Legalpedia Citation: (2025-01) Legalpedia 69298 (CA)

In the Court of Appeal

Holden at Gombe

Wed Jan 29, 2025

Suit Number: CA/G/49C/2022

CORAM

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

PARTIES

AUDI YOHANNA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, CRIMINAL LAW, PENAL CODE, UNLAWFUL SOCIETY, CONSPIRACY, CULTISM, EVIDENCE, CONFESSIONAL STATEMENT, SENTENCING, JUDICIAL DISCRETION, APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant was one of eighteen accused persons charged before the High Court of Borno State in Charge No. BOHC/MG/CR/145/2019. The Appellant was the 15th accused person at the trial. The accused persons were charged on three counts: conspiracy to form an unlawful society known as Neo Black Movement of Africa (Black Axe); belonging to an unlawful society; and possession of criminal charms. These offenses are contrary to Sections 97(1), 97B, and 217 of the Penal Code, Cap. 102, Laws of Borno State, 1994.

In proof of the charges, the Prosecution called six witnesses and tendered sixty-four exhibits, while the Appellant and other accused persons testified in their own defense without calling additional witnesses. At the conclusion of the trial, the lower Court, in its judgment delivered on October 20, 2021, discharged the Appellant on the third count of possession of criminal charms but convicted him on the counts of conspiracy and belonging to an unlawful society. The Court sentenced the Appellant to six years imprisonment on the two counts, with the prison terms running concurrently from the date of judgment.

Dissatisfied with the decision, the Appellant filed an appeal on December 24, 2021, on six grounds challenging the judgment of the lower Court.

HELD

1. The appeal was allowed in part.
2. The Court set aside the Appellant’s conviction for the offence of conspiracy under Count One, as the evidence showed that the unlawful society already existed and the Appellant and others were already members, rather than conspiring to form it as charged.
3. The Court affirmed the Appellant’s conviction for belonging to an unlawful society under Count Two, as the evidence sufficiently established this offence beyond reasonable doubt.
4. The six-year imprisonment term was upheld but varied to commence from September 21, 2019 (the date of arrest) rather than from the date of judgment, taking into consideration the time the Appellant had spent in custody during the trial.
5. The Court ordered that if the six-year term of imprisonment commencing on September 21, 2019, had already run its course, the Appellant should be released from the Correctional Centre forthwith.

ISSUES

The Court of Appeal reformulated the issues into a single expansive issue:

“Whether the offences of conspiracy and management and membership of an unlawful society were proved beyond reasonable doubt to warrant the Appellant’s conviction and if in the affirmative, whether the sentence imposed by the lower Court is excessive and based on wrong principles of law.”

RATIONES DECIDENDI

PRESUMPTION OF INNOCENCE – ONUS OF PROOF IN CRIMINAL CASES

Our adversarial criminal justice system is accusatorial, and the Prosecution has the onus of proving the commission of the crime charged. This is so on account of the provisions of Section 36 (5) of the 1999 Constitution, as amended, which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is the cardinal principle of law which requires the Prosecution to prove the commission of the crime by the person charged with a criminal offence. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PROOF BEYOND REASONABLE DOUBT – MEANING AND STANDARD

Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: ‘of course it is possible, but not in the least probable’, then the case is proved beyond reasonable doubt. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PROOF BEYOND REASONABLE DOUBT – CLARIFICATION OF THE CONCEPT

Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. The expression does not connote any ungainly and abstract construction or understanding. A priori, it is a concept founded on reason and rational and critical examination of a given set of facts and the law rather than a fanciful, whimsical, or capricious and speculative doubt. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UNLAWFUL SOCIETY – DECLARATION BY EXECUTIVE ORDER

A society by the stipulation of Section 97A of the Penal Code Law becomes an unlawful society because the Governor has so declared it. By the clear and unambiguous words of Section 97A, it does not have to be first shown that a society is dangerous to good governance before it becomes an unlawful society. A society is an unlawful society because the Governor has so declared it to be a society that is dangerous to the good governance of Borno State or any part thereof. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

INTERPRETATION OF EXECUTIVE ORDER – APPLICATION OF PLAIN MEANING RULE

The accepted canon of interpretation of statutes and enactments is that where the words employed are plain, clear, and unambiguous, they are to be given their plain, ordinary, and natural grammatical meaning unless where to do so would lead to absurdity. The words used in Section 97A of the Penal Code Law and the Executive Order are plain and univocal, and giving the words used their plain and ordinary natural meaning, it is not necessary that the name of every society declared an unlawful society be set out in the Executive Order. It covers the field when the Executive Order having set out the conduct and activities of the society, it is directed at, included the phrase ‘by whatever names they are called.’ – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

METHODS OF PROVING GUILT – CLASSIFICATION

It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:

1. By reliance on a confessional statement of an accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses. –Per UGOCHUKWU ANTHONY OGAKWU, J.C.A

CONFESSIONAL STATEMENT – PROBATIVE VALUE

Now, there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

RETRACTED CONFESSIONAL STATEMENT – ADMISSIBILITY AND TEST FOR VERACITY

The law is that the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not render the statement inadmissible in evidence. The accused person can still be convicted based on such retracted confessional statement provided that the Court first applies the test for determining the veracity or otherwise of the confessional statement. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVALUATION OF EVIDENCE – ROLE OF APPELLATE COURT

It is hornbook law that the evaluation of evidence and ascription of probative value thereto is in the province of the trial Court, which had the opportunity of hearing the testimony of the witnesses and observing their demeanour and an appellate Court would not ordinarily interfere with the findings of a trial Court in this regard unless the same is shown to be perverse.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONSPIRACY CHARGE – PROOF AND SPECIFIC EVIDENCE REQUIRED

It is clear from the above that the evidence adduced is that the Black Axe society was already in existence. The Appellant and the others were already members of the society, and they met to initiate new members into the society. The lower Court convicted them for conspiracy to initiate members into an unlawful society. This is at variance with the charge which was for conspiracy to FORM an unlawful society. The lower Court was therefore wrong to infer conspiracy to form an unlawful society from proof of the offence of belonging to an unlawful society charged in Count Two. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUDICIAL DISCRETION IN SENTENCING – PRINCIPLES

It is abecedarian law that a Court has a wide discretion in the imposition of sentence, but that discretion must be exercised judiciously and judicially. Judicial discretion is a vital tool in the administration of justice. It is a sacred power which inures to a Judge. In matters of judicial discretion, since the circumstances of no two cases are the same, rules and principles are not laid down in a manner that would fetter the discretion of the Court. When as in this case a mandatory sentence has not been provided by law, the lower Court has the discretion on the term of imprisonment to impose. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

INTERFERENCE WITH SENTENCE – WHEN APPELLATE COURT WILL INTERVENE

An appellate Court will not interfere with a sentence imposed at nisi prius unless it is manifestly excessive in the circumstances or wrong in principle.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

AIM OF SENTENCING – JURISPRUDENTIAL CONSIDERATIONS

The aim of sentencing is retribution, deterrence, reformation, and protection of society. The retributive aspect is designed to express public revulsion from the offence and to punish the offender for his wrong conduct, while deterrence is to discourage the convict from further offences as well as potential offenders from committing offences. Reformation aims on reintegrating the offender into society for honest living. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code, Cap. 102, Laws of Borno State, 1994
3. Evidence Act, 2011
4. Cultism and Cult Related Activities (Group Dangerous to Peace, Security and Good Governance of Borno State) Declaration Order No. 1, 2017

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