Mohammed Aminu & Anor V. The State (2004)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal by 1st and 2nd appellants against the ruling of Rhodes-Vivour, J. of the Lagos State High Court in charge No. LCD/1/2001 on 14th March, 2000.
The appellants were jointly charged and being tried on two count charge as follows;
Count 1:
Statement of offence:
Conspiracy contrary to section 324 of the Criminal Code Law, Cap.32, Vol. 2, Laws of Lagos State, 1994.
Particulars of Offence:
Aminu Mohammed (M) and Lateef Sofolahan (M) on or about the 14th day of January 1997 at Simpson Street, Lagos in the Lagos Judicial Division conspired with one another to commit a felony to wit: Attempted Murder
Count 2:
Statement of Offence:
Attempt to murder contrary to section 320 (2) of the Criminal Code, Cap.32, Vol. 2, Laws of Lagos State, 1994.
Particulars of Offence:
Aminu Mohammed (M) and Lateef Sofolahan (M) on or about the 14th day of January, 1997 at Simpson Street, Lagos, in the Lagos Judicial Division attempted to murder one Senator Abraham Adesanya.
Both 1st and 2nd appellants pleaded not guilty to the two count charge. The prosecution called Five witnesses and tendered six documents in evidence as exhibits and then closed its case. PW 2, one Sqt. Barnabas Kabila (Alias Rogers) was the star witness, appellants made a no-case submission. The Learned Trial Judge overruled the no-case submission made by the appellants, holding that the prosecution had made out a prima facie case on the 1st and 2nd counts against the appellants. Both appellants being dissatisfied with the said ruling have appealed to this court.
First appellant, in his notice of appeal at pages 166 -168 of the record, filed five grounds of appeal and formulated three issues for determination in his brief dated and filed on 10th October, 2003 as follows;
- Whether the trial court was correct when it held that the prosecution has made out a prima facie case on both counts and that the accused person have (sic) a case to answer having regard to the evidence available on the record (Arising from grounds 1, 4 and 5).
- Whether the trial court was correct when it deferred to give reasons for holding that accused have a case to answer till his judgment (Arising from grounds 2 and 3).
- Whether the duty on the trial court to consider (sic) and weigh the evidence given in the trial is sufficiently discharged by merely stating that “I have listened and examined their lengthy submission and exhibits” and without more overruled the submissions. (Arising from ground 1).
Learned Director of Public Prosecution in her respondents’ brief adopted 1st appellant’s issues for determination.
The second appellant in his notice of appeal at pages 169 – 171 of the record filed two grounds of appeal and formulated two issues for determination in his brief dated 3/2/2004 and deemed filed on 4/3/2004 as follows:
“3.1 Whether the learned trial Judge was correct in dismissing the no-case submission made on behalf of the 2nd accused person in respect of the two count of conspiracy and attempt to murder?
3.2 Whether the essential ingredient of the offences of conspiracy contrary to section 324 and attempt to murder contrary to section 320(2) of the Criminal Code Law, Cap. 32, Laws of Lagos State were proved and present in the prosecution evidence.”
Again, the learned Director of Public Prosecution in her respondent’s brief adopted 2nd appellant’s issues for determination.
Upon an application brought by the learned counsel for the 1st appellant on 10/11/2003 for an order to consolidate the two appeals filed by the 1st and 2nd appellants, this court granted the prayer and ordered the consolidation of the two appeals. Hence it is considered convenient to have the two appeals consolidated and consider the two briefs filed by the two appellants and the two briefs filed by the respondents and argued together for quick disposal of the appeals.
I have carefully read through the issues filed by the two appellants. I am of the firm view that the two issues filed by the second appellants are apt, concise and relevant to the determination of this interlocutory appeal. Learned Counsel for the second appellant argued the two issues together. This is quite in order as the two issues are interrelated and dovetailed into the other.
In their briefs of argument the two learned Counsel for the appellants have argued extensively with decided authorities why a no-case submission must be sustained by this court. It is submitted that going by the charge before the court, the prosecution has failed woefully to show that there was a conspiracy between the appellants to commit any felony. That the prosecution has failed to show that the appellants acted in concert in the attempted murder charge.
It is contended by the learned Counsel for the appellants in their respective reply briefs that the respondent in their brief failed to address or respond to the issue of the PW2’s evidence being so manifestly unreliable that no reasonable tribunal could safely convict on it. That the respondent did not address the issue raised in the appellants’ brief that PW2 denied knowing anything concerning the shooting of Senator Adesanya, in his first statement to the police dated 27th May, 1999 (Exhibit ‘B’). It is further submitted by the learned Counsel for the appellants that the respondent has also failed and refused to address in their brief or refute the admission by PW2 himself that he had lost his memory of events; and was mixing up dates, facts, events and relevant details and sometimes outright inaccurate facts. PW2 was said to have openly acknowledged during cross-examination that his memory of the events had “dimmed;” that the facts of the incident were not so fresh when he made Exhibit ‘B’. It is argued that the issues, bordering on self-contradictory statements and PW2’s unreliable, inaccurate evidence have been impliedly conceded or admitted by the respondent because they failed to reply those issues. Reliance was placed on the case of Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296 at 309, Orah v. Nymn (1992) 1 NWLR (Pt 217) 279 at P. 287.
In the respondent’s brief in respect of the 1st appellant, learned Director of Public Prosecutions, Lagos State Ministry of Justice (hereinafter referred to simply as ‘DPP’) adopted the three issues formulated by the 1st appellant. She considered them separately. As I have already observed above it is most convenient if the two issues formulated in the 2nd brief are considered. I do intend to do the same here. Learned DPP, in her briefs of argument for the respondent has pointed out two conditions or situations when a no case submission may be made and properly be upheld, namely:
(a) When there has been no evidence to prove an essential element in the alleged offence; and
(b) Where the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no court can safely convict on it.
Reference was made to the case of Emedo v. State (2002) 15 NWLR (Pt. 789) 196 at 205.
It is submitted that it is not required of the court at this stage to consider and weigh evidence before it. What the court should consider is whether the evidence presented by the prosecution is such that a reasonable court might convict. Reference was made to the case of Ibeziako v. COP (1963) 1 SCNLR 99. It is submitted that the evidence of PW1, PW2 and PW4 amount to sufficient evidence upon which a reasonable tribunal can convict the appellant.
It is finally submitted that the learned trial Judge was right by dismissing the no-case submission and it is urged that this court should uphold the trial court, ruling. The main issue in this appeal is very clear. It is whether the learned trial Judge was right in holding that a prima facie case had been established against the appellants. It has been the practice in the criminal trial in our courts that at the close of the prosecution’s case, for the defence to make a submission that the evidence presented before the court has not established a prima facie case in order to call upon the accused to open his defence for one or more or the whole counts in the charge. If the court upholds a submission for any of the counts then the accused should be regarded as not being charged on that count even though no formal verdict of not guilty has been taken. See Emedo v. State (supra); R. v. Plain (1967) 1 WLR 565.
If the court uphelds the submission for all the counts the accused shall be discharged. A submission of no-case to answer may properly be upheld (a) when there has been no evidence to prove an essential element in the alleged offence and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might convict. These considerations are the guiding principles applicable in criminal trials. See Ibeziako v. COP (1963) 1 SCNLR 99; (1963) 1 All NLR 61 and Stanley v. Coleman (1974) Crim. L. R. 254 D.C.
The actual meaning of the phrase “prima facie” is often misconstrued in the face of “dearth” of its precise definition by our courts. So far the best definition is the one given in an Indian case of Sher Singh v. Jitenddranthen (1931) 11.R. 59 Cap. 275 quoted with approval by the Supreme Court in Ajidagba v. I.G.P (1958) SCNLR 60 as follows.
“The term, so far as we can find has not been defined either in the English or in Nigerian Courts. In an Indian case, however, we find the following dicta:-
“What is meant by prima facie (case)? It only means that there is ground for proceeding …. But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is finally guilty or not guilty… and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused…”
Thus, the principle to guide the court in determination of whether a prima facie case was made out against the accused person or not resort must be made to the proofs of evidence filed in support of the information charging the accused of any offence or offences.
Therefore, the statements in this case must be carefully read to know if there was a prima facie case for the appellants to answer. First, as regards the offence of conspiracy to commit murder. I set out statement made by PW2, Sgt. Barnabas Jabila (a.k.a Sgt. Rogers).
“The Nigerian Police
Statement of witness/accused
Force CID … Station:
Name: Barnabas labila:
Nationality/Tribe: Nigerian/Magi
Age 29 Years.
Occupation: Soldering
Religion: Christianity
Address: TRH. Wing State House, Abuja.
In the case of an accused person the formal caution will be given and the fact recorded before in manuscript. I, Barnabas Jabila (Male) having been duly cautioned in English language that I am not obliged to say anything unless I wish to do so, but whatever I say shall be taken down in writing and may be given in evidence, I voluntarily elect to state as follows:
(Sgd) … 29th September 1999.
Further to my statements which I made to the police some time in May, 1999, which we denied all the alleged allegations against lis. I wish to now make a detailed statement concerning Kudirat Abiola on the 4th of June, 1996. Major Mustapha ordered that the woman must be eliminated at all cost, so before then we met Major Mustapha’s informant in Abiola’s house by name Alhaji Latif, was also to tell us the itinerary of the woman. On the 4th June, 1996, we followered her to Abiola’s house in the morning, we followed her there immediately we reached there, she came out of Abiola Crescent with white Mercedes Benz beast in which they are four in number so we traced her to Allen Avenue round-about where she dropped one small girl that was in the car with her. Then we followed her again to Secretariat Alausa, Ikeja, then to express road on her way to Lagos, then we came closer and levelled up with her, then I fired at the car several shots then we drove off which later the shot killed her. I used UZI, SMG and 9mm rounds with silencer. We used Peugeot 504 Saloon car, dark blue, Major Ado’s car. Initially, we are 6 (six) who went for the operation who are Samiala Shuaibu, Barnabas Jabila, Sani Garba, Sukwanga Bello, Mohammed Katako. Who went for the operation. But on the 4th June, 1996, it was only myself and Mohammed Katako that went because the other listed above and Mohammed Aminu said they are tired and were with girls which we don’t want the girls to understand what we are doing because there firearm are with them, and also we went out for surveillance the previous night. It was Katako who drove the car.
Major Mustapha is one that gave us the weapon and ammunition. After the operation he gave us, N50,000 which Sukwanga Bello was the one that travel to Abuja to collect for us, which we share among ourselves equally because the woman is dead.
(Sgd)…
Signature mark/of witness/accused interpreted by me.
Signed Sgd.)…
29/9 … 1999.
This statement was taken in English language and read over and translated to the accused/witness in English Language in my presence and hearing.
Recorded by: Barnabas Jabila
Time taking of statement commenced 1540HRS.
Time taking of statement completed 1625HRS.
In addition to the statement I wrote initially, I have not used any weapon that is not using 9mm. The weapon I used was UZI using silencer and the sound can be heard, but not much. And it is not possible that the shell of the round I fired to be found; I – target car. Because I fired by all means to make sure that I did not go out of the car window while firing, so the shell were mostly falling inside the car. Also, the UZI that I used looks like MP5 SMG with curved magazine. After the operation, when we come back to Abuja, the weapon was returned back to Major Mustapha through L/CPT. Ayo Gadzama his orderly who came to me and said the Major Mustapha said I should give him in which I did give him and I confirm it to be true that Major Mustapha sent him to collect it from me by going to him (Major Mustapha) which he said he did sent Kyari. The weapons are numbered two (2) with about (10-15) ten to fifteen packets of 50 rounds each of 9mm linger.
(Sgd.) …
Barnabas Jabila”
12/11/99
Then the relevant part of statement of Mohammed Abdul (a.k.a. Katako)
“The three of them-Rogers, Lawal and Aminu dropped from the vehicle while they asked us to move forwards after a while, they came and met us and we went back home. The following day, they called Alhaji Mohammed Sani Abacha on phone and told him that they wanted a vehicle. Alhaji told them he wanted to speak with me on phone. They then called me to Lawal’s room.
Signed …
Mohammed Abdul alias Katako
19/9/99
He told me to meet Alhaji Hamman to give us the key of the Mercedes 190 and we went and collected the car in the morning. Throughout this period, they said I should not come or I should wait until they called me because one of their Masters was coming from Abuja.
We went back to Lati’s residence in Mercedes 190 and a Peugeot 504 car. He took us to Igbosere and showed them an office. He also told them the type of vehicle the man uses. It is either Mercedes 200 or 230. We went back home and left the Mercedes 190 there. We then took the Peugeot 504 and went back to Igbosere, and we saw the Mercedes 200/230. Aminu told Rogers that they should go back and pick up Mercedes 190. He said they should wait there until the Mercedes owner came and drove away the car and Rogers directed that they should follow the Mercedes 200 or 230. As the vehicle was nealing Obalende – just close to Sura I heard gun shots.
When we returned home, I heard that Adesanya Abraham was shot. I then said that this firing must be the handwork of Rogers. After two days, they went back to Abuja. I was never told the nature of the job I was going to do, but after their discussions. Alhaji Mohammed my master will said you (me) to follow Rogers and others to Lagos.
Signed …
Mohammed Abdul alias Katako
19/9/99.
Then Rogers and others ones told me that they wanted to give something, but that my master told them that they should not bother as I am his boy. After they had left for some days, I also went to Abuja. We came to Lagos together in a private Aircraft at night. The owner was one Danilo. We went to Lati’s house in the morning and Lati took us to one house – Abiola’s house. That day we used a Peugeot 505 with reg. No. CVU and another 504. I did not know where they got these vehicles. The 504 vehicle was faulty. When we returned home, Rogers borrowed his friend’s car Grand Cherokee Jeep and we then went back to Abiola’s house. In the morning of the following day, Rogers said we should drive out. We then went to Ikeja. Lati had already told the type of vehicle they were watching out for. He said we should follow that vehicle it was Mercedes Benz and there were three to four people inside the car. As we approached Maryland junction, Roger started firing at the Mercedes and continued firing until we drove pass the car (Mercedes) after we returned home, I heard that Kudirat Abiola was the one shot at the scene. I then know that she (Kudirat Abiola) was the one killed. This is all I know.
Signed:..
Mohammed Abdul
Alias Katako
19/9/1999
The nature of the relationship between Major Mustapha and Alhaji Mohammed Sani Abacha is not quite clear to me. This is because I do not know much about them. All that I know is that we used to go to his (Mohammed) house or to his office, I can’t say what they do or say together. All these events happened in 1996 and the early part of 1997. Almost close to the handing-over say, I was given pass and was on my way to Agare. I then went to see my friend Sale and I saw Alhaji and he asked me whether I was aware of what Rogers has said about the job that we used to do. Then I guessed that Alhaji may say I should go and call others, because he (Alhaji) will provide them with the means to leave the country and that they can return to the country after a while (that is after things have cooled down). When I went to Abuja and Aminu told him he said they should look for the others and when they saw Rogers, he said he was going nowhere. We looked for Lawal, Rabo but did not see him. I went back to Kano. Aminu drove his car and he gave us ten thousand dollars ($10,000). We went to Niger Republic. We did not know anyone. After three days we decided to return to Nigeria because it was not reasonable to leave our families and our work. After we returned, Aminu saw us and asked why we returned to Nigeria. I told him that we would be going back to Niger Republic. He said that if we liked we could go back and that if we are arrested he will have nothing to do with us. Aminu then went to Abuja and I returned to my work in Lagos.
Signed..
Mohammed Abdul
19/9/99
The first count for which the appellants were charged is conspiracy to commit murder. On a conspiracy charge the prosecution has the burden to prove the meeting of minds of second persons with a common intention and purpose to commit a particular offence. PW2 Sgt. Barnabas Jabila testified before the court that he was in company of the appellants when PW1 (Senator Abraham Adesanya) was shot. PW4 Mohammed Abdul, also gave evidence corroboratory to PW2’s evidence that the 1st appellant was in the vehicle with them, and sat at the back of the vehicle when the shooting was done. He also stated that the 1st appellant did not stop him from shooting at PW1 and neither did he question them about shooting of their superior Major Ado. PW2 stated in his evidence that the “strike force” was given several assignments which include the assassination of Alex Ibru, Kudirat Abiola, Segun Osoba, Abraham Adesanya. That this instruction was given by Major Mustapha to the 1st appellant.
PW2 and PW4 both stated in evidence that the appellants worked with them. PW4 in his words stated thus.
“Rogers and Aminu (1st appellant) were armed. Aminu had a P.90, Rogers had an UZZI and a pistol. A day or two after we left the office, myself, Sgt. Rogers and 1st accused left for the same building at Igbosere when we reached the building there was a Benz parked. There … Rogers and Aminu were armed. As at that time I did not know who the man was but I now know it is Chief Abraham Adesanya. There was a driver driving, the Benz took the Simpson side and we followed. When we reached the Sura Market junction, the Benz went straight and, I took to the right. Rogers came out of the roof of the car and shot several times at the Mercedez. Rogers was at the front seat; Aminu was at the back seat”.
Prior to this testimony PW2 had stated that the 2nd appellant person had taken the ‘strike force’ to Senator Adesanya’s office. PW2 also narrated in his testimony the incident leading to the attempt on the life of Senator Adesanya. These facts show the things whereby the appellants PW2 and PW4 before the attempt to murder Senator Adesanya. The “Strike Force” operated in concert as a gang.
Section 11 (1) of the Evidence Act state thus:
“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by anyone of such persons in the execution or furtherance of their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspirancy as for the purpose of showing that any such person was a party to it.”
The purport of this provision is that things said or done by a conspirator in reference to common intention is sufficient proof of common intention. In the case of Oduneye v. State (2001) 2 NWLR (Pt. 697) 311 at 332 the court held thus:
“The overt act or omission which evidences conspiracy is the actus reus of each and every conspirator must be referable and very often if is the only proof of the criminal agreement which is called “conspiracy…”
I must say that evidence of PW2 and PW4 are direct, disclosing the involvements of the appellants before the attempt on PW1’s life and after that. The only inference that can be drawn from their overt conduct is that they acted in concert to carry out an unlawful act.
The second count with which the appellants are charged with attempt to murder Senator Abraham Adesanya. The act that amounts to an attempt is the one that must be immediately connected with the possible commission of the substantive offence. There must be a clear and unequivocal nexus between the overt act of attempt and the substantive offence. PW1, PW2 and PW4 were very clear in their testimony on the attempt on the life of PW1. Again, PW2 and PW4 while giving evidence narrated how PW2 shot at PW1 with an UZZI pistol. This amounts to an overt act. The only logical conclusion that can be drawn from this act is that the intention of PW1’s assailants was to assassinate PW1.
Section 7(b) of criminal code provides as follows:
“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……
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence, every person who does or omits to do any act (c) for the purpose of enabling or aiding another person to commit the offence”.
I am of the view that the evidence narrated by PW2 and PW4 are sufficient to bring the appellants within the ambit of section 7(b). The prosecution has presented evidence to prove the essential of the offences of conspiracy to commit murder and attempted murder. In conclusion, the prosecution has presented evidence to prove the essential elements of the offence of conspiracy to commit murder. Evidence given by the PW2 and PW4 establishes a “prima facie” case. Appellants should therefore be called upon to open their defence.
This appeal therefore fails. It is dismissed I uphold the ruling of the learned trial Judge in dismissing the no-case submission. The case is remitted to the lower court to be concluded as expeditiously as possible.
Other Citations: (2004)LCN/1617(CA)