ABDULMUMINI
V.
F.R.N.

(2017) JELR 53343 (SC)

Supreme Court 8 Dec 2017 Nigeria
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- The appellant and several others were charged with conspiracy to commit terrorist acts, illegal possession of firearms, and the commission of terrorist acts. - The appellant was convicted and sentenced to 2 years and 10 years imprisonment

Case Details

Suit Number:SC. 772/2014 FRIDAY, 8 DECEMBER 2017
Judges:MUSADATTIJO MUHAMMAD JSC (Presided) KUDIRAT M. OLATOKUNBO KEKERE-EKUN JSC JOHN INYANG OKORO JSC AMIRU SANUSI JSC EJEMBI EKO JSC (Read the Lead Judgment)
Counsel:M.N. Nurudeen, Esq. (with him, A. S.Amali, Esq. and M. M. Junaid, Esq.) - for the Appellant. -*- Charles Ihua-Maduenyi, Esq. (with him, Cindy Ihua- Maduenyi, Esq.) - for the Respondent. E -*- EKO JSC (Delivering the Lead Judgment): Several persons were arraigned before, and tried at the Federal High Court, Jos, -*- for conspiracy to commit terrorist acts punishable under section F -*- 5 of the Criminal Code Act, Cap. C38, LFN 2004, illegal possession of firearms punishable under section 5 of the same Criminal Code Act and the commission of terrorist acts punishable under section 15(2) of the Economic and Financial Crimes G -*- Commission (Establishment) Act, 2004. The alleged criminal acts -*- were committed on or about 8 March 2008 in and around Jos and its environs, including Mangu Local Government Area of Plateau State. The appellant featured in the first and third charges, which -*- respectively accused him and others of conspiracy to commit H -*- terrorist acts and committing terrorist acts. In these two charges he was the 7th and 9th accused in the 1st and 3rd charges -*- respectively. All the accused persons, including the appellant herein, were convicted for the .two offences alleged in the 1st and 3rd charges. They were each sentenced to 2 years and 10 years imprisonment for committing the said offences of criminal conspiracy to commit terrorist acts and the commission of terrorist acts respectively. -*- That is: this court will ordinarily, not interfere with concurrent findings of fact by the trial court and the intermediate court, unless it is shown that such concurrent findings of fact are -*- perverse. This is the established attitude of this court in both criminal and civil appeals, as can be seen from the decisions of this court (just to mention a few) in Dan Awaza Bashaya & Ors. v. The State (1998) 4 SC 199, (1998) 5 NWLR (Pt. 550) 351; A. -*- Ola Yesufu v. Robinson Oluseyi Adama (2010) All FWLR (Pt. -*- D 524) 69, (2010) 5 NWLR (Pt. 1188) 522 SC; Elizabeth -*- Ogundiyan v. The State (1991) 4 SCNJ 44, (1991) 3 SC 100. Without any clear evidence of errors in law or fact leading to, or occasioning miscarriage of justice, this court will not interfere -*- with the concurrent findings. This is how Obaseki JSC had emphasised the point in Ogundiyan v. The State; -*- A decision is said to be perverse when - -*- “(a) it runs counter to the evidence before the court, as -*- (b) it is not supported by the evidence adduced, or -*- (c) where it has been shown that the court took into -*- account extraneous matters, or matters it ought not to have taken into account or shuts its eyes to the obvious; or -*- (d) when it has occasioned a miscarriage of justice”. -*- See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 SC; -*- Ikolo v. Uka (2002) 14 NWLR (Pt. 786) 195 SC. A perverse decision is one said to be persistent in error, different from what is reasonably required of a court of justice. -*- I must, at this juncture say, as Karibi-Whyte JSC did say in -*- Anthony Imafidon v. Sunday Igbinosun (2001) 4 SC (Pt. 1) 96, -*- (2001) 8 NWLR (Pt. 716) 653, that findings of fact are not -*- sacrosanct. Where the conclusions made from the findings are A -*- not supported by evidence relied upon; or the proper conclusions or inferences are not drawn from the evidence, or where the trial court failed to evaluate (or properly evaluate) the evidence, the -*- appellate court will, in the interest of justice, be free to do so. In B -*- such a situation, the appellate court is entitled to evaluate the -*- evidence and come to the right decision supported by the evidence. This duty of re-evaluation is what the appellant herein alleges, in his issue 2, that the lower court had abdicated in his appeal before it. C -*- To succeed in an appeal, the onus is squarely on the appellant to satisfy the appellate court that the decision or judgment he had appealed was wrong. He discharges this onus by showing in what -*- respects the decision appealed was wrong. He has to discharge this onus because the decision appealed is presumed, under D -*- section 168(1) of the Evidence Act, 2004, to be valid and subsisting until set aside. If the appellant fails to discharge this burden, his appeal is bound to be dismissed. See Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1; Ogologo v. Uche (2005) All FWLR E -*- (Pt. 281) 1679, (2005) 14 NWLR (Pt. 945) 226 at 246. -*- Appellant’s issue 1 was argued at pages 3 - 11 of the -*- appellant’s brief of argument. He strained himself to show that PW1’s evidence was hearsay while the evidence of PW2 and -*- PW3 were manifestly improbable and unbelievable. The sum F -*- total of his submissions under issue 1 is that the charge of terrorism punishable under section 15 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 (EFCC Act), was not proved to warrant the conviction of the appellant G -*- therefor and the affirmation of the same by the lower court. -*- Thereafter he proceeded to narrating, under issue 1, how the DW1’s evidence shows that the Fulani herdsmen, one of whom is the appellant were victims of Berom attack, how they wanted to -*- escape and found themselves surrounded by soldiers who shot H -*- and killed one of them. One could read in between the lines that the appellant flirted with defence of property or self-defence to -*- justify the admission by the DW1 that they (as accused persons) held “those guns for the protection of our cattle”, and that their houses were burnt. Appellant’s counsel then concluded with the submission that “surely the charge of terrorism, at least, would have been ridiculous since the appellant cannot be punished by law when he and his people were victims guarding their homes”. -*- There was no attempt made to discredit the empirical findings of fact by the trial court, supported by credible evidence of prosecution witnesses (particularly PW’s 2 and 3), who were -*- eye witnesses, and the extra-judicial statements of the accused persons that they were wielding dangerous weapons with which they audaciously attacked the patrolling soldiers who were on official and lawful assignment at the particular time. At pages -*- 102 and 103, the trial court made the following findings of fact -*- which the appellant has not challenged. That is - -*- “(3) At about that time in Mangu Local Government Area and the environs, all the accused persons were seen together armed with dangerous weapons. -*- (4) Soldiers on security alert accosted the accused persons and shots were fired at each other between the accused persons and the soldiers. -*- (5) As a result of the shooting, one person among the accused persons, was shot dead and one soldier was -*- injured from the shots fired by the accused persons -*- and he was treated at JUTH, Plateau State. -*- (6) As a result of the superior fire power of the soldiers, the accused persons were arrested together with their -*- weapons and taken to the Police Stations”. -*- The unchallenged evidence of PW2, an eye witness, supports -*- these specific findings of fact. The PW3, the soldier shot by the accused persons, testified, undiscredited, that when the soldiers accosted the accused persons, including the appellant, the accused -*- persons not only stubbornly refused to heed the soldiers’ pleas - -*- to them to stop the violence, they shot at the soldiers injuring one of them (the PW3). They exchanged fire with the soldiers. One -*- of them was shot dead before they eventually surrendered to the A soldiers, and their weapons taken from them. The weapons were subjected to ballistic test and found, in exhibit B, to be active firearms that were “used and fired on or about the time of the -*- arrest of the accused persons”. B -*- The evidence of PW3 was not a hearsay evidence contrary -*- to the unsubstantiated submission of the appellant’s counsel. It is not correct, as submitted by the appellant’s counsel that the evidence of PW2 and PW3, who clearly were eyewitnesses, were -*- pieces of hearsay evidence. C -*- I had earlier highlighted the specific findings of fact made at pages 102 and 103 by the trial court. The court below, correctly in my view at page 279 of the record, affirmed these specific -*- findings of facts. -*- The appellant was only concerned with the 1st and 3rd D -*- charges. That is, the alleged conspiracy to commit or do terrorist acts and committing terrorist acts. He was respectively the 7th and 9th accused person in the first and third charges. -*- In respect of the conspiracy to commit terrorist act, forming E the substance of the first charge, the trial court found, from the extra-judicial statement of the appellant, the 7th accused, that -*- he admitted being in possession of dangerous weapon at the time of arrest. The evidence of PW2 and PW3 confirm this fact. -*- Exhibit B establishes the fact that the weapon was an active F -*- firearm. The DW1, under cross-examination also attested to this fact. The appellant, at the material time, was an active member of a group of 16 men exchanging gun fire with soldiers on lawful -*- duty. It is on the totality of these facts that the trial court found G him guilty of the alleged conspiracy to commit terrorist acts. It found further that the group of 16, the appellant was a member -*- of, by their action, “were out to commit an unlawful purpose or that they had already done so” and that they - -*- “had an opportunity to meet together to agree to H -*- commit an unlawful purpose. The matter is more convincing given how close to the place where they -*- were arrested to burnt houses where people were killed. From the conduct of the accused persons, it can be inferred that they conspired to commit an unlawful purpose and thereby draw that inference.” The court below affirmed this inference from the circumstances of the case. This cannot be faulted. The appellant, -*- as a matter of fact, did not offer any attack, albeit feeble, to challenge the inference drawn from the surrounding circumstances, that he, the appellant, (the 7th accused), was guilty of conspiracy -*- to do an unlawful purpose with 15 others. The law enjoins the prosecutor to prove the conspiracy laid out in the charge and that the persons charged were those engaged in it. While the proof of the actual agreement is desirable, though always a difficult task; -*- courts usually consider it sufficient if conspiracy is established -*- by evidence from which the court would consider it safe and -*- reasonable to infer or presume the conspiracy. See Daboh v. The State (1977) 5 SC 122, (1977) All NLR 146. In my considered opinion, the trial court drew the right or correct inference from -*- the surrounding circumstances. The lower court was therefore right when it affirmed the finding that conspiracy to do an unlawful purpose was established against the appellant and the others in the group accosted and arrested by the soldiers. -*- The submission of the appellant’s counsel that PW2 and -*- PW3 gave hearsay evidence has no substance. I had earlier, on -*- analysis, come to the conclusion that the two gave eyewitness account, as opposed to hearsay evidence. -*- The trial court, from the evidence of the PW2 and PW3, G DW1 and the extra-judicial statements of the accused persons, found that at the material time the appellant with others were -*- armed with dangerous weapons, including dane guns, in the vicinity where damage to property had taken place. That their motive was to intimidate and instill fear on the members of the -*- H public or a particular segment thereof. Upon believing the PW2 -*- and PW3, the trial court further found and held that - -*- “the accused persons were carrying those weapons and -*- actually shot at the soldiers and caused (injury) to one A -*- of the soldiers - In the circumstance, the argument of the defence counsel that the accused persons were not actually caught shooting and killing anybody is -*- inconsequential, so long as their disposition is capable B -*- of constituting fear to members of the public or an -*- attempt so to do.” -*- These findings and conclusions by the trial court were affirmed by the court below as a product of its earlier evaluation whereby it ascribed probative value to the evidence before it. The C findings and conclusions can hardly be faulted. I do not find from -*- the appellant’s brief of argument where any serious minded attempt was made to fault them. -*- It is the primary function of the trial court to evaluate the evidence before it and ascribe probative value to such evidence D -*- having seen, heard and assessed them as they testified. The appellate court has a very limited function in this regard. An appellate court can only properly evaluate the evidence at the trial -*- in so far as such exercise will not involve ascribing credibility to E witnesses as a result of their demeanor or the impression of them depending how actually they performed, reacted to questions or comported themselves in the witness box. See Iko v. The State (2001) FWLR (Pt. 68) 1161, (2001) 14 NWLR (Pt. 732) 221. -*- Where the trial court had properly evaluated the evidence F -*- before it before ascribing probative value to it, an appellate court cannot, and should not, disturb such an exercise. It is only in the situation of improper evaluation of the evidence before ascribing probative value to the pieces of evidence, especially of witnesses G -*- that an appellate court may intervene to do justice as the parties -*- in the matter deserve. See Archibong v. Akpan (1992) 4 NWLR (Pt. 238) 750; Rabiu v. Kure (2010) All FWLR (Pt. 539) 1070 at -*- 1088. In the instant case, the lower court did the right thing in restraining itself from intervening and interfering with findings H of facts and conclusions therefrom made by the trial court upon -*- the latter’s elaborate and proper evaluation of the facts before it. -*- There was proof beyond reasonable doubt that the appellant and others, while armed, were accosted and arrested by soldiers on security duty in a vicinity of houses recently burnt whereat the occupants were killed. They even confronted the soldiers, fired at and exchanged gun fire with them. They were caught in action in an area where there had been break down of law and -*- order. The security of lives and property in Mangu Local Government Area, Jos and its environs had been compromised, necessitating the patrol of soldiers to restore security of lives -*- and property and to enforce law and order. A section of the general public in Plateau State public had been placed in a state of fear and general apprehension of insecurity of human lives and damage to property. -*- Specific findings of fact, upon evaluation of available -*- empirical evidence at the trial, by the trial court include - The fact that the appellant and others, armed with dangerous weapons going about menacingly in the area where damage had been done to property and people already killed; that such conduct of the appellant and his group was calculated to instill fear in the members of the public and intimidate them, and the fact that not only that the appellant and his group carried dangerous weapons, including guns; they actually shot at the soldiers and injured one of them. -*- On these specific findings, upon evaluation, the trial court concluded that the appellant and his group committed the offence -*- punishable under section 15(2) of the EFCC Act, 2004, which offence is defined by section 46 of the same EFCC Act. The trial court considered the feeble claim of the appellant to self-defence -*- and defence of property, orchestrated by the DW1, and had dismissed it as unavailing. These findings and conclusions arrived -*- at by the trial court were affirmed by the court below. The -*- appellant has not shown, satisfactorily, why the specific findings of fact and conclusions made by the trial court should have been -*- disturbed by the lower court. A -*- Appellant’s counsel submitted, under issue 2, that “the appellant presented a defence of self-defence which the learned trial judge discountenanced and on which the learned Justices -*- of the court below were in agreement”. He had asked B -*- rheoretically: “Does this defence avail the appellant in this case?” -*- I agree that section 59 of the Penal Code provides that “nothing is an offence which is done in the lawful exercise of the right of private defence”. There is a snag here, which the appellant must successfully clear. The Penal Code Law of Plateau State, C prima facie, does not, constitutionally, avail the appellant to plead -*- a defence therein against a federal offence created by section 15(2) of the EFCC Act, 2004. The law, as it stands: the appellant -*- cannot, ordinarily resort to the provisions of a state law and invoke -*- the defence therein to plead a statutory defence against a federal D -*- offence for which he stands on trial. The learned appellant’s counsel, very conscious of this, submits that section 46(a) of the EFCC Act, 2004 having provided therein: -*- “(a) Any act which is a violation of the Criminal Code or E the Penal Code and which may endanger the life, physical integrity or freedom of or cause serious injury or death to, any person, any number or group -*- of persons or causes or may cause damage to public -*- or property, natural resources, environmental or F -*- cultural heritage and is intended to ..., -*- has incorporated therein the defence of self-defence or private defence available under section 59 of the Penal Code. The appellant has made a point here, and I entirely agree with him. G -*- I agree in principle and on the authority of Ahmed v. The -*- State (1999) 7 NWLR (Pt. 612) 641 at 681 and Akpabio v. The -*- State (1994) 7 NWLR (Pt. 359) 635 at 671, cited by the appellant’s counsel, that the trial court had a duty to consider every defence open to the accused on the evidence, whether or not the H -*- accused person specifically puts up such a defence. The appellate court, like the trial court, has a duty of its own to consider all -*- such possible defences open to the accused/appellant. -*- Available facts, particularly the unchallenged or undiscredited evidence of PW2 and PW3, clearly negative the plea of any claim of the appellant to self-defence or private -*- defence provided by section 59 of the Penal Code. The PW2 and PW3 were soldiers, among the federal troops, deployed to the -*- affected area to restore law and order. They had clearly identified themselves to the appellant and his group that they were federal troops. They directed the appellant and others in the group to stop -*- firing their guns. The latter, instead of heeding the warning, continued firing at the federal troops who had not yet fired at them. The PW3 was, in the process, shot below the eye by the appellant’s group. The soldiers then fired back and both sides -*- exchanged fire before the appellant’s group were eventually -*- overcome and they then surrendered after losing one of their -*- own to the superior fire power of the federal troops. -*- The facts do not avail the appellant for this plea of the right to self-defence or the right to private defence under section -*- 59 of the Penal Code. Even if, as DW1’s evidence suggests, the Fulanis (which the appellant belongs) were being attacked by the Berom and the former had a right to defend themselves against the attack from the Berom, they lost that right to self-defence the moment they were the aggressors against the federal troops, a neutral body on their lawful security duty to restore law and order. -*- The transferred aggression to the federal troops by the appellant and his group cannot be the basis for the group, including the appellant, to plead the self-defence in the circumstances. This -*- appears to be the only serious defence pleaded by the appellant. It clearly does not avail him. -*- Both the trial court and the court below may not have given serious thought or consideration to the special defence under section 59 of the Penal Code. I, however, do not think that the -*- appellant had suffered any miscarriage of justice by the error of -*- the two courts not considering the special defence. The law is settled that it is not every error or slip that will result in the -*- reversal of a decision on appeal. The appellate court will only A intervene and reverse the decision on appeal when the error, mistake or slip is substantial in that it has occasioned a miscarriage of justice. See Abubakar v. Bebeji Oil and Allied -*- Products Limited (2007) All FWLR (Pt. 362) 1855, (2007) 2 SC B -*- 48, (2007) 18 NWLR (Pt. 1066) 319; Unity Bank Plc v. Bouari -*- (2008) All FWLR (Pt. 416) 1825, (2008) 2 - 3 SC (Pt. II) 1, -*- (2008) 7 NWLR (Pt. 1036) 372. -*- The appellant has not satisfactorily established why the decision appealed should be set aside. I have no cause, from the C two issues argued in the appeal, to disturb the concurrent findings -*- of fact and the conclusions reached therefrom by the trial court and the court below in this case. The sum total of all I have been -*- labouring to say is that there is no substance in this appeal. Accordingly, it is entirely dismissed by me, and the decision of D -*- the Court of Appeal, Jos in the appeal No. CA/J/183c/2011 delivered on 27 March 2013 dismissing the appeal of the appellant and affirming the decision of the Federal High Court -*- in the case No. FHC/MG/CS/34C/2010, is hereby affirmed. For E avoidance of any doubt, I hereby further affirm the conviction and sentences imposed on the appellant. -*- MUHAMMAD JSC: Having read in draft the lead judgment of F my learned brother, Ejembi Eko JSC just delivered, I agree with the reasoning and conclusion reflected therein that the appeal lacks merit. It is an appeal against the concurrent findings of the two -*- courts below in which circumstance this court, if very hesitant to G intervene except where the judgment is shown to be manifestly perverse having occasioned miscarriage of justice. -*- It is glaring from the record of appeal that the judgment of the trial court which the lower court affirmed emanates from the -*- evidence on record and the court had neither ignored any fact H -*- worth countenancing nor wrongly applied any legal principle to the facts as established by parties to justify this court’s -*- intervention. The appellant having not demonstrated clear errors in law or fact in the judgment that had occasioned miscarriage, this appeal must invariably fail. See David Omotola & Ors. v. The State (2009) All FWLR (Pt. 464) 1490, (2009) LPELR-2663 (SC) and Ogundiyan v. State (1991) LPELR-2333 (SC). -*- For the foregoing, and more so the fuller reasons articulated -*- in the lead judgment, I also dismiss the appeal and abide by the consequential orders made in the lead judgment. -*- KEKERE-EKUN JSC: The appellant and 14 others were charged before the Federal High Court sitting in Jos on a three count charge of conspiracy, unlawful possession of firearms and terrorism -*- contrary to section 518(5) of the Criminal Code Act Cap. C.38 Laws of the Federation of Nigeria (LFN) 2004, sections 5(1) and -*- 27(1) of the Firearms Act Cap. F 28 LFN 2004 and section 15(2) of the Economic and Financial Crimes Commission Act, 2004 (EFCC Act) respectively. -*- The appellant was the 10th accused person. He was charged in respect of counts 1 and 3 i.e. conspiracy to commit a terrorist act and terrorism. He pleaded not guilty to the charges. The prosecution called 5 witnesses to prove its case while a single witness testified on behalf of all the accused persons. At the conclusion of the trial, all the 15 accused persons were found -*- guilty in respect of counts 1 and 3 and were sentenced to 2 years and 10 years imprisonment respectively without an option of fine. The sentences are to run concurrently. The appellant’s appeal to -*- the Court of Appeal, Jos Division (the lower court) was dismissed on 27 March 2013. His dissatisfaction with that judgment has given rise to the instant appeal. -*- My learned brother, Ejembi Eko JSC has dealt extensively with the issues in contention in this appeal. I agree entirely with -*- his reasoning and conclusion and only add a few words of mine -*- in support. -*- Section 15(2) of the EFCC Act provides: -*- “(2) Any person who commits or attempts to commit a A terrorist act or participates in it, facilitates the commission of a terrorist act, commits an offence under this Act and is liable on conviction to -*- imprisonment for life.” B -*- Section 46 of the Act provides: -*- “Terrorism” means - -*- Any act which is a violation of the Criminal Code or the Penal Code and which may endanger the -*- life, physical integrity or freedom of, or cause C serious injury or death to, any person, any number or group of persons or causes or may cause damage to public property, natural -*- resources, environmental or cultural heritage and -*- is calculated or intended to D -*- intimidate, put in fear, force, coerce or induce any government body or institution, the general public or any section thereof, to do or abstain from E doing any act or to adopt or abandon a particular standpoint, or to act according -*- to certain principles, or -*- disrupt any public service, the delivery of any essential service to the public or to F -*- create a public emergency or -*- create general insurrection in a state; any promotion, sponsorship of, contribution to, command, aid, incitement, encouragement, G attempt, threat, conspiracy, organisation or -*- procurement of any person with the intent to commit any act referred to in paragraph (a)(i), -*- (ii) and (iii). -*- The incident that gave rise to the charge before the trial H -*- court occurred during the unfortunate communal disturbances in Jos, Plateau State in 2010. This incident in particular occurred -*- sometimes in March 2010. -*- As with all criminal allegations, the prosecution has the burden of establishing the guilt of the accused persons beyond reasonable doubt (section 138 of the Evidence Act, 2011). It is -*- also pertinent to note that this appeal is against the concurrent findings of fact made by the trial and intermediate courts. The -*- attitude of this court to concurrent findings of fact is that the court would rarely interfere with such findings unless they are shown to be perverse or to have occasioned a miscarriage of -*- justice. See: Yesufu v. Adama (2010) All FWLR (Pt. 524) 69, (2010) 5 NWLR (Pt. 1188) 522; Ogundiyan v. The State (1991) -*- 3 NWLR (Pt. 181) 519; Ubani v. The State (2003) 18 NWLR -*- (Pt. 851) 224, (2004) FWLR (Pt. 191) 1533. A decision will be held to be perverse where there is insufficient evidence to support -*- the findings, a serious violation of some principles of law and/ -*- or procedure or substantial error of law apparent on the record, which if not disturbed, would lead to a miscarriage of justice. See Coker v. Oguntola (1985) All NLR 319; Chinwendu v. -*- Nwannegbo Mbamali & Anor. (1980) 3 - 4 SC 31 at 75; Nsiegbe -*- v. Mgbemena (2007) 10 NWLR (Pt. 1042) 364. -*- At pages 102-103 of the record, the learned trial judge made the following findings of fact: -*- “(1) Sometimes in January 2010 in Jos environs in -*- Plateau State, a crisis erupted culminating in -*- attacks and counter-attacks between the Beroms and Fulanis. -*- The evidence shows that on 8 March 2010, G during the crisis, houses were burnt in Dogo Nahauwa, people were maimed and some killed -*- as a result of attacks on them. -*- About that time in Mangu Local Government Area and the environs, all the accused persons -*- H were seen together armed with dangerous -*- weapons. -*- Soldiers on security alert accosted the accused -*- persons and shots were fired at each other A -*- between the accused persons and the soldiers. -*- As a result of the shooting, one person among the accused persons was shot dead and one -*- soldier was injured from shots fired by the B -*- accused persons and he was later treated at -*- JUTH, Plateau State. -*- As a result of the superior fire power of the soldiers, the accused persons were arrested together with their weapons and taken to the C Police Stations. The weapons were registered as exhibits and tendered before this honourable court and -*- admitted as exhibits. -*- The following facts are found based on the evidence D -*- of the prosecution witnesses especially PW2 and 3 who were eyewitnesses whose testimony I believe and which were not discredited during cross-examination, there is also no evidence challenging their testimony. E Also, the extra-judicial statements of the accused persons reveal an admission that the accused persons were wielding the various weapons tendered as exhibit at the time of their arrest. -*- Exhibit ‘B’ , the ballistics report disclosed that the F -*- said weapons had been used and fired, on or about the time of the arrest of the accused persons.” (Italics mine). -*- His lordship also made the following observations G -*- regarding the evidence of DW1, the sole witness for the defence. -*- “As against all these, there is the evidence of the DW1 which I do not believe for various reasons. -*- His testimony did not follow a natural flow and contradicts itself. It looks more like a concocted story H -*- and in some respect corroborates the evidence of the PW2 and 3. -*- Now on cross-examination, the DW1 stated that they were surrounded by about 2000 Berom men yet 16 out of 17 of them escaped. -*- Their escape per his evidence was that he asked -*- everybody to find their way of escape, yet his evidence show that they were later gathered together, armed -*- and they had their cows which they were protecting with the weapons found on them. -*- He purported that the attack on them at their home -*- was sudden yet, they had found time to send away their wives and children before the attack. -*- It is also unbelievable that out of the 2000 Berom men who were apparently attacking them, none of -*- them were found by the soldiers about the period -*- when the accused persons were arrested. -*- The question therefore is whether upon these facts, the prosecution could be said to have proven their case sufficient to sustain conviction of the accused -*- persons in this matter.” (Italics mine). -*- He proceeded to apply the law to the facts as found by him -*- and came to the conclusion that the prosecution had established its case against the accused persons beyond reasonable doubt. -*- The lower court agreed with him. -*- In order to secure a conviction, having regard to the facts of this case, the respondent was required to prove beyond reasonable doubt that the appellant and his co-accused committed or -*- attempted to commit or facilitated the commission of an act which is a violation of the Criminal Code or Penal Code to endanger the life, physical integrity or cause serious injury or death to any of -*- the persons mentioned in section 46(1) of the EFCC Act or cause damage in any of the ways and to any of the persons therein -*- described. -*- It must also prove the elements enumerated in sub- paragraphs (i) and (ii). -*- Section 518(5) of the Criminal Code Act provides: A “Any person who conspires with another to effect any of the following purposes: -*- (5) to prevent or obstruct by means of any act or -*- acts which if done by an individual person B -*- would constitute an offence on his part, the free -*- and lawful exercise by any person of his trade, profession or occupation ... -*- is guilty of a misdemeanour and is liable to imprisonment for two years.” C -*- PW2 and PW3, police officers sent to the scene to restore law and order, were eyewitnesses whose evidence the trial court found credible and compelling. Indeed PW3 was also a victim, -*- having been shot below the eye when the accused persons fired -*- at them (the Police) upon being ordered to desist from their D -*- unlawful acts. -*- The learned trial judge painstakingly considered all the evidence before him, including the evidence for the defence through the testimony of DW1. He rightly found, in my view E that -*- “... there is ample evidence that the accused are 15 in number going together with dane guns, bows and arrows, catapults and other weapons within the -*- vicinity of a place where damage has been done to F -*- property and people killed, there is no doubt that such conduct is to say, the least calculated at instituting fear on members of the public or a particular segment thereof or to intimidate such people. Also, possession G -*- of such dangerous weapon(s) is an offence under the -*- law, particularly section 5(1) of the Firearms Act. More particularly at a time there was crisis in Jos metropolis and Plateau State in general. -*- ... The argument of defence counsel that they were H -*- not actually caught shooting and killing anybody is inconsequential, so long as their disposition is capable -*- of constituting fear to members of the public or an attempt so to do.” -*- The learned Justices of the court below found that the above findings and conclusions were reached after a careful appraisal -*- of all the evidence before the court and after ascription of evidential value thereto. It found no reason to depart from the -*- findings, particularly as it is the trial court that has the unique privilege of seeing and hearing the witnesses testify and observing their demeanor in the witness box. -*- The crucial aspect of the offence of terrorism is the creation of intense fear and anxiety, both physical and psychological in the minds of members of the public which has the effect of coercing, forcing, intimidating them to do or abstain from doing -*- any act or to adopt or abandon a particular view, policy or position -*- to act according to certain principles. -*- The appellant has not been able to puncture the compelling findings of fact made by the trial court and affirmed by the court below. -*- The learned trial judge rightly debunked the feeble defence of self defence put up by the appellant. -*- I agree with both lower courts that the evidence of the culpability of the appellant was overwhelming and the appellant was rightly convicted. The appellant has failed to satisfy this -*- court that the reasoning of the lower court is perverse. -*- For these and the reasons stated in greater detail in the lead judgment, I find no merit in this appeal. It is accordingly dismissed. The judgment of the court below is hereby affirmed. -*- Appeal dismissed. -*- OKORO JSC: I read in advance the lead judgment of my learned brother, Ejembi Eko JSC just delivered. I agree with both the -*- reasons advanced and the conclusion reached that this appeal is -*- devoid of merit and deserves an order of dismissal. My learned brother has ably resolved the two issues submitted for the -*- determination of this appeal. I adopt the judgment as mine. I also A -*- dismiss this appeal for lacking in merit. -*- Appeal dismissed. -*- SANUSI JSC: I had the advantage of reading in advance, the B lead judgment prepared by my learned brother, Ejembi Eko JSC just delivered. His lordship had ably considered all the salient issues raised by the learned counsel to the parties before concluding that this instant appeal is devoid of any merit. I entirely C agree with my learned brother, Ejembi Eko JSC that this appeal is unmeritorious of any merit. It is accordingly dismissed by me too. -*- Appeal dismissed
Other Citations:(2018) 13 NWLR (Pt. 1635) 106

EKO JSC (Delivering the Lead Judgment): Several persons were arraigned before, and tried at the Federal High Court, Jos , for conspiracy to commit terrorist acts punishable under section F 5 of the Criminal Code Act, Cap. C38, LFN 2004, illegal possession of firearms punishable under section 5 of the same Criminal Code Act and the commission of terrorist acts punishable under section 15(2) of the Economic and Financial Crimes  Commission (Establishment) Act, 2004. The alleged criminal acts were committed on or about 8 March 2008 in and around Jos and its environs, including Mangu Local Government Area of Plateau State. The appellant featured in the first and third charges, which respectively accused him and others of conspiracy to commit H terrorist acts and committing terrorist acts. In these two charges he was the 7th and 9th accused in the 1st and 3rd charges respectively. All the accused persons, including the appellant herein, were convicted for the .two offences alleged in the 1…

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