Musa Abdulmumini V. Federal Republic Of Nigeria (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
Several persons were arraigned before and tried at the Federal High Court Jos, for conspiracy to commit terrorist acts punishable under Section 5 of the Criminal Code Act, Cap C38, LFN 2004; illegal possession of firearms punishable under Section 5 of the same Criminal Code Act, and the commission of terrorist acts punishable under Section 15(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004. The alleged criminal acts were committed on or about the 8th day of March, 2008 in and around Jos and its environs, including Mangu Local Government Area of Plateau State. The appellant featured in the first and third charges, which respectively accused him and others of conspiracy to commit terrorist acts and committing terrorist acts. In these two charges he was the 7th and 9th Accused in the 1st and 3rd charges respectively. All the accused persons, including the appellant herein, were convicted for the two offences alleged in the 1st and 3rd charges. They were each sentenced to 2 years and 10 years imprisonment for committing the said offences of criminal
1
conspiracy to commit terrorist acts and the commission of terrorist acts respectively.
The appellant appealed his conviction and sentence to the Court of Appeal sitting at Jos. He was unsuccessful. The said Lower Court dismissed his appeal and affirmed the conviction and sentences imposed on him by the trial Federal High Court. He has further appealed to this Court.
The issues submitted for the determination of this further appeal from the two grounds of appeal turn largely on facts. The issues are –
“1. Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the prosecution had proved the 3 offences with which the appellant was charged beyond reasonable doubt.
- Whether the learned Justices of the Court of Appeal do not have a duty, ex debito justitae, to evaluate the evidence led by the appellant fully by way of re-hearing where the trial Court had failed to do so”.
My Lords, prefatorily, let me re-state the policy of this Court on concurrent findings of fact by the trial Court and the intermediate Court. That is: this Court will, ordinarily, not interfere with
2
concurrent findings of fact by the trial Court and the intermediate Court, unless it is shown that such concurrent findings of fact are perverse. This is the established attitude of this Court in both criminal and civil appeals, as can be seen from the decisions of this Court (just to mention a few) in DAN AWAZA BASHAYA & ORS. v. THE STATE (1998) 4 SC 199; (1998) 5 NWLR (Pt.550) 351; A. OLA YESUFU v. ROBINSON OLUSEYI ADAMA (2010) 5 NWLR (Pt.1188) 522 SC; ELIZABETH OGUNDIYAN v. THE STATE (1991) 4 SCNJ 44; (1991) 3 SC 100. Without any clear evidence of errors in law or fact, leading to or occasioning miscarriage of justice, this Court will not interfere with the concurrent findings. This is how Obaseki, JSC had emphasised the point in OGUNDIYAN v. THE STATE (supra).
A decision is said to be perverse when –
“a) it runs counter to the evidence before the Court, as
b) it is not supported by the evidence adduced, or
c) where it has been shown that the Court took into account extraneous matters, or matters it ought not to have taken into account or shuts its eyes to the obvious; or
d) when it has occasioned a miscarriage of
3
justice”.
See ATOLAGBE v. SHORUN (1985) 1 NWLR (Pt.2) 360 SC; IROLO v. UKA (2002) 14 NWLR (Pt.786) 195 SC. A perverse decision is one said to be persistent in error, different from what is reasonably required of a Court of justice.
I must, at this juncture say, as Karibi-Whyte, JSC, did say in ANTHONY IBHAFIDON v. SUNDAY IGBINOSUN (2001) 4 SC (Pt.1) 96; (2001) 8 NWLR (Pt.716) 653, that findings of fact are not Sacrosanct. Where the conclusions made from the findings are not supported by evidence relied upon; or the proper conclusions or inferences are not drawn from the evidence, or where the trial Court failed to evaluate [or properly evaluate) the evidence, the appellate Court will in the interest of justice, be free to do so. In such a situation, the appellate Court is entitled to evaluate the evidence and come to the right decision supported by the evidence. This duty of re-evaluation is what the appellant herein alleges, in his Issue 2, that the Lower Court had abdicated in his appeal before it.
To succeed in an appeal, the onus is squarely on the appellant to satisfy the appellate Court that the decision or judgment he had appealed was
4
wrong. He discharges this onus by showing in what respects the decision appealed was wrong. He has to discharge this onus because the decision appealed is presumed, under Section 168(1) of the Evidence Act, 2004, to be valid and subsisting until set aside. If the appellant fails to discharge this burden his appeal is bound to be dismissed. See OBODO v. OGBA (1987) 2 NWLR (Pt.54) 1; OGOLOGO v. UCHE (2005) 14 NWLR (Pt.945) 226 at 246.
Appellant’s Issue 1 was argued at pages 3 – 11 of the Appellant’s Brief of Argument. He strained himself to show that PW.1’s evidence was hearsay while the evidence of PW.2 and PW.3 were manifestly improbable and unbelievable. The sum total of his submissions under Issue 1 is that the charge of terrorism punishable under Section 15 of the Economic and Financial Crimes Commission [Establishment) Act, 2004 (EFCC Act), was not proved to warrant the conviction of the appellant therefor and the affirmation of the same by the Lower Court. Thereafter he proceeded to narrating, under Issue 1, how the DW.1’s evidence shows that the Fulani herdsmen, one of whom is the appellant were victims of Berom attack how they wanted to escape
5
and found themselves surrounded by soldiers who shot and killed one of them. One could read in between the lines that the appellant flirted with defence of property or self-defence to justify the admission by the DW.1 that they (as accused persons) held “those guns for the protection of our cattle”, and that their houses were burnt. Appellant’s counsel then concluded with the submission that “surely the charge of terrorism, at least, would have been ridiculous since the appellant cannot be punished by Law when he and his people were victims guarding their homes”.
There was no attempt made to discredit the empirical findings of fact by the trial Court supported by credible evidence of prosecution witnesses (particularly PW’s 2 and 3), who were eye witnesses, and the extra-judicial statements of the accused persons that they were wielding dangerous weapons with which they audaciously attacked the patrolling soldiers who were on official and lawful assignment at the particular time. At pages 102 and 103 the trial Court made the following findings of fact which the appellant has not challenged. That is –
“(3) At about that time in Mangu Local Government
6
Area and the environs, all the accused persons were seen together armed with dangerous weapons.
(4) Soldiers on security alert accosted the accused persons and shots were fired at each other between the accused persons and the soldiers.
(5) As a result of the shooting one person, among the accused persons, was shot dead and one soldier was injured from the shots fired by the accused persons and he was treated at JUTH, Plateau State.
(6) As a result of the superior fire power of the soldiers, the Accused persons were arrested together with their weapons and taken to the Police Stations”.
The unchallenged evidence of PW.2, an eye witness, supports these specific findings of fact. The PW.3, the soldier shot by the accused persons, testified, undiscredited, that when the soldiers accosted the accused persons, including the appellant, the accused persons not only stubbornly refused to heed the soldiers’ pleas to them to stop the violence, they shot at the soldiers injuring one of them (the PW.3). They exchanged fire with the soldiers. One of them was shot dead before they eventually surrendered to the soldiers, and their weapons
7
taken from them. The weapons were subjected to ballistic test and found, in Exhibit B, to be active firearms that were “used and fired on or about the time of the arrest of the accused persons”.
The evidence of PW.3 was not a hearsay evidence contrary to the unsubstantiated submission of the Appellant’s Counsel. It is not correct, as submitted by the Appellant’s counsel, that the evidence of PW.2 and PW.3, who clearly were eyewitnesses, were pieces of hearsay evidence.
I had earlier highlighted the specific findings of fact made at pages 102 and 103 by the trial Court. The Court below, correctly in my view at page 279 of the Record, affirmed these specific findings of facts.
The appellant was only concerned with the 1st and 3rd charges. That is, the alleged conspiracy to commit or do terrorist acts and committing terrorist acts. He was respectively the 7th and 9th accused person in the first and third charges.
In respect of the conspiracy to commit terrorist act, forming the substance of the first charge, the trial Court found, from the extrajudicial statement of the appellant the 7th Accused, that he admitted being in possession of
8
dangerous weapon at the time of arrest. The evidence of PW.2 and PW.3 confirm this fact. Exhibit B establishes the fact that the weapon was an active firearm. The DW.1, under cross-examination also attested to this fact. The appellant at the material time, was an active member of a group of 16 men exchanging gun fire with soldiers on lawful duty. It is on the totality of these facts that the trial Court found him guilty of the alleged conspiracy to commit terrorist acts. It found further that the group of 16, the appellant was a member of, by their action, “were out to commit an unlawful purpose or that they had already done so” and that they
“had an opportunity to meet together to agree to commit an unlawful purpose. The matter is more convincing given how close to the place where they were arrested to burnt houses where people were killed. From the conduct of the accused persons, it can be inferred that they conspired to commit an unlawful purpose and thereby draw that inference.
The Court below affirmed this inference from the circumstances of the case. This cannot be faulted. The appellant as a matter of fact, did not
9
offer any attack, albeit feeble, to challenge the inference, drawn from the surrounding circumstances, that he the appellant [the 7th Accused), was guilty of conspiracy to do an unlawful purpose with 15 others. The law enjoins the prosecutor to prove the conspiracy laid out in the charge and that the persons charged were those engaged in it. While the proof of the actual agreement is desirable, though always a difficult task, Courts usually consider it sufficient if conspiracy is established by evidence from which the Court would consider it safe and reasonable to infer or presume the conspiracy. See DABOH v. THE STATE (1977) 5 SC 122; (1977) ALL NLR 146. In my considered opinion the trial Court drew the right or correct inference from the surrounding circumstances. The Lower Court was therefore right when it affirmed the finding that conspiracy to do an unlawful purpose was established against the appellant and the others in the group accosted and arrested by the soldiers.
The submission of the Appellant’s Counsel that PW.2 and PW.3 gave hearsay evidence has no substance. I had earlier, on analysis, come to the conclusion that the two gave eyewitness
10
account, as opposed to hearsay evidence.
The trial Court, from the evidence of the PW.2 and PW.3, DW.1 and the extra-judicial statements of the accused persons, found that at the material time the appellant with others were armed with dangerous weapons, including dane guns, in the vicinity where damage to property had taken place. That their motive was to intimidate and instill fear on the members of the public or a particular segment thereof.
Upon believing the PW.2 and PW.3, the trial Court further found and held that –
“the accused persons were carrying those weapons and actually shot at the soldiers and caused (injury) to one of the soldiers
– In the circumstance, the argument of the Defence Counsel that the accused persons were not actually caught shooting and killing anybody is inconsequential so long as their disposition is capable of constituting fear to members of the public or an attempt so to do”.
These findings and conclusions by the trial Court were affirmed by the Court below as a product of its earlier evaluation whereby it ascribed probative value to the evidence before it. The findings and conclusions can hardly be faulted.
11
I do not find from the Appellant’s Brief of Argument where any serious minded attempt was made to fault them.
It is the primary function of the trial Court to evaluate the evidence before it and ascribe probative value to such evidence having seen, heard and assessed them as they testified. The appellate Court has a very limited function in this regard. An appellate Court can only properly evaluate the evidence at the trial in so far as such exercise will not involve ascribing credibility to witnesses as a result of their demeanor or the impression of them depending how actually they performed, reacted to questions or comported themselves in the witness box. See IKO v. THE STATE (2001) 14 NWLR (Pt.732) 221.
Where the trial Court had properly evaluated the evidence before it before ascribing probative value to it, an appellate Court cannot, and should not, disturb such an exercise. It is only in the situation of improper evaluation of the evidence before ascribing probative value to the pieces of evidence, especially of witnesses that an appellate Court may intervene to do justice as the parties in the matter deserve. See ARCHIBONG V. AKPAN
12
(1992) 4 NWLR (Pt.238) 750; RABIU v. KURE (2010) ALL FWLR (Pt.539) 1070 at 1088. In the instant case, the Lower Court did the right thing in restraining itself from intervening and interfering with findings of facts and conclusions therefrom made by the trial Court upon the latter’s elaborate and proper evaluation of the facts before it.
There was proof beyond reasonable doubt that the appellant and others, while armed, were accosted and arrested by soldiers on security duty in a vicinity of houses recently burnt whereat the occupants were killed. They even confronted the soldiers, fired at and exchanged gun fire with them. They were caught in action in an area where there had been break down of law and order. The security of lives and property in Mangu Local Government Area, Jos and its environs had been compromised, necessitating the patrol of soldiers to restore security of lives and property and to enforce law and order. A section of the general public in Plateau State public had been placed in a state of fear and general apprehension of insecurity of human lives and damage to property.
Specific findings of fact, upon evaluation of available
13
empirical evidence at the trial, by the trial Court include –
i. The fact that the appellant and others, armed with dangerous weapons going about menacingly in the area where damage had been done to property and people already killed;
ii. that such conduct of the appellant and his group was calculated to instill fear in the members of the public and intimidate them, and
iii. the fact that not only that the appellant and his group carried dangerous weapons, including guns; they actually shot at the soldiers and injured one of them.
On these specific findings, upon evaluation, the trial Court concluded that the appellant and his group committed the offence punishable under Section 15[2] of the EFCC, Act 2004, which offence is defined by Section 46 of the same EFCC Act. The trial Court considered the feeble claim of the appellant to self defence and defence of property, orchestrated by the DW.1, and had dismissed it as unavailing. These findings and conclusions arrived at by the trial Court were affirmed by the Court below. The appellant has not shown, satisfactorily, why the specific findings of fact and conclusions made by the trial Court
14
should have been disturbed by the Lower Court.
Appellant’s counsel submitted, under Issue 2, that “the appellant presented a defence of self defence which the learned trial Judge discountenanced and on which the learned Justices of the Court below were in agreement”. He had asked rhetorically: Does this defence avail the appellant in this case
I agree that Section 59 of the Penal Code provides that “nothing is an offence which is done in the lawful exercise of the right of private defence.” There is a snag here, which the appellant must successfully clear. The Penal Code Law of Plateau State, prima facie, does not constitutionally avail the appellant to plead a defence therein against a Federal offence created by Section 15(2) of the EFCC Act, 2004. The law, as it stands: the appellant cannot, ordinarily resort to the provisions of a State Law and invoke the defence therein to plead a statutory defence against a Federal offence for which he stands on trial. The learned Appellant’s counsel, very conscious of this, submits that Section 46 (a) of the EFCC Act, 2004 having provided therein:
“(a) Any act which is a
15
violation of the Criminal Code or the Penal Code and which may endanger the life, physical integrity or freedom of or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or property, natural resources, environmental or cultural heritage and is intended to —–”
has incorporated therein the defence of self defence or private defence available under Section 59 of the Penal Code. The appellant has made a point here, and I entirely agree with him.
I agree, in principle and on the authority of AHMED v. THE STATE (1999) 7 NWLR (Pt.612) 641 at 681 and AKPABIO v. THE STATE (1994) 7 NWLR (Pt.359) 635 at 671, cited by the Appellant’s counsel, that the trial Court had a duty to consider every defence open to the accused on the evidence, whether or not the accused person specifically puts up such a defence. The appellate Court, like the trial Court, has a duty of its own to consider all such possible defences open to the accused/appellant.
Available facts, particularly the unchallenged or undiscredited evidence of PW.2 and PW.3, clearly negative the plea of any claim of the appellant to
16
self-defence or private defence provided by Section 59 of the Penal Code. The PW.2 and PW.3 were soldiers, among the Federal troops, deployed to the affected area to restore law and order. They had clearly identified themselves to the appellant and his group that they were Federal troops. They directed the appellant and others in the group to stop firing their guns. The latter, instead of heeding the warning, continued firing at the Federal troops who had not yet fired at them. The PW.3 was in the process, shot below the eye by the appellant’s group. The soldiers then fired back and both sides exchanged fire before the appellant’s group were eventually overcome and they then surrendered after losing one of their own to the superior fire power of the Federal troops.
The facts do not avail the appellant for this plea of the right to self defence or the right to private defence under Section 59 of the Penal Code. Even if, as DW.1’s evidence suggests, the Fulanis (which the appellant belongs) were being attacked by the Berom and the former had a right to defend themselves against the attack from the Berom, they lost that right to self-defence the moment they
17
were the aggressors against the Federal troops, a neutral body on their lawful security duty to restore law and order. The transferred aggression to the Federal troops by the appellant and his group cannot be the basis for the group, including the appellant to plead the self-defence in the circumstances. This appears to be the only serious defence pleaded by the appellant. It clearly does not avail him.
Both the trial Court and the Court below may not have given serious thought or consideration to the special defence under Section 59 of the Penal Code. I, however, do not think that the appellant had suffered any miscarriage of justice by the error of the two Courts not considering the special defence. The law is settled that it is not every error or slip that will result in the reversal of a decision on appeal. The appellate Court will only intervene and reverse the decision on appeal when the error, mistake or slip is substantial in that it has occasioned a miscarriage of justice. See ABUBAKAR v. B.O. & A. P. LTD.(2007) 2 SC 48; (2007) 18 NWLR (Pt.1066) 319; UNITY BANK PLC. v. BOUARI (2008) 2 – 3 SC (Pt.II) 1; (2008) 7 NWLR (Pt.1036) 372.
18
The appellant has not satisfactorily established why the decision appealed should be set aside. I have no cause, from the two issues argued in the appeal, to disturb the concurrent findings of fact and the conclusions reached therefrom by the trial Court and the Court below in this case. The sum total of all I have been labouring to say is that there is no substance in this appeal. Accordingly, it is entirely dismissed by me, and the decision of the Court of Appeal, Jos in the appeal No.CA/J/183C/2011 delivered on 27th March, 2013 dismissing the appeal of the appellant and affirming the decision of the Federal High Court in the case No.FHC/MG/CS/34c/2010, is hereby affirmed. For avoidance of any doubt, I hereby further affirm the conviction and sentences imposed on the appellant.
SC.772/2014