IKWO EFFIOM EFFIONG v. THE STATE (2019)

IKWO EFFIOM EFFIONG v. THE STATE

(2019)LCN/13828(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of October, 2019

CA/C/461C/2017

RATIO

CRIMINAL LAW AND PROCEDURE: CONSPIRACY: ESSENCE

The essence of the offence of conspiracy is the fact of combination by agreement. See DPP V. DOOT (1973) AC 807 57 Cr APP Rep 600, HL. It is not enough as in the instant case that two or more persons pursued the same unlawful object at the same time or in the same place, it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. See R. V. WALKER (1962) CRIM L. R. 458, CA: R. V. MILLS (1963) 1 QB 522 47 Cr. App Rep 49 CCA. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW AND PROCEDURE: CONSPIRACY: PROSECUTION MUST PROVE THE AGREEMENT
In the case of STATE V. GWANGWAN (2015) 13 NWLR (Pt. 1477) P.g. 606 the Supreme Court emphasized that in a charge of conspiracy, the prosecution must not only prove the inchoate or rudimentary nature of the offence but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence. See also IKWUNNE V. STATE (2000) 5 NWLR (Pt. 658) 550. PER MOJEED ADEKUNLE OWOADE, J.C.A.

SELF DEFENSE: FOR SELF DEFENSE TO AVAIL A PERSON , WHAT MUST BE PRESENT

For the defence of self defence to avail an accused person, he or she must show that his life was so much endangered by the act of the deceased that the only option that was open to him to save his life was to kill the deceased. He or she must show that he or she did not want to fight, and that he or she was at all material times prepared to withdraw. He must show that his or her life was so much endangered by the act of the deceased, and that the only option open to him or her to save his life was to kill the deceased. See APUGO V. STATE (2006) 16 NWLR (Pt. 1002) 227 (SC); AUDU V. STATE (2003) 7 NWLR (Pt. 820) 516 (CA); JEREMIAH V. STATE (2012) 14 NWLR (Pt. 1320) 248; OMOREGIE V. STATE (2008) 18 NWLR (Pt 11190 464; LIYA V. STATE (1998) 2 NWLR (Pt. 538) 397; KWAGHSHIR V. STATE (1995) 3 NWLR (Pt. 386) 651; NWAMBE V. STATE (1995) 13 NWLR (Pt 384) 385. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYAJustice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria

Between

IKWO EFFIOM EFFIONGAppellant(s)

AND

THE STATERespondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Cross River State, Calabar Judicial Division presided over by Hon. Justice S. M. Anjor in charge No. HCA/5C/2013 delivered on the 28th day of April, 2016. In the said judgment, the Appellant was found guilty of an offence of conspiracy and manslaughter, and sentenced to 30 years imprisonment with hard labour.

By information filed by the Attorney- General of Cross River State on 14/10/2013, the Appellant and 1st Accused, one Edak Effiom Effiong were charged with the offences of conspiracy to murder and murder respectively contrary to Section 516 and 319(1) of the Criminal Code Law Cap C16, Laws of Cross River State 2004. The Appellant and the 1st Accused were charged with conspiracy and killing one Kokoette Effiom Effiong on/or about the 3rd day of April 2013 at Ikot Ekpene-tete in Akpabuyo Judicial Division.

?The case of the prosecution more especially through PW2 was that she came from Calabar to the village and heard from the Appellant and the 1st accused the story of how the deceased?s friend told

them that the deceased was planning to use them that is the Appellant and the 1st accused for ritual money. That she (PW2) advised them to report the matter to the Clan Head. PW2 continued her Examination in chief on pages 38-39 of the Record of Appeal as follows:
Around 7pm I and my friend were discussing in her compound. The 1st Accused person came in and shouted at me that I should come for us to see. I followed her immediately, though my friend had asked 1st accused what the matter was and she replied that they had beaten the deceased and broken his leg. That she and 2nd Accused person did the beating. That I should go and rescue deceased and 2nd Accused had refused to leave the deceased.
My friend said she will accompany me and she used her Torch lite and followed. My friend?s name is Nene Edem. When we got there 1st Accused took us through a narrow road to the bush while my friend was holding the torch lite to light up the place. As we getting close in the bush, 2nd Accused appeared with a knife and asked why I was shouting her name. She asked if I did not know she could kill me with the matchet. I pleaded with her to take me where the

deceased was. When we got the place deceased called out that please I should help him.
As we were trying to lift him he rolled over and over and died. When we pointed Torch lite on deceased we saw that he had been matcheted all over his body. My friend advised me to run and call Community Youths to come. I then went and raise alarm as a result of which the Youths followed me there. 2nd Accused got a big stick and threatened to break my head for daring to call the Youths to the scene. The youths got hold of her and tied her hands and we went to the Police at Ikot Nakanda Police Station. I made a statement to the Police.
Now that they have killed my brother the Court should not jail them, because we are the same blood.

Earlier on, PW1 the IPO tendered (i) a piece of wood (ii) a machete and a kitchen knife admitted without objection as items recovered respectively as Exhibit 4, 5, and 6. The PW1 also tendered the Statement of the Appellant as Exhibit 2.

The Appellant as DW1 stated in evidence ?that in self defence she picked a stick and hit the deceased on his knees where he was already nursing an injury, which made him to sit on the

ground?. DW1 continued in Examination ? in chief at page 58 of the Record of Appeal as follows:
That PW2 asked to know what transpired and she explained and PW2 left them there, while she and 1st Accused carried deceased into the house where he was made to sit up. That 1st Accused went and bought Lucozade boost for deceased to drink. That she then asked 1st Accused to go to Calabar to report the deceased?s behavior while she would take the deceased to the hospital. That the young men were angry with one Effanga for cutting off the ropes on her legs, and forcefully took away the knife from Effanga?s hand which injured him. That Affiong asked that she be taken to the Police Station whereupon a motor bike was arranged to take her to the Police Station which was done and she was locked up in the cell and never knew what happened at home with the deceased.
That the next day one Akpama brought 1st Accused person to the Police Station and got her detained. That she was told deceased had died, and that they brought to the Police station a stick and knife. That there were not what she used to kill the deceased.

In his evaluation of evidence, the learned trial Judge found as a fact that neither the Appellant nor the 1st Accused had the intention to kill the deceased. He concluded and found ?the 2 Accused persons guilty of manslaughter and conspiracy pursuant to Section 317 and 324 of the Criminal Code Act?. After Allocutus the learned trial Judge recorded ?sentence? as follows on page 71 of the Record of Appeal.
SENTENCE
1. The offence of manslaughter carries life jail while conspiracy carries 14 years.
2. However each of the 2 Accused persons is hereby sentenced to a total of 30 years imprisonment with hard labour with effect from today.
3. That is Edak Effiom Effiong ? 30 years imprisonment with hard labour.
4. Ikwo Effiom Effiong is sentenced to 30 years imprisonment with hard labour.

Dissatisfied with the above decision, the Appellant was granted leave and filed a Notice of Appeal containing two (2) grounds of Appeal in this Court on 24/10/2017. The relevant briefs of Argument are as follows:
1. Appellant?s brief of Argument is dated 15/01/2018 and filed on 17/01/2018. It is settled by G. A. Umoh

Esq.
2. Respondent?s brief of Argument is dated and filed on 23/10/2018 but deemed filed on 21/11/2018. It is settled by Emmanuel E. Odibu Esq. DDPP Cross River State.
3. Appellant?s reply brief is dated 12/11/2018 but deemed filed on 21/11/2018. It is settled by G. A. Umoh Esq.

Learned counsel for the Appellant nominated two issues for determination. They are:
1. Whether the learned trial Judge was right in convicting the Appellant of the offence of conspiracy to murder by relying solely on the fact that the accused persons live together.
2. Whether the prosecution proved its case beyond the reasonable doubt standard as required by law having regard to the inconsistencies, material contradictions and irreconcilable testimonies of the prosecution witnesses and also despite the defence put forward by the Appellant.

The Respondent adopts the Appellant?s issues for determination. On issue one, Learned Counsel for the Appellant submitted that there was no evidence that the Appellant and the 1st Accused agreed, conspired or formed a common intention to kill the deceased.

?He submitted that the evidence given

purporting the act or acts of beating stated their happening by chance. That PW1 was the only witness who used the word ?conspire? despite the fact that he was not at the scene and all the report he made was as a result of what he had been told. He referred to the evidence of PW2 at page 34 of the Record of Appeal where PW1 stated that:
According to 1st Accused, she was in the compound when the Deceased went to the toilet for toileting..

Appellant?s counsel further submitted that the fact that the Accused persons both used a stick does not prove that there was an agreement between them to use a stick on the deceased. That it is only an event emanating from the use of the only available tool for self defense in their natural habitat considering the situation the Appellant found herself in.

He submitted that the Accused persons lived together is not enough to infer and conclude that they conspired against the deceased as it is obvious from the way events moved so fast after their complaints to their sister (PW2). Appellant?s counsel referred to page 69 of the Record of Appeal where the learned trial Judge said:

I dare say that nothing in the prosecution has been submitted to show that the Accused Persons intention was to kill the deceased or just to maim him.

He submitted that the above statement goes to show that the learned trial Judge also believed that there was no conspiracy, because without ?intention? it cannot be said that there was an ?agreement?. Therefore, if the Accused persons did not have any ?agreement?, the learned trial Judge erred in concluding that the Accused persons conspired with each other. He submitted that this Court ought to look into the wrong conclusion of the learned trial Judge as stated on page 66 of the Record of Appeal, that:
For the two Accused persons who lived together it is reasonable to infer and conclude that they conspired against the deceased, mostly as events moved fast after their complaints to PW2 (who is also their senior sister) to the eventual fight that evening. See STATE V. GWANGWAN (2015) LPELR ? 24837 (SC).

Learned counsel for the Appellant strengthened his argument of a wrongful inference or conspiracy between the Appellant and the 1st Accused by

referring to the case of AITUMA V. STATE (2006) 10 NWLR (Pt. 989) 459 and reminded us that the Courts have stated that the proper approach to an indictment which contains conspiracy charge is to first deal with the later 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. On this, he referred to the cases of MOHAMMED V. THE STATE (2016) LPELR ? 41328 (CA); OSETOLA V. STATE (2012) 17 NWLR (Pt. 1329) 251; JIMOH V. STATE (2014) 10 NWLR (Pt. 1414) 105. He urged us to resolve issue No. 1 in favour of the appellant for failure to establish and prove beyond reasonable doubt the guilt of the Appellant in this case having failed to prove the major ingredients of the offence of conspiracy which is ?specific intention? amongst other ingredients of the offence.

On Issue No. 1, Learned Counsel for the Respondent reiterated the ingredients of the offence of conspiracy through the cases of AGUGUA V. STATE (2017) 69 NSCQR 672-673; MOHAMMED V. STATE (1991) 5 NWLR (Pt. 192) 438; IDEN V. STATE (1994) 8 NWLR (Pt. 365) 719; JAMES SIMON V. STATE (2017) 69

NSCQR p. 844; FATAI BUSARI V. STATE (2015) 11 NCC 43 @ 48; IKEMSON & ORS V. STATE (1989) 3 NWLR (Pt. 110) 455; YAKUBU V. STATE (2002) 12 NWLR (Pt. 313) @ 131 and STATE V. GWANGWAN 63 NSCQR 1 @ 7 and submitted that the gist of the offence of conspiracy is the meeting of minds of the conspirators. This he said is barely capable of direct evidence on same. He reiterated that an offence of conspiracy can be committed where persons have acted whether by agreement or in concert.

On the specific facts of this case, Respondent?s counsel submitted that the Appellant and the 1st Accused must have agreed to beat the deceased before putting their agreement into action. That an inference of an agreement to do an illegal act, to wit; the beating of the deceased that resulted in his death can be safely drawn from the facts of the case. He concluded on the issue that the trial Court was right to infer conspiracy and to convict the Appellant and the 1st Accused of the offence of conspiracy to murder.

?In deciding Issue No. 1, it must first be said that while there is evidence on record that the Appellant and the 1st Accused beat the deceased, there is

nothing on record to suggest that the Appellant and the 1st Accused agreed and/or acted in concert to beat the deceased. Clearly, it is not enough for the learned trial judge to infer a conspiratorial agreement on the basis as he did that ?the two Accused persons live together.?
The essence of the offence of conspiracy is the fact of combination by agreement. See DPP V. DOOT (1973) AC 807 57 Cr APP Rep 600, HL. It is not enough as in the instant case that two or more persons pursued the same unlawful object at the same time or in the same place, it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. See R. V. WALKER (1962) CRIM L. R. 458, CA: R. V. MILLS (1963) 1 QB 522 47 Cr. App Rep 49 CCA.
Second, the finding of the learned trial Judge at page 69 of the Record of Appeal that ?nothing in the prosecution has been submitted to show that the Accused persons intention was to kill the deceased or just to maim him? negatives any finding of the specific intention to convict the Appellant of the offence of conspiracy to murder. This is because the mens rea which is an essential ingredient of the

offence of conspiracy consists in the intention of executing the unlawful elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct unlawful. See KAMARA V. DPP (1974) AC 104 @ 119, 57 Cr. App. Rep. 880 @ 895, HL per Lord Hailsham of Marylebone LC. Indeed, a person cannot be party to an agreement by virtue of an uncommunicated intention to enter into that agreement. See R. V. SCOTT (1978) 68 Cr. App. Rep. 164. CA.
In the case of STATE V. GWANGWAN (2015) 13 NWLR (Pt. 1477) P.g. 606 the Supreme Court emphasized that in a charge of conspiracy, the prosecution must not only prove the inchoate or rudimentary nature of the offence but also the meeting of the minds of the accused persons with a common intention and purpose to commit a particular offence. See also IKWUNNE V. STATE (2000) 5 NWLR (Pt. 658) 550.
In the instant case, the learned trial Judge was not only wrong to have inferred an agreement or common intention from the mere fact that the Appellant and the 1st Accused lived together but also wrong to have convicted the Appellant and the 1st Accused of the offence of conspiracy to murder which

requires specific intention after holding that the Appellant and the 1st Accused had no intention to kill deceased.
As was said by Lord Lindley inQUINN V. LETHEM (1901) AC 491, 533 ?it would revolutionize criminal responsibility to say that criminal responsibility for conduct never depends on intention. INTENTIO MEA IMPONIT NAMIEN OPERI MEO .my intention gives a name to my action? per Ngwuta JSC in NWOKEARU V. THE STATE SC. 227/2011 (2013) LPELR ? 20642 (SC). For the above mentioned reasons, Issue No. 1 is resolved in favour of the Appellant.

On Issue No. 2, Learned Counsel for the appellant submitted that the prosecution could not be said to have proved its case beyond reasonable doubt having regards to contradictions in the prosecution?s case. He pointed out that PW1 and PW2 contradicted themselves as to the weapons used on the deceased. In other words, it was not clear from the evidence of PW1 and PW2 which tool or weapon was used on the deceased a fortiori, the cause of death of the deceased is uncertain.

?Appellant?s counsel further submitted that where cause of death is unknown, it is futile

and illogical to proceed to consider whether it was the accused that caused the death of the victim of the attack. He referred to the cases of TEGWONOR V. STATE (2008) 1 NWLR Pt. 1069; UGURU V. THE STATE (2002) 9 NWLR (Pt. 771) 899. He submitted that it is only PW2?s version of evidence in Court that claimed that the deceased was matcheted all over his body. That this evidence was not corroborated by PW1. Also, that the postmortem examination form cannot be relied upon as a clear evidence of cause of death of the deceased. PW2 is not a medical expert and was not there when the incident happened; therefore, said counsel, the Court cannot rely on the evidence of PW2 that the deceased was killed with a stick and knife.

He referred to the cases ofOJUGBELI V. THE STATE (2012) LPELR 9302; EKPOISONG V. THE STATE (2009) 1 NWLR (Pt. 1122) 354 and submitted that where there is no cogent and admissible evidence that the death of the deceased was caused by an accused person, his conviction must be quashed. He submitted that the learned trial Judge erred in relying solely on extrajudicial statement (Exhibit 2) of the Appellant in concluding that it constitutes

the best evidence against the Appellant that she is responsible partly for the death of the deceased.

He submitted that although an accused can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. On this, he referred to the cases of ISMAIL V. STATE (2008) 15 NWLR (Pt. 1111) 598; NWAEBONYI V. STATE (1994) 5 NWLR (Pt. 343) 13; EFFIONG V. STATE (1998) 8 NWLR (Pt. 562) 632; KABIRU V. A. G. OGUN STATE (2009) 5 NWLR (Pt. 1134) 215; AKPAN V. STATE (1992) 6 NWLR (Pt. 248) 439 and OBUE V. STATE (1997) 2 SC 141. He added that such corroborative evidence does not exist in all the evidence given by the prosecution. He submitted that the Appellant gave evidence that the deceased used stick to beat her first and that she hit the deceased on the leg while trying to defend herself. And that she does not know how the deceased died.

?Appellant?s counsel submitted further that the fact that it was the deceased who first hit the accused with a stick was not challenged by any of the prosecution?s witnesses. He referred to the cases of

SULE V. STATE (2009) 17 NWLR (Pt. 1169) 41; OMORUYI V. THE STATE (2014) LPELR 23222 and submitted that the trial Court failed to give due and proper consideration to the defence of self defence raised by the Appellant. He urged us to resolve the second issue in favour of the Appellant.

Learned counsel for the Respondent reiterated the ingredients of the offence of murder through the cases of OKEREKE V. STATE (2016) LPELR 40012 (SC); ITU V. STATE (2016) 12 NCC 343-344; AKINLOLU V. THE STATE (2015) LPELR 25986 (SC); OGEDENGBE V. STATE (2014) LPELR 23065; OKORO V. STATE (2012) 4 NWLR 351; BWASHI V. STATE (1972) 6 SC 93; OKETAOLEGUN V. STATE (2015) 63 NSCQR 465 @ 476. He submitted that the prosecution can prove the commission of an offence through any or all of the following three ways: eye witness account, confessional statement and circumstantial evidence. He referred on this to the cases of NIGERIAN NAVY & ORS V. LT. COMMANDER IBE LAMBERT (2007) 32 NSCQR 258 @ 271 and UGBOJI V. STATE (2017) LPELR-43427 (SC). He submitted that the Appellant admitted in Exhibit 2 that it was the beating she and the 1st Accused person gave to the deceased that led to his death. He

argued that even if the Appellant had used a stick and not a machete on the deceased, the defence of self could not avail him.

He highlighted the conditions for the plea of self defence through the cases of JEREMIAH V. STATE (2012) 14 NWLR (Pt. 1320) 248; OMOROGIE V. STATE (2008) 18 NWLR (Pt. 1119) 464; LIYA V. STATE (1998) 2 NWLR (Pt. 538) 397; KWAGHSHIR V. STATE (1995) 3 NWLR (Pt. 386) 651; NWAMBE V. STATE (1995) 13 NWLR (Pt. 384) 385. He submitted that the evidence of the PW2 that when she went to the scene of crime she met the Appellant there and also pointed a torch light on the deceased and saw cuts all over the body of the deceased was not challenged by the Appellant.

He submitted that the contention of the Appellant that the real cause of death of the deceased was unknown is curious, considering the overwhelming evidence at the disposal of the trial Court and the confession of the Appellant herself that it was the beating that she and the 1st Accused person gave the deceased that led to his death.

?Respondent?s counsel referred to the decision of the Supreme Court inKARIMU SUNDAY V. THE STATE (2017) LPELR 42259 (SC) for the

proposition that an accused person can be convicted on his confession alone once it is properly proved and admitted in evidence.

On contradictions, Respondent?s counsel submitted that there were no contradictions in the evidence of the prosecution that if any, there were only minor discrepancies in the evidence of the prosecution. On this, he referred to the case of UWAEKWEGHINYA V. STATE 21 NSCQR 573 @ 587 and submitted that contradictions of minor details which do not affect the substance of the issue to be decided are irrelevant. He urged us to resolve the issue against the Appellant.

In deciding issue No. 2 in this appeal, I must first and quickly rule out the possibility of the Appellant being availed by a defence of self defence. In the instant case, the Appellant confessed to beating the deceased to death, clearly therefore there was no reasonable apprehension of death or grievous harm on the part of the Appellant, if there was; it could have disappeared in the act of beating the deceased to death.

?For the defence of self defence to avail an accused person, he or she must show that his life was so much endangered by the act of the

deceased that the only option that was open to him to save his life was to kill the deceased. He or she must show that he or she did not want to fight, and that he or she was at all material times prepared to withdraw. He must show that his or her life was so much endangered by the act of the deceased, and that the only option open to him or her to save his life was to kill the deceased. See APUGO V. STATE (2006) 16 NWLR (Pt. 1002) 227 (SC); AUDU V. STATE (2003) 7 NWLR (Pt. 820) 516 (CA); JEREMIAH V. STATE (2012) 14 NWLR (Pt. 1320) 248; OMOREGIE V. STATE (2008) 18 NWLR (Pt 11190 464; LIYA V. STATE (1998) 2 NWLR (Pt. 538) 397; KWAGHSHIR V. STATE (1995) 3 NWLR (Pt. 386) 651; NWAMBE V. STATE (1995) 13 NWLR (Pt 384) 385. Learned Counsel also raised issues that the cause of death of the deceased was unknown and that in this respect there are contradictions in the case of the prosecution.

?It seems to me that the Appellant?s confessional statement Exhibit 2 has taken care of the cause and/or circumstances of the death of the deceased even if there are any contradictions in the case of the prosecution. In my opinion, the said Exhibit 2 was adequately

corroborated by the evidence of PW1 and PW2. In any event, a free and voluntary confession of guilt whether judicial or extra judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction, so long as the Court is satisfied with the truth of such a confession. See SOLOLA V. STATE (2005) 11 NWLR (Pt. 937) 460 (SC); EDHIGERE V. STATE (1996) 8 NWLR (Pt. 464) 1 (SC); ALARAPE V. STATE (2001) 14 WRN 1 (SC); NWAEZE V. STATE (1996) 2 NWLR (Pt. 428) 1 (SC); AKINMOJU V. THE STATE (2000) 4 SC (Part 1) 64; KARIMU SUNDAY V. THE STATE (2017) LPELR-42259 (SC).

In the instant case, the learned trial Judge was right in his evaluation of evidence to have considered amongst other things the Appellant?s Confessional Statement Exhibit 2 and the exculpating circumstances in the evidence to have come to the conclusion that the death of the deceased was a result of an unintentional act and rightly convicted the Appellant of the offence of manslaughter.
Issue No. 2 is therefore resolved against the Appellant.

?In this appeal, issue No. 1 was resolved in favour of the Appellant while issue No. 2 was

resolved against the Appellant.

The appeal succeeds in part. The conviction of the Appellant for the offence of conspiracy to murder under Section 324 of the Criminal Code Cap. C16 Laws of Cross River State 2004 cannot be sustained and it is accordingly set aside. However, the conviction of the Appellant for the offence of manslaughter under Section 317 of the Criminal Code Cap. C16 Laws of Cross River State is hereby affirmed.

Furthermore, on consequential orders, the learned trial Judge failed to exercise his sentencing discretion judicially and judiciously. First, the learned trial Judge lumped his pronouncements as to conviction and sentencing of the Appellant and the 1st Accused person together rather than separating the pronouncement on the conviction and sentence of the Appellant and the 1st Accused person. Secondly, the learned trial Judge lumped sentences on his conviction for two different offences that is conspiracy to murder and manslaughter together coming to a curious conclusion of a total of ?30 years imprisonment with hard labour? on the Appellant.

?Now, having discharged and acquitted the Appellant on the charge of

conspiracy to murder which carries a penalty maxima of 14 years imprisonment, the Appellant is now sentenced to 10 years imprisonment for the offence of manslaughter. The sentence shall take effect from 28/04/2016 that is from the delivery of the judgment of the Court below.

NOTICE BY RESPONDENT OF INTENTION TO CONTEND THAT DECISION OF COURT BE VARIED. ORDER 9 RULE 1
Learned counsel for the Respondent filed a process titled as above on 23/10/2018. It is ?to find the Appellant guilty of murder upon the compelling evidence before the lower Court that the act of the Appellant which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence?.
It seems to me that the provision of Order 9 Rule 1 which the Respondent?s Application for Intention to contend or vary decision is based is not applicable to Criminal Appeals. The explanation is that the Court of Appeal Rules 2016 is divided into four parts. The intention or the coverage of each part of the Rules is stated therein as follows:
PART 1
Part 1 from Order 1 to Order 5 is the General Part and

maintains that ?The practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule or practice to the contrary obtained in any of the states?.
PART 2 ? CIVIL APPEALS
Part 2 of this Rule shall apply to appeals to the Court from any Court or tribunal acting either in its original or its appellate jurisdiction in civil cases, and to matters related thereto.
Part 2 consists of Order 6 to Order 16.
PART 3
Part 3 consists only of Order 17. The order shall apply to appeals to the Court or tribunal acting either in its original or in its appellate jurisdiction in criminal cases, other than a Court-martial, and to matters related thereto.
PART 4
Part 4 of the rules consists of Order 18 to Order 20. It shall apply to all appeals coming from any Court or tribunal from which an appeal lies to this Court.
From the above, the provision of Order 9 Rule 1 of the Court of Appeal Rules 2016 applies only to civil appeals. Put in another way, the Court of Appeal Rules does not provide for any process known as Notice of Intention to contend or vary Decision in Criminal

Appeals.
The Respondent in this appeal would have cross-appealed within the provision of Order 17 of the Court of Appeal Rules and not to file a Notice of Intention to contend or vary which is only known to civil appeals.
The Respondent?s Notice of Intention to contend that decision of Court be varied of 23/10/2018 is incompetent and accordingly struck out.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the leading erudite judgment delivered by my learned brother: Mojeed Adekunle Owoade, JCA. I endorse, in toto, the reasoning and conclusion in the well-honed judgment. l, too, allow the appeal in the manner decreed in the leading judgment. I abide by the consequential orders made therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was privileged to read the judgment of my learned brother M.A OWOADE, JCA and I agree with the judgment and have nothing to add.

Appearances:

G. A. UMOH, ESQ.For Appellant(s)

EMMANUEL E. ODIBU, ESQ.For Respondent(s)

Appearances

G. A. UMOH, ESQ.For Appellant

AND

EMMANUEL E. ODIBU, ESQ.For Respondent