 1038) 30; In AYINDE VS. STATE (2018) LPELR 44761(SC). It was held that it is not every minor contradiction in evidence of witnesses that matters. For a Court to disbelieve a witness, the contradiction in his evidence must be on a material point. See also KALU VS. THE STATE (1988) 4 NWLR (PT. 90) 503 and ISAH VS. STATE (2017) LPELR ? 43472 (SC).
The reality of this lack of contradiction is to my mind also borne out of the fact that the said first boat laden with illegal oil products but with nobody inside and which the Appellant and his team
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were asked to watch over seem to have disappeared from the whole scenario without the Appellant being linked to it as far as the Appellant?s counsel is concerned. The question then is, if the Appellant stayed put with his team to watch over the said boat, while the 1st accused with the others went ahead into Bennet Island to arrest the other two boats which led to the exchange of money and eventual release of the boats and their crew. Why did the Appellant leave the boat to go and join the other personnel led by the 1st accused and who ordered him to abandon his place of sentry. Furthermore, what happened to the said first boat he was put in charge and if released, on whose order and under what circumstance was the boat released or abandoned contrary to the original directive by commanding officer that such boats arrested with illegal crude oil should be towed back to base or destroyed where it is impossible to tow them back.
The answers to the questions as posed above are found in the testimonies of the PW2, PW3 and PW4 which the special Court martial found relevant and supportive in proof of the ingredients of the offences charged.
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As a fact the evidence of PW3 ironed out whatever creases found in the evidence of PW2 vis-a-vis that of PW4 with regard to how and when the Appellant with his men left the first boat they were watching over to go and join the other persons with the other two ?cotonou boats?.
For clarity purposes, I hereinbelow set out a part of the evidence of the PW3 at pages 179 to 180. It reads:
?PW3: I did not hear all but the informant was using language with handset to call, I don?t know who ever he called. After everything another person came in a speed boat only him inside and he identified some of his boys that were been arrested and envelope was exchanged, it was given to the informant that entered the boat with our OiC, there was money inside, from there we took off we left our boat there, they were looking after the 2 boats. We now proceeded to where we left the 2iC with his men.
Prosecutor: Mention the people that were in that boat that proceeded to the 2iC.
PW3: The second informant boat that came, I don?t know their name with OiC Lt. Oshinowo and LS Madaki. We now proceeded to the first Cotonou boat where our men were
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stationed. He now told the 2iC, allow the boat to go, he has settled.
Prosecutor: Say that again.
PW3: That he should release the boat he has settled.
Prosecutor: Was that order complied with?
PW3: Yes, sir because we left with the 2iC that was with their boat.
Prosecutor: So before leaving that Cotonou boat left?
PW3: Yes.
Prosecutor: Okay continue.
PW3: We now left together with them that is they had their own boat we had our own boat.
Prosecutor: Together with who?
PW3: 2iC with his men in their boat and we were with the second informant we left together to where those 2 Cotonou boats were. On getting to the other 2 boats, they now made a call to comd.?
Further at pages 184 to 187 of the record, the PW3 testified as follows:
?Prosecutor: At the point these 2 Cotonou boats were released, tell this Court who were those that were there?
PW3: We were all there.
Prosecutor: Say it again.
PW3: We were all there.
Prosecutor: Okay continue.
PW3: After everything we left, coming back to base.
Prosecutor: Now coming back to base, describe the disposition of the vessels as
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they were?
PW3: Sir the boat vessel I was in and the OiC and the 3 informants, we were leading, then the other 2 were following us. Getting close to the market here, we stopped and stopped those behind us and came together, the OiC now asked the informant in charge of the money to confirm how much was inside, the guy brought the envelope, counted the money.
Prosecutor: who counted the money?
PW3: The informant.
Prosecutor: As how much?
PW3: One point One, it was supposed to be One point Two, I don?t know what happened along the line. The OiC now said okay share it.
Prosecutor: Who said share it?
PW3: The OiC.
Prosecutor: So what happened?
PW3: So the informant started counting, he said give the civilians Fifty Thousand Naira (N50,000), we the personnel ratings Seventy Thousand Naira (N70,000) and that was what the informant started doing. He gave to the civilians first, then started giving to the rating, on getting to the end he said gentlemen, this money will not be enough for him and 2iC we have to return.
Prosecutor: Say it again.
PW3: This money will not be enough for him and the 2iC which is SLT
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Mohammed that we had to return ten ten thousand each. So, from the civilian up to the ratings we all returned ten Thousand Naira (10,0000 each back to the purse, he gave to almost all of us except MWO Pandi, he did not collect, then he said the remaining one was for him and 2iC. SLT Mohammed did not stretch his hand to collect it at that moment, that is what I know and that was what he said when they shared the money. Then after sharing we left the point of sharing, close to NPA jetty the informant boat that came and met us later now said they were going back, I and LT Oshinowo and the informant that we all entered the other informant boat now entered back our boat that we came with from Base and came back to jetty.?
Learned counsel for the Appellant had also argued that the allegation of conspiracy as contained in count 2 of the charge was not proved against the Appellant.
Conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do lawful act by unlawful means. See OBIAKOR VS. THE STATE (2002) 10 NWLR (PT. 776) 612; NWOSU VS. THE STATE (2004) 15 NWLR (PT. 897) 466. The offence of conspiracy is established by
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showing that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact the conspirators need not know each other. They also do not need to start the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. By its nature a direct positive evidence of the plot among the conspirators is hardly provable, so the counts tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned. In other words conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See DABOH VS. STATE (1977) 5 SC 197; AITUMA VS. STATE (2006) 11 NWLR (PT. 989) 452; INNOCENT VS. STATE (2013) LPELR 21200 (CA).
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In the instant case, the evidence of PW2 and PW3 as contained in the record of appeal provides enough facts to deduce conspiracy from the acts and omissions of the accused persons including the Appellant and as such provides grounds to justify the decision of the
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special Court martial that count 2 of the charge against the Appellant was proved beyond reasonable doubt.
Learned counsel for the Respondent had also submitted that by virtue of Section 7 of the Criminal Code Act, the trial Court martial was right to have convicted the Appellant for the two count charge against him. He relied on the case of ADEKOLA MUSTAPHA VS. STATE (2016) LPELR 40081 (CA).
Now Section 7 of the Criminal Code Act provides that:
?When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) Every person who actually does the act or make the omission which constitutes the offence.
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence;
In the fourth case, he may be charged of either himself committing the offence or with counselling or
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procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. Any person who procures another to do or omit to do any act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission and he may be charged with himself doing the act or making the omission.?
The above set out provisions of Section 7 of the Criminal Code Act makes it clear that in the commission of an offence, not only the principal actor that will be liable but also anyone who does or omits to do any act for the purpose of making it easier or possible to commit the substantive offence by another person. In other words, a person who encourages the principal offender to commit an offence by action, omission or counselling and procuring is also liable for the offence as the principal offender. See ALAO VS STATE (2011) LPELR ? 3700 (CA) and ASHIMIYU VS. STATE (1982) 10 SC page 1.
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From the evidence on record as adduced by the PW2, PW3 and PW4, the Appellant in my humble view is caught by Section 7(b) and (c) of the Act and as such he was correctly charged for subsequently found guilty and convicted for the two counts by the special Court martial.
This sole issue is therefore resolved against the Appellant.
On the whole, this appeal is found to be lacking in merit. It is accordingly dismissed.
The Judgment of the Special Court martial wherein the Appellant was found guilty and convicted of the two-count charge against him is hereby affirmed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I totally agree with the reasoning and conclusion therein.
I also resolve the sole issue against the appellant. This appeal lacks merit and it is accordingly dismissed. I abide by the consequential order made in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother Samuel Chukwudumebi Oseji, JCA, just
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delivered. I agree that the appeal lacks merit and it is dismissed by me.
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Appearances:
E.O. Afolabi with him, I.I. Irele-Ifije with brief of Biola OyebanjiFor Appellant(s)
P.M. Okongwu (Principal State Counsel, FMJ)For Respondent(s)
Appearances
E.O. Afolabi with him, I.I. Irele-Ifije with brief of Biola OyebanjiFor Appellant
AND
P.M. Okongwu (Principal State Counsel, FMJ)For Respondent
