What constitutes support to acts of terrorism under terrorism (prevention) Act, 2011

BERENDE v. FRN

CITATION: (2021) LPELR-54993 (SC)
In the Supreme Court
ON FRIDAY, JUNE 04, 2021
Suit No: SC. 721C/2019
Before Their Lordships:
MARY UKAEGO PETER – ODILI JUSTICE OF THE SUPREME COURT OF NIGERIA
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE OF THE SUPREME COURT OF NIGERIA
JOHN INYANG OKORO JUSTICE OF THE SUPREME COURT OF NIGERIA
IBRAHIM MOHAMMED MUSA SAULAWA
JUSTICE OF THE SUPREME COURT OF NIGERIA
SAMUEL CHUKWUDUMEBI OSEJI
JUSTICE OF THE SUPREME COURT OF NIGERIA
Between
ABDULLAHI MUSTAPHA BERENDE – APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA – RESPONDENT(S)
LEADING JUDGMENT DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

FACTS
The Appellant herein was charged along with one Saheed Oluremi Adewumi on a six-count charge of offences relating to acts of terrorism under the Terrorism (Prevention) Act, 2011, as amended (hereinafter referred to as the Terrorism Act).

They both pleaded not guilty. The prosecution called 8 witnesses and tendered exhibits. The Appellant testified in his own defence and did not call any other witness. At the conclusion of the trial the Appellant was found guilty, convicted on all six counts, and sentenced to five years’ imprisonment on each count, which sentences were to run concurrently.

The Appellant was dissatisfied with his conviction and appealed to the Court of Appeal. The appeal was dismissed. The Appellant still feeling dissatisfied further appealed to the Supreme Court.
Issues for Determination
The Court determined the appeal based on the following issues;
1. Whether the lower Court was right when it affirmed the Appellant’s conviction and sentence for acts supporting terrorism under Section 5(1) (a) of the Terrorism Act.
2. Whether the Justices of the Court below were right in failing to declare as null and void the judgment of the learned trial Judge, which failed to state the point or points for determination.

Appellant’s Submission
Appellant’s counsel submitted that in a criminal trial, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt and that the burden of proof on the prosecution does not shift. He submitted that in discharging the burden, the prosecution must prove all the ingredients of the offence beyond reasonable doubt. He referred to Section 138 of the Evidence Act and Itu Vs the State (2016) 5 NWLR (Pt. 1586) 443 @ 465F.

Appellant’s counsel referred to Section 5(1) (a) of the Terrorism Act and submitted that the ingredients to be proved by the prosecution are: (i) that the Appellant solicits or renders support for the commission of an act of terrorism, and (ii) that he rendered the support by providing material assistance and undergoing terrorism training on the use of explosives in Iran. He contended that the trial Court relied mainly on his confessional statements, but there was no eyewitness evidence of the training he allegedly received in Iran. He further submitted that the said confessional statements show that the Appellant went to Iran in 2006 to study Islamic Culture and Civilization, but he was ambushed by his host and given training in the use of explosives. He noted that the appellant stated in the confessional statements that he protested at various times against the course of the training, which negates any intention to undergo the military training; Michael Omisade & Ors. vs The Queen (1964) A.N.L.R. 227.

Appellant’s counsel submitted that a confession must admit all the ingredients of the offence; Gbadamosi Vs the State (1992) 9 NWLR (Pt. 266) 465 @ 479A. He also submitted that the Court had a duty to consider any defence raised by the Appellant, no matter how improbable; Oforlete Vs the State (2000) 12 NWLR (Pt. 681) 415 @ 429H.

Appellant’s counsel further submitted that the Appellant was not charged under Section 5 (2) (c) of the Terrorism Act of remaining in contact with or maintaining contact with a terrorist or terrorist group, as found by the trial Court. Where the offence proved at the trial is different from the offence charged, the prosecution has failed to prove the offence; Nwokedi vs C.O.P (1977) LPELR – 2124 @ 6.

On issue two, Appellant’s counsel submitted that the trial Court was in breach of Section 308 of the Administration of Criminal Justice Act (ACJA), 2015 by failing to state the points for determination in its judgment before evaluating the evidence and rendering its decision therein, and thereby occasioned a miscarriage of justice.

Respondent’s Submissions
Respondent’s counsel submitted that the Appellant’s confessional statements constitute reliable evidence, which the learned trial Court and the Court of Appeal were entitled to rely upon. He submitted further that the prosecution witnesses corroborated the facts stated therein.

He submitted that there was ample evidence before the Court in proof of the fact that the appellant gave support to acts of terrorism, such as evidence of dissemination of terrorist information by electronic means through emails and coded language; entering and remaining in Iran and Dubai, UAE for the benefit of a terrorist group in association with the Iranian Revolutionary Guard Corps.

Respondent’s counsel submitted that the Appellant’s testimony in Court was at variance with his extra-judicial statements. He submitted that in the circumstance, the Court was entitled to regard him as an unreliable witness and discountenance his testimony in Court; Egboghonome Vs the State (1993) 7 NWLR (Pt. 306) 383.

Resolution of Issues
The Court held that it is not every error committed by a trial Court that would result in the reversal of the decision complained of. The error or omission only becomes fatal where the Appellant is able to satisfy the Court that it has occasioned a miscarriage of justice. See Umaru Sani Vs the State (2017) LPELR – 43475 (SC) @ 43 E – F. The Court reproduced the provisions of Section 308(1) of the ACJA and affirmed the findings of the Court of Appeal that the trial Court had considered the written addresses of the parties which contained the points for consideration, and gave its reasons (albeit tersely) for the conviction of the Appellant. The Court thus held that there was substantial compliance with Section 308.

As regards the alleged failure of the trial Court to consider the appellant’s defence, it has been held by this Court that where a trial Court fails to consider defences available to an accused person, an appellate Court is in as good a position as the trial Court to consider the defences, provided that there are facts available on the record to support same. See Annabi vs The State (2008) 13 NWLR (Pt. 1103) 179 @ 201 C – D.

The Court also held that in establishing the guilt of an accused person beyond reasonable doubt, the prosecution may adopt any of the following methods or a combination thereof: (a) eye-witness account; (b) circumstantial evidence; and/or (c) confessional statement of the accused. See Okashetu vs the State (2016) 14 NWLR (Pt. 1534) 126. Also, a confessional statement alone, once proved to have been voluntarily made, is sufficient to ground a conviction, even though the accused may later retract it. See Galadima Vs the State (2012) 18 NWLR (Pt. 1333) 610. However, it is desirable that there should be some corroborative evidence outside the confession, no matter how slight, to show that the confession is probably true. See Otufale Vs the State (1968) NMLR 261 @ 265 – 266. The Court then held that Appellant’s confessional statements were voluntarily made and rightly admitted in evidence and relied upon by the trial Court. The Court agreed with the finding of the Court of Appeal that the Appellant willingly participated in the training. He did not say that he was compelled to do so participate. The Appellant also admitted that after the training he was given sums of money for transportation and upkeep, and maintained extensive communications with one Amir, a terror suspect whom he had met in Iran during the training.

The Court also held that the trial Court did consider the Appellant’s defence that he did not undergo the training willingly. The Court reproduced Section 5(2) of the Terrorism Act explain what “support’ as referred to in Section 5(1) entails as follows: Section 5(2) of the Act provides:
“(2) for the purposes of sub-section (1) of this section, “support” includes-
(a) incitement to commit a terrorist act through the internet, or any electronic means or through the use of printed materials or through the dissemination of terrorist information;
(b) receipt or provisions of material assistance, weapons, explosives, training, transportation, false documentation or identification to terrorists or terrorist groups;
(c) receipt or provision of information, or moral assistance, including information to adhere to a terrorist or terrorist group;
(d) entering or remaining in a country for the benefit of, or at the direction of, or in association with a terrorist group; or
(e) the provision of, or making available, such financial or other related services prohibited under this Act or as may be prescribed by regulations made pursuant to this Act.”

The Court therefore rejected Appellant’s contention that the Court failed to restrict itself to the particulars of the charges.
The Court also held that the Court of Appeal, in affirming the findings of the trial Court, considered other evidence such as the prosecution witnesses to determine whether the confessions were probable. And that although PW6 (one of prosecution’s witnesses) did not tender the materials upon which he based his forensic investigation, the trial Court’s reliance on the evidence of PW6 did not occasion a miscarriage of justice because it also relied on other admissible evidence.
HELD
The Supreme Court dismissed the appeal for lacking in merit.
APPEARANCES
M.I. HANAFI ESQ with him D.T. NWACHUKWU ESQ.,
O.A. OMOLADE ESQ. and M.A. YUSSUF ESQ. – For Appellant(s)
CHIOMA ONNEGBU ESQ. with him CHINWE OBASI ESQ., (PSC)
AND ANIEKAN O. EKONG (PSC)
– For Respondent(s)