ADAMU v. KANO STATE
(2022)LCN/15988(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, September 21, 2022
CA/K/288/C/2019
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
SUNUSI ADAMU APPELANT(S)
And
KANO STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN ACCUSED PERSON CAN TRIED FOR AN OFFENCE WHICH DID NOT EXIST AT THE TIME OF ITS COMMISSION
Incidentally, these arguments of learned silk have been repeatedly canvassed before the Supreme Court and rejected roundly on each occasion, with the apex Court saying that the combined reading of Sections 36(8) and (8) of the 1999 Constitution suggests that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional prohibition against trial and even conviction of a person for an offence which is known to law and is in existence but the relevant law has been incorrectly stated; that a mere wrong description of the law under which a charge is brought or convicted does not necessarily render the charge not known to the law at the time of the commission or render such conviction invalid. See Ogbomor v. The State (1985) 1 NWLR (PT. 2) 223, (1985) LPELR-2286 (SC), Yabugbe v. C.O.P. (1992) 1 NWLR (PT. 234) 192 (SC), Omoju v. F.R.N. (2008) ALL FWLR (PT. 415) 1656 at 1671 (SC), (2008) LPELR-2647(SC); Adonike v. State (2015) LPELR-24281 (SC) P.22, David v. C.O.P. Plateau State Command (2018) LPELR-44911 (SC). In Yabugbe v. C.O.P. (supra), Akpata, JSC, pronouncing the leading judgment of the apex court, summed up the position of the law on the subject when he said thus at P. 21-22 LPELR:
“I will like to sum it up thus: where an offence known to law is disclosed in a charge and the penalty known to law and the charge is erroneously brought under a wrong section of an existing law or under a law which had been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.” PER UGO, J.C.A.
THE MAJOR INGREDIENT OF THE OFFENCE OF CONSPIRACY
First, the major ingredient of the offence of conspiracy is the agreement of two or more persons to carry out an unlawful act or do a lawful thing in an unlawful manner. See Ikemson v. The State (1989) LPELR-1473 (SC) p.39; (1989) 3 NWLR (PT 110) 455 at 477. In fact, common design of the conspirators is the hallmark of the offence of conspiracy. It is therefore wrong to argue that because there is a distinct offence of joint act created under the Penal Code the offence of conspiracy also admittedly created by the same Code in its section 97 no longer lies.” PER UGO, J.C.A.
WHETHER OR NOT ONLY ONE PERSON CAN BE CONVICTED OF THE OFFENCE OF CONSPIRACY
Yes, while it is the correct position of the law that the offence of conspiracy requires the agreement of more than one person, so where two or more persons are charged with conspiracy and all others except one is convicted, it is wrong as one person alone cannot be convicted of conspiracy (see Agugua v. State (2017) 10 NWLR (pt. 1573) 254 at 277 S.C.), that situation does not apply here where appellant was charged with conspiring with not just his discharged second accused person Abdullahi Yalwa but also with at large Bososo Guda. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): The facts of this case, as presented by the prosecution before the trial judge, are that at about 10.00pm on the 8th day of May, 2015, P.W 1, 2 and 3 and one Abdullahi Abubakar, now deceased, all of Basama Village in Wudil Local Government Area of Kano State, were seated at a borehole in their village when the appellant, his co-accused at the trial, Abdullahi Yalwa, and one Basoso Guda who is still at large, all also of the same Basama village, came and fetched water from the said borehole. After fetching the water, appellant’s group, it was said, were cautioned by the deceased and his group for screaming/shouting – an act said to have been prohibited by their Ward Head. An altercation then ensued between the two groups following which appellant and his group left only to return shortly. Upon their return, the second accused, Abdullahi Yalwa, fought with P.W.1 (Bala Haliru) while appellant and Basoso fought the deceased, in the course of which one of the latter two stabbed the deceased with a knife on his ear and upper chest which led to his death, a fact certified by a medical doctor. Appellant and his co-defendant in their testimonies as D.W.1 and 2 denied committing the offences. In fact, appellant in his defence, as against his admission in his statement to the police that he was involved in the fight, raised an alibi that he was at his working place at the time of the offence; that he was simply passing by when the police arrested him after accusing him of conspiring with others to kill the deceased.
In his judgment of 3rd May, 2018, the trial judge discharged and acquitted appellant’s co-accused who from the evidence of the prosecution only fought with P.W.1 and was not involved in the fight with the deceased. As regards appellant, however, he had no difficulty convicting him of the two offences of culpable homicide punishable with death of the deceased Abdullahi Abubakar and of conspiring with Basoso, still at large, to commit the same offence. In respect of the substantive offence of culpable homicide punishable with death, the Court held appellant culpable on the doctrine of common intention after rejecting his defence of alibi. As for the conspiracy charge, the trial judge reasoned this way in convicting appellant:
“However, the circumstances show that the 1st accused [appellant] and Basoso at large conspired to kill and indeed killed the deceased on that fateful day. The prosecution therefore proved the offence of conspiracy against the 1st accused beyond doubt. He is therefore found guilty of conspiracy to kill the deceased and is hereby convicted accordingly.” (Italics mine)
His Lordship rounded off his judgment this way:
“On the whole, the prosecution having proved the offence of conspiracy and culpable homicide punishable with death contrary to Sections 97 and 211 of the Penal Code against the 1st accused, He is found guilty as charged while the second accused person Abdullahi Yalwa is found not guilty of the two offences of conspiracy and culpable homicide punishable with death and is hereby discharged and acquitted.”
Appellant is aggrieved by that decision and has lodged this appeal against it by a Notice of Appeal filed on 7/7/2018 which he replaced with an amended 10-Ground appeal filed on 24/11/2020.
In a Brief of Argument prepared and argued on his behalf by his counsel Suraj Sa’eda, S.A.N., appellant distilled the following two issues for determination by this Court:
1. Whether from the surrounding circumstances of the case the learned trial judge was right in convicting and sentencing him to death.
2. Whether the learned trial judge was right in convicting him for the offence of conspiracy.
Respondent/Prosecution saw only a single issue from the same 10 Grounds of Appeal and framed it thus: Whether the prosecution has beyond reasonable doubt proved the offences of culpable homicide punishable with death and conspiracy against the accused appellant in the case.
ISSUE 1: Mr. Sa’eda, SAN, argued issue one of appellant from two fronts: the first, a technical front of the legality of the section of the law under which appellant was charged and later convicted, and the second on the sufficiency of the evidence upon which appellant was convicted of the two offences. In respect of the first limb of his argument, learned silk drew attention to the charge sheet before the lower Court as contained at pages 3-4 of the records. He observed that they all stated that appellant committed offences punishable under Sections 97 and 211(B) of the Penal Code Law.
The Penal Code Law, counsel submitted, has only six sections and contains neither Sections 97 or 211(B) as the specific offences created therein are contained in the Schedule to the Law and ‘certainly not in the Law.’ Learned silk thus submitted that appellant was asked to plead and did plead to a ‘non-existent provision’. Learned silk further argued that even the trial Judge committed an error in the conviction verdict he passed on appellant. He said from the records, the trial judge convicted appellant for culpable homicide punishable with death under Section 211 of the Penal Code. That section of the law, counsel argued, attracts punishment of only two years yet the trial judge sentenced appellant to death under Section 221 of the Penal Code in concluding his judgment. Learned silk referenced pages 88 and 89 of the records (pages 48 and 49 of the judgment of the lower Court) for this discrepancy between conviction and sentence and submitted that the appellant’s right to fair hearing was thus breached on what learned silk also labeled ‘this technical point’ and urged us to so hold. Coming to the second limb of this same issue as relates to the sufficiency of the evidence adduced by the prosecution/respondent on which appellant was convicted, which limb counsel labeled ‘the general part’, learned silk after pointing out that both P.W.1 and 2 were agreed that the incident in issue took place at 10.00pm in the night, submitted that without evidence of lightening and visibility at the scene, a reasonable doubt is cast and it cannot be said with certainty that appellant was identified at the scene. He argued, further, that all the eyewitnesses to the event were either engaged in their own fights at the time of the said stab or were inconsistent in their evidence and so not worthy of belief as to what happened that caused the death of Abdullahi Abubakar, the deceased. In conclusion, learned silk urged us to resolve this issue in favour of appellant.
(a) Discrepancies in the Charge and Conviction: Now, the first limb of the argument of learned counsel on this issue, which learned silk also aptly dubbed ‘technical point’, can be easily dismissed, for it is nothing but a very hollow technical point/argument in so far as it is not learned silk’s contention that the Penal Code Law or ‘Penal Code’ pursuant to which appellant was charged and convicted does not provide for or recognize the offences of conspiracy to commit culpable homicide punishable with death or conspiracy to commit that offence that appellant was charged, tried and convicted for. It is only if those two offences are not provided for at all in the Penal Code that the issue of charging and convicting appellant under a ‘non-existent law’ can be properly made. As far as those two offences are provided for in Sections 97 and 221 of the Penal Code or some other section of the said Law as learned silk also admits, learned counsel’s arguments do not advance his appeal. A jot further, particularly as it was not even suggested that appellant or his counsel was misled by the said ‘wrong charges’ and on or that appellant who the information before the Court stated clearly that he was arraigned for culpable homicide punishable with death of the deceased Abdullahi Abubakar suffered any miscarriage of justice from the errors complained of by learned counsel. Incidentally, these arguments of learned silk have been repeatedly canvassed before the Supreme Court and rejected roundly on each occasion, with the apex Court saying that the combined reading of Sections 36(8) and (8) of the 1999 Constitution suggests that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional prohibition against trial and even conviction of a person for an offence which is known to law and is in existence but the relevant law has been incorrectly stated; that a mere wrong description of the law under which a charge is brought or convicted does not necessarily render the charge not known to the law at the time of the commission or render such conviction invalid. See Ogbomor v. The State (1985) 1 NWLR (PT. 2) 223, (1985) LPELR-2286 (SC), Yabugbe v. C.O.P. (1992) 1 NWLR (PT. 234) 192 (SC), Omoju v. F.R.N. (2008) ALL FWLR (PT. 415) 1656 at 1671 (SC), (2008) LPELR-2647(SC); Adonike v. State (2015) LPELR-24281 (SC) P.22, David v. C.O.P. Plateau State Command (2018) LPELR-44911 (SC). In Yabugbe v. C.O.P. (supra), Akpata, JSC, pronouncing the leading judgment of the apex court, summed up the position of the law on the subject when he said thus at P. 21-22 LPELR:
“I will like to sum it up thus: where an offence known to law is disclosed in a charge and the penalty known to law and the charge is erroneously brought under a wrong section of an existing law or under a law which had been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.”
In Omoju v. F.R.N. (supra), the trial judge made a not dissimilar clerical error of wrongly stating the statute under which the accused/appellant was convicted and an issue was made of it on appeal go the effect, as in this case, that the said law was inexistent and so appellant was wrongly convicted. In dismissing that argument, I.T. Mohammad, J.S.C. (later C.J.N.) had this to say at p. 28-29 LPELR:
“Let me add that a judge is not a supernatural being. He is a human being and is not infallible. Where a judge makes mistakes which, from the record of his proceedings, were not intentional or deliberate and which more importantly in this case, did not cause any miscarriage of justice to the other party, that omission must not be anchored on technicalities to defeat the cause of justice.”
(b) Whether appellant was properly identified: Coming to the issue of identity of appellant as also argued by the learned silk, counsel seems to have ignored the evidence of all three eyewitnesses of the prosecution (P.W.1, 2 and 3), none of whom was unchallenged by appellant on their evidence, that appellant and his group are not only their co-villagers but that they all live in the same area in that village. There is also the evidence from the same witnesses, again unchallenged, that appellant and his group, after fetching water from the borehole and being reprimanded by them for shouting, had an altercation with them and the deceased before the appellant and his group left the scene only to return later for the fight which culminated in the stabbing to death of the deceased. That suggests, and the inference can be drawn, that P.W.1, 2 and 3 besides their knowledge of appellant and his group as their co-villager, also had the opportunity to hear appellant and his group (their co-villagers) talk and so further identify them from their voices, the ones like P.W.2 and 3 who were not involved in the fight also had the opportunity of watching the fight from close proximity. Identification, it should be also noted, takes diverse forms, including identification by voice. See Archibong v. State (2000) 14 NWLR (Pt. 1000) 349 at 371 (SC).
Even more most importantly is that appellant in his statement to the police (Exhibit P4), which the trial judge adjudged as voluntarily made, identified himself when he admitted there that himself and Basoso now at large actually fought the deceased at 22.00 hours of 8/5/2015 in Basama village from which the deceased lost his life. In those circumstances, appellant in the words of Oputa, JSC, in similar circumstances in Ikemson & Ors v. State (1989) 3 NWLR (Pt. 110) 453 at 479 “needed no further identification, for by his confession, he identified himself.” See further Adeyemi v. State (2015) ALL FWLR (Pt. 790) 1203 at 1227 (SC), Pius v. State (2016) 9 NWLR (Pt. 1517) 341 at 374 (SC) and Shola v. State (2020) 8 NWLR (Pt. 1772) 530 at 547(SC). Issue one is accordingly resolved against appellant.
ISSUE 2: The complaint of learned silk on issue 2 relates only to the conviction of appellant on the charge of conspiracy. Learned silk argued (1) that the trial judge convicted appellant for forming a common intention with Bososo to kill the deceased even when appellant was not charged for ‘joint act’, which, according to counsel, is a substantive offence under Section 79 of the Penal Code; (2) that the evidence from the prosecution witnesses was that the incident happened spontaneously, without premeditation, so conspiracy cannot be properly inferred and, (3) that since only two persons were tried on the two charges and appellant’s co-accused Abdulahi Yalwa was discharged and acquitted on both charges, appellant could not have been properly convicted of conspiracy as according to learned silk “it goes without saying ….that where only two people are charged with conspiracy and one is acquitted then as a general rule the other too must be set free.”
Again, all three limbs of the argument of learned silk can be easily dismissed.
First, the major ingredient of the offence of conspiracy is the agreement of two or more persons to carry out an unlawful act or do a lawful thing in an unlawful manner. See Ikemson v. The State (1989) LPELR-1473 (SC) p.39; (1989) 3 NWLR (PT 110) 455 at 477. In fact, common design of the conspirators is the hallmark of the offence of conspiracy. It is therefore wrong to argue that because there is a distinct offence of joint act created under the Penal Code the offence of conspiracy also admittedly created by the same Code in its section 97 no longer lies.
The second limb of the argument that the evidence of the prosecution witnesses suggested spontaneity rather than premeditation on the part of appellant and his co-conspirator Bososo, so conviction for conspiracy cannot lie is not also well founded as the evidence of the prosecution witnesses, particularly P.W1 and 2, is that the appellant and his group had even left the scene after the initial altercation between them and the P.W.1, 2 and 3 and deceased before they came back and fought P.W.1 and the deceased that resulted in the stabbing of the deceased to death with a knife. In those circumstances, it cannot be seriously said that the attack and stabbing were spontaneous acts.
The final limb of learned silk’s argument that the acquittal of appellant’s co-accused on the count of conspiracy should have resulted in appellant’s acquittal on the count of conspiracy is also flawed. Yes, while it is the correct position of the law that the offence of conspiracy requires the agreement of more than one person, so where two or more persons are charged with conspiracy and all others except one is convicted, it is wrong as one person alone cannot be convicted of conspiracy (see Agugua v. State (2017) 10 NWLR (pt. 1573) 254 at 277 S.C.), that situation does not apply here where appellant was charged with conspiring with not just his discharged second accused person Abdullahi Yalwa but also with at large Bososo Guda. Even most importantly is the finding of the trial judge that appellant only conspired with the said Bososo. In such circumstances, it cannot be said that the conviction of appellant for conspiracy following the acquittal of the second accused person, Abdullahi Yalwa, who the Court found in its judgment that appellant did not conspire with, was wrong. The learned authors Sudipto Sakar and V.R. Manohar in their book Sakar Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia & Singapore, 16th Edition, Reprint 2009, stated the correct position of the law on the issue when they opined at p. 323 of Volume 1 of their said Work thus:
“All the Conspirators need not be convicted or acquitted. – Where more than two persons are charged with a conspiracy, it does not follow that all the conspirators must be convicted or they must all be acquitted [Barindra v. R. 14 CWN 1114; 37 C 467]. If a defendant is tried alone for conspiracy, he may be convicted although his co-conspirators do not appear, provided it is proved that the latter were also guilty [Beechly v. R. 85 LJ PC 32] but if all are tried jointly, one defendant cannot be convicted if the other, or all of the others, are acquitted [R. v. Plummer 1902, 2 K.B. 339; R. v. Manning, 12 QBD 214.].” (Emphasis mine).
The conspiracy charge stated clearly that one of appellant’s co-conspirators was Bososo Guda, who did not appear for trial but was found by the trial court to have conspired with appellant. Appellant in those circumstances was not convicted for engaging in the logical and legal impossibility of conspiring alone as suggested by the argument of learned silk. In the result, issue 2 is also resolved against him.
The only two issues canvassed by appellant in the appeal having been found lacking in merit, this appeal is dismissed and the conviction and sentence imposed by the lower Court on the appellant are hereby affirmed.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the leading judgment, delivered by my learned brother, Ugo JCA, and I agree with his reasoning and conclusion, that the appeal is devoid of merit.
Appellant was only trying to invoke some curious technicality to escape the justice of his gruesome act of murder, when his Counsel harped on the error in stating the law with which Appellant was charged. The law is trite that the mere misdescription of the law with which one is charged does not necessarily void or defeat the charge, once the offence charged is known to law and the commission of the offence established by the prosecution. See Agbo Vs State (2020) LPELR-50489 (CA), where it was held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any state of the case as material unless the accused was in fact misled by such error or omission. See also Sections 151, 152, 166, 167 and 168 of the Criminal Procedure Act, Cap C41 VOLUME 4 Laws of the Federation of Nigeria and Sections 283 & 293 of the Enugu State Administration of Criminal Justice Law, 2015.”
See also Nggilari Vs State & Ors (2017) LPELR – 42985 (CA), where it was held:
“The law is extremely robust that once an offence described in a charge is one created by law or statute and the statute is in force in the territory whereat the offence was alleged to have been committed, it will be immaterial to assert that the offence alleged to have been committed… that an error has been committed in stating the law.”
I too dismiss the appeal for lacking in merit.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: My learned brother, BOLOUKUROMO MOSES UGO, JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons, I also dismiss the appeal and abide by the order as to cost.
Appearances:
Suraj Sa’eda, S.A.N, with him, Yusuf Muazu Sani, Esq., Faladu Ahmad, Esq. and Auwal Ahmed Ibrahim, Esq. For Appellant(s)
Abdullahi Ibrahim, Esq. Deputy Director, Kano State Ministry of Justice. For Respondent(s)