ISHAYA SANSANI & ANOR v. THE STATE
(2016)LCN/8220(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of February, 2016
CA/K/163/C/2011
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY: THE NATURE OF THE OFFENCE OF CONSPIRACY
Now, the Courts have stated that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola Vs State (2009) 7 NWLR (Pt.1139) 148 and Yakubu Vs Federal Republic of Nigeria (2009) 14 NWLR (Pt.1160) 151. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreements can be inferred by what each person does or does not do in furtherance of the offence – Shurumo Vs State (2010) 19 NWLR (Pt.1226) 73, Jimoh Vs State (2014) 10 NWLR (Pt.1414) 105. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Sule Vs State (2009) 17 NWLR (Pt.1169) 33, Ajuluchukwu Vs State (2014) 13 NWLR (Pt.1425) 641. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CRIMINAL LAW: THE CHARGE OF CONSPIRACY: HOW THE COURT CAN INFER CONSPIRACY AND CONVICT ON IT
The Courts recognized that in a charge of conspiracy, proof of actual agreement is not always easy to come by and thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual person pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design – Usufu Vs State (2007) 3 NWLR (Pt 1020) 94, Tanko Vs State (2008) 16 NWLR (Pt.1114) 597 and Yakubu Vs State (2014) 8 NWLR (Pt 1408) 111. Thus, the Supreme Court has stated that the proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy count had been made out in answer to the fate of the charge of conspiracy – Osetola Vs State (2012) 17 NWLR (Pt.1329) 257 and Jimoh Vs State (2014) 10 NWLR (Pt.1414) 105. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CRIMINAL LAW: HOMICIDE; WHAT THE PROSECUTION MUST PROVE TO ESTABLISH CULPABLE HOMICIDE
It is trite that to establish culpable homicide not punishable with death, the prosecution must prove by cogent and credible evidence beyond reasonable doubt (i) that the deceased died; (ii) that the death of the deceased resulted from the voluntary act of the defendant (iii) that the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent and (iv) that in the circumstances of the case, the act of the defendant was not such as would amount to culpable homicide punishable with death – State Vs Bello Ayinde (1976-77) NNLR 38, Babalola Vs State (1978-79) NNLR 31, Idowu Vs State (2000) 12 NWLR (Pt.680) 48, Adamu Vs State (2014) LPELR-CA/K/373/C/2013. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
EVIDENCE: WHETHER THE PROSECUTION CAN PROVE THE GUILT OF THE DEFENDANT BY DIRECT EYE WITNESS, CIRCUMSTANTIAL EVIDENCE OR VOLUNTARY CONFESSIONAL STATEMENT
It is also trite law that in a criminal trial, the Prosecution may prove the guilt of the defendant by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs. Lambert (2007) 18 NWLR (Pt.1066) 300, Mbang Vs State (2010) 7 NWLR (Pt.1194) 431, Dele Vs State (2011) 1 NWLR (Pt.1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt.1331) 1. It is obvious from the records of appeal that the Respondent relied on eye witness account and on the confessional statements in proving the guilt of the Appellants and that it was on the bases of these pieces of evidence that the Lower Court convicted the Appellants. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; HOW THE OFFENCE OF CONSPIRACY CAN BE INFERRED IN THE ABSENCE OF AN AGREEMENT BETWEEN PARTIES
This is because it is settled law that in absence of an agreement between the parties, the offence of conspiracy can be inferred from the criminal acts of the parties, including act of complicity, and the attainment of a common end – Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360 and Babarinde Vs State (2014) 3 NWLR (Pt.1395) 568. In fact, common intention to commit a crime is an important ingredient of the offence of conspiracy and it is inferable from acts done by the parties towards a common end – Onyenye Vs State (2012) 15 NWLR (Pt.1324) 586. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
1. ISHAYA SANSANI
2. YOHANNA DANJUMA Appellant(s)
AND
THE STATE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): The Appellants were arraigned before the Kaduna State High Court in Charge No.KDH/KAD/41C/2008 on a two count charge of conspiracy to commit an illegal act contrary to the provisions of Section 97 of the Penal Code Law of Kaduna State and of culpable homicide punishable with death contrary to the provisions of Section 221(b) of the Penal Code Law of Kaduna State. The Appellants were alleged to have on or about the 1st of February at Ancha Gida Village, Sanga Local Government Area of Kaduna State, conspired to beat and to have beaten one Mallam Makama Adamu to death by inflicting injuries to the head of the deceased with knowledge that death would be the probable consequence of their actions.
?The Appellants pleaded Not Guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called five witnesses and tendered exhibits in the proof of its case and the Appellants called three witnesses, including themselves, in proof of their defence. At the conclusion of trial and after the final addresses of Counsel, the Lower Court entered
judgment wherein it found the Appellants guilty of conspiracy and of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law and it sentenced each of the Appellants to one year and five years imprisonment respectively for the two offences. The Appellants were dissatisfied with the judgment of the Lower Court and they caused their Counsel to file a notice of appeal against it on each of their behalf?s. The two notices of appeal were dated the 17th of May, 2011, and they each contained ten grounds of appeal.
Counsel to the Appellants filed a joint brief of arguments in prosecuting the appeals of both Appellants before this Court. The joint brief of arguments was settled by Chief C. A. Ekhasemomhe and it was dated and filed on the 15th of July, 2011. In response, Counsel to the Respondent filed a brief of arguments dated the 29th of January, 2015 on the 3rd of February, 2015 and the brief of arguments was deemed properly filed and served by this Court on the 28th of April, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral
submissions on the appeals of the Appellants.
Counsel to the Appellants formulated three issues for determination in the appeals and these were:
i. Whether the offence of criminal conspiracy for which the Appellants were convicted and sentenced to imprisonment term of one year each was proved by the Respondent beyond reasonable doubt.
ii. Whether the learned trial Judge’s failure to call on the Appellants of their Counsel to address him on Section 222 (1) of the Penal Code raised by him suo motu before convicting them under the said Section of the Penal Code has not occasioned a breach of the Appellants’ rights to fair hearing and thereby caused a miscarriage of justice.
iii. Whether the Respondent has discharged the burden of proof of all the essential elements of the offences for which the Appellants were convicted and sentenced.
Counsel to the Respondent adopted the three issues for determination as formulated by the Counsel to the Appellants.
In arguing the first issue for determination, Counsel to the Appellants Counsel stated that by virtue of Section 36 (5) of the 1999 Constitution, every person charged with an offence is
presumed innocent until the contrary is proved and that therefore, in a criminal trial, the onus of proving the commission of a crime by an accused person is on the prosecution and the burden is beyond reasonable doubt and he referred to the cases of Moses Vs The State (2006) All NWLR (Pt.322) 7437 and Oteki Vs A.G. Bendel State (1986) 2 NWLR (Pt.94) 255, amongst others. Counsel stated that for the prosecution, in the instant case, to prove beyond reasonable doubt all the essential elements of the offence of conspiracy, it must establish (i) that there was an agreement between two or more persons to do or cause to be done some illegal act or?an act which is legal by illegal means; (ii) that some act besides the agreement was done by one or more of the parties in the furtherance of the agreement and (iii) that each of the accused persons individually participated in the agreement; and he referred to the case of Abacha Vs FRN (2006) 4 NWLR (Pt.970) 239. Counsel stated that proof of conspiracy is generally matter of plausible inference deduced from certain criminal acts done in pursuance of an apparent criminal purpose common between them and that in the instant
case, an inference of common intention in pursuance of a criminal purpose between the Appellant cannot reasonably be drawn from the totality of the evidence led by the prosecution witnesses.
Counsel referred to the findings made by the Lower Court on the offence of conspiracy and stated that they were contradictory and that the inference of conspiracy made by the Lower Court from the joint beating of the deceased by the Appellant cannot be correct because the gist of the offence of conspiracy laid not in the doing of the Act or effecting the purpose of the agreement, but in the formation of the agreement between the parties and he referred to the cases of Elekwa Vs Commissioner of Police (1972) 2 ESCLR (Pt.1) 127 and Sule Vs The State (2009) All FWLR (Pt.481) 809. Counsel stated that the count relating to criminal conspiracy talked of an agreement to commit an illegal act and said nothing about joint beating and that the Lower Court was thus in error when he held that the alleged joint beating of the deceased by the Appellants amounted to an agreement to beat him. Counsel stated that the Respondent thus failed to prove the essential elements of the offence
of conspiracy and he urged this Court to resolve the issue for determination in favour of the Appellants.
On the second issue for determination, Counsel stated that that the two counts on the charge against the Appellants were criminal conspiracy and culpable homicide punishable with death and that the charge was not at anytime amended by the Respondent, but that at the conclusion of the judgment, the Lower Court convicted the Appellants for a rash act, an offence for which they were not charged. Counsel stated that the Appellants or their learned Counsel ought to have been given an opportunity to address the Lower Court on the applicability of Section 222(7) of the Penal Code Law to accord wth the principle of fair hearing before convicting them under the said Section and he referred to the case of Moses Vs The State (2006) All FWLR (Pt.322) 1437. Counsel conceded that the Lower Court was empowered under Section 218 (2) of the Criminal Procedure Code to convict the Appellants for a lesser offence, but stated the Lower Court ought to have invited the Appellants to address it on Section 222 (7) of the Penal Code Law and the offence provided for in the
Section cannot be said to have been in the contemplation of the Appellants. Counsel stated that a point not in contemplation of the parties should ordinarily not be raised suo motu and that where a Court for good cause raises a point or section of the law on its own and which is vital to its decision, the party who will adversely be affected by the decision should be afforded an opportunity to address the Court on it and he referred to the cases of Uzoho Vs National Council on Privatisation (2007) All FWLR (Pt.394) 370 and Omokhodion Vs FRN (2006) All FWLR (Pt.292) 1.
Counsel stated that the failure of the Lower Court to invite the Appellants to address it on Section 222 (7) of the Penal Code Law before convicting them thereon was an error which breached the right of fair hearing of the Appellants and that the concept of fair hearing was not a technical doctrine but one of substance as the question is not whether justice has been done or not because of lack of hearing and it is whether a party entitled to be heard has been given an opportunity of hearing and he referred to the cases of Kotoye Vs CBN (1989) 1 NWLR (Pt.98) 419 and UNTHMB Vs Nnodi (1994) 8
NWLR (Pt 363) 376. Counsel stated that the right of fair hearing does not stop with the parties being present in Court, and it is the right to be heard at every material stage of the proceedings and that it was thus wrong for the Lower Court to have found its decision on a ground of law in respect of which it did not afford the parties a hearing and he referred to the case of Shitta Bey Vs Federal Public Service Commission (1981) 1 SC 40, amongst others. Counsel stated that a breach of fair hearing leads to invalidation of proceedings and that a look at judgment of the Lower Court shows that the breach of the Appellants’ right of fair hearing adversely affected them in the instant case. Counsel urged this Court to resolve the second issue for determination in favour of the Appellants.
?On the third issue for determination, Counsel to the Appellants focused on the second count of culpable homicide punishable with death and stated that the Lower Court found in the judgment that the evidence led by the prosecution did not disclose that the Appellants knew that death would be the likely consequence of their act and thus failed to prove an essential element of
the offence. Counsel stated that the Lower Court was wrong to have proceeded therefrom to convict the Appellants for culpable homicide not punishable with death under Section 222 (7) of the Penal Code for killing the deceased by a rash act because to be convicted under this Section, it must be shown that an accused person had hazarded a dangerous or wanton act knowing it to be so and knowing that it may cause injury but hoping that it does not and he referred to the case of State Vs Boka (1982) 1 NCR 85. Counsel stated that the ingredients of culpable homicide punishable with death under Section 221(b) of the Penal Code and those of culpable homicide by a rash act under Section 222 (7) of the Penal Code were not the same and that under Section 222(7) knowledge was an essential element of the offence; that the accused must know that by what he has done, he has hazarded a dangerous or wanton act. Counsel stated that, when taken with the arguments on first issue for determination, it cannot be said in the circumstances that the Respondent proved the offences against the Appellants beyond reasonable doubt and he urged this Court to also resolve this issue for
determination in favour of the Appellants.
Counsel concluded his arguments by urging this Court to allow the appeal, set aside the judgment of the Lower Court and to discharge and acquit the Appellants.
In his response arguments on the first issue for determination, Counsel to the Respondents reiterated the essential ingredients of the offence of conspiracy and he referred to the cases of Abacha Vs Federal Republic of Nigeria (2006) 4 NWLR (Pt 970) 239 and Adejobi Vs State (2011) 6-7 SC (Pt III) 65, amongst others, and he reproduced the findings made by the Lower Court on the issue of conspiracy. Counsel stated that the findings of the Lower Court were predicated on the confessional statements of the Appellants which were admitted without objection and also on the evidence of the first prosecution witness and of the third defence witness that both Appellants beat the deceased and that the finding of the trial Court that both Appellants beat the deceased cannot be faulted. Counsel stated that it has been held that in order to prove common intention to commit a crime, it was enough to prove that all the conspirators participated in the crime, as in the
instant case where both Appellants participated in the beating of the deceased and which caused the death of the deceased and he referred to the cases of Nwankwoala & Anor Vs State (2006) 14 NWLR (Pt 1000) 663 and Adekunle Vs The State (1989) 12 SC 203. Counsel stated that the finding of the Lower Court on conspiracy cannot thus be faulted and he urged this Court to resolve this issue for determination against the Appellants.
On the second issue for determination, Counsel stated that core of the complaint of the Appellants under the issue was the propriety of the Lower Court in invoking its powers under Section 218 (2) of the Criminal Procedure Code to convict the Appellants for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code without first hearing them thereon, when they were originally charged with the offence of culpable homicide punishable with death under Section 221 (b) of the Penal Code. Counsel reproduced the findings of the Lower Court on the issue and stated that it was after finding that the evidence led by the Respondent did not disclose that the Appellants knew that death would be the
likely consequence of their acts that the Lower Court convicted them for the offence of culpable homicide not punishable with death. Counsel stated that the Counsel to the Appellants did not contest that the Lower Court possessed the power to convict an accused person for a lesser offence other than that charged under Section 215 (2) of the Penal Code Law and he submitted that the assertion that the failure of the Lower Court to call the Appellants to address it before convicting them for the lesser offence amounted to a breach of fair hearing has no basis in law and that the provisions of Section 218 (2) and similar provisions to it have been interpreted by the Courts to the effect that such intermediate hearing was completely unnecessary and he referred to the cases of Maja Vs State (1980) 1 NCR 21, and Nwachukwu Vs The State (1986) 2 NWLR (Pt 250) 765. Counsel urged this Court to resolve the issue in favour of the Respondent.
?On the third issue for determination, Counsel to the Respondent reiterated the elements of the offence of culpable homicide punishable with death with which the Appellants were charged, (i) that the death of a human being
occurred; (ii) that the death was caused by the act of the accused; and (iii) that the accused knew or ought to have known that death would be the probable cause of his action, and he thereafter reproduced the findings of the Lower Court on each of the elements. Counsel stated that it was on the last element of the offence that the Lower Court faulted the evidence led by the Respondent and consequent on which it convicted and sentenced the Appellants for the lesser offence of culpable homicide by rash act which was not punishable with death under Section 222 (7) of the Penal Code and that the ingredients for the offence of culpable homicide punishable with death and culpable homicide not punishable with death were basically the same save for the third element of intention to kill or cause grievous bodily harm which slightly differs in the case of culpable homicide not punishable with death. Counsel stated that from the evidence led before the Lower Court, it was obvious that when the Appellants were unlawfully beating the deceased, who was an elderly man, they must have contemplated that he could die from such beating, but they hoped that death would not arise
from the beating and that this was what was required to prove culpable homicide by a rash act and he referred to the case of State Vs Boka (982) 1 NCR 85. Counsel urged this Court to hold that the Lower Court was correct when it found that the Respondent proved the essential ingredients of the offence of culpable homicide by rash act to secure a conviction under Section 222 (7) of the Penal Code and to resolve this issue for determination in favour of the Respondent.
Counsel concluded his arguments by urging this Court to dismiss the appeal and affirm the judgment of the Lower Court and the conviction and sentenced passed on the Appellants therein.
The Appellants were charged with two counts of conspiracy to commit an illegal act contrary to the provisions of Section 97 of the Penal Code Law of Kaduna State and of culpable homicide punishable with death contrary?to the provisions of Section 221(b) of the Penal Code Law of Kaduna State. At the conclusion of deliberations in the judgment, the Lower Court convicted the Appellants for conspiracy and for the lesser offence of culpable homicide not punishable with death under Section 222(7) of the Penal
Code Law and it sentenced them to one year and five years imprisonment for the offences respectively. The issues arising for determination in this appeal, in the view of this Court are two and these are:
i. Whether the Respondent led sufficient cogent and credible evidence before the Lower Court to prove the offences of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code Law beyond reasonable doubt to warrant the conviction and sentence of the Appellants for those offences.
ii. Whether the Lower Court was in error when it convicted the Appellants for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law without having first given the Appellants the opportunity to address on the applicability of that section and thereby breached the Appellants’ right of fair hearing.
This appeal will be resolved on these issues for determination and the issues shall be considered separately.
Issue One
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it
and this is, more often than not, the prosecution. By virtue of Section 138 (1) of the Evidence Act, where the commission of a crime by a party is in issue in any proceedings, be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Sabi Vs State (2011) 14 NWLR (Pt.1268) 421, Obi Vs State (2013) 5 NWLR (Pt.1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt.1391) 298.
It must however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to
prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke Vs State (2013) 16 NWLR (Pt.1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt.1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”
This statement has been adopted and has been severally reiterated by Supreme Court in several cases.
Now, the Courts have stated that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual
agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola Vs State (2009) 7 NWLR (Pt.1139) 148 and Yakubu Vs Federal Republic of Nigeria (2009) 14 NWLR (Pt.1160) 151. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreements can be inferred by what each person does or does not do in furtherance of the offence – Shurumo Vs State (2010) 19 NWLR (Pt.1226) 73, Jimoh Vs State (2014) 10 NWLR (Pt.1414) 105. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Sule Vs State (2009) 17 NWLR (Pt.1169) 33, Ajuluchukwu Vs State (2014) 13 NWLR (Pt.1425) 641.
The Courts recognized that in a charge of conspiracy, proof of actual agreement is not always easy
to come by and thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual person pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design – Usufu Vs State (2007) 3 NWLR (Pt 1020) 94, Tanko Vs State (2008) 16 NWLR (Pt.1114) 597 and Yakubu Vs State (2014) 8 NWLR (Pt 1408) 111.
?Thus, the Supreme Court has stated that the proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy count had been made out in answer to the fate of the charge of conspiracy – Osetola Vs State (2012) 17 NWLR (Pt.1329) 257 and Jimoh Vs State (2014) 10 NWLR (Pt.1414) 105. This was the approach adopted by the Lower Court in its deliberations in the judgment. In considering the complaints of the Appellants in this appeal therefore, this Court will start with the finding made by the Lower Court on the substantive offence of culpable homicide not punishable with death, and from there consider whether
the finding that the offence of conspiracy was properly sustained by the Respondent was proper.
It is trite that to establish culpable homicide not punishable with death, the prosecution must prove by cogent and credible evidence beyond reasonable doubt (i) that the deceased died; (ii) that the death of the deceased resulted from the voluntary act of the defendant (iii) that the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent and (iv) that in the circumstances of the case, the act of the defendant was not such as would amount to culpable homicide punishable with death – State Vs Bello Ayinde (1976-77) NNLR 38, Babalola Vs State (1978-79) NNLR 31, Idowu Vs State (2000) 12 NWLR (Pt.680) 48, Adamu Vs State (2014) LPELR-CA/K/373/C/2013.
?It is also trite law that in a criminal trial, the Prosecution may prove the guilt of the defendant by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs. Lambert (2007) 18 NWLR
(Pt.1066) 300, Mbang Vs State (2010) 7 NWLR (Pt.1194) 431, Dele Vs State (2011) 1 NWLR (Pt.1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt.1331) 1. It is obvious from the records of appeal that the Respondent relied on eye witness account and on the confessional statements in proving the guilt of the Appellants and that it was on the bases of these pieces of evidence that the Lower Court convicted the Appellants.
Reading through the judgment appealed against, the Lower Court made clear findings of fact on the necessary ingredients of the offence of culpable homicide not punishable with death. The Lower Court found that the person referred to in the charge against the Appellants, one Mallam Makama Adamu, was dead and that his death was caused by the voluntary acts of the Appellants, the beating of the deceased by the Appellants. The Lower Court found that these acts of the Appellants resulting in the death of the deceased were unlawful and rash, but were not such as would amount to culpable homicide punishable with death. The Appellants have not challenged any of these finding in this appeal. It is elementary that a finding of fact made by a trial Court and
which is not appealed against remains valid, subsisting and inviolate. It is deemed accepted as binding by the appellant and an appellate Court has no jurisdiction to tamper with such a finding of fact – Gundiri Vs Nyako (2014) 2 NWLR (Pt.1391) 211, Ukee Vs Ukeje (2014) 11 NWLR (Pt.1418) 384 and Okoli Vs Morecab Finance (Nig) Ltd (2014) 17 NWLR (Pt.1437) 499.
The complaint of the Appellant in this appeal on the conviction for the offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law was within a very narrow confine and it was that the Section provided for culpable homicide by a rash act and that to be convicted under this Section, it must be shown that an accused person had hazarded a dangerous or wanton act knowing it to be so and knowing that it may cause injury but hoping that it does not. Counsel argued that having found that the evidence led by the prosecution did not disclose that the Appellants knew that death would be the likely consequence of their act, the Lower Court ought not to have convicted for culpable homicide by a rash act as it must be shown that the accused knew that what he has done has
hazarded a dangerous or wanton act.
Counsel to the Appellants seemed to equate knowledge by the Appellants that death would be the likely consequence of their act with knowledge by them that their acts were dangerous or wanton. Part of the unchallenged findings of the Lower Court was that the Appellants went to the house of the deceased and beat him with their bare hands until he collapsed and was lying on the floor and that the deceased died shortly thereafter in the hospital and that the medical report showed that the deceased suffered injuries to the skull from the beatings. It cannot be contested that the act of the Appellants in beating the deceased in such a manner was dangerous and wanton.
?Culpable homicide not punishable with death is akin to the offence of manslaughter. In Shosimbo Vs The State (1974) All NLR 603, the Supreme Court stated that “for the offence of manslaughter it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased which harm caused his death.” The position was reiterated by the Supreme Court in Idowu Vs
State (2000) 12 NWLR (Pt 680) 48, Ejeka Vs State (2003) 7 NWLR (Pt.819) 408, Egbirika Vs State (2014) 4 NWLR (Pt.1398) 558.
Thus, to sustain a charge of culpable homicide not punishable with death, it is sufficient if the Respondent proved that the said act of the Appellant was unlawful, unauthorized and inexcusable in law and/or that it was rash and reckless without due regard or consideration for its consequences and/or that it was negligent – State Vs Bello Ayinde (1976-77) NNLR 38, Babalola Vs State (1978-79) NNLR 31, Adamu Vs State (2014) LPELR – CA/K/373/C/2013.
?The Respondent led cogent evidence to prove, in the instant case, that the action of the Appellants in beating the deceased in such a manner as to cause his death was rash and reckless and that it was done without due regard or consideration for its consequences. The decision of the Lower Court convicting and sentencing the Appellants for culpable homicide not punishable with death cannot thus be faulted.
This takes us to the offence of conspiracy. The Lower Court stated in the judgment on conspiracy thus:
By exhibits 3, 3A and 4 and 4A, the 1st and 2nd accused decided
to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left their house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased. However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred there from by me. The 1st and 2nd accused agreed at that point to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd accused to beat the deceased and which act resulted in the death of the deceased”
The grouse of the Counsel to the Appellant with this finding was that it was contradictory and that the gist of the offence of conspiracy lies not in the doing of the act or effecting the purpose of the agreement, but in the formation of the agreement between the parties and that having found that the parties did
not have a common agreement to beat the deceased when they set out for his house, the inference of conspiracy made from the joint beating of the deceased by the Appellant cannot be correct. With respect, this contention of the Counsel to the Appellants is a fallacy. This is because it is settled law that in absence of an agreement between the parties, the offence of conspiracy can be inferred from the criminal acts of the parties, including act of complicity, and the attainment of a common end – Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360 and Babarinde Vs State (2014) 3 NWLR (Pt.1395) 568. In fact, common intention to commit a crime is an important ingredient of the offence of conspiracy and it is inferable from acts done by the parties towards a common end – Onyenye Vs State (2012) 15 NWLR (Pt.1324) 586. There was unchallenged evidence before the Lower Court that the Appellants jointly beat the deceased and that even when the deceased tried to leave them and enter his house, they held and dragged him back and beat him until he collapsed and that it was the beating that caused the death of the deceased. The Appellants acted in obvious concert and inference
of conspiracy drawn by the Lower Court from these unchallenged facts and the finding made thereon were thus solid and cannot be tampered with by this Court.
This Court thus finds that the Lower Court was correct when it found that the Respondent led sufficient cogent and credible evidence before it to prove the offence of conspiracy and culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law beyond reasonable doubt to warrant the conviction and sentence of the Appellants for those offences. The first issue for determination is thus resolved against the Appellants.
Issue Two
This touches on the power of trial Court to convict an accused person for a lesser offence than that charged where the evidence led by the prosecution reveals the commission of the lesser offence, instead of the offence charged. The power of the trial Court to convict for a lesser offence is statutory. Section 218 (2) of the Criminal Procedure Code Law of Kaduna State provides that “where a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence, although he is not
charged with it.” This provision has its counterpart in Section 179 (2) of the Criminal Procedure Act. The power has been recognized and enforced by the Courts over the years – see for example, Adeyemi Vs State (1991) 6 NWLR (Pt.195) 1, Ndukwu Vs State (2000) 1 NWLR (Pt.641) 470, Adava Vs State (2006) 9 NWLR (Pt.984) 152, The Nigerian Air Force Vs Kamaldeen (2007) 3 SC (Pt.II) 131.
Counsel to the Appellants concede in this appeal that the Lower Court possessed the power to convict the Appellants for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code, at the hearing of a charge of culpable homicide punishable with death under Section 221 (b) of the Penal Code. The grouse of Appellants, as rightly pointed out by Counsel to the Respondent, was the propriety of the Lower Court in invoking its powers under Section 218 (2) of the Criminal Procedure Code to convict them for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code without first calling the parties to address it on the applicability of the section. It is on this that they predicated their
submission of lack of fair hearing. It must be stated that this contention of the Counsel to the Appellants is not new and it had been raised in the past and had been debunked by the Courts. The arguments was considered by the Supreme Court in the case of Nwachukwu Vs The State (1986) 2 NWLR (Pt.25) 765 referred to by Counsel to the Respondent and Karibi-Whyte, JSC stated at pages 778-779 D- G of the case thus:
“I now turn to the contention that Section 179 which provides that an accused person could be convicted of an offence with which he was not formally charged if it was lesser offence of an aggravated offence in respect of which he was charged is a denial of his right to fair hearing and accordingly unconstitutional and to that extent void.”
I have already analysed the provisions of Section 179 of the Criminal Procedure Act, and stated their purport. There is no doubt that the lesser offence in respect of which an accused is convicted must be included in the substance of the charge and the evidence relied upon for conviction must support the lesser offence.
On the facts before the Court of Appeal, it is difficult to contend
that at the trial, appellants was not aware of the fact of the circumstances that he was being tried for the offence of robbery, the aggravated nature of the offence merely resting on the circumstances of his commission of the offence”
Counsel to the appellant relied on the dictum of Bello, JSC in Okunofua v. The State ” It seems that the dictum was not supported by the conclusion. As Bello, JSC said at “it appears therefore that before his conviction, the 1st appellant had knowledge in advance that the Court might convict him of the offences of obtaining by false pretences and had the opportunity to meet, if he had so wished, those offences’ there is no doubt that the appellant in this case had notice that he was standing trial for armed robbery. Appellant had defended himself on the allegations and no additional evidence or facts other than those led at his trial were introduced to support his conviction for a lesser offence.
Section 179 in both sub-sections clearly in the expression although he was not charged with it exclude the requirement of a formal charge or of asking the
appellant/accused convicted of a lesser offence than that charged to say something before the conviction. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested. Above all, the lesser offence is implicit in the greater offence, accused and in this appeal appellant, cannot feign ignorance of the offence”
In Etim vs. The State (2013) LPELR-CA/OW/223/2010, the argument was again considered by this Court and Owoade, JCA resolved it thus:
Clearly, the application of the provision of Section 179 of the CPA to convict an accused of a lesser offence as disclosed from the evidence on record has nothing to do with the opportunity given to the parties to present their cases freely before the Court. The application of the provision by a learned trial judge after the close of hearing in his final judgment has nothing to do with the principles of fair hearing. As rightly pointed out by the learned counsel to the Respondent, the exercise of the procedural power of the trial judge to convict of a lesser offence under the provision of Section 179 CPA is an exercise of judicial powers in accordance with the law which cannot be
interpreted to mean denial of fair hearing. It is not as suggested by the learned counsel for the appellants raising an issue suo motu which would have required addresses or further addresses by Counsel to both parties. No new issue or issue suo motu is raised by the exercise of the judicial discretion vested in a trial judge to convict for a lesser offence by the provision of Section 179 of the CPA.
The same point had been made by the Court of Appeal in the case of Maja Vs The State (1980) 1 NCR 272 and which was referred to and quoted with approval by the Supreme Court in Nwachukwu Vs The State supra.
The contention of the Counsel to the Appellants on this issue for determination is thus misconceived and cannot avail the Appellants. The second issue for determination is resolved against the Appellants.
?In conclusion, this Court finds no merits in this appeal and it is hereby dismissed. The judgment of the High Court of Kaduna State in Charge No KDH/KAD/41C/2008 delivered by Honorable Justice G. I. Kaduna on the 22nd of March, 2011, inclusive of the conviction and the sentence of the Appellants contained therein, are hereby affirmed. These
shall be the orders of this Court.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: The Appellants in this case were arraigned before the Kaduna State High Court on the allegation that they conspired to and did beat one Mallam Makama Adamu to death by inflicting injuries to his head with the knowledge that death would be the probable consequence of their action, contrary to S. 221 (b) of the Penal Code Law of Kaduna State.
Upon conclusion of trial, the Lower Court found the Appellants guilty of conspiracy and of culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law and sentenced them to one year and five years imprisonment respectively for these offences.
Dissatisfied with their conviction and sentence they have appealed to this Court.
The Appellants have complained, inter alia, that the failure of the Lower Court to invite them to address it on Section 222(7) of the Penal Code Law before convicting them thereunder was an error which breached their right of fair hearing; requesting that their conviction and sentence by the Lower Court be set aside.
The Appellants, I note, have not
challenged the finding of the Lower Court that the death of the victim was caused by the voluntary acts of the Appellants, viz his beating by the Appellants. This finding thus remains valid, subsisting and binding on the parties. It is inviolate. See Dariye v. Federal Republic of Nigeria (2015) 10 NWLR Part 1467 p.325 at 353 Para B per Ngwuta JSC; Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015) 7 NWLR Part 1459 Page 577 at 594 para A – B per Rhodes-Vivour JSC.
S.218 (2) of the Criminal Procedure Code Law of Kaduna State clearly states: “where a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence, although he is not charged with it.”
The cardinal principle of interpretation of statutes is that where the words used in a statute are clear and unambiguous, the Court should give them their ordinary, natural and literal meaning. See Registered Trustees of Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 8 NWLR Part 11408 Page 1 at 40 para B – C per Okoro JSC.
Courts must interpret the law within the con of its constitutive words and
refrain from seeking the meaning outside the clear words employed. See Nobis-Elendu v INEC (2016) 16 NWLR Part 1485 Page 197 at 224 Para D – E per M. D. Muhammed JSC.
Giving the words of S.218(2) of the Criminal Act Supra their natural meaning, the decision to convict of a lesser offence than that charged is entirely that of the Judge when he finds that the facts before him disclose a lesser offence than that with which the accused is charged.
There is no requirement in the said statute, I hold, that the lesser charge be put to the accused before he can be convicted of the lesser offence and no such requirement shall be read into the law.
As pointed out by my learned brother Habeeb Adewale O. Abiru JCA in the lead Judgment, the corresponding Section in the Criminal Procedure Act has been interpreted as excluding the requirement of a formal charge or of notifying the accused before his conviction of a lesser offence. The lesser offence is implicit in the greater offence. Failure to seek the consent or to notify the accused is not an infraction of the principles of fair hearing. See the case of Nwachukwu v State (1986) 2 NWLR Part 25 Page 765 at
778 – 779 Para D – G per Karibi Whyte JSC and Etim v State (2013) LPELR – CA/OW/223/2010 per Owoade JCA.
Indeed, I am amazed that the Appellants, rather than thank their lucky stars for getting off so lightly after committing such a dastardly act, seek to exonerate themselves of any sanction whatsoever.
I am in entire agreement with the fuller reasons given in the lead Judgment for dismissal of this appeal, I find the appeal entirely without merit and accordingly dismiss it. The conviction and sentence of the Appellants by the Lower Court are affirmed.
AMINA AUDI WAMBAI, J.C.A.: I had the preview of the Judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA, and I endorse the reasoning therein and conclusion thereat that there is no merit in this appeal. I too dismiss the appeal and affirm the decision of the Lower Court.
Appearances
Theodore Junior Ezeobi with him, Sara GarbaFor Appellant
AND
Abdullahi YayhaFor Respondent
