JAMIU ADENIYI & ORS. V. FEDERAL REPUBLIC OF NIGERIA
(2011)LCN/4979(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of December, 2011
CA/IL/C.21/2011
RATIO
LESSER OFFENCE: STATUTORY PROVISION ON WHEN A PERSON CAN BE CONVICTED OF A LESSER OFFENCE WHERE THE MAIN CHARGE CAN NOT BE SUSTAINED
Of course, that is the Law that the court can convict an accused person on a lesser offence disclosed by evidence at the end of trial, if the main charge fails (See section 179(2) of the Criminal Procedure Act). But that can only apply where the offence proved is part or element of the offence charged, or related to it! Section 179(1) and 2 of the Criminal Procedure Act states: “1. In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto, although he was not charged with it. 2. When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence, although he was not charged with it.” A good explanation and application of the above provision is stated in section 177 of the Criminal procedure Act, as follows; “177 Where upon the trial of any person for murder of any child or for infanticide, it appears upon evidence that such person was not guilty of murder or infanticide, as the case may be, but was guilty of the offence specified in section 329 of the Criminal Code, such person may be found guilty of such offence, ” In section 178 it is stated that “upon the trial of a woman for the murder of her new born child, it appears upon the evidence that having regard to the provisions of section 327A of the Criminal Code, she was not guilty of murder but of infanticide, she may be found guilty of infanticide.” Infanticide is a lesser offence, which occurs, for instance, where a mother kills her infant child while still under mental stress/imbalance caused by the after-birth pangs. Of course, at such time she was not mentally stable and so the offence cannot be said to have been premeditated. It is therefore a lesser offence, compared to murder, and where applicable, is treated as offence of manslaughter (see section 327A of the Criminal Code). Thus, a charge of murder is taken out against the accused, but the offence of murder ends with a conviction for manslaughter, where the evidence adduced fails to prove the offence of murder, but establishes infanticide/manslaughter as a lesser offence. See Olabode us State (2007) All FWLR (Pt. 389) 1301, held 18. PER ITA GEORGE MBABA J.C.A.
DUTY OF THE COURT NOT TO CONVICT AN ACCUSED ON A CHARGE IMPOSED SUO MOTU WITHOUT AFFORDING THE ACCUSED OPPORTUNITY TO BE HEARD
No court is allowed to impose a charge, suo motu, and proceed to convict an accused on it, without affording the accused opportunity to be heard, first, (see section 36(1) of the 1999 Constitution). That is never done, even in a situation of contempt of court, which can be said to be a charge by the court, because the contemnor will be given opportunity to defend himself, if the offence is not one on the face of the court. See section 133 of the Criminal Code Act and section 15 of the Criminal Procedure Act. PER ITA GEORGE MBABA J.C.A.
DUTY OF THE ACCUSED: WHETHER AN ACCUSED PERSON CAN BE CALLED UPON TO PROVE HIS INNOCENCE
There are myriads of authorities to the effect that accused person cannot be called upon to prove his innocence, as the constitutional presumption remains inviolate, that he is innocent, until his guilt is proved by the prosecution. See section 36(5) of the 1999 Constitution; the case of Okoro vs The State (1988) 12 SCNJ 191, where the Apex Court held: “It is both constitutional duty imposed on the Court and the right conferred on the accused, by the constitution to ensure the purity of the criminal justice administration, that the innocence of the accused is maintained inviolate, Accordingly, even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court, it should be taken by the Court. Where no case has been made out against the accused at the end of the prosecution, asking him to answer the charge against him is reversal of the constitutional provision by asking him to establish it’s innocence. The protection of the accused, presumed to be innocent, cannot be curtailed by the strength of the case founded on suspicion, however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt.” (Per Karibi-White JSC); That principle was adopted by this Court in the case of Garba vs The State (2011) 14 NWLR (Pt.1266) 98, held 5 and recent case of Sebo Bello vs. The State (an unreported decision of this Court in CA/IL/C.14/2011), delivered on 3/11/2011 by my lord, Abdullahi Tijjani JCA, who also reproduced and applied the principle and said, in page 12 thereof: “…the prosecution has the duty, which is an unshifting burden to prove all and not only some of the ingredients of the offence charged beyond reasonable doubt… such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person.” Owe vs. Queen (1961) 2 SCNLR 354; Omogodo vs. State (1981) 5 SC 5; Hassan vs. State (2001) 4 NWLR (Pt.704) and Tanko vs. State (2009) All FWLR (Pt.450) 1977. PER ITA GEORGE MBABA J.C.A.
DUTY OF THE PROSECUTION: EFFECT OF FAILURE BY THE PROSECUTION TO PROVE OR ESTABLISH THE ESSENTIAL INGREDIENTS OF A CHARGE
The effect of failure by the prosecution to prove or establish the essential ingredients of a charge is the dismissal of the charge and the accused being given the benefit of the doubt, by being discharged and acquitted. See the case of Garba vs The State (supra); Onafowokan vs The State (1987) 3 NWLR (Pt. 83) 538; Sebo Bello vs The State (supra); Okoro vs The state (supra); Olabode vs The State (2007) All FWLR (Pt 389) 1301 held 13.PER ITA GEORGE MBABA J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. JAMIU ADENIYI
2. AKEEM ADESANYA
3. AMINU ALIYU
4. MUSTAPHA ALONGE – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
ITA GEORGE MBABA J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Ilorin, in charge No. FHC/IL/20C/2009, delivered on 15th June, 2010 by BILKISU BELLO ALIYU J., whereof the Appellants were convicted for forgery, contrary to and punishable under section 1(2) (c) of the Miscellaneous Offences Act, CAP M17 of the Laws of the Federation of Nigeria, 2004, and sentenced to 3 years imprisonment, each.
The charge against the Appellants at the lower Court was as follows:
“That you Jamiu Adeniji, Akeem Adesanya, Aminu Aliyu, Endurance Otuya, Mustapha Alonge, Ismaila Adeniran and one Alhaji Yalateef now at large on or about the 31st day of March 2009 at Ibafo along Ilorin-Ibadan road within the jurisdiction of this honourable Court committed an offence to wit, vandalized NNPC pipeline and through it illegally procured about 17,000 litres of Petroleum Motor Spirit (PMS), which you were about to illegally discharge for sale at Ogidi, Ilorin, where you were arrested. You have by your act wishfully obstruct (sic) the procurement of petroleum products for distribution between Ilorin-Ibadan Depot and you thereby committed an offence contrary to section 2 of the Petroleum Production and Distribution (Anti Sabotage) Act Cap P12 Laws of the Federation of Nigeria 2004.”
Appellants filed their separate notices and grounds of appeal against that decision on 14/4/2010 and each raised four identical grounds of appeal as follows:
‘Ground 1:
The learned trial Judge erred in Law when it (sic) held that:
“It is clear that the accused persons procured the petrol they were found with illegally without lawful authority, and used the forged meter ticket and waybills as genuine documents for petrol found with them.”
PARTICULARS OF ERROR:
(1) There is no evidence from M.R.S. depot Lagos denying the fact that the Accused/convicts procured the petroleum product from its deport (sic).
(2) Most of the evidence relied on by the Court were hear-say evidence.
Ground 2:
The learned trial judge erred in law when it (sic) held that:
“The circumstantial evidence presented by the prosecution in this case only proved that the 1st, 2nd, 3rd, 4th and 5th accused persons were found in possession of petrol with forged documents, that is, meter ticket and way bills”.
PARTICULARS OF ERROR:
(1) The circumstantial evidence required in Law to convict an accused person is lacking in this case,
(2) The author of the alleged forged document were (sic) never called to confirm the genuineness or otherwise.
Ground 3:
The trial judge erred in law to have held that the offence of forgery of the way bills used to carry and discharge petrol has been against 1st, 2nd, 3rd, 4th and 5th accused person (sic).
PARTICULARS OF ERROR:
(1) It is the duty of the prosecution to prove it case beyond reasonable doubt.
(2) The evidence adduced by the prosecution cannot adequately prove Forgery against any of the accused persons
(3) There was no allegation of forgery against the accused and none was proved
Ground 4:
The learned trial Judge erred in Law when he failed to consider the defence of the convicts in his judgment.
PARTICULARS OF ERROR:
(1) The Accused/convict loaded his Petroleum products at MRS. Depot, Lagos,
(2) The documents submitted by the accused were from MRS. Depot Lagos, where they bought the product.
Each of the Appellants Prayed for 3 Reliefs from this Court-
(1) To allow the appeal, set aside the conviction of the Appellant.
(2) To discharge and acquit the appellant of the offence convicted for and
(3) To release the money of the petrol decanted by the NNPC officers at both Ilorin and Lafiafi to the Appellant/Convict.
Appellants filed a Joint Brief of argument on 6/5/2011 and the same was deemed duly filed on 30/6/11. They formulated 3 Issues for determination from the four grounds of appeal as follows:
(1) ‘Whether the appellants were properly convicted of forgery in view of the prosecution failure to call evidence from M.R.S. Lagos (Grounds 1 and 3).
(2) Whether the Lower court was right to have convicted the appellants based on circumstantial evidence (Ground 4 (sic))
(3) Whether or not the trial court failed to consider the defence of the appellants before convicting them (Ground 4)
The Respondent’s Brief of argument was filed on 16/6/11 and at the hearing of the Appeal the learned Counsel for the Respondent, J.A. Mumini Esq (DPP Kwara State), moved us, orally, to deem the appeal duly filed, having been done before the Appellants’ Brief was deemed duly filed and served.
The application was granted.
The Respondent also identified the three (3) issues for determination by the Appellants.
Arguing the Appeal, Learned Counsel for the Appellants, H.O. Buhari Esq, referred us to the definition of Forgery in Section 465 of the Criminal Code and said that a false document is also defined in the same section 465, which he reproduced in the Brief. He submitted that for offence of forgery to be proved, the prosecution must establish the following ingredients:
(1) That there is document or writing
(2) That the document or writing is forged
(3) That the forgery is by the appellants
(4) That the appellants know that the document or writing is forged
(5) That they intend the forged document to be acted upon to the prejudice of the victim, in the belief that it is genuine.
Counsel also submitted that by virtue of section 138(ii) of the Evidence Act, for a crime to result in conviction, the prosecution must prove its case beyond reasonable doubt. Thus, to establish the offence of forgery, all the ingredients of the offence, enumerated above, must be present and proved at the required standard. He relied on the case of FRIDAY AKUOREGHIAN & ORS. VS. THE STATE (2004) 1 SCNJ 68 AT 81.
Counsel submitted that from the evidence adduced by the prosecution, it had failed woefully to establish the offence of forgery against the appellants. He relied on the evidence of PW2 on page 52 of the Record; PW3 on page 78; PW4 on page 86, saying that the reliance placed on the evidence of PW3 and PW4 as to the genuineness or otherwise of the meter tickets and way bills (Exhibit PW2A) presented by the Appellants by the trial Court, without calling any evidence from the M.R.S. depot, where the documents emanated, was wrong, as that evidence fell far short of what the law expects; that in criminal proceedings, the burden of proving the guilt of the accused, rest with the prosecution and the accused has no duty of proving his innocence: that sometimes circumstances may occur where the accused needs to provide some information as to where he got the petrol and documents (which Appellants did in detail in their defence); that such explanation was sufficient for their discharge; that it was the duty of the prosecution to call evidence of MRS depot to negate those evidence of the defence; that the inference of the guilt of the accused cannot be founded on circumstantial evidence; that failure to call evidence from M.R.S. Depot was call enough to create doubt in the mind of the Court. He relied on the case of the STATE VS. GODFREY AJIE (2000) 7 SCNJ 1, and on Section 149(d) of the Evidence Act on the rule of withholding of evidence.
On Issue 2, Counsel submitted that circumstantial evidence can only lead to conviction, if it leads to only one conclusion that the offence has been committed and by the accused persons, conclusively. He relied on ADIE VS. THE STATE (1982) 1 NLR 375 at 381, that is, that it must lead to irresistible conclusion that Appellants committed offence.
Counsel submitted that the original charge before the Court was the offence of canalization, which the Court held was not proved (page 225 of the Record), but the trial court turned round to convict them on the basis of circumstantial evidence as regards issue of forgery of meter ticket and way bills (which was not the charge), founded on hear-say evidence. He relied on the case of MBANG VS. THE STATE (2009) 12 SCNJ. 232; IGABELE VS. THE STATE (2008) INCC 59 at 75; ADEPETU VS. THE STATE (1998)7 SCNJ 63 at 97.
On Issue 3, Counsel submitted the position of the Law, that no matter how worthless the defence set up by the Accused person, the trial Court has a duty to consider the same, dispassionately, before dismissing them. OGONYE VS. THE STATE (1999) 4 SCNJ 33 at 55. He submitted that the Appellants had given evidence to show how the fuel was loaded and how they came by Exhibit PW2A, and this was confirmed by PW4, when he said:
“I asked the accused whether these are the documents they used to load the product from MRS. Depot, the accused say (sic) Yes. I then informed the Police Anti Vandals Squad and PW2 that as far as NNPC is concerned, these documents are not genuine…” (page 82 of the Record)
He referred us to the testimonies of DW1, DW2, DW3 and DW4 on page 141 to 144, 144 to 147, 150 to 151 and 154 to 155, respectively, that it was the duty of the trial Court to appraise that evidence and ascribe probative value to it, but the Court rather made improper and imperfect use of the opportunities of hearing and seeing the accused persons, and drew wrong conclusion. He said that it was not in dispute that the appellants loaded the fuel from MRS. Depot in Lagos, which the Prosecution had a duty to rebut but failed to do so; that the trial court rather placed the burden of proof on the Appellants, to prove that they loaded at MRS. Depot, which was against the law; that the prosecution had a duty to call the MRS. Depot, Lagos, to rebut the Appellants’ claim, but failed. He relied on the case of Okonkwo vs. Okonkwo (1998) 7 SCNJ 246 at 257; Akpan vs. The State (1994) 12 SCNJ 140 at 150.
He urged us to resolve the issues in their favour and allow the Appeal.
The Respondent’s Counsel, on whether appellants were properly convicted of forgery, in view of the prosecution’s failure to call evidence from MRS. Lagos, referred us to the reasoning of the trial judge on pages 217 to 227 of the Record, and submitted that it is trite that where a lesser offence is disclosed by an indictment and the prosecution could not sustain the main offence charged, the Court can convict for the lesser offence. He relied on section 179(2) of the Criminal Procedure Act and submitted that the trial Court was right to have convicted the Appellants for the offence of Forgery; that the evidence adduced by the Prosecution was sufficient to ground the conviction.
Counsel asserted that Exhibit PW2A (way bill and meter ticket produced by the appellants at the point of their arrest, as authority to carry the products) were forged. He relied on the evidence of PW2, PW3 and PW4, (pages 51 – 52, 54 – 55, 82 – 83 of the Record, respectively). He added that PW4 was an NNPG staff; that the trial Court had sufficiently put the appellants’ conduct in focus and established a prima facie case of forgery to warrant a rebuttal from the Appellants; that Appellants were on bail and they refused to call MRS. Depot officials that allegedly issued the documents to them to testify in court!
Counsel submitted that the ingredients of forgery were established, and he relied on the case of MICHALE ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567 at 592 per TOBI JCA (as he then was).
Counsel submitted that the fact that Appellants, on arrest, realizing the poverty of their logic, decided to run away, proved element of ‘guilty knowledge’; that that showed they were well aware that the documents they relied on for dispensing petroleum products was a fake one; thus, the evidence of the Prosecution on the fakeness of the Exhibit PW2A was not based purely on hearsay evidence.
Moreover, he said that Exhibit PW2A was NNPC document; that the PW4, as a staff of NNPC, had faulted the document; that the confessional statement of 3rd and 4th Appellants (Exhibits PW3D and PW7B) was unequivocal on the source of the Petroleum Product, to the effect that the Product was vandalized from NNPC Pipeline at Ibafo.
On Issue 2, Counsel for the Respondent conceded that the proof burden of in criminal cases is on the Prosecution, which must establish its case beyond reasonable doubt. He, however, relied on the case of BAKARE VS. THE STATE (1987) 3 SC 1 at 5, on the definition of proof beyond reasonable doubt, that the law does not require the prosecution to prove its case beyond every shadow of doubt; that in this case the evidence showed that offence had been committed; that the Accused were arrested with two trucks of petroleum motor spirit, with fake documents; an inquiry was made; the Appellants denied the charge but the driver of the vehicle made Exhibit PW7B, where he narrated how they got the fuel from a vandalized pipeline at Ibafo along Ilorin-Ibadan way; that that was enough evidence to establish the offence, as there can be no better evidence than the confession of the accused person!
Counsel further, submitted that an offence can be established by direct or circumstantial evidence. He relied on the case of AMUSA OPOLA ADIO & ANOR VS. THE STATE (1986) 4 SC 194 at 219 – 220. He said that in this case the prosecution had led sufficient circumstantial evidence to warrant the conviction of the Appellants.
On Issue 3, whether or not the trial Court had considered the defence of the Appellants, Counsel answered in the affirmative, saying that the trial judge gave adequate consideration to the defence of the accused before convicting them; that the only defence raised by the Appellant was that of lawful possession of the PMS (Petrol) found in their possession, that they bought same’ as per Exhibit PW2A, but that PW4 testified to show that Exhibit PW2A was a false document, and went further to tender a genuine NNPC way bill and meter ticket as Exhibit PW3E; that after a careful juxtapose of all the evidence, the trial Court agreed with the Prosecution as per page 226 of the Record, that the defence of the Appellants was not tenable.
He urged us to resolve the issues against the Appellants and dismiss the Appeal.
I think the three issues by the Appellants can be summarized into one to dispose of the appeal:
Was the trial Judge right in holding the Appellant’s guilty of the offence of Forgery, in the circumstances of this case, after he had found out that the actual charge with which the Appellants were tried could not be sustained?
On page 226 – 227 (lines 21 to 22, and 1 to 12, respectively) the learned trial judge held:
“The circumstantial evidence presented by the prosecution in this case only proved that the 1st, 2nd, 3rd, 4th and 5th accused persons were found in possession of petrol with forged documents, that is, meter tickets and way bills. However, the accused were not charged with carrying petroleum product with forged documents or forgery, though the prosecution’s case is solely hanged on the forged documents in respect of the petrol found with the accused persons. I therefore hold that the offence of forgery of the way bills used to carry and discharge Petrol has been proved against the 1st to 5th accused persons, and I hereby convict the 1st, 2nd, 3rd, 4th and 5th accused persons for the offence of forgery contrary to and punishable under section 1(2) (c) of the Miscellaneous Offences Act CAP.M17 of the laws of the Federation of Nigeria, 2004” (Emphasis mine).
The Respondent’s Counsel, in his address (paragraph 3.03 of the Brief of Argument) had submitted that it is trite that where a lesser offence is disclosed by an indictment and the prosecution could not sustain the main offence charged, the court can convict for the lesser offence (Relying on section 179(2) of the Criminal Procedure Act). That was a concession by the Prosecution that they did not prove the charge they took out against the Appellants. But they did not pray the court to convict them on any other charge!
Of course, that is the Law that the court can convict an accused person on a lesser offence disclosed by evidence at the end of trial, if the main charge fails (See section 179(2) of the Criminal Procedure Act). But that can only apply where the offence proved is part or element of the offence charged, or related to it! Section 179(1) and 2 of the Criminal Procedure Act states:
“1. In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto, although he was not charged with it.
2. When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence, although he was not charged with it.”
A good explanation and application of the above provision is stated in section 177 of the Criminal procedure Act, as follows;
“177 Where upon the trial of any person for murder of any child or for infanticide, it appears upon evidence that such person was not guilty of murder or infanticide, as the case may be, but was guilty of the offence specified in section 329 of the Criminal Code, such person may be found guilty of such offence, ”
In section 178 it is stated that “upon the trial of a woman for the murder of her new born child, it appears upon the evidence that having regard to the provisions of section 327A of the Criminal Code, she was not guilty of murder but of infanticide, she may be found guilty of infanticide.”
Infanticide is a lesser offence, which occurs, for instance, where a mother kills her infant child while still under mental stress/imbalance caused by the after-birth pangs. Of course, at such time she was not mentally stable and so the offence cannot be said to have been premeditated. It is therefore a lesser offence, compared to murder, and where applicable, is treated as offence of manslaughter (see section 327A of the Criminal Code). Thus, a charge of murder is taken out against the accused, but the offence of murder ends with a conviction for manslaughter, where the evidence adduced fails to prove the offence of murder, but establishes infanticide/manslaughter as a lesser offence. See Olabode us State (2007) All FWLR (Pt. 389) 1301, held 18.
But the submission of the learned Counsel for the Respondent is not borne out in the judgment of the learned trial judge reproduced above. He never said or suggested that the evidence by the prosecution disclosed a lesser offence, other than the main offence, and he never stated that he was convicting the Appellants for a lesser offence!
Moreover, to talk about forgery as a lesser offence in this case, will require the Respondent to establish a link and relationship between the charge for which the Appellants were tried and the forgery, for which they were convicted, to justify applying the evidence for one to convict for the other.
In section 179(1) of the Criminal Procedure Act, relied upon by the Respondent’s counsel, the phrase (understanding) “whenever a person is charged with an offence consisting of several particulars, a combination of some only which constitutes a complete lesser offence in itself…” shows that the offences should be related, having the same or common means of proof, or similar/related ingredients for establishing commission, but the lesser offence, being so called, because the severity of it is less than the main offence, and the punishment thereof is, accordingly, reduced as in a murder to manslaughter situation, or in battery to assault, and in armed robbery to robbery/stealing.
It is difficult to contemplate or appreciate a relationship between the offence of vandalizing NNPC pipeline and through it illegally procure 17,000 litres of petroleum motor spirit (pms) under section 2 of Petroleum Protection and Distribution (Anti sabotage) Act (the charge), and the offence of forgery, contrary to and punishable under section 1(2)(c) of the Miscellaneous Offences Act (the offence for which Appellants were convicted), to understand or appreciate how evidence for the former can establish the latter, to warrant the alleged punishment for a lesser offence. The alleged juxtaposition and/or inference, to my mind, is strange and laughable, as the two offence are poles apart, with completely different forms/sets of evidence required to prove them.
Appellants were standing trial for vandalizing NNPC pipelines and through which act they allegedly procured 17,000 litres of petrol. What has forgery of documents got to do with braking or destroying pipelines (which vandalization implies)?
If the Appellants were caught with 17,000 litres of petrol (pms), what has forgery of the way bills and meter tickets thereof (Exhibit PW2A), which the Appellants produced to explain how they came by the product, got to do with vandalization of the pipeline of NNPC?
I think it is a strange logic to use the evidence adduced for the trial of vandalization of pipeline and procuring petrol, by so doing, to convict the Appellants for forgery of documents!
Were the Appellants ever confronted with the offence of forgery of documents and made to take plea and defend themselves on the charge? The answer is, No!
By section 36(6) of the 1999 Constitution of Nigeria, “Every person who is charged with a criminal offence shall be entitled to:-
a) To be informed promptly in the language that he understands and in detail of the nature of the offence;
b) To be given adequate time and facilities for the preparation of his defence;
c) Defend himself in person or by a legal practitioner of his own choice;
d) To examine in person or by his legal practitioner the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution and;
e) Have, without payment, the assistance of an interpreter, if he cannot understand the language used at the trial of the offence.”
It can be seen that those constitutional provisions were not extended to the Appellants on the alleged offence of forgery, whereof they were never charged, but the court suddenly, and suo moto, found them guilty of!
No court is allowed to impose a charge, suo motu, and proceed to convict an accused on it, without affording the accused opportunity to be heard, first, (see section 36(1) of the 1999 Constitution). That is never done, even in a situation of contempt of court, which can be said to be a charge by the court, because the contemnor will be given opportunity to defend himself, if the offence is not one on the face of the court. See section 133 of the Criminal Code Act and section 15 of the Criminal Procedure Act.
Even if the alleged offence of forgery were thrown up in the cause of the trial of the Appellants, the prosecution did not deem it fit to apply to amend the charge to reflect the alleged new offence. Having failed to amend the charge, and the trial judge too having not considered such formalities necessary, was it right to convict the Appellants on the alleged circumstantial evidence, founded on hear-say? The answer, of course, cannot be in the affirmative, as it would violate all known principles of proof of guilt in criminal trial.
Exhibit PW2A (way bills and metre tickets), were produced by the Appellants to explain how they came by the product – petroleum motor spirit (pms). The prosecution had suspected that the product was illegally obtained (or procured upon vandalization of NNPC pipeline). Obviously, the prosecution did not expect the Appellants to produce any document in support of lawful possession of the product, especially as they were said to have first eloped on being accosted. They may have been taken aback by the production of the documents, hence the task to discredit them!
Of course, the Respondent cannot rely on the evidence of Appellants running away at the sight of police to establish guilt. Our daily news about and knowledge of encounters of drivers and the police on the highways should not make anybody surprise if a timid driver runs or tries to escape on being accosted or pursued by the police. That cannot be an evidence of commission of crime, without more.
The prosecution therefore had a duty to investigate the claims of the Appellants with respect to the said documents (Exhibit PW2A), to authenticate the claims of the Appellants, and the said investigation could not be completed, without the Prosecution going to M.R.S. Depot, Lagos, from where the Appellants claimed to have loaded the product, for confirmation, or calling the appropriate officer of M.R.S. Depot, Lagos, to give evidence on the issue.
The best that the Respondent did in this regard was stated by PW2, when he told the court that he called M.R.S. Depot, by phone and inquired from their chairman, quoted the number on the way bill to him, and the chairman asked him to wait for 30 minutes, thereafter, the chairman (of NUPENG in M.R.S.), told him (PW2) that the truck did not load from them and he was asked to park the truck; secondly, that the NUPENG receipt attached (to PW2A) was not their own; that all their way bills are printed with computer, but this one was written in biro ink, (page 52 of the record).
Pw4 added,
“There is a correspondence between us and MRS depot on this case, We work hand in hand between NNPC and all private depots, We contacted our staff at MRS and sent someone there to confirm for us, in all the private depots, we have NNPC staff at that depot working for us. There is no written correspondence between NNPC and the MRS depot. We just contacted NNPC staff there. It was our staff at MRS depot that told us that the accused did not load from there. “(page 86 of the record)
It is very sad to note that that was the evidence the trial court relied to convict the Appellants for the alleged forgery – a discredited, conflicting evidence, founded on hear-say evidence.
Whereas, the PW2 said the chairman of NUPENG told him by phone that the Appellants did not load from M.R.S. Depot, PW4 said they sent somebody to confirm, and person (or their staff at MRS Depot?) told them that Appellants did not load from there! Neither the person who spoke to PW2 by phone, nor the PW4 contact person (or staff at M.R.S. Depot) was called as a witness, to deny Exhibit PW2A, or fault the documents!
The Respondent’s Counsel argued that the Appellants were on bail and yet they failed to call somebody from M.R.S. Depot to testify in their support! That was a strange discharge from the learned prosecution counsel, trying to overturn the known standard of proof in criminal trial, and seeking to call on the accused person to prove his innocence!
There are myriads of authorities to the effect that accused person cannot be called upon to prove his innocence, as the constitutional presumption remains inviolate, that he is innocent, until his guilt is proved by the prosecution. See section 36(5) of the 1999 Constitution; the case of Okoro vs The State (1988) 12 SCNJ 191, where the Apex Court held:
“It is both constitutional duty imposed on the Court and the right conferred on the accused, by the constitution to ensure the purity of the criminal justice administration, that the innocence of the accused is maintained inviolate, Accordingly, even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court, it should be taken by the Court. Where no case has been made out against the accused at the end of the prosecution, asking him to answer the charge against him is reversal of the constitutional provision by asking him to establish it’s innocence. The protection of the accused, presumed to be innocent, cannot be curtailed by the strength of the case founded on suspicion, however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt.” (Per Karibi-White JSC);
That principle was adopted by this Court in the case of Garba vs The State (2011) 14 NWLR (Pt.1266) 98, held 5 and recent case of Sebo Bello vs. The State (an unreported decision of this Court in CA/IL/C.14/2011), delivered on 3/11/2011 by my lord, Abdullahi Tijjani JCA, who also reproduced and applied the principle and said, in page 12 thereof:
“…the prosecution has the duty, which is an unshifting burden to prove all and not only some of the ingredients of the offence charged beyond reasonable doubt… such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person.”
Owe vs. Queen (1961) 2 SCNLR 354; Omogodo vs. State (1981) 5 SC 5; Hassan vs. State (2001) 4 NWLR (Pt.704) and Tanko vs. State (2009) All FWLR (Pt.450) 1977.
At the point the learned trial Judge found that the evidence adduced against the Appellants could not sustain the charge upon which they were arraigned, that is, vandalizing of NNPC pipeline and procuring pms there from, illegally, he had a duty to terminate the trial and discharge and acquit the Appellants. Taking upon himself, as he did on page 227 of the record, to imagine the offence of forgery, after he had also acknowledged that the Appellants were not charged for that, and proceeding, as he did, to convict them (appellants) thereof, without subjecting them to trial on that offence, made the learned trial Judge a judge in his own cause, as the offence of forgery was a charge by the court a charge which had not been investigated, and the Appellants not accorded a right to be heard, before their conviction!
The effect of failure by the prosecution to prove or establish the essential ingredients of a charge is the dismissal of the charge and the accused being given the benefit of the doubt, by being discharged and acquitted. See the case of Garba vs The State (supra); Onafowokan vs The State (1987) 3 NWLR (Pt. 83) 538; Sebo Bello vs The State (supra); Okoro vs The state (supra); Olabode vs The State (2007) All FWLR (Pt 389) 1301 held 13.
I therefore resolve the issues in favour of the Appellants, as I find merit in the Appeal.
The Appeal is therefore allowed. The conviction and sentence of the Appellants by the learned trial judge in FHC/20C/2009 is hereby set aside, and the Appellants are discharged and acquitted of the charge. Accordingly, the money of the petrol decanted by NNPC officers shall be released to the Appellants so entitled.
Each party to bear own costs.
TIJJANI ABDULLAHI, J.C.A.: I have the privilege of reading in draft, the lead judgment of my learned brother I.G Mbaba JCA. My lordship has comprehensively set out the facts of the case, the reasoning and conclusion arrived thereat.
I adopt them as mine. In the final analysis, I hold that the appeal is meritorious and ought to be allowed. I accordingly allow same and abide by all the consequential orders therein contained.
JOSEPH SHAGBAOR IKYEGH J.C.A.: I had the privilege of reading before now the judgment prepared by my learned brother, Mbaba, J.C.A., in which I concur with these few words.
To convict a person for a lesser offence under section 179(2) of the Criminal procedure Act (C.P.A.), all the elements of the lesser offence must be present in the greater offence charged. It has to be so in order to give the person charged with the greater offence notice of the lesser offence for the purpose of meeting the ingredients of the lesser offence in his defence.
The charge sheet disclosed vandalization of NNPC pipelines by the appellants through which they illegally procured or siphoned about 17,000 litres of petroleum motor spirit (PMS) product. It did not disclose the ingredients of the offence of forgery of way-bills to procure petroleum products that may be carved out of the offence charged.
In other words, the elements comprising the lesser offence must be contained in the greater offence before the conviction for the lesser offence would stick. I most respectfully say so in light of the fact that the offence of forgery in section 1(2) (c) of the Miscellaneous Offences Act CAP. M17 of the Laws of the Federation of Nigeria 2004, under which the appellants were convicted, does not appear to have nexus with the main offence charged which was laid under the Petroleum Production and Distribution (Anti-Sabotage) Act CAP P12 Laws of the Federation of Nigeria 2004, as to make the latter the greater kindred or genus of the former for the application of section 179 (2) of the C.P.A., showing the appellants were convicted for another offence not for a lesser offence arising from the facts constituting the greater offence – see Nwachukwu v. The State (1986) 1 N.S.C.C. 602 at 609-610 thus:
“I have stated above the two circumstances where Section 179 will be applicable. In Torhamba v. Police (1956) N.R.N.L.R. at p.94, the court had attempted to give a guide as to the determination of what constitutes a lesser offence – It was said,
“a lesser offence is a combination of some of the several particulars making up the offence charged, in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged… When one is considering action under section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of these particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen (1953) 2 WACA 965; (1953) AC. 407”
There are other decisions such as Shosimbo v. State (1974) 10 S.C. 91; Oyediran v. Republic (1967) N.M.L.R. 122; R. v. Tyson (1945) 11 WACA 90; R. v. Adokwu (1952) 20 N.L.R. 103.
It must be kept constantly in mind that S. 179 in issue in this appeal is concerned where the lesser charge in respect of which accused is convicted arises from the facts and evidence led in support of the more serious offence in respect of which accused is charged. The operative words are “lesser” and not “another” offence. Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence. It is therefore important to observe from the judicial decisions and the provisions that for section 179 of the Criminal Procedure Act to apply, the following conditions must be observed –
First, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences.
Secondly, the evidence led and facts found, though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence. Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This last mentioned is ordinary common sense. The greater includes by necessary implication the lesser”.
For the above reason and the thorough reasons advanced in the judgment of my learned brother, Mbaba, JCA, I too would allow the appeal and abide by the consequential orders contained in the said judgment.
Appearances
H.O Buhari Esq. For Appellant
AND
J.A Mumini Esq. (Learned DPP Kwara State),
A.O Oyeyipo Esq (SSC) and
A Bello Esq. For Respondent
