CORAM
MARY UKAEGO PETER-ODILI, JUSTICE SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JUSTICE SUPREME COURT
JOHN INYANG OKORO, JUSTICE SUPREME COURT
IBRAHIM MOHAMMED MUSA SAULAWA, JUSTICE SUPREME COURT
SAMUEL CHUKWUDUMEBI OSEJI, JUSTICE SUPREME COURT
PARTIES
ABDULLAHI MUSTAPHA BERENDE
APPELLANTS
FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, CRIMINAL LAW AND PROCEDURES, JUDGMENT AND ORDER, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellant herein was charged along with one Saheed Oluremi Adewumi on a six-count charge of offences relating to acts of terrorism under the Terrorism (Prevention) Act, 2011, as amended (hereinafter referred to as the Terrorism Act). While he was charged in all six counts, his co-accused was charged in counts 5 and 6 only. They pleaded guilty. At the conclusion of the trial, the Appellant was found guilty and convicted on all counts, while the 2nd Accused was found guilty on counts 5 and 6. They were sentenced to 5 years imprisonment on each counts, which sentences are to run concurrently. An appeal to the Court of Appeal, Abuja Division, at the instance of the Appellant was dismissed, hence an appeal to this court.
HELD
Appeal Dismissed
ISSUES
1. Whether the lower Court was right when it affirmed the appellant’s conviction and sentence for acts supporting terrorism under Section 5(1) (a) of the Terrorism (Prevention) Act, 2011, as amended
2. Whether the Justices of the Court below were right in failing to declare as null and void the judgment of the learned trial Judge which failed to state the point or points for determination? (Ground 8)
RATIONES DECIDENDI
‘’This appeal is against concurrent findings of fact by the two lower Courts. It is not the practice of this Court to interfere with such findings unless they are shown to be perverse or to have occasioned a miscarriage of justice. See: MTN Nig. Communication Ltd Vs. Corporate Communication Investments Ltd. (2019) LPELR — 47042(SC) @ 34 – 35C: Woluchem vs Gudi (1981) 5 SC 291 @ 326: Itu vs The State (2016) 5 NWLR (Pt. 1506) 443; Abdulmumini vs F.R.N. (2018) 13 NWLR (Pt. 1635) 106’’. PER K. M. O. KEKERE-EKUN, J.S.C
BURDEN OF PROOF IN CRIMINAL TRIALS – WHETHER THE BURDEN OF PROOF ON THE PROSECUTION IN CRIMINAL TRIALS SHIFTS
‘’Learned counsel on either side have both correctly stated the position of the law regarding the burden on the prosecution to establish the guilt of an accused person beyond reasonable doubt. It is a burden that remains on the prosecution and does not shift throughout the trial. See Section 135(1) of the Evidence Act, 2011, State Vs Onyeukwu (2004) 14 NWLR (Pt. 813) 340: Smart vs The State (2016) 9 NWLR (Pt. 1518) 447 @ 479 – 480 H – A: Hassan vs The State (2016) LPELR – 42554 (SC) @ 27 D- F.
By Section 135(3) of the Act, if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted onto the accused person’’.– PER K. M. O. KEKERE-EKUN, JSC
ERROR IN JUDGMENT- WHETHER EVERY ERROR IN JUDGMENT RESULTS IN THE REVERSAL OF THE DECISION COMPLAINED
‘’The law is quite settled that it is not every error committed by a trial Judge that would result in the reversal of the decision complained of. The error or omission only becomes fatal where the appellant is able to satisfy the Court that it has occasioned a miscarriage of justice. See: Umaru Sani Vs The State (2017) LPELR – 43475 (SC) @ 43 E – F: (2018) 8 NWLR (Pt. 1622) 412: Bayol vs Ahemba (1999) 7 SC (Pt. 1) 92’’.– PER K. M. O. KEKERE-EKUN, J.S.C
DEFENCES – EFFECT OF A TRIAL COURT’S FAILURE TO CONSIDER THE DEFENCES RAISED BY AN APPELLANT
‘’As regards the alleged failure of the trial Court to consider the appellant’s defence, it has been held by this Court that where a trial Court fails to consider defences available to an accused person, an appellate Court is in as good a position as the trial Court to consider the defences, provided that there are facts available on the record to support same. See Annabi vs The State (2008) 13 NWLR (Pt. 1103) 179 @ 201 C – D where His Lordship, Onnoghen, JSC (as he then was) held thus:
“The omission of a lower Court to consider any defences open to an accused/appellant can only be fatal to the decision of that Court if there are available on the record, evidence of facts in support of the alleged defences. Where there is no such evidence… the Court is not allowed to speculate on same. See: Ekpenyong Vs The State (1993) 5 NWLR (Pt 295) 513 @ 522.”
In Shalla vs The State (2007) 18 NWLR (Pt. 1066) 240 @ 271 C- D and 279 – 280 G – C, this Court held thus, per Onu, JSC:
“See the case of Namsoh Vs The State (1993) 5 NWLR (Pt. 292) 129 @ 143 where this Honourable Court held that where a trial Court failed to consider the defence of an accused person, an appellate Court can consider such defence with all available evidence on the record.”
Per Onnoghen, JSC (as he then was):
“It is settled law that where the trial Court failed or neglected to consider the defence of an accused person, an appellate Court is at liberty or under a duty to consider such defence having regard to the evidence on record. It is therefore not every failure of the trial Court to consider the defences opened to an accused person that will be fatal to the case of the prosecution. For such consequence to arise there must be on record, legally admissible evidence in support of the alleged defence(s) as such evidence is what grounds the defence(s) PER K. M. O. KEKERE-EKUN, JSC
GUILT OF AN ACCUSED PERSON – METHODS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON BEYOND REASONABLE DOUBT
‘’My Lords, the law is trite that in establishing the guilt of an accused person beyond reasonable doubt, the prosecution may adopt any of the following methods or a combination thereof:
a) eye-witness account;
b) circumstantial evidence; and/or
c) confessional statement of the accused.
See: Okashetu vs The State (2016) 14 NWLR (Pt. 1534) 126; Stephen vs The State (2013) Vol. 233 LRCN (Pt. 2) 215: Oguonzee vs The State (1998) LRCN 3512 @ 3551; Okudo vs The State (2011) 3 NWLR (Pt. 1234) 209 @ 236 D’’.– PER K. M. O. KEKERE-EKUN, JSC
CONFESSIONAL STATEMENT – WHETHER A CONVICTION CAN BE BASED SOLELY ON A CONFESSIONAL STATEMENT
‘’It is equally firmly settled that a confessional statement alone, once proved to have been voluntarily made, is sufficient to ground a conviction, even though the accused may later resile from it or retract it at the trial. See: Galadima Vs The State (2012) 18 NWLR (Pt. 1333) 610: Egboghonome vs The State (Supra): Okoh vs The State (2014) 8 NWLR (Pt. 1410) 502: Oseni vs The State (2012) 5 NWLR (Pt. 1293) 351; Olanipekun vs The State (2016) 13 NWLR (Pt. 1527) 100’’.– PER K. M. O. KEKERE-EKUN, JSC
CONFESSIONAL STATEMENT- TEST FOR DETERMINING A CONFESSIONAL STATEMENT
‘’The test for considering a confessional statement as laid down in is as follows:
(a) Is there anything outside the statement to show that it is true?
(b) Is it corroborated?
(c) Are the facts stated in it true as far as can be tested?
(d) Did the accused have the opportunity of committing the offence?
(e) Is the confession possible?
(f) Is it consistent with other facts that have been ascertained and proved?
See also: Ikechukwu Okoh Vs The State (2014) 18 NWLR (Pt. 1410) 502: Ojegele vs The State (1988)1 NWLR (Pt. 71) 414: Akpa vs The State (2007) 2 NWLR (Pt. 1019) 500’’.– PER K. M. O. KEKERE-EKUN, JSC
“SUPPORT” – DEFINITION OF “SUPPORT” UNDER SECTION 5 OF THE TERRORISM PREVENTION ACT (AS AMENDED)
‘’Section 5 of the Terrorism Prevention Act (as amended) on which the appellant was charged. For emphasis, I shall quote the said Section 5 thus:-
“Any person knowingly, in any manner, directly or indirectly, solicits or renders support –
(a) for the commission of an act of terrorism or (b) to a terrorist group, commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than twenty years.”
The definition of “Support” under the above mentioned Section of the Act is defined to include dissemination of terrorist information by any means inclusive of electronic or internet means (as done by the Appellant via email communication and code languages), training and identification to terrorists or terrorist groups, provision of information or moral assistance inclusive of invitation to adhere to a terrorist or terrorist group, entering and remaining in a country (Iran and UAE (Dubai) in this case) for the benefit of, or at the direction of or in association with a terrorist group (Iranian Revolutionary Guard Corps in this case)’’.
– PER M. U. PETER-ODILI, JSC
CONFESSIONAL STATEMENT – DUTY OF AN ACCUSED PERSON WHO RETRACTS HIS CONFESSIONAL STATEMENT
‘’It is well settled in law, that an accused who retracts his confessional statement (as the Appellant seemed to do) has a duty without prompting from the prosecution to explain to the Court the reason for his inconsistency, failing which his evidence would be treated as an after-thought. See Adisa Vs. State (2015) All FWLR (Pt. 766)’’. PER M. U. PETER-ODILI, JSC
JUDGMENT OF COURT – PURPORT OF SECTION 308 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT ON THE FORM OF A JUDGMENT OF COURT
‘’ The Court below conceded the fact of this failure on the part of the learned trial judge, a situation provided for under Section 308 of the Administration of Criminal Justice Act which stipulates as follows:-
308(1)
“The Judge or magistrate shall record his judgment in writing and every judgment shall contain the point or points for determination, the decision and the reasons for the decision and shall be dated and signed by the judge or Magistrate at the time of pronouncing it.
308(2)
“The Magistrate instead of writing the judgment may record briefly in the book his decision or finding and his reasons for the decision and then deliver an oral judgment “PER M. U. PETER-ODILI, JSC
JUDGMENT OF COURT – EFFECT OF FAILURE TO OBSERVE THE PROVISIONS OF SECTION 308 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT
‘’The observance of the provisions of Section 308 is mandatory and the breach of the section renders the judgment a nullity. Akwa V Commissioner of Police (2003) 4 NWLR Pt. 811 461. Anyankpele V Nigerian Army (2000) 12 NWLR Pt 684 209 at 226e – 227e; Yakubu V Chief of Naval Staff (2004) 1 NWLR Pt 853, 94; in Samson Aigbe V The State (1976) 9-10 SC 46 at 53’’. PER M. U. PETER-ODILI, JSC
EXPERT OPINION – WHETHER COURTS CAN FORM AN OPINION ON EVIDENCE OF EXPERTS
‘’By virtue of Section 68 of the Evidence Act, opinions of experts are stand-alone evidence upon which the Court can form opinion. Any other fact(s) that has bearing upon an expert opinion only becomes relevant (by virtue of Section 71 of the Evidence Act) if it goes to support or contradict the expert opinion’’. PER M. U. PETER-ODILI, JSC
“TERRORISM” – THE MEANING OF “TERRORISM”
‘’Invariably, the term terrorism denotes the use or threat of violence with a view to intimidating or causing panic, especially as a means of achieving a political (or religious) end. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1776.
It’s trite, that terrorism as a tactic has a very long history. Regardless of the perpetrators (actors) or the motivation thereof, terrorism is always and everywhere (on the planet Earth) in violation of International Law. See The Oxford International Encyclopedia of Peace (2010), edited by Nigel J. Young (2010) @ 145.
The term ‘Terrorism’ is varied and ubiquitous: (i) Domestic Terrorism, denoting terrorism that is carried out against one’s own government or fellow citizens:
Means of attack can range from shooting to arson, bombings, kidnappings, and sabotage.
…Acts of domestic terror have occurred in the United States since the seventeenth century.
See The Oxford Encyclopedia of American Social History (Lynn Dumeniled. 2012) @ 419.
A fortiori, international terrorism primarily occurs outside the territorial jurisdiction, or transcends the national boundaries, of a country by the means it is carried out. See BLACK’S LAW DICTIONARY 11th edition (op cit) @1778. –PER I. M. M. SAULAWA, JSC
CONCURRENT FINDINGS OF THE LOWER COURTS – WHETHER THE SUPREME COURT IS DISPOSED TO INTERFERING WITH THE CONCURRENT FINDINGS OF LOWER COURTS
“Indeed, the law is well settled beyond peradventure, that the Supreme Court does not dispose itself to interfering with concurrent findings of the two Courts below unless such findings are established to be either perverse or have resulted in occasioning a miscarriage of justice. See Woluchem Vs. Gudi (1981) 5 SC 291@ 326; Itu Vs. The State (2016) 5 NWLR (pt. 1506) 443, et al. –PER I. M. M. SAULAWA, JSC
CASES CITED
STATUTES REFERRED TO
Administration of Criminal Justice Act 2015
Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Court of Appeal Rule, 2002
Court of Appeal Rule, 2016
Evidence Act, 2011.
Terrorism (Prevention) Act, 2011 (as amended).