Legalpedia Citation: (2025-04) Legalpedia 19973 (CA)
In the Court of Appeal
GOMBE
Wed Apr 9, 2025
Suit Number: CA/G/48C/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
CHRIS KALU
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATIVE LAW, PENAL CODE, EVIDENCE LAW, CONSPIRACY, UNLAWFUL SOCIETY, JUDICIAL DISCRETION, SENTENCING, APPEAL, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The case revolves around the arrest of the Appellant, Chris Kalu, along with 17 other persons at Baghani Hotel, Maiduguri on September 21, 2021, at midnight. The Appellant and others were allegedly members of the cult group Neo Black Movement of Africa (a.k.a Black Axe) who had gathered for a party and an initiation ceremony for new members.
Disturbances coming from the hotel attracted members of the Civilian Joint Task Force (CJTF), vigilante groups, and hunters who went to the scene and arrested the Appellant and others present. Items recovered included tortoises, razor blades, candles, calabashes, charms, an AK 47 rifle, live ammunition, among others.
At the trial Court, the prosecution called six witnesses and tendered sixty-four exhibits while the Appellant testified in his defense as DW11. The High Court of Borno State, presided over by Hon. Justice Fadawu Umaru, convicted the Appellant on two out of the three count charges of conspiracy to form an unlawful society and belonging to an unlawful society respectively, contrary to Sections 97(1) and 97(b) of the Penal Code, Cap 102, Laws of Borno State, 1994. Following the conviction, the Appellant was sentenced to 6 years imprisonment without an option of fine in the two counts, to run concurrently.
Dissatisfied with this judgment, the Appellant filed an Amended Notice of Appeal on September 23, 2024.
HELD
1. The appeal was allowed in part.
2. The Court held that the conviction of the Appellant for conspiracy was erroneous and set aside the six-year sentence for that count.
3. The Court affirmed the conviction of the Appellant for the offence of belonging to an unlawful society but varied the six-year sentence to commence on September 21, 2019, the date of his arrest.
4. 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 custody forthwith.
ISSUES
1. Whether there was valid declaration in line with Section 97A of the Penal Code Law, Cap 102 Laws of Borno State of Nigeria, 1994 by governor in council thereby criminalizing particular or general activities of the Appellant?
2. Whether the trial Court did not err in law when it held, relying on the extra-judicial statement of the Appellant, that the Appellant confessed to the offences of conspiracy and belonging to the cult group?
3. Whether the punishment is not excessive based on the facts and circumstances of the case?
RATIONES DECIDENDI
DECLARATION OF UNLAWFUL SOCIETY – INTERPRETATION OF GOVERNOR’S POWERS UNDER SECTION 97A OF THE PENAL CODE
“In the context of Section 97A of the Penal Code Law, all that is required is for the Governor’s declaration of a society as unlawful for the order to be clear. It is needless for the Governor to list or name each and every cult group. That would only introduce confusion into the Governor’s order. So much is at once evident: How will the Governor list the name of secret society or societies that would be formed tomorrow or beyond? Such is not the way orders are enacted and Appellant cannot blindfold anyone by putting forth the ridiculous argument that the failure of the Governor’s order to list all the cult groups gives the Governor power to make ‘infinitely elastic’ Executive Order that is unconstitutional.” – Per MOHAMMED DANJUMA, J.C.A.
DETERMINATION OF SECRET CULT OR SOCIETY – LEGAL CRITERIA FOR IDENTIFICATION
“… any organization, association, group or body of persons which acts, operates in a manner similar to a secret cult shall be deemed to be a secret cult under the law…” – Per MOHAMMED DANJUMA, J.C.A.
PRESUMPTION OF MEMBERSHIP – CRITERIA FOR DETERMINING MEMBERSHIP OF SECRET CULT OR SOCIETY
“Furthermore, the law presumes anyone who associates with a secret cult or secret society, give financial support to secret cult or secret society, participates in any activity of a secret cult or secret society, keep or wear their insignia or uses any object associated with a secret cult or secret society as a member of that secret cult or secret society.” – Per MOHAMMED DANJUMA, J.C.A.
CONGRUENCE OF EXECUTIVE ORDERS WITH PRIMARY LEGISLATION – TEST FOR VALIDITY
“Also, must fail the argument that Order No. 1, 2017 is incongruous with the provisions of Section 97A of the Penal Code Law, as the order of Governor derived its power from the Section of the Penal Code Law. The said Section commenced thusly: ‘… pursuant to the power vested in me by Section 97A of the Penal Code Law, Cap. 102, Laws of Borno State of Nigeria, 1994…'” – Per MOHAMMED DANJUMA, J.C.A.
CONFESSIONAL STATEMENTS – SUFFICIENCY OF CONFESSION FOR CONVICTION
“It is settled law that confession alone is sufficient to support conviction even without corroboration so long as the Court is satisfied of the truth of the confession. See the case of EDET OBOSI V. THE STATE (1965) NNLR 119, ACHABUA V. STATE (1976) LPELR-63 (SC). The argument that an accused resiled from his confession is not enough to void the decision of the trial Court. Appellant was caught partying among a group of cultists and had no convincing explanation of what he was doing there. Infantile tales will not save the Appellant from his conduct. I so hold.” – Per MOHAMMED DANJUMA, J.C.A.
VALIDITY OF CONFESSIONAL STATEMENTS – TEST FOR RELIABILITY
“Once a confessional statement is voluntarily made, cogent, unequivocal and admits the essential elements of the offence, the Court is entitled to rely on it. In my considered view, the confessional statement alone was sufficient to secure a conviction in this case. Notwithstanding this fact, the learned trial Judge subjected it to the necessary test before relying on it.” – Per MOHAMMED DANJUMA, J.C.A.
CONSPIRACY CHARGE – DISTINCTION BETWEEN CONSPIRACY TO FORM AND CONSPIRACY TO INITIATE
“Thus, the text of the conspiracy charge is that the Appellant, together with others, ‘conspired to form an unlawful society’. This means the charge in count 1 is conspiracy to form the unlawful society but then from evidence at the trial Court, the Black Axe Cult was already in existence. The cult’s existence predates the Appellant’s and co-accused’s meeting of that night. The learned trial Judge convicted them for conspiracy to initiate members into an unlawful society. This did not tally with the charge which was for conspiracy to form an unlawful society. Appellant and co-accused cannot form what is already formed. The learned trial Judge was therefore in error when he inferred conspiracy from the substantive count of management and or membership of an unlawful organization. I so hold.” – Per MOHAMMED DANJUMA, J.C.A.
EXERCISE OF SENTENCING DISCRETION – PRINCIPLES GUIDING APPELLATE INTERFERENCE
“As rightly pointed out by the learned counsel to the Respondent at paragraph 3.19 of their brief, sentencing is solely at the discretion of the trial Court and unless the trial Court exceeds the statutory provision for punishment, the appellate Court will not interfere. See the case of BASHIR V. FRN (2022) LPELR-58338 (CA) (PP. 39 Paras. A), ISHAKA V. STATE (2022) LPELR-57668 (CA) (PP. 20 Paras. C), MUSA V. FRN (2021) LPELR-56162 (CA).” – Per MOHAMMED DANJUMA, J.C.A.
NATURE AND SCOPE OF JUDICIAL DISCRETION – DEFINITION AND APPLICATION
“Judicial discretion is the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law. It is the Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. In the matters of judicial discretion, since the facts of two cases are not always the same, Courts do not make it a practice to lay down rules and principles that would fetter the exercise of its discretion or the discretion of the lower Courts.” – Per MOHAMMED DANJUMA, J.C.A.
SENTENCING DISCRETION – STANDARD FOR APPELLATE REVIEW
“In the instant case, the offences for which the Appellant was convicted carries a maximum term of 7 years imprisonment. The lower Court, in exercising its discretion, imposed on the Appellant a term of imprisonment of 6 years on each count and that the counts are to run concurrently. It is my considered view that the Appellant who argued that the sentence is excessive, failed to satisfy this Court that the lower Court was in violation of some principles guiding the imposition of sentencing which would warrant the interference of this Court considering the facts and circumstances of the instant case.” – Per MOHAMMED DANJUMA, J.C.A.
CONSISTENT APPLICATION OF APPELLATE DECISIONS – IMPORTANCE OF JUDICIAL PRECEDENT
“The said leading judgment is on the same terms as the previous decision of this Court in the related appeal arising from the same decision of the lower Court in CHARGE NO. BOHC/MG/CR/145/2019: THE STATE vs. ARNOLD AUGUSTINE & ORS delivered on 20th October, 2021. The said previous decision of this Court is reported as AUDI YOHANNA vs. THE STATE (2025) LPELR-80141 (CA).” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ADMISSION OF PRESENCE AT CRIME SCENE – EVIDENTIAL VALUE OF EXTRAJUDICIAL STATEMENTS
“In Exhibit B3, Appellant’s extra-judicial statement, the Appellant stated that: ‘…. On 21/8/2019 I went to the said Hotel at Abuja Sheraton Area. On reaching there, I discovered that there is a group of cult neo black movement head by one Sola name Anold…’ See page 154-155 lines 4-2 of the Record). This piece of evidence placed the Appellant at the scene of the crime.” – Per MOHAMMED DANJUMA, J.C.A.
PARTIAL SUCCESS OF APPEAL – REMEDY IN CRIMINAL APPEALS
“This appeal succeeds in part. Issue two having been resolved in favour of the Appellant, the sentence of 6 years imprisonment for conspiracy is set aside. The conviction of the Appellant for the offence of belonging to an unlawful society is affirmed and the six-year sentence imposed on the Appellant is varied to commence on the 21st day of September, 2019, the date of his arrest. If however the said six-year term of imprisonment commencing on 21st September, 2019 as varied has already run its course, then the Appellant should be released from custody forthwith.” – Per MOHAMMED DANJUMA, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Penal Code Law, Cap 102, Laws of Borno State of Nigeria, 1994
• 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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