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
TOTSI SAMUEL
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, CONSTITUTIONAL LAW, PENAL CODE, CONSPIRACY, UNLAWFUL SOCIETY, CULTISM, EXECUTIVE POWERS, STATUTORY INTERPRETATION, EVIDENCE, SENTENCING, JUDICIAL DISCRETION
SUMMARY OF FACTS
The Appellant, Totsi Samuel, was convicted alongside 16 others by the High Court of Justice, Borno State on October 20, 2021, for the offences of criminal conspiracy and 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, alleged to be members of a cult group known as Neo Black Movement of Africa (Black Axe), converged at Bhagali Hotel, Maiduguri, at midnight for a party. During the party, gunshots were fired, which attracted members of the Civilian Joint Task Force (CJTF), vigilante, and hunters who went to the scene and arrested the Appellant and others.
At the trial, the prosecution called six witnesses and tendered sixty-four exhibits, while the Appellant testified in his defense. Following the exchange of written addresses, the trial Court delivered its judgment convicting the Appellant. Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal on December 24, 2021, filing a Notice and Grounds of Appeal containing six grounds.
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 97A 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, and there was no basis to interfere with this sentence.
6. The Court ordered that the Appellant should serve out his six-year sentence for belonging to an unlawful society, commencing from the date of his arrest (September 21, 2019). If the six-year term had already been completed, the Appellant should be released from custody forthwith.
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:
CONSTITUTIONALITY OF GOVERNOR’S DECLARATION – REFUTATION OF “INFINITELY ELASTIC” ARGUMENT
“And contrary to the contention of the Appellant, such power vested on the Governor cannot be said to be ‘infinitely elastic’ and therefore unconstitutional.” – Per MOHAMMED DANJUMA, J.C.A.
PRESUMPTION OF MEMBERSHIP IN SECRET CULT – ACTS CONSTITUTING EVIDENCE OF MEMBERSHIP
“Furthermore, in LAWRENCE V. STATE (2022) LPELR-58769 (CA) P. 13 PARA. C-E, it was held that the law presumes anyone who associate with a secret cult or secret society, give financial support to a secret cult or participates in any activity of a secret cult, retain insignia or uses any object associated with a secret cult or secret society will be treated as a member of the cult or society.” – Per MOHAMMED DANJUMA, J.C.A.
RELATIONSHIP BETWEEN GOVERNOR’S ORDER AND PENAL CODE LAW
“It is stretching the imagination too far to argue that Order No. 1, 2017 is incongruous with the provisions of Section 97 of the Penal Code Law, when in fact the order of the Governor solely derived its power from the section of the Penal Code Law: ‘… 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.
IMPOSSIBILITY OF CONSPIRACY TO FORM AN ALREADY EXISTING UNLAWFUL SOCIETY
“From the text of the conspiracy charge, it is clear that the Appellant and other ‘conspired’ to form an unlawful society. The charge therefore, is conspiracy to ‘Form’ the Black Axe Cult. However, from the evidence adduced before the trial Court, the Black Axe Cult group’s existence pre-dates the party at Baghani Hotel Maiduguri of that fateful night. If the evidence before the trial Court is anything to go by, then the Appellant and others were already members of the Black Axe Cult. They mere meet to initiate new members into the cult.” – Per MOHAMMED DANJUMA, J.C.A.
VARIANCE BETWEEN CHARGE AND EVIDENCE IN CONSPIRACY
“The learned trial Judge convicted the Appellant and others for conspiracy to initiate members into an unlawful society but the charge was for conspiracy to ‘form’ an unlawful society from proof of the offence of belonging to an unlawful society charged in count two. The evidence form which proof of conspiracy charge was inferred is at variance with the conspiracy charge and the learned trial Judge was in error when he convicted the Appellant on the conspiracy charge.” – Per MOHAMMED DANJUMA, J.C.A.
SENTENCING PRINCIPLES – DISCRETION OF THE TRIAL COURT
“It is settled law that sentencing of an accused person, where the statute permits, is discretionary and a trial Court is vested with the discretion to determine the appropriate punishment due to an accused based on the facts and circumstances of each case. It cannot be at large nor can it be exercised in vacuo.” – Per MOHAMMED DANJUMA, J.C.A.
APPELLATE COURT’S POWER TO REVIEW SENTENCES – LIMITS OF INTERFERENCE
“In the case of BASHIR V. FRN (2022) LPELR-58338 (CA) (PP. 39 PARAS. A), it was held that ‘the issue of sentencing is within the discretion of the trial Court unless the trial Court exceeds the statutory provision for punishment, the appellate Court will not interfere’.” – Per MOHAMMED DANJUMA, J.C.A.
ASSESSMENT OF TRIAL COURT’S SENTENCING DISCRETION
“The offences for which the Appellant was charged carries a maximum term of 7 years of imprisonment each. However, the lower Court magnanimously imposed the sentence of 6 years of imprisonment for each of the count and that the terms of imprisonment are to run concurrently. I am sorry to say that the Appellant has not put anything before this Court to warrant the Court interfere with the discretion of the trial Court and I so hold.” – Per MOHAMMED DANJUMA, J.C.A.
COMPUTATION OF SENTENCE – CONSIDERATION OF PRE-CONVICTION DETENTION
“Having set aside Appellant’s conviction for conspiracy and affirmed his conviction for the offence of belonging to an unlawful society, Appellant is to serve out the six-year sentence imposed on him by the lower Court on the substantive count commencing on the 21st day of September, 2019, the day of his arrest. If however the said six-year term of imprisonment commencing on 21st September, 2019 has already run its course, then the Appellant should be released from custody forthwith.” – Per MOHAMMED DANJUMA, J.C.A.
CONCURRENCE WITH LEAD JUDGMENT
“I have had the advantage of a preview of the leading judgment just delivered by my learned brother, Mohammed Danjuma, JCA. I totally agree with all the views of His Lordship that this appeal ought to be allowed in part. I therefore, accordingly allow the appeal in part too. I abide by all the consequential orders in the leading judgment of my learned brother.” – Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DETERMINATION OF CULTIC ACTIVITIES – EVIDENCE OF RITUAL PRACTICES
“Section 97A of the Penal Code Law, Laws of Borno State, 1994, concerns unlawful societies and this includes cult groups ‘by whatever name they are called’ so long as their activities fall under those envisaged by the said order. Appellant and co-accused persons were caught at a party were charms, calabashes, tortoises and at least 1 riffle were on display. They also partook in the blood oath. All these are hallmark of a cult no doubt.” – Per MOHAMMED DANJUMA, J.C.A.
DEFINITION OF SECRET CULT – JUDICIAL INTERPRETATION
“In the case of STATE V. LAMBERT (2022) LPELR-58543 (CA) P. 13 PARA. C-E, this Court held thus: ‘… 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.
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)