AUGUSTINE NWOLISA v. THE STATE (2015)

AUGUSTINE NWOLISA v. THE STATE

(2015)LCN/7757(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of January, 2015

CA/OW/219C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT IS CONSPIRACY
It is trite that conspiracy is the meeting of the mind of the conspirators. The offence of conspiracy is complete by the agreement to do the act or made the omission complained of. Conspiracy is therefore a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of the conspiracy. per. PETER OLABISI IGE, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND THE STANDARD OF PROOF IN CRIMINAL CASES
The settled law is that in order to ground a conviction of an accused on any offence charged, the prosecution must in line with Section 135 of the Evidence Act 2011 prove the offence alleged against an Accused/Defendant beyond reasonable doubt. The law is also settled that before an accused can be convicted of any offence the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredients of offence charged.  In the case of SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) 36 AT 50 G, KUTUGI JSC (LATER CHIEF JUSTICE OF NIGERIA rtd) said:
“In criminal proceedings the onus is always on the prosecution to establish the quilt of the Accused beyond reasonable doubt.  The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.” My Lord, OLATAWURA JSC said similar thing in the case of M. O. AMADI & ORS VS. THE STATE (1993) 8 NWLR (PT. 314) 644 AT 663 H to 644 A THUS:
“It is unsafe to base a conviction on speculative findings.  Such findings are no longer findings of facts.  Quite apart from this before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charged.”
In effect the Court will not begin to inquire whether an accused is guilty of a crime until it has been established that a crime has been committed by him.  See the State vs. Omada Odobor (1975) 9 – 11 SC 69 at 78.  He must also be proved to have participated in the crime.  See also OLAYINKA AFOLALU VS. THE STATE (2010) 16 NWLR (PART 1220) 584 AT 612 – 613. per. PETER OLABISI IGE, J.C.A.

CRIMINAL LAW: THE CHARGE OF MANSLAUGHTER; WHAT MUST BE CLEARLY PROVED AGAINST THE ACCUSED TO SUSTAIN A CHARGE OF MANSLAUGHTER AND CIRCUMSTANCES IN WHICH AN UNLAWFUL KILLING WOULD AMOUNT TO MURDER

In order to sustain a charge of manslaughter the Accused must be shown to be guilty of unlawful act which results in the unintentional death of another person.  It must be clearly proved that the Accused:
(a) Intentionally did an act which was unlawful; and
(b) That that act inadvertently caused death.
Cogent and sufficient evidence must be led by the prosecution to proof that there are facts before the court to enable the court convict for manslaughter.
See CHARLES EGBIRIKA V. THE STATE (2014) 1 SCM 36 at 54 C – S to 55 A – F where KEKERE – EKUN, JSC said:
“An appropriate place to start is a consideration of some, of the relevant Sections of the Criminal Code Cap. 29 Laws of Ogun State of Nigeria 1978.  Section 315 of the Criminal Code provides:
“Any person who unlawfully kills another is guilty of an offence, which is called murder or manslaughter, according to the circumstances of the case.” Section 316 sets out the circumstances in which an unlawful killing would amount to murder.  Section 317 provides:
“A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”
In a review of the above provisions this court in: Apugo Vs The State (2007) 2 NCC 30 @ 41 E held per Onnoghen, JSC:
“From the above provisions of Section 315 of the Criminal Code it is very clear that for a killing to amount to manslaughter it must not only be unauthorized or unjustified or not excused by law, it must also result from the direct or indirect act of the accused person.  In short the death must be caused by the unlawful act of the accused person.”
In the case of: Uyo Vs A.G. Bendel State (1986) 1 NWLR (Pt. 17) 418; (1986) All NLR 126 this court referred to and relied upon the dictum of the West African Court of Appeal (WACA) in R. Vs Oledinma (1940) 6 WACA 202 that:
“To establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did”
The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, the act would not fall within the provision of Section 316 of the Criminal Code and therefore would not constitute murder.  See: Omini Vs The State (1999) 12 NWLR (Pt. 630 168 @ 182 A.  See also: Shosimbo Vs The State (1974) All NLR 603; (1974) 10 SC 69 wherein it was held that in establishing 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.  See also: R. V. Church (1965) 2 ALLER72. per. PETER OLABISI IGE, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE AND THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
It is trite that an Appellate court will not lightly interfere or disturb the findings and decision of a lower court who had the advantage of seeing the witnesses who testified before it and observing their demeanors.  But this court will interfere with such findings and decision of a lower court where it is patently clear that the finding or the decision was not supported by the evidence before the trial court.
See IRENE NGUME (ALIAS IRENE OKOLI VS. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H per M. D. MUHAMMED, JSC who held thus:
“Firstly, the decision on the voluntaries or otherwise of Appellant’s confessional statement, exhibit “7” unarguable requires the trial court’s assessment of the credibility of the witnesses who testified on the matter.  The principle has not changed from what the lower court in its foregoing finding holds it to be.
It was the trial court that saw the witnesses during trial and heard their testimonies.  This afforded the trial court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the course of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at.
It remains within the purview and competence of the trial court, therefore, for obvious reasons, to first evaluate evidence of witnesses.  The trial court does not share this jurisdiction with the appellate court and where its evaluation is borne out from the evidence on record, an appellate court cannot interfere in such a circumstance even if the appellate court concludes that the trial court should have evaluated the evidence of the witnesses differently.  Where, however, the trial court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice.  See IWUOHA VS. NIPOST (2003) NWLR (PT. 822) 308, 343 – 344; ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNIMA VS. R.S.H.P.D.A (2003) 12 NWLR (PT. R 834) 427. per. PETER OLABISI IGE, J.C.A.

COURT: JURISDICTION ; WHETHER IT IS THE CHARGE BEFORE THE COURT THAT DETERMINES ITS JURISDICTION

It is the charge before the court that determines its jurisdiction. See the case of MATTARADONA VS. AHU (1995) 8 NWLR (PART 412) 225 at 235H – 236A per OPENE, JCA who said:
“In Akinfolarin v. Akinola (1994) 4 SCNJ 30 at 43 IGH JSC observed:
“It is fundamental principle of law that it is the claims of the Plaintiff which determines the jurisdiction of a court to entertain same see Ajaka Izenkwe & ors vs. Nnadozie (1953) 14 WACA. 361 at 363; Adeyemi vs. Opeyon 1976 9 – 10SC 31. In the instant case which is a criminal matter it is the charge.”The court cannot enter upon inquiry into a charge or matter the prosecution does not place before it. per. PETER OLABISI IGE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

AUGUSTINE NWOLISA Appellant(s)

AND

THE STATE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant and one other person were arraigned before the Imo State High Court Owerri Judicial Division in 2007 charged with offence of murder couched thus:
“STATEMENT OF OFFENCE”
MURDER contrary to Section 319(1) of the Criminal Code Cap 30 Vol.II Laws of Eastern Nigeria 1963 applicable to Imo State.
PARTICULARS OF OFFENCE
BASSEY ASINYA AND AUGUSTINE NWOLISA on the 24th day of December, 2006 at OWERRI JUDICIAL DIVISION murdered one SYLVESTER NNAEMEKA OBIEKA”
The pleas of the two Accused persons were taken on 29th day of June 2007 when each of the said Accused persons pleaded not guilty to the one count charge.  The matter proceeded to trial on 12th July, 2007.  The prosecution called eight (8) witnesses and tendered 23 Exhibits.
The Accused persons opened their defence on 2nd February, 2010.  The 1st Accused gave evidence and called two other witnesses in support of his defence. The Appellant testified for himself and called no other witness.
The relevant facts relating to this matter as can be gathered from the record show that the two Accused persons who were members of the Nigerian Army claimed to be members of Joint Patrol Team with some Police men put in place to checkmate the menace of Armed Robbers within and around Owerri Metropolis. Their duty post was AVU JUNCTION along Owerri-Port Harcourt Highway.  The Accused person claimed that on the day of the said incident, they were at the duty post at AVU JUNCTION but that the Police men who were to be with them did not show up for duty.
The two Accused stated that their Guard Commander later alerted them that some robbers had blocked the road and were operating very close to their duty post. That they were detailed to go and rescue the people being robbed.  That they in the processes saw a Jeep and that the people told them it seemed the robbers were in the Car.  That the occupant of the Jeep fired at them and that they two fired in the direction of the Jeep.  The 1st Accused stated that he moved near the Jeep and warned the occupant to come along but that the occupant of the Jeep behaved as if he was about bringing out a gun and so he, the 1st Accused aimed his own (1st Accused) gun at the head of the occupant of the Jeep but the bullet from 1st accused gun hit the occupant on his stomach.
When the Police Operation Strike came to the scene it was discovered upon search of the vehicle that the Driver of the Jeep was not an Armed Robber.  The 1st Accused later changed the story to that of accidental discharge.  That it was a mistake on his part and he had no intention of killing the occupant of the Jeep.  The victim did not die on the spot.  The 2nd Accused/Appellant in his own statement said he was not the one that shot the deceased but that it was the 1St Accused who did.
Police investigation however revealed that the person shot dead, one Sylvester Nnaemeka Obieka (m) was a Businessman based in America dealing in sale of motor vehicles.  He was on 24/12/06 at about 5.20 am driving alone in his Toyota Land Cruiser V8 Jeep, red in Color without registration number along Owerri Port Harcourt Road when the Accused persons intercepted, fired and killed him. That it was the 1st Accused that fired and killed the deceased. That nothing incriminating was found on the deceased. That instead of taking the deceased to the Hospital the Accused persons and their Guard Commander took the deceased, and his Jeep to their Barracks at OBINZE.
At the end of the trial and addresses of Learned Counsel to the Accused persons and the State the learned trial Judge gave a considered judgment in the matter on 8th day of October, 2013.
The findings and sentence of the Learned trial judge against the 1st Accused and the Appellant can be found on pages 257 – 260 wherein the Learned trial Judge found as follows:
“The 1st and 2nd accused had a common intention of agreement to go out to carry out an unlawful act during which the deceased was shot and grievously wounded by the 1st accused.  The 2nd accused told the court that after the shooting by the 1st accused, he rushed to the scene where he searched the deceased as ordered by the 1st accused and that when he was searching the deceased, he observed that he was still alive and that he equally observed that the deceased was not armed.
It was therefore the responsibility of the 1st and 2nd accused who claimed that part of their duties is to protect life and property to have rushed the deceased to the hospital to ensure that he was saved.  This they did not do.  The act of negligence and outright wickedness exhibited by the accused persons also facilitated the death of the deceased.  Section 179(2) of the CPA states thus:-
“When a person is charged with an offence and facts are proved which reduces it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
Since the 2nd accused is being tried for the offence of murder along with the 1st accused and evidence have shown that he conspired with the 1st accused to abscond from their duty post without authorization from the head of their Team and proceeded to the scene of crime where the deceased was grievously wounded by 3 gunshots released by the 1st accused from his official gun an AK.47 which is Exh. M1 and that since both accused persons having observed that the gunshots injuries made the deceased to be grievously injured and failed to take him to the hospital immediately which negligence led to his death the 2nd accused is equally guilty though not to the extent of the offence of murder arising from the gunshots wound which were undoubtedly shot by the 1st accused.
Section 317 of the criminal code states thus:-
“A person who unlawfully kills, another in such a circumstance as not to constitute murder is guilty of manslaughter.
Furthermore, Section 325 of the same Criminal Code states thus:-
“Any person who commit the offence of manslaughter is liable to imprisonment for life.”
Having gone through all the evidence adduced in this case, during trial, the Exhibits, tendered and submission of all the counsel in this case the court found as of fact that the prosecution has proved her case beyond reasonable doubt.  That being, the case, the accused persons are guilty of the offence of murder and manslaughter respectively and are convicted accordingly.”
The Appellant being dissatisfied with the verdict of the court below consequently appealed to this Court vide his Notice of Appeal dated 8th May, 2013 filed on the same date.  The said Notice of Appeal was filed with the Order of this Court granted in that behalf on 6th day of May, 2013 extending the time within which to appeal the said judgment by the appellant. See page 266 of the record.
The said Notice of Appeal contained five grounds of appeal.  The said grounds of Appeal without their particulars are the following:-
“GROUND ONE
The Learned trial Judge erred in law when he held that the evidence before the court as proved against the Appellant satisfied the requirement for conviction of manslaughter which is a lesser offence and thereby convicted the appellant for manslaughter and sentenced him to life imprisonment which said conviction and sentence has occasioned a miscarriage of justice against the appellant.

GROUND TWO
The Learned trial Judge erred in Law when he relied on Section 179(2) of the Criminal Procedure Act and Section 317 and 325 of the Criminal Code Act to convict the appellant for manslaughter and thereby occasioned a miscarriage of justice against the Appellant.

GROUND THREE
The Learned trial Judge misdirected himself in the Law thereby occasioned a miscarriage of justice against the appellant when he held, inter alia, that:-
“It is trite that conspiracy is the meeting of the mind of the conspirators. The offence of conspiracy is complete by the agreement to do the act or made (sic) the omission complained of conspiracy is therefore a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in a proof of the conspiracy”

GROUND FOUR
The trial court erred on the facts when it held as follows:-
“From the fore-going it was found out that the 1st and 2nd accused on the 24/12/2006, conspired amongst themselves and with a common intention to carry out an unlawful purpose, went to the scene of crime where the first accused used his AK 47 rifle i.e. Exh. M1 a lethal weapon shot the deceased at a close range at different vital parts of the body thereby causing him grievous harm which led to the death of the deceased.”

GROUNDS 5
The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”
The Appellant and the Respondent filed their respective Briefs of Argument in this appeal. The Appellant’s Brief of Argument dated 8th day of July, 2013 was filed on the same date while the Respondent’s Brief of Argument dated 13th day of February 2014 was filed on 14th day of February, 2014. The appeal was heard on 17th day of November, 2014 when the said Briefs of Arguments were adopted and relied upon by the Learned Counsel to the parties.
The Learned Counsel to the Appellant Chimezie Victor C. Ihekweazu, Esq. espoused the background facts to this appeal and formulated three issues for determination of this appeal viz:
1. Whether the trial court was right when it held that the prosecution was able to prove a case of manslaughter against the Appellant and whether such holding occasioned a miscarriage of justice against the appellant. (GROUNDS ONE AND TWO)
2. Whether the trial Court was right when it held that the appellant conspired with the 1st Accused to carry out an unlawful act. (GROUND THREE AND FOUR)
3. Whether the prosecution was able to discharge its legal burden by proving the guilt of the Appellant beyond reasonable doubt (GROUND FIVE).
The Respondent’s Learned Counsel C. Anyaoha Esq. an – Assistant Chief State Counsel also distilled three issues for determination namely:-
1. Whether the Respondent proved its case beyond reasonable doubt against the Appellant.
2. Whether the Appellant conspired with the 1st Accused Bassey Asinya to carry out an unlawful act.
3. Whether the appellant had a common intention with the 1st Accused Bassey Asinya to murder the deceased.
I believe that the issues formulated or raised by the Respondent are in consonance with the three issues distilled for determination of the appeal by the Appellant. I will treat them in sequence.

ISSUE ONE
WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE PROSECUTION WAS ABLE TO PROVE A CASE OF MANSLAUGHTER AGAINST THE APELLANT AND WHETHER SUCH HOLDING OCCASIONED A MISCARRIAGE OF JUSTICE AGAINST THE APPELLANT.  (GROUNDS ONE AND TWO).
The Learned Counsel to the Appellant Chimezie Victor C. Ihekweazu Esq. stated that the two accused persons were convicted and while convicting the 1st Accused for murder the LEARNED TRIAL Judge convicted the Appellant for manslaughter and sentenced him to life imprisonment.  That the charge was under Section 319 of the Criminal Code and that to sustain the charge of murder, the prosecution must prove the essential ingredients of the Crime.  He relied on the cases of:
1. EMOGA V. THE STATE (1997) 1 NWLR (Pt. 483) 615 at 621.
2. ABOGEDE VS THE STATE (1996) 5 NWLR (PART 448) 270 at 276-277.
3. OGBA VS THE STATE (1992) 2 NWLR (PART 222) 164.
4. AKINFE VS THE STATE (1988) 3 NWLR (PART 85) 729 and
5. ONAH VS THE STATE (1925) 3 NWLR (PART 12) 336.
He agreed that the judge was right in holding that the prosecution was not able to prove offence of murder against the Appellant but that the trial convicted Appellant for manslaughter. That it is not disputed that a person can be convicted for a lesser offence but to convict, according to the Appellant the prosecution must be able to prove the guilt of the accused person for the lesser offence.  That the burden was still on the prosecution to show that the Appellant was guilty of offence of manslaughter in accordance with Section 317 of the Criminal Code Law. He submitted that from the evidence led and the exhibits tendered, a case of manslaughter was not proved against the Appellant before reasonable doubt.
He relied on the cases of:
(1) SHEKETE VS. NAF (2006) 16 WRN 56 at 69
(2) ALAKE V. STATE (1991) NWLR (PART 205) 567 PER NIKI TOBI, JCA LATER JSC
(3) AJISOGUN VS THE STATE (1998) 13 NWLR (PART 581) 236 AT 253.
(4) ODIDO V. THE STATE (1995) 1 NWLR (PART 369) 88 AT 116.
That in order to establish a charge of manslaughter, it must be proved not only that the Appellant could have caused the death of the deceased but that it actually did.  That in this case it is impossible upon the evidence to conclude that the deceased died from act of the Accused/Appellant.
He relied on R. V. ABENGOWE (1936) 3 WACA 85 and AGUDA – CRIMINAL LAW 81 Procedure of the Southern Nigeria.  He relied on the evidence of PW1 and DW4.
THAT THE Appellant did not Act with common intention to in any way kill the deceased.  That failure to provide medical help to the deceased was wicked of the Appellant and 1st Accused but that it is not a criminal offence under the criminal code.  And that it did not amount to manslaughter under the law.  That the decision of the Learned Trial Judge has occasioned a miscarriage of Justice.  That the principle of common intention invoked by the court below is not applicable in the circumstances of this case.  He relied on the cases of:
1. ODIGIJI V. THE STATE (1976) NSCC 355.
2. ONUOHA VS. THE STATE (1998) 5 NWLR (PT 548) 118 AT 136.
3. MOUNWEM & 4 ORS V. THE QUEEN (1963) 1 ALL NLR 95.
4. MOHAMMED VS. THE STATE (1980) 12 NSCC 152 AND
5. ADEKUNLE VS. THE STATE (1989) 3 NSCC 403.
He listed the ingredients of common intention which he said must operate conjunctively and not disjunctively to be the following:
1. There must be two or more persons;
2. They must form a common intention.
3. The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.
4. An offence must be committed in the processes; and
5. The offence must be of such a nature that its commission was a probable consequences of the prosecution of such purpose.
He also placed reliance on the following cases:
1. OGBALI VS. THE STATE (1983) 1 SCNLR 16.
2. OSAKWE VS. A. G. BENDEL STATE (1991) 1 NWLR (PART 167) 315 AND
3. AKPAN VS. THE STATE (1994) 8 NWLR (PT 361) 226 AT 248.
That grounds for conviction for manslaughter is lacking and cannot be sustained.  That the conviction of the Appellant was in error and urged the court to hold so.
In his reply on issue one, the Respondents’ Learned Counsel C. Anyaoha Esq. submitted that the state proved its case beyond reasonable doubt against the Appellant and his ally Bassey Asinya (1st Accused).
That in order to sustain a charge of murder the following ingredients must be proved viz:
1. That the deceased had died.
2. That the death was caused by the Accused person.
3. That the act or omission of the Accused person was intentional with knowledge that death or grievous bodily harm was its probable consequence.
He relied on the following cases viz:
1. IGAGO VS. STATE (2001) 2 ACLR P. 108.
2. UBANI VS. THE STATE (2004) FWLR (PT 191) 1533 AT 1546 D – E.
3. OGWA NWEKE ONAH VS. THE STATE (1985) 3 MWLR (PART 12) 236 AND
4. S. 316 OF CRIMINAL CODE.
That the ingredients of the offence could be proved in any of the following ways:
1. through the confessional statement of the accused.
2. by circumstantial evidence or
3. by evidence of eye witness to the crime.
He cited and relied on the case of OGABELE VS. THE STATE (2006) ALL FWLR (PT. 311) 1797 AT 1823 F – H.
That in the instant case the Respondent proved its case vide paragraphs (i) and (ii) above that is through the confessional statement of both the Appellant and his Ally – 1st Accused.
He also relied on pages 39 -41 of the record.  That by circumstantial evidence which strengthened the various self-seeking accounts of the Appellant and 1st Accused, Bassey Asinya the deceased died and there was no doubt as to identity of those who murdered him.  That the confessional statements and evidence of PW5 1- 8 and DW2 were very clear and that they unequivocally linked the Accused persons to the crime of murder.  He therefore submitted that the Learned Trial Judge was right in holding that the prosecution proved its case beyond reasonable doubt against the Appellant and his all Bassey Asinya.
It is here apposite once more to state the findings of the Learned Trial Judge concerning the Appellant who was the 2nd Accused before the court below.  On page 258 of the record the Learned Trial Judge said:
“from the foregoing it was found out that the 1st and 2nd accused on the 24/12/2006, conspired amongst themselves and with a common intention to carry out an unlawfully purpose, went to the scene of crime where the 1st accused used his AK. 47 rifle i.e. Exh. M1 a lethal weapon shot the deceased at a close range at 3 different vital parts of the body thereby causing him grievous harm which led to the death of the deceased.  Evidence available showed that the 2nd accused was in the bush when the 1st accused shot the deceased but the mere fact that they agreed to go to the scene of crime together without any authority from their superior makes him also a culpable to the offence to an extent.
It is trite that conspiracy is the meeting of the mind of the conspirators.  The offence of conspiracy is complete by the agreement to do the act or made the omission complained of.  Conspiracy is therefore a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of the conspiracy.
The 1st and 2nd accused had a common intention or agreement to go out to carry out an unlawful act during which the deceased was shot and grievously wounded by the 1st accused.  The 2nd accused told the court that after the shooting by the 1st accused, he rushed to the scene and that when he was searching the deceased, he observed that he was still alive and that he equally observed that the deceased was not armed.
It was therefore the responsibility of the 1st and 2nd accused who claimed that part of their duties is to protect life and property to have rushed the deceased to the hospital to ensure that he was saved.  This they did not do.  The act of negligence and outright wickedness exhibited by the accused persons also facilitated the death of the deceased.  Section 179(2) of the CPA state thus:-
“When a person is charged with an offence and facts are proved which reduces it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it”
Since the 2nd accused is being tried for the offence of murder along with the 1st accused and evidence have shown that he conspired with the 1st accused to abscond from their duty post without authorization from the head of their team and proceeded to the scene of crime where the deceased was grievously wounded by 3 gunshots released by the 1st accused from his official gun an AK. 47 which is Exh. M1 and that since both accused persons having observed that the gunshots injuries made the deceased to be grievously injured and failed to take him to the hospital immediately which negligence led to his death, the 2nd accused is equally guilty though not to the extent of the offence of murder arising from the gunshots wounds which were undoubtedly shot by the 1st accused.  Section 317 of the Criminal Code states thus:-
“A person who unlawfully kills another in such circumstance as not to constitute murder is guilty of manslaughter”.
Furthermore, Section 325 of the same Criminal Code states thus: –
“Any person who commits the offence of manslaughter is liable to imprisonment for life”.
Having gone through all the evidence adduced in this case, during trial, the Exhibits tendered and submissions of all the counsel in this case, the court found as of fact that the prosecution has proved her case beyond reasonable doubt.  That being the case, the accused persons are guilty of the offence of murder and manslaughter respectively and are convicted accordingly.”
The Appellant had contended that the evidence before the court did not establish a case of manslaughter against the Appellant beyond reasonable doubt.
The settled law is that in order to ground a conviction of an accused on any offence charged, the prosecution must in line with Section 135 of the Evidence Act 2011 prove the offence alleged against an Accused/Defendant beyond reasonable doubt.

The law is also settled that before an accused can be convicted of any offence the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredients of offence charged. In the case of SEBASTIAN S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) 36 AT 50 G, KUTUGI JSC (LATER CHIEF JUSTICE OF NIGERIA rtd) said:
“In criminal proceedings the onus is always on the prosecution to establish the quilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”

My Lord, OLATAWURA JSC said similar thing in the case of M. O. AMADI & ORS VS. THE STATE (1993) 8 NWLR (PT. 314) 644 AT 663 H to 644 A THUS:
“It is unsafe to base a conviction on speculative findings. Such findings are no longer findings of facts. Quite apart from this before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charged.”
In effect the Court will not begin to inquire whether an accused is guilty of a crime until it has been established that a crime has been committed by him. See the State vs. Omada Odobor (1975) 9 – 11 SC 69 at 78. He must also be proved to have participated in the crime. See also OLAYINKA AFOLALU VS. THE STATE (2010) 16 NWLR (PART 1220) 584 AT 612 – 613.

Section 316 sets out the circumstances in which an unlawful killing would amount to murder.  Section 317 provides:
“A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”
In a review of the above provisions this court in: Apugo Vs The State (2007) 2 NCC 30 @ 41 E held per Onnoghen, JSC:
“From the above provisions of Section 315 of the Criminal Code it is very clear that for a killing to amount to manslaughter it must not only be unauthorized or unjustified or not excused by law, it must also result from the direct or indirect act of the accused person.  In short the death must be caused by the unlawful act of the accused person.”
In the case of: Uyo Vs A.G. Bendel State (1986) 1 NWLR (Pt. 17) 418; (1986) All NLR 126 this court referred to and relied upon the dictum of the West African Court of Appeal (WACA) in R. Vs Oledinma (1940) 6 WACA 202 that:
“To establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did”
The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, the act would not fall within the provision of Section 316 of the Criminal Code and therefore would not constitute murder.  See: Omini Vs The State (1999) 12 NWLR (Pt. 630 168 @ 182 A.  See also: Shosimbo Vs The State (1974) All NLR 603; (1974) 10 SC 69 wherein it was held that in establishing 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.  See also: R. V. Church (1965) 2 ALLER72.
Relying on the authority of R. Vs Abengowe (1936V 3 WACA 85, learned counsel for the appellant has argued that negligence is an essential ingredient of the offence of manslaughter and that in the circumstances of this case the prosecution did not allege or prove any form of negligence in the handling of the appellant’s firearm.  It is pertinent to note that while negligence might be a feature in some cases of manslaughter it is not so in every case.  For instance the death of the deceased might occur in a situation where the act of the accused was deliberate but not intended to cause grievous harm or death, as for instance where in the course of an argument the accused hits the deceased who loses his footing, slips and hits his head on a hard object and dies.  In such a situation there is no element of negligence but death has occurred as a result of the act of the accused.  The killing in the circumstance is unlawful, not being justified in law.  Depending on the facts of the case, the defence of accident might however avail the accused if the requirements of Section 24 of the Criminal Code are satisfied.  The case of R. V. Abengowe (supra) is not on all fours with this case because in that case the accused person was specifically charged with manslaughter by negligence”.
In Ejeka Vs The State (2003) 7 NWLR (Pt. 819) 408 (5) 423 F (2003) 6 SCM, 1, this court per Tobi, JSC held:
“Manslaughter is an unintentional killing of a human being.  Such a killing is not pre-meditated but accidental, in the sense that it was not intentional.”
The gamut of the evidence before the court below did not reveal that it was the 1st Accused person Bassey Asinya that shot and killed the deceased. There was evidence that Appellant was in the bush. The 1st Accused admitted that the 1st Accused committed the act of murder.  It is a person who is proved to have committed unlawful act resulting in unintentional death of another that can be found guilty of the lesser offence of manslaughter.
I am of the solemn view that the Learned Trial Judge fell into grave error in convicting the Appellant for an offence of manslaughter when the evidence on record did not show or establish that the act of the Appellant who was in the bush when the 1st Accused shot the deceased caused the death of the deceased.  A court can only decide on issues and facts established before it.
It is trite that an Appellate court will not lightly interfere or disturb the findings and decision of a lower court who had the advantage of seeing the witnesses who testified before it and observing their demeanors.  But this court will interfere with such findings and decision of a lower court where it is patently clear that the finding or the decision was not supported by the evidence before the trial court.
See IRENE NGUME (ALIAS IRENE OKOLI VS. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H per M. D. MUHAMMED, JSC who held thus:
“Firstly, the decision on the voluntaries or otherwise of Appellant’s confessional statement, exhibit “7” unarguable requires the trial court’s assessment of the credibility of the witnesses who testified on the matter.  The principle has not changed from what the lower court in its foregoing finding holds it to be.
It was the trial court that saw the witnesses during trial and heard their testimonies.  This afforded the trial court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the course of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at.
It remains within the purview and competence of the trial court, therefore, for obvious reasons, to first evaluate evidence of witnesses.  The trial court does not share this jurisdiction with the appellate court and where its evaluation is borne out from the evidence on record, an appellate court cannot interfere in such a circumstance even if the appellate court concludes that the trial court should have evaluated the evidence of the witnesses differently.  Where, however, the trial court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice.  See IWUOHA VS. NIPOST (2003) NWLR (PT. 822) 308, 343 – 344; ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNIMA VS. R.S.H.P.D.A (2003) 12 NWLR (PT. R 834) 427.

I am of the firm view that Sections 317 and 325 of the Criminal Code and Section 179(2) of the Criminal Procedure Act do not support the finding and conviction for manslaughter made against the Appellant by the Learned Trial Judge. In other words the decision to sentence the Appellant to life imprisonment for the offence of manslaughter has no support in law. Consequently issue one is resolved in favour of the Appellant.
I will treat the remaining issues, that is issues two and three together.

ISSUES TWO AND THREE
Whether the trial court was right when it held that the Appellant conspired with the 1st Accused to carry unlawful act.  (Grounds Two and Three).
AND
Whether the prosecution was able to discharge its legal burden by proving the guilt of the Appellant beyond reasonable doubt.  (Ground Five).
The Appellant adopted his submissions under issue one.
The Appellant Learned Counsel stated that the trial court held that the Appellant conspired with the accused person to commit an offence under Section 50(i)(d) of the Armed Forces Act Cap A 20 LFN 2013 holding that they left their duty post at Avu Junction, in conjunction with the 1st Accused.  That because the Appellant left his duty post he has committed an offence.  The Appellant submitted that the finding of the trial court did not flow from the evidence before it.  That the finding is perverse and should be set aside.  He relied on the following cases:
1. UDENGWU VS. UZUEGBE (2003) 13 NWLR (PT. 836) 136 per UWAIFO, JSC.
2. IWUOHA VS NIPOST LTD (2003) 8 NWLR (PT 822) 308 at 344 per NIKI TOBI, JJSC and
3. KAYDEE VENTURES V. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY (2010) 2 – 3 SC (PT III) 1 at 34 to support the submission that the holding of the trial judge that the Appellant conspired with the 1st Accused to carry out an unlawful act is perverse. The Appellant urged this court to so hold.
In response to issue two the Learned Counsel to the Respondent submitted that the Appellant clearly conspired with 1st Accused Bassey Asinya to effect an unlawful act.  He relied on the evidence of DW2 that the 1st and 2nd Accused were not sent to the scene of crime but that the 1st and 2nd Accused were on a frolic of their own.  That the best evidence of conspiracy is usually obtained from one of the conspirators or from inferences.  He relied on the case of PATRICK NJOVENS & ORS V. THE STATE (1973) NWLR at 95 to contend that the lower court was right in convicting the Appellant and the 1st Accused.
I have perused the record and I can see that the Learned Trial Judge said on page 256 of the record in his judgment that the Appellant and the 1st Accused person breached Section 50 of the Armed Forces Act of 2004, LFN but came to the conclusion that since they were already facing trial under Criminal Code they would not be charged for the breach in view of Section 114(4) of the Armed Forces Act of 2004.
Now concerning the finding of conspiracy against the Appellant and 1st Accused the Learned Trial Judge had said that:
“from the foregoing it was found out that the 1st and 2nd Accused on 24/12/2006, conspired amongst themselves and with a common intention to carry out an unlawful purpose went to the scene of crime where the 1st Accused used his AK 47 rifle i.e. Exh. Vii a lethal weapon, shot th deceased at a close range at 3 different vital parts of the body.  Thereby causing him grievous harm which led to the death of the deceased.  Evidence available showed that the 2nd Accused was in the bush when the 1st Accused shot the deceased but the mere fact that they agreed to go to the scene of crime together without any authority from their superior makes him also a culpable (sic) to the offence to an extent.  It is trite that conspiracy is the meeting of the mind of the conspirators.  The offence of conspiracy is complete by the agreement to do the act or made the omission complained of.
Conspiracy is therefore a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of the conspiracy.
The 1st and 2nd accused had a common intention or agreement to go out to carry out an unlawful act during which the deceased was shot and grievously wounded by the 1st Accused.”
There was no charge of conspiracy or any other offence against the Appellant and 1st Accused beside the charge of murder of the deceased. To me the above quoted discourse of the Learned Trial Judge in his judgment on offence of conspiracy and its ingredients is a foray and a voyage of discovery that is quite strange and alien to the charge before the court. This is because the prosecution did not deem if fit to charge the Appellant and 1st Accused for the offence of conspiracy. It is the charge before the court that determines its jurisdiction.  See the case of MATTARADONA VS. AHU (1995) 8 NWLR (PART 412) 225 at 235H – 236A per OPENE, JCA who said:
“In Akinfolarin v. Akinola (1994) 4 SCNJ 30 at 43 IGH JSC observed:
“It is fundamental principle of law that it is the claims of the Plaintiff which determines the jurisdiction of a court to entertain same see Ajaka Izenkwe & ors vs. Nnadozie (1953) 14 WACA. 361 at 363; Adeyemi vs. Opeyon 1976 9 – 10SC 31.  In the instant case which is a criminal matter it is the charge.”The court cannot enter upon inquiry into a charge or matter the prosecution does not place before it.
The lower court in the instant appeal threw away the mantle of impartiality and justice according to law when it embarked on examination of charge of conspiracy.  The court cannot and it is not allowed to play the role of a Judge and a prosecutor.  The lower court wandered into realm of sentiments and surmises that have no place in judicial deliberations.  It is the prosecutor that decides which charge or charges he wants an accused prosecuted or tried for.  That is not the business of an umpire like the lower court in this matter on appeal.  See Anthony Okobi Vs. The State (1984) 7SC 47 at where OBASEKI JSC had this to say:
“the question that therefore arises for determination as stated above is whether a failure to secure conviction under Robbery and Firearms Special Provision Act 1970 entitles the High Court Judge to proceed to convict for a lesser offence under the Criminal Code by virtue of Section 179 of the Criminal Procedure Law.  It is my view that to enable the court to utilize its powers under the criminal procedure law to advantage, the offence should and must be charged under the two laws in the alternative.  The court is not a prosecutor but an adjudicator and it borders on persecution for a court to invoke its powers under a law under which the prosecutor decided not to proceed to prosecute”
The Accused in this matter were not charged under Section 516 of the Criminal Code for conspiracy.
Thus an accused person can only be found guilty in respect of the offence for which he is charged.  See OLUFEMI BABALOLA & ORS VS. THE STATE (1989) JSC (PT. 1) 94.
Section 179(2) does not apply to the facts and circumstance of the case now on appeal to warrant the invocation of Section 179 (2) of the Criminal Procedure Act by the court below.  In the result issue 2 is resolved in favour of the Appellant.
On issue three the argument of the Appellant is that the prosecution failed to prove the case against the Appellant beyond reasonable doubt while the Respondent contended that the prosecution established its case against the Appellant beyond reasonable doubt.
I am of the solemn view that having resolved issues 1 and 2 against the Respondent it cannot be said that the Respondent established the onus of prove casts upon it beyond reasonable doubt.
My conclusion therefore is that the prosecution did not make out any case manslaughter against the Appellant. The Appellant’s appeal has merit.  The Appellant appeal is hereby allowed.
The conviction of Appellant by the court below for manslaughter and sentence of life imprisonment imposed on the Appellant are hereby set aside.  In their stead, the Appellant is hereby discharged and acquitted. The Appellant shall be released forthwith from the Prison Custody.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

FREDERICK O. OHO, J.C.A.: I have had the advantage of reading the draft of the judgment just delivered by my learned Brother P.O. Ige, JCA. I agree with him that there is merit in this Appeal and that it thereafter succeeds. Conviction and sentence imposed by the lower court are hereby set aside and the accused person is discharged and acquitted.

Appearances

C.V.C. Ihekweazu Esq. & C. C. ObiefuleFor Appellant

AND

Respondents not represented in court.For Respondent