[Criminal Law and Procedure] – [Conspiracy] – [Ingredients of]
ISSUES FOR DETERMINATION:
- Whether the learned Justices of the Court of Appeal were right when they affirmed the trial conviction and sentence by the trial court when the appellant did not have a fair trial.
- Whether the learned Justices of the Court of Appeal erred in law when they relied on the extra judicial statement of the appellant (exhibit A8) in affirming the conviction and sentence of the appellant as having admitted been (sic) in possession of the guns and or the firearms.
- Whether the learned Justices of the Court of Appeal erred in law when they held affirming the judgment of the trial court that the Prosecution had proved the allegation of illegal possession of firearms against the appellant.
- Whether the learned Justices of the Court of Appeal were right when they affirmed the conviction and sentence of the appellant on counts 1 and 2 of the Criminal charge under wrong sections and without any penalty provided therein.”
FACTS:
The case of the prosecution was that after a communal disturbance on 8/3/2010, the accused persons were arrested with assorted weapons by soldiers, who later handed them over to the police.
Consequently, the appellant, as the sixth accused person, and fourteen other Fulani herdsmen, were arraigned before the Federal High Court on a three-count charge of conspiracy to commit acts of terrorism, possession of firearms and acts of terrorism. The first count in the charge which directly affected the appellant was domiciled under section 15(2) of the Economic and Financial Crimes Commission (EFCC) Act, 2004.
At the trial, the prosecution called witnesses and tendered exhibits to prove its case. None of the accused persons, including appellant, testified in their defence but they called one witness, Mohammed Hassan, the leader of his community, called Hardo, Head of Fulani, and he testified that he was informed of an attack by Berom people, and when they were surrounded by some people, who started burning their houses, he advised the accused persons to escape to a secure place. They met soldiers while trying to escape and were stopped. The soldiers shot at them. He said he was shot but survived, and that the accused persons were then arrested. He explained that they were herdsmen, and had the guns for the protection of their cattle, and that none of them used the guns.
In its judgment, the trial court found that the prosecution proved the 3-count charge against the 15 accused persons beyond reasonable doubt and they were, therefore, jointly, severally and variously convicted as charged. Aggrieved, the appellant appealed to the Court of Appeal which affirmed the judgment of the trial court. Further aggrieved, the appellant appealed to the Supreme Court which dismissed the appeal and affirmed the judgment of the court below upholding the trial court’s decision.
HELD:
On Ingredients and punishment for offence of conspiracy to prevent or obstruct lawful exercise of trade, profession or occupation:
By virtue of section 518 of the Criminal Code Act, any person who conspires with another to prevent or obstruct by means of any act or acts which if done by an individual person will constitute an offence on his part the free and lawful exercise by any person of his trade, profession or occupation is guilty of a misdemeanor and liable to imprisonment for two years.
NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:
- Abidoye v. F.R.N. (2014) 5 NWLR (Pt. 1399) 30
- Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109)250
- Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678
- Akinfe v. State (1988) 3 NWLR (Pt. 85) 729
- Audu v. INEC (2010) 13 NWLR (Pt. 1212) 431
- Audu v. State (2016) 1 NWLR (Pt. 1494) 557
- Bello v. C.O.P., Plateau State (2018) 2 NWLR (Pt. 1603) 267
- Civil Design Constr. (Nig.) Ltd. v. SCOA (2007) 6 NWLR (Pt.1030) 300
- George v. F.R.N. (2014) 5 NWLR (Pt. 1399) 1
- Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495
- Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276
- Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386
- Nomayo v. State (2019) 1 NWLR (Pt. 1653) 262
- Ogbomor v. State (1985) 1 NWLR (Pt. 2) 223
- Ogunjomo v. Ademolu (1995) 4 NWLR (Pt. 389) 254
- Okpa v. State (2017) 15 NWLR (Pt. 1587) 1
- Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167
- Omogodo v. State (1981) 5 SC 5
- Oyem v. F.R.N. (2019) 11 NWLR (Pt. 1683) 333
- Simon v. State (2017) 8 NWLR (Pt. 1566) 119
- Yabugbe v. C.O.P. (1992) 4 NWLR (Pt. 234) 152
- Yaki v. Bagudu (2015) 18 NWLR (Pt. 1491) 288
NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:
- Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria, 2004, S. S. 518(5)
- Economic and Financial Crimes Commission (EFCC) Act,2004, S. 15(2)
- Firearms Act, Cap. F28, Laws of the Federation of Nigeria2004, Ss. 5(1), 27(1) (c)(i)
FULL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
The appellant’s contention is that contrary to section 36 of the 1999 Constitution (as amended), and decisions of this court, there is no indication on the record of the trial court that he was in the court on 16/12/2010, when its judgment was delivered. He argued that it is mandatory for the trial court to record the name of the accused as present before the day’s proceedings and failure to so record amounts to breach of fair hearing, citing Audu v. State (2016) 1 NWLR (Pt. 1494) 557 and Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276 and that the delivery of judgment in his absence renders the judgments of the lower Courts, a nullity. Adigun v. A.G., Oyo State (1987) 1 NWLR (Pt. 53) 678; Akinfe v. State (1988) 3 NWLR (Pt. 85) 729 cited.
The respondent, however, countered that his argument is misconceived because the said section 36 of the Constitution “never stated anything as regards an accused being present in court and this section is introduced to mislead the court.”
I will quickly say that this Issue is a non-starter in this case. Yes, in Yakubu Ahmed Audu v. State, which appellant cited as Yakubu Ahmed Nuhu v. State (supra) this court stated on the date for judgment, the accused persons must be in the dock unfettered, when the case is called, except they had earlier shown signs of violence. Counsel announces their appearances and it must be recorded by the trial Judge. Thereafter, the trial Judge proceeds to read the judgment. Section 36 of the Constitution guarantees the right to fair hearing. On several days on which proceedings were held, nowhere can it be seen in the record of appeal that the appellant was present in court. It is mandatory that before each day’s proceeding, the name of the appellant must be visible on the record of proceedings as present on the days proceedings were held.
In this case, the fifteen accused persons, including the appellant, were represented by the same counsel, and the record shows that on each day of the proceedings, except on the day that the judgment was delivered, the learned trial Judge recorded that “All the accused persons are present”. There was no such entry on 16/12/2010 when the judgment was delivered. Apparently, learned counsel for the appellant, who prepared the appellant’s amended brief of argument, wherein it is argued that he was not present when the trial court delivered its judgment, only came into the picture in this court. He had not represented the appellant either at the trial court nor at the Court of Appeal.
In my view, he is merely grasping at straws with this issue. It is well settled that the doctrine of precedent or stare decisis is not applied in vacuo or off-hand and must be done in context. The end result is that issue 1 raised for the first time in this court, is resolved against the appellant.
Issue 2 and issue 3, raise questions concerning the offence alleged in count II of the charge – illegal possession of firearms. But the appellant was never charged with the said offence and was not convicted by the trial court for committing that offence. Once again, the respondent is right. It is settled that the mere misdescription of the law under which a charge is brought, does not necessarily render the offence charged one not known to law at the time of its commission. See Ogbomor v. State (1985) 1 NWLR (Pt.2) 223 SC; and Okpa v. State (2017) 15 NWLR (Pt. 1587) 1 SC; M.D. Muhammad, JSC, observed that:
“This court has in a plethora of its decisions maintained that it does not matter under which section of the law an appellant is convicted. The conviction endures on appeal once it is shown that the fact for which the appellant is convicted constitutes an offence known to law. It does not matter if the conviction is under the wrong Section of or even an entirely wrong law, once the facts leading to the conviction constitutes an infraction provided for by a written law, the appellate court may not interfere with the conviction. It is late at that stage for the court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial, been rectified by the trial court.”
What is more, the law distinguishes omissions or errors that are trivial and not material and will not vitiate a trial, and those that are material and will vitiate the trial. Where an omission or error is material, it necessarily misleads and will vitiate the trial. Thus, any error in stating the law or the section of the law under which a charge is laid per se will not be regarded as material, unless the accused person is misled by such omission or error. In this case, the respondent conceded that the appellant was charged under the wrong sub-section to section 518 of the Criminal Code Act, and it referred the court to sub-section (6). Put together, section 518(6) of the said Act provides as follows:
“Any person who conspires with another to effect any of the following purposes:
(6) To effect any unlawful purpose…Is guilty of a misdemeanor and liable to imprisonment for two years
Obviously, the Criminal Code Act is a written law, and conspiracy is a known offence under the law. The appellant was alleged to have conspired with other accused persons “to do or cause to be done an illegal act, to wit terrorism sets”. The terrorism acts that they were alleged to have done or caused to be done were explicitly laid out in Count III of the charge (reproduced earlier).
There is nothing on record to indicate that the appellant, who was represented by counsel from plea to judgment stage, was misled in any way by the wrong sub-section to section 518 of the Criminal Code Act stated in Count I. The charge stated the specific name of the offence committed and the written law, therefore, the appellant had sufficient notice of what he was up against when he pleaded not guilty to the said charge in court.
As the respondent rightly submitted, the appellant has not shown this court the miscarriage of justice he has suffered by the error of putting a wrong sub-section of the law in the charge, and the end result is that this issue is also resolved against him. At the end of the day, the appellant had nothing concrete to say that would sway in his favour. The Court of Appeal found that there was evidence before the trial court from which it could reasonably conclude that the appellant was guilty as charged, and so, its decision that the verdict of the trial court must stand, cannot be faulted; this Court cannot interfere with that finding.
The bottom line is that the two lower courts are concurrent in their decisions and the appellant did not provide good reasons why this court should interfere with findings of fact arrived at by the trial court and Court of Appeal. “It is not a matter of course”. See Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386 SC.
In my view, there is sufficient evidence established by the prosecution to support the concurrent findings of the two lower courts and this is one more reason this court cannot intervene. The appeal lacks merit and it is dismissed, and I affirm the judgment of the court below upholding the trial court’s decision.
Appeal dismissed.
LIST OF COUNSEL:
YAkubu Maikasuwa Esq.- for the Appellant.
Segun Quadrl Esq. and Ogooluwa Quadri Esq. – for the Respondent.