LUCKY AJARIKRE v. THE STATE
June 5, 2025FELICIA AKINBISADE VS THE STATE
June 5, 2025Legalpedia Citation: (2025-04) Legalpedia 35348 (CA)
In the Court of Appeal
GOMBE
Wed Apr 9, 2025
Suit Number: CA/G/66C/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
ONUEGBU GODSPOWER CHIBUZO
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, PENAL CODE, CONSPIRACY, UNLAWFUL SOCIETY, CULTISM, EXECUTIVE POWERS, STATUTORY INTERPRETATION, CONSTITUTIONAL LAW, EVIDENCE, SENTENCING, JUDICIAL DISCRETION
SUMMARY OF FACTS
The Appellant, Onuegbu Godspower Chibuzo, was convicted alongside 16 others by the High Court of Justice, Borno State on October 20, 2021, for the offences of criminal conspiracy and management or membership of unlawful society under Sections 97(1) and 97(b) of the Penal Code Law, Cap. 102, Laws of Borno State, 1994. The Appellant was sentenced to six years imprisonment on each count, to run concurrently.
The case against the Appellant was that on September 21, 2021, he and others, allegedly members of a cult group known as Neo Black Movement of Africa (also known as Black Axe), converged at Baghami Hotel, Maiduguri, at midnight for a party and an initiation ceremony for new members. During the event, they fired gunshots which attracted members of the Civilian Joint Task Force (CJTF), vigilante, and hunters who went to the scene and arrested the Appellant and others.
Investigation revealed that the mode of initiation into the cult involved cutting the thumb finger of new members and licking the blood oozing forth. Items recovered at the scene included an AK47 rifle, razor blades, candles, charms, neo black movement stickers, and live ammunition.
The prosecution called six witnesses and tendered sixty-four exhibits at trial. The Appellant testified in his defense as DW7. Following the exchange of written addresses, the trial Court delivered its judgment on October 20, 2021, convicting the Appellant. Dissatisfied with the decision, the Appellant appealed to the Court of Appeal on December 24, 2021.
HELD
1. The appeal succeeded in part.
2. The Court held that the Cultism and Cult Related Activities (Group Dangerous to Peace, Security and Good Governance of Borno State) (Declaration) Order No. 1, 2017, was not incongruous to Section 97 of the Penal Code Law. The Governor’s declaration was valid and enforceable.
3. The Court found that the trial Court erred in convicting the Appellant for conspiracy to form an unlawful society, as the organization in question (Neo Black Movement of Africa/Black Axe) was already in existence and could not be “formed” by the Appellant and others. The conviction on the count of conspiracy was therefore set aside.
4. Regarding the conviction for membership of an unlawful society, the Court held that the prosecution had proven this offense beyond reasonable doubt, and upheld the conviction.
5. On the issue of sentencing, the Court found that the trial Court had exercised its discretion appropriately in sentencing the Appellant to six years imprisonment.
6. The Court ordered that the Appellant should serve out his sentence of six years imprisonment starting from the date of his arrest (September 21, 2019). The Appellant should be released immediately from custody upon serving out the said term of six years’ imprisonment.
ISSUES
1. Whether there was a valid declaration in line with Section 97A of the Penal Code Law, Cap 102 Laws of Borno State of Nigeria, 1994 by the governor in council thereby criminalizing particular or general activities of the Appellant?
2. Whether the trial Court erred 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 excessive based on the facts and circumstances of the case?
RATIONES DECIDENDI
UNLAWFUL SOCIETIES – SCOPE OF GOVERNOR’S DECLARATION UNDER SECTION 97A OF THE PENAL CODE LAW
“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 to be clear. It is mischievous of the Appellant to argue that the Governor must list every cult group by name for the order to be valid. The provisions of the order are clear enough and there is nothing ‘infinitely elastic’ about the order.” – Per MOHAMMED DANJUMA, J.C.A.
UNLAWFUL SOCIETIES – SCOPE OF GOVERNOR’S DECLARATION UNDER SECTION 97A OF THE PENAL CODE LAW
“Furthermore, the law presumes anyone who associates with a 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.
CONSTITUTIONAL BASIS FOR GOVERNOR’S DECLARATION OF UNLAWFUL SOCIETIES
“Also, the order made by the Governor has constitutional backing in that the Constitution of the Federal Republic of Nigeria provides that the security and welfare of the people is the primary function of government. See Section 14(2) of the Constitution of the Federal Republic of Nigeria.” – Per MOHAMMED DANJUMA, J.C.A.
ESSENTIAL ELEMENTS OF CONSPIRACY – WHAT PROSECUTION MUST PROVE
“The essential elements of conspiracy are meeting of minds, a covert act in line with the intended crime and the individual participation of all the accused person. Thus, the Supreme Court held in OBIAKOR V. STATE (2002) 6 SC (Pt. 11) 33 at 39-40, that to establish the offence of conspiracy, the prosecution needs to prove that (a). there was an agreement between the accused persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means. (b) that some act beside the agreement was done by one or more of the accused persons in furtherance of the agreement and (c) that each of the accused persons individually participated in the conspiracy.” – Per MOHAMMED DANJUMA, J.C.A.
IMPOSSIBILITY OF CONSPIRING TO FORM AN ALREADY EXISTING UNLAWFUL SOCIETY
“However, Neo Black Movement of Africa (Black Axe) is an old organization which predates the meeting. Thus, accusation of conspiring ‘amongst yourselves to form an unlawful society’ cannot be sustained in law. You cannot ‘form’ what is already formed. The lower Court thus erred when it found the Appellant guilty of belonging to an unlawful society and then turned around to find the Appellant guilty of conspiring among others to form an unlawful society.” – Per MOHAMMED DANJUMA, J.C.A.
SENTENCING PRINCIPLES – DISCRETION OF THE TRIAL COURT
“Sentencing is solely a matter of discretion of Court and like in all matters of discretion, the Court must exercise its discretion judicially and judiciously. A Court of equity must be fully appraised of facts relevant for the exercise of its discretion otherwise, it will be in breach of the principles upon which it can properly act if it were to exercise that discretion.” – Per MOHAMMED DANJUMA, J.C.A.
NATURE OF THE OFFENCE OF CONSPIRACY – HOW IT IS PROVED
“Now, conspiracy is embedded in the agreement or plot between the parties. It is deduced from the act of the parties which is focused towards the realization of the common or mutual criminal purpose. Usually, the inference is drawn by the Court from the established evidence in the consideration of the offence of conspiracy.” – Per MOHAMMED DANJUMA, J.C.A.
INTERPRETATION OF SECTION 97A OF THE PENAL CODE – WHAT CONSTITUTES UNLAWFUL SOCIETIES
“Now, Section 97A of the Penal Code deals with unlawful societies generally, which include cult groups by ‘whatever name they are called’, as long as their activities come under those envisaged and prohibited by the order. The Respondent, as prosecution, led evidence on how the Appellant and others cut their thumbs and suck at the blood coming out of the cut, using various fetishes and firing shots from AK47 Riffle at the party or initiation ceremony. No doubt this is the hallmark of secret societies and cults.” – Per MOHAMMED DANJUMA, J.C.A.
COMPUTATION OF SENTENCE – CONSIDERATION OF PERIOD SPENT IN CUSTODY
“Appellant had been in detention since 21st September, 2019 when he was arrested. On 20th October, 2021, Appellant was sentenced to six years imprisonment without an option of fine. It is my considered view that the Court below used its discretion appropriately. I so hold. This appeal succeeds in part. Appellant should serve out his sentence of six (6) years imprisonment starting from the date of his arrest. i.e. 21st September, 2019. He should be released immediately from custody upon serving out the said term of six years’ imprisonment.” – Per MOHAMMED DANJUMA, J.C.A.
RELIANCE ON PREVIOUS DECISION ON SIMILAR ISSUES
“In one of the related appeals in which the same issues as in this appeal were canvassed, this Court in its judgment delivered on 29th January, 2025 allowed the said appeal in part. The said decision is reported as AUDI YOHANNA vs. THE STATE (2025) LPELR-80141 (CA). My learned brother, Mohammed Danjuma, JCA, obliged me with an advance copy of the lead judgment which has just been delivered in this matter, and it is on the same terms as in the said previous decision in AUDI YOHANNA vs. THE STATE (supra). I remain allegiant to the reasoning and conclusion and the way the issues for determination were resolved.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
REQUIREMENTS FOR VALID CONFESSIONAL STATEMENTS
“Learned counsel to the Appellant, citing the case of OSHIM VS. THE STATE (2014) LPELR-23142, among several others, submitted that a confessional statement is a matter of fact and not law. That a confessional statement must be clear, precise and unequivocal and that in considering whether a statement qualifies as a confessional statement, a trial Court must examine the totality of the statement.” – Per MOHAMMED DANJUMA, J.C.A.
VALUE OF CIRCUMSTANTIAL EVIDENCE IN PROVING CONSPIRACY
“I posit with humility that circumstantial evidence may be even more powerful than direct evidence in certain cases as held in State V. Sunday (2019) LPELR-46943 (SC), that it is settled that circumstantial evidence requires an inference to be made to establish a fact and in certain cases, circumstantial evidence may be even more powerful than direct evidence, which proves or disproves a fact… Circumstantial evidence is very often the best evidence and it is sufficient to support a conviction.” – Per MOHAMMED DANJUMA, J.C.A. (quoting ONWUTA V. STATE OF LAGOS (2022) LPELR-57962 (SC))
REQUIREMENT FOR PRECISE DEFINITION OF CRIMINAL OFFENSES
“It is unconstitutional for any law to be imprecise and or give the Governor power to make infinitely elastic executive order in the manner exercised by the Governor’s declaration subject of this ground of appeal. He cited the case of COL. S.S. IBRAHIM V. THE NIGERIAN ARMY (2015) LPELR-24596, and Section 36(12) of the Constitution, to submit that every crime must be defined with precision.” – Per MOHAMMED DANJUMA, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Penal Code Law, Cap. 102, Laws of Borno State, 1994 (Sections 97(1), 97(b), and 97A)
• Cultism and Cult Related Activities (Group Dangerous to Peace, Security and Good Governance of Borno State) (Declaration) Order No. 1, 2017
• Constitution of the Federal Republic of Nigeria, 1999 (as amended) – Sections 14(2) and 36(12)
