In The Supreme Court of Nigeria
On Friday, the 8th day of December, 2017
Before Their Lordships
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
MUSA ABDULMUMINI –Appellant
FEDERAL REPUBLIC OF NIGERIA- Respondent
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): 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 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.
2. 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 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 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 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 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 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 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 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 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 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.
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 (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 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 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 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 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 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 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.
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.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother EJEMBI EKO JSC just delivered, I agree with the reasoning and conclusion reflected therein that the appeal lacks merit. It is an appeal against the concurrent findings of the two Courts below in which circumstance this Court is very hesitant to intervene except where the judgment is shown to be manifestly perverse having occasioned miscarriage of justice.
It is glaring from the record of appeal that the judgment of the trial Court which the Lower Court affirmed emanates from the evidence on record and the Court had neither ignored any fact worth countenancing nor wrongly applied any legal principle to the facts as established by parties to justify this Court’s intervention. The appellant having not demonstrated clear errors in law or fact in the judgment that had occasioned miscarriage this appeal must invariably fail. See David Omotola & Ors v. The State (2009) LPELR-2663 (SC) and Ogundiyan v. State (1991) LPELR-2333 (SC).
For the foregoing and more so the fuller reasons articulated in the lead judgment I also dismiss the appeal and abide by the consequential orders made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant and 14 others were charged before the Federal High Court sitting in Jos on a three – count charge of conspiracy, unlawful possession of firearms and terrorism contrary to Sections 518(5) of the Criminal Code Act Cap. C.38 Laws of the Federation of Nigeria (LFN) 2004, Section 5(1) and 27(1) of the Firearms Act Cap. F 28 LFN 2004 and Section 15(2) of the Economic and Financial Crimes Commission Act 2004 (EFCC Act) respectively.
The appellant was the 10th accused person. He was charged in respect of counts 1 and 3 i.e. conspiracy to commit a terrorist act and terrorism. He pleaded not guilty to the charges. The prosecution called 5 witnesses to prove its case while a single witness testified on behalf of all the accused persons. At the conclusion of the trial, all the 15 accused persons were found guilty in respect of counts 1 and 3 and were sentenced to 2 years and 10 years imprisonment respectively without an option of fine. The sentences are to run concurrently. The appellant’s appeal to the Court of Appeal, Jos Division (the Lower Court) was dismissed on 27/3/2013. His dissatisfaction with that judgment has given rise to the instant appeal.
My learned brother, Ejembi Eko, JSC has dealt extensively with the issues in contention in this appeal. I agree entirely with his reasoning and conclusion and only add a few words of mine in support.
Section 15(2) of the EFCC Act provides:
“(2) Any person who commits or attempts to commit a terrorist act or participates in it facilitates the commission of a terrorist act, commits an offence under this Act and is liable on conviction to imprisonment for life.”
Section 46 of the Act provides:
Terrorism” means –
(a) Any act which is a 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 property, natural resources, environmental or cultural heritage and is calculated or intended to
i. Intimidate, put in fear, force, coerce or induce any government body or institution, the general public or any section thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles or
ii. disrupt any public service, the delivery of any essential service to the public or to create a public emergency or
iii. create general insurrection in a state;
(b) any promotion, sponsorship of, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organization or procurement of any person with the intent to commit any act referred to in paragraph (a)(i), (ii) and (iii).
The incident that gave rise to the charge before the trial Court occurred during the unfortunate communal disturbances in Jos, Plateau State in 2010. This incident in particular occurred sometimes in March 2010.
As with all criminal allegations, the prosecution has the burden of establishing the guilt of the accused persons beyond reasonable doubt (Section 138 of the Evidence Act 2011).
It is also pertinent to note that this appeal is against the concurrent findings of fact made by the trial and intermediate Courts. The attitude of this Court to concurrent findings of fact is that the Court would rarely interfere with such findings unless they are shown to be perverse or to have occasioned a miscarriage of justice. See: Yesufu Vs Adama (2010) 5 NWLR (Pt.1188) 522; Ogundiyan v. The State (1991) 3 NWLR (Pt.181) 519; Ubani v. The State (2003) 18 NWLR (Pt.851) 224.
A decision will be held to be perverse where there is insufficient evidence to support the findings, a serious violation of some principles of law and/or procedure or substantial error of law apparent on the record, which if not disturbed, would lead to a miscarriage of justice. See Coker v. Oguntola (1985) ALL NLR 319; Chinwendu vs. Nwannegbo Mbamali & Anor. (1980) 3 4 SC 31 @ 75; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt.1042) 364.
At pages 102-103 of the record, the learned trial Judge made the following findings of fact:
“(1) Sometimes in January 2010 in Jos environs in Plateau State a crisis erupted culminating in attacks and counter attacks between the Beroms and Fulanis.
2) The evidence shows that on the 8/3/2010, during the crisis houses were burnt in Dogo Nahauwa, people were maimed and some killed as a result of attacks on them.
“(3)About that time in Mangu Local Government 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.
(7) The weapons were registered as Exhibits and tendered before this Honourable Court and admitted as Exhibits.
The following facts are found based on the evidence of the prosecution witnesses especially PW2 and 3 who were eyewitness whose testimony I believe and which were not discredited during cross-examination there is also no evidence challenging their testimony.
Also, the Extra Judicial statements of the accused persons reveal an admission that the accused persons were wielding the various weapons tendered as Exhibit at the time of their arrest.
Exhibit ‘B’ the Ballistics report disclosed that the said weapons had been used and fired, on or about the time of the arrest of the accused persons.
His Lordship also made the following observations regarding the evidence of DW1, the sole witness for the defence.
As against all
these, there is the evidence of DW1 which I do not believe for various reasons.
His testimony did not follow a natural flow and contradicts itself. It looks more like a concocted story and in some respect corroborate the evidence of the PW2 and 3.
Now on cross-examination, the DW1 stated that they were surrounded by about 2000 Berom men yet 16 out of 17 of them escaped.
Their escape per his evidence was that he asked everybody to find their way of escape yet his evidence show that they were later gathered together, armed and they had their cows which they were protecting with the weapons found on them.
He purported that the attack on them at their home was sudden yet they had found time to send away their wives and children before the attack.
It is also unbelievable that out of the 2000 Berom men who were apparently attacking them none of them were found by the soldiers about the period when the accused persons were arrested.
The question therefore is whether upon these facts, the prosecution could be said to have proven their case sufficient to sustain conviction of the accused persons in this matter.
He proceeded to apply the law to the facts as found by him and came to the conclusion that the prosecution had established its case against the accused persons beyond reasonable doubt. The Lower Court agreed with him.
In order to secure a conviction, having regard to the facts of this case, the respondent was required to prove beyond reasonable doubt that the appellant and his co-accused committed or attempted to commit or facilitated the commission of an act which is a violation of the Criminal Code or Penal Code to endanger the life, physical integrity or cause serious injury or death to any of the persons mentioned in Section 46(1) of the EFCC Act or cause damage in any of the ways and to any of the persons therein described.
It must also prove the elements enumerated in subparagraphs (i) and (ii).
Section 518(5) of the Criminal Code Act provides:
Any person who conspires with another to effect any of the following purposes:
(5) to prevent or obstruct by means of any act or acts which if done by an individual person would 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 is liable to imprisonment for two years.”
PW2 and PW3, police officers sent to the scene to restore law and order, were eyewitnesses whose evidence the trial Court found credible and compelling. Indeed PW3 was also a victim, having been shot below the eye when the accused persons fired at them (the Police) upon being ordered to desist from their unlawful acts.
The learned trial Judge painstakingly considered all the evidence before him, including the evidence for the defence through the testimony of DW1. He rightly found, in my view that
“there is ample evidence that the accused are 15 in number going together with Dane guns, bows and arrows, catapults and other weapons within the vicinity of a place where damage has been done to property and people killed, there is no doubt that such conduct is to say the least calculated at instituting fear on members of the public or a particular segment thercof or to intimidate such people. Also possession of such dangerous weapon(s) is an offence under the law, particularly Section 5(1) of the Firearms Act. More particularly at a time there was crisis in Jos metropolis and Plateau State in general.
The argument of Defence Counsel that they were not actually caught shooting and killing anybody is inconsequential so long as their disposition on is capable of constituting fear to members of the public or an attempt so to do.”
The learned Justices of the Court below found that the above findings and conclusions were reached after a careful appraisal of all the evidence before the Court and after ascription of evidential value thereto. It found no reason to depart from the findings, particularly as it is the trial Court that has the unique privilege of seeing and hearing the witnesses testify and observing their demeanor in the witness box.
The crucial aspect of the offence of terrorism is the creation of intense fear and anxiety, both physical and psychological in the minds of members of the public which has the effect of coercing, forcing, intimidating them to do or abstain from doing any act or to adopt or abandon a particular view, policy or position to act according to certain principles.
The appellant has not been able to puncture the compelling findings of fact made by the trial Court and affirmed by the Court below.
The learned trial Judge rightly debunked the feeble defence of self defence put up by the appellant.
I agree with both Lower Courts that the evidence of the culpability of the appellant was overwhelming and the appellant was rightly convicted. The appellant has failed to satisfy this Court that the reasoning of the Lower Court is perverse.
For these and the reasons stated in greater detail in the lead judgment, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Court below is hereby affirmed.
JOHN INYANG OKORO, J.S.C.: I read in advance the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I agree with both the reasons advanced and the conclusion reached that this appeal is devoid of merit and deserves an order of dismissal. My learned brother has ably resolved the two issues submitted for the determination of this appeal. I adopt the judgment as mine. I also dismiss this appeal for lacking in merit.
AMIRU SANUSI, J.S.C.: I had the advantage of reading in advance, the lead judgment prepared by my learned brother Ejembi Eko, JSC just delivered. His lordship had ably considered all the salient issues raised by the learned counsel to the parties before concluding that this instant appeal is devoid of any merit. I entirely agree with my learned brother Ejembi Eko, JSC that this appeal is unmeritorious of any merit. It is accordingly dismissed by me too.
M. N. Nurudeen, Esq, with him, A. S. Amali, Esq. and M. M. Junaid, Esq. – For Appellant
Charles Ihua-Maduenyi, Esq., with him, Cindy Ihua-Maduenyi, Esq., – For Respondent