SAMPSON JACOB AKPAN v. THE STATE
(2019)LCN/13705(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/C/291C/2017
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
SAMPSON JACOB AKPAN Appellant(s)
AND
THE STATE Respondent(s)
RATIO
REQUIREMENT OF A PROPER ARRAIGNMENT
In KAJUBO V THE STATE (1988) 1 NWLR (pt 73) 721, Wali JSC, delivering the lead judgment laid down the requirement of a proper arraignment. He said at page 731 thus:
?For a valid and proper arraignment of an accused person, the following conditions must be satisfied:-
1. He shall be placed before the Court unfettered unless the Court shall see cause to otherwise order.
2. The charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law).
Oputa JSC, in his own contribution at page 737 reiterated the requirements when he said:-
?For there be a proper arraignment: –
(i) The accused person shall be present in Court
(ii) The charge or information shall be read over to him in a language he understands.
?(iii) The charge or information after being read over in such language should then be explained to him avoiding as much as possible the use of technical expressions. This explanation should acquaint accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.
(iv) To make assurance doubly the trial judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.
It is good practice for trial Courts to specifically record that the charge was read and fully explained to the accused to the satisfaction of the Court “before then recording his plead thereto.?
Thus, failure to comply with any of these conditions will render the whole trial a nullity. See EYOROKOROMO V THE STATE (1976) 6 ? 9 SC3. PER SHUAIBU, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN ONLY BE FOUND GUILTY IN RESPECT OF AN OFFENCE FOR WHCH HE IS CHARGED
As a general rule, an accused person can only be found guilty in respect of an offence for which he is charged. It is this offence he has pleaded not guilty and in respect of which the onus is on the prosecution to establish the charge beyond reasonable doubt. However, there are circumstances where evidence adduced by the prosecution in support of the charge against the accused has failed to support a conviction for that charge but fully establishes the commission by the accused of a kindred offence. It is in this respect interest rei publicaeut sit finis litium, that Courts are empowered to convict an accused person of an offence than the one with which he is expressly indicted on the charge. See BABALOLA V STATE (1989) 7 SC (pt 7) 94 at 192.
It was also held in OYEDIRAN & ORS V THE REPUBLIC (1961) NMLR 122 at 125 thus:-
?It is illegal to convict an accused person of an offence on which he was not charged and unless where the conviction is in respect of a substituted offence as provided by law it is apparent that such an accused person was neither arraigned nor tried in respect of such an offence.? PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant along two others were initially charged before the High Court of Akwa Ibom State sitting at Ikono Coram Ilaumo J., for offences of conspiracy to commit Arson and murder as well as the substantive offences of Arson and murder contrary to and punishable under Sections 556 (1) (f), 464 (a) and 326 (1) of the Criminal Code Cap. 38, Vol.2, Laws of Akwa Ibom State of Nigeria, 2000. The names of the two other co-accuseds were subsequently struck out, as they have been arraigned earlier on the same counts before the arrest and arraignment of the appellant herein. Thus, the appellant was separately prosecuted on the aforesaid offences. He was accordingly found guilty and sentenced at page 78 of the record of appeal as follows:
?In conclusion, I find the accused person guilty of counts 1, 2, the alternate offence under Section 465(b) of the Code and count 4 which is of murder.
Sentences: the accused is sentenced to 2 years imprisonment in respect of count 1, two years imprisonment in respect of count 2, 14 years imprisonment in respect of the alternate finding and
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conclusion under section 465 (b) of the Criminal Code count 4 is the offence of murder. The accused person having been also found guilty of this charge is sentenced to death. I therefore pronounce that the sentence upon you Samson Jacob Akpan is that you are to be hanged by neck until you be dead and may the Lord have mercy on your soul.?
Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 30/1/2017 containing an omnibus ground. And by leave of this Court granted on 29/11/2018 appellant amended his notice of appeal deemed filed on 12/12/2018. The said amended notice of appeal contains eight grounds of appeal.
At the hearing of the appeal on 27/5/2019 Anietie Ekpe, Esq on behalf of the appellant adopted and relied on the appellant?s brief of argument filed on 14/9/2017 and appellant?s reply brief filed on 22/5/2019 but deemed on 27/5/2019 in urging this Court to allow the appeal. Learned Attorney-General of Akwa Ibom State, Uwemedimo Nwoko, Esq on behalf of the respondent adopted and relied on the respondent?s brief of argument filed on 15/3/2019 but deemed as properly filed on 19/3/2019 in
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urging the Court to dismissing the appeal.
From the said eight grounds of appeal, learned counsel for the appellant distilled six issues for the determination of this appeal as follows:-
1. Whether the Court below had competence and jurisdiction to proceed on the trial, conviction and sentence of the appellant when there was no consent of a judge of the High Court before the commencement of the trial and when there was no valid arraignment of the appellant.
2. Whether the Court below was right to convict the appellant for murder when the prosecution did not adduce evidence to connect any acts or intention of the appellant to the death of the deceased or justify his conviction under Section 7 and 8 of the Criminal Code Law, Cap 38, Volume II, Laws of Akwa Ibom State, 2000.
3. Whether the right of the appellant to fair hearing was breached when the Court below convicted him for an offence for which he was not charged and which conviction was not supported by evidence, without giving him (the appellant) any opportunity to defend himself.
4. Whether the date on the face of the information on which the offence of conspiracy to commit arson
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was stated to have been committed actually misled the appellant to give evidence he ought not have given at the trial and thereby occasioned a miscarriage of justice on him.
5. Whether failure by the police to investigate the plea of alibi timeously set up by the appellant was fatal to the case of the prosecution.
6. Whether the evidence adduced by the prosecution at the trial was sufficient to irresistible establish the guilt of the appellant in the offence of conspiracy to commit arson and conspiracy to commit murder.
Learned Attorney-General on behalf of the respondent formulated a lone issue that is, whether from the evidence adduced at the trial the prosecution proved the charges of conspiracy; Attempt to commit Arson and murder against the appellant beyond reasonable doubt.
In addition to the above, learned counsel also argued the six issues formulated by the appellant.
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I have deeply considered the issues formulated by learned counsel on both sides and it is my humble view that the six issues formulated by the appellant are apt and quite apposite to the just determination of the appeal. I shall therefore determine this appeal in
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the light of the six issues formulated for the appellant.
Before going into the argument of counsel in respect of the above formulations, it is pertinent to state the facts of the case as gathered from the printed record of appeal.
Sometimes in 2014, one Inspector Michael Inyang a police officer died of a road accident in Calabar. The children and relations of the deceased police Inspector attributed his death to one Etim Akpan Udo whom they accused of witchcraft and vowed to avenge his death. In furtherance of the said threat, and on 25/5/2014, there was a mob action wherein the daughter of the said Etim Akpan Udo, Florence was held as captive by the group, tied a rope around her waist and dragged her along in place of her father. The mob also destroyed the properties of the said Etim Akpan Udo who instantly reported the incident to the police at the Divisional police Headquarters, Odoro Ikpe, Ini Local Government Area, Akwa Ibom State.
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The next day being 26/5/2014 the Divisional Police officer with his team went along with Mr. Etim Akpan Udo to Ikot Obio Asang, Ukwok to investigate the matter but as they drove into the compound of Mr. Etim
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Akpan Udo, the Mob emerged from the backyard and seized Mr. Etim Akpan Udo from the police. They inflicted matchet cuts on him and dismembered his body and burnt his remains. The appellant was arrested, tried, convicted and sentenced by the lower Court and as a result he appealed to this Court.
I now turned back to the argument of counsel. It was the contention of learned counsel for the appellant in respect of issue No.1 that in preferring a charge against any person to be tried for criminal offence, leave of the High Court Judge must be sought and obtained pursuant to Section 314 (3) (b) of the Criminal Procedure Law, Cap 39 Vol. II, Laws of Akwa Ibom State, 2000. The application for consent must be accompanied by a copy of the information (charge) sought to be preferred, the names of prosecution witnesses, proof of evidence which includes statement of prosecution witness(es) as well as the statement of the accused person. Thus, the application for leave to prefer a change within the contemplation of the law falls within the discretion of the judge to grant or refuse depending on the materials placed before him. Learned counsel submitted that where the
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prosecution did not make any application for consent to prefer a charge against the appellant there is therefore no consent and the trial of the appellant was flawed and oppressive. He referred to IKOMI V THE STATE (1986) 3 NWLR (pt 28) 340 at 376, ABACHA V THE STATE (2002) 11 NWLR (pt 779) 347 at 495 F.R.N V WABARA & ORS (2014) ALL FWLR (pt 714) 76 at 94, UGWU V STATE (2013) ALLFWLR (pt 694)1 at 17 and OHWOVORIOLE V FRN (2003) 2 NWLR (pt 803) 176 at 190 to the effect that the requirement of prior consent of the judge of the High Court is a condition precedent to the competence and jurisdiction of the lower Court to put the appellant on trial.
Still in argument, he submitted that a valid arraignment presupposes compliance with the constitutional and procedural provisions in the absence of which no trial can commence. He referred to APUGO V F.R.N. (2017) 8 NWLR (pt 1568) 416 at 453 and IDEMUDIA V STATE (1999) 7 NWLR (pt 610) 202 at 221.
In further argument, he submitted that the proceedings of the day when the purported plea was taken,
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same was not signed by the judge and that the non-signing has rendered the record a nullity. He referred to OKOLIE V STATE (2012) ALL FWLR (pt 798) 874 and OPARA V AG, FEDERATION (2017) 9 NWLR (pt 1569) 61 at 95.
For the respondent, it was contended that Section 1 of the Criminal Procedure (Amendment) Law 2006 amends the provision of Section 314 of the Criminal Procedure Law requiring the consent of a judge before trial. It was thus submitted that the prosecution did not need to make any application to the trial judge or any judge of the High Court as such the requirement of that law was no longer in existence.
It was the respondent?s further contention that the appellant was in Court on 12th January, 2016 and the charge was read and interpreted in Ibibio to his understanding wherein he pleaded not guilty and same was recorded in fulfillment of valid arraignment and in the presence of his counsel. It was therefore submitted that there was full compliance with the provisions of Section 213 of the Criminal Procedure Law of Akwa Ibom State. And that the failure of the trial judge to record plea in the exact words
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of the appellant is not fatal to the arraignment. He referred to OGUNYE V STATE (1999) 5 NWLR (pt 604) 548 at 565 ? 566.
Still in contention, learned counsel for the respondent argued that the proceedings of 12th January, 2016 was duly signed relying on the additional record of appeal. He submitted that the non signing of the record of proceedings is not an essential requirement of a valid arraignment.
On issue No. 2, learned counsel for the appellant contended that where it is alleged that death resulted from the acts of the accused person a causal link between the death and the acts must be established and proved beyond reasonable doubt. He referred to Section 135 (1) of the Evidence Act, 2011 and the cases of FAMAKINWA V STATE (2016) 11 NWLR (pt 1524) 538, KOLADE V STATE (2017) 8 NWLR (pt 1566) 60 and AKPAN V STATE (2016) 9 NWLR (pt 1516) 110 at 120. He also referred to the evidence of pw2 in submitting that throughout the trial of the appellant at the lower Court, the prosecution did not link any acts of the appellant to the death of the deceased. He further submitted that the
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evidence of pw2 not only exonerated the appellant from the guilt of the crime of murder made against him but went further to clearly identified the killers of the deceased and showed that the appellant was not at the scene when the deceased, Mr. Etim Akpan Udo was allegedly killed. It was therefore wrong for the lower Court to have imputed the liability of the killers of the deceased to the appellant when the said killers were clearly identified. Reliance was placed on ALL PROGRESSIVE CONGRESS V PEOPLES DEMOCRATIC PARTY & ORS (2015) 15 NWLR (pt 1481) 1 at 75 to the effect that criminal liability is personal and there is no vicarious liability in criminal law.
Continuing, learned counsel submitted that the evidence of pw2 that the appellant told the community leader, Chief S. A. Obiofin that the deceased would be killed as well as the alleged corroborative evidence of pw3 are hearsay evidence and inadmissible relying on Section 37 (a) of the Evidence Act, 2011 and the case of IKPEAZU V. OTTI & ORS (2016) 8 NWLR (pt 1513) 38 at 93. It was finally submitted that it was not established before the trial Court that the
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appellant had common intention with the killers of the deceased or with any other person to do an unlawful purpose or commit the murder of the deceased. He referred to UDE V STATE (2016) 14 NWLR (pt 1531) 122 at 161.
On his part, learned counsel for the respondent argued that by the evidence of pw1, pw2 and pw3 as well as Exhibit 2 there is no contention about the death of the deceased, Etim Akpan Udo aka Spanner. And these pieces of evidence were never challenged or controverted under cross-examination. As to whether the act of the appellant caused the death of the deceased, he referred to the evidence of pw2 and pw3 and submits that same fixed the appellant at the scene of the murder in company of a group of people fully armed with matchetes, guns and axe. He further submitted that although the evidence of pw2 did not specifically state the part the appellant played in killing the deceased, but having been seen in a group that were armed with dangerous weapons committing murder, it is enough to prove that he participated in the killing of the deceased. He referred to NWANKWOALA V THE STATE & CAC 3, 254 at 266 to the
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effect that what each did in furtherance of the commission of the crime is immaterial as the mere fact of the common intention manifesting in the execution of the common object is enough to render each person in the group guilty of the offence.
Learned counsel finally submitted that the acts of the appellant which caused death of the deceased were intentional with knowledge that death was its probable consequence.
In respect of issue No.3, it was the appellant contention that the appellant was charged and tried for arson under Section 464 (a) of the Criminal Code Law, Cap 38 Laws of Akwa Ibom 2000 but was convicted under Section 465 (b) of the said law even when the evidence of the prosecution witnesses were contradictory in all material respect. It was thus submitted that the Court below breached the appellant?s right to fair hearing when he was convicted for an offence he was not charged with and which conviction was not supported by evidence and without giving him the opportunity to make his defence to the new offence. He referred to SAN V STATE (2015) 15 NWLR (pt 1483) 522 at 545, AHMED V AHMED (2013) ALL
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FWLR (pt 699) 1025 at 1070, NEWSWATCH COMMUNICATION LTD V ATTA (2006) 12 NWLR (pt 993) 144 at 181 and OKANLAWON V THE STATE (2015) 17 NWLR (pt 1489) 445 at 482 in submitting that there was lacunas in the evidence of the prosecution witnesses and that the appellant was not given any opportunity to defend himself in respect of the new offence under Section 465 (b) of the applicable Criminal Code Law.
It was argued on the part of the respondent that, the issue of contradiction in the evidence of the prosecution witnesses was never raised during trial as such the issue does not form part of the judgment of the lower Court. Learned counsel submits that points and arguments not raised and canvassed before the trial Court cannot be raised on appeal without the leave of the appellate Court. He referred to ABOKOKUYANRO V STATE (2012) 2 NWLR (pt 1285)530.
Still in argument, he submitted that an appellant who relies on the contradictions in the evidence of the respondent?s witnesses does not succeed by merely showing the existence of those contradictions. He must show that the trial Court did not advert its
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mind to and considered the effect of the contradictions. In aid he relied on the decision in the case of ODUAK DANIEL JIMMY V STATE (2014) ALL FWLR (pt 714) 103 at 114 ? 115.
On the rationale for convicting the appellant on the alternate offence, reliance was placed on the evidence of pw2 to show that there was sufficient evidence of pouring oil and burning properties of the deceased. He referred to OKORO V STATE (1998) 14 NWLR (pt 584) 181 to submit that evidence of a single witness can even sustain a conviction of murder not to talk of Attempt to commit Arson.
Learned counsel for the respondent conceded that the appellant was charged with Arson contrary to Section 464 (a) of the applicable Criminal Code however upon evaluation of the evidence, the trial Court found him not guilty of Arson as charged but convicted the appellant of a lesser offence of attempt to commit Arson contrary to Section 465 of the said Criminal Code. The decision of the learned trial judge according the respondent is in line with Section 167 of Criminal Procedure Law, Cap 39 Vol. 2 Laws of Akwa Ibom State of Nigeria, 2000.
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On issue
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No. 4, learned counsel for the appellant referred to count 1 of the information filed on 11th December, 2015 in contending that on the face of the said information the appellant was tried for conspiracy to commit Arson on 25th December, 2014 a period of seven months after the date on which the actual offence of Arson was said to have taken place, that is 25th May, 2014. This apparent inconsistency according to the learned counsel misled the appellant to give evidence he ought not to have given at the trial and thus occasioned a miscarriage of justice. He referred to STEEL BELL NIGERIA LTD & ORS V NDIC & ORS (2014) ALL FWLR (pt 758) 985 at 1016.
On the part of the respondent it was contended that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later relying on Section 165 of the Criminal Procedure Law of Akwa Ibom State 2000. And that no judgment shall be stayed or reversed on the ground of any objection after the charge was read over to the accused. He referred to Section 166 (b) of the said Criminal Procedure Law. It was
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therefore submitted that though the date stated in count 1 of the information was incorrect but the appellant had entered his defence and still gave evidence covering the correct date. Thus, the appellant was not misled by the error on the face of the information. He referred to Section 140 of the Evidence Act and the case of ODEH V F.R.N (2008) 13 NWLR (pt 1103)1 to submit that the onus of proving any miscarriage of justice is entirely on the appellant.
On issue No. 5, learned appellant counsel argued that the appellant had clearly stated in his statement to the police that he was in his house at Usuk Ntatan village with his family on 25th May, 2014 and 26th May, 2014 when the crimes of Arson and murder were alleged to have taken place. In other words, the appellant had properly raised a defence of alibi but the prosecution has failed and refused to investigate same on the pretence that the explanations by the appellant were not satisfactory. He referred to SANI V THE STATE (2010) ALL FWLR (pt 532) 1841 to contend that the lower Court ought to have dismissed the charge for failure of the police to investigate the
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appellant?s plea of alibi.
In response, learned counsel for the respondent contended that since the facts constituting alibi raised are within the peculiar knowledge of the respondent, he has the evidential burden to disclose those facts and such disclosure must be at the earliest opportunity. He referred to the evidence of pw1 in contending that the appellant had failed to provide sufficient particulars to be investigated by the police. In further argument, learned counsel submitted that alibi must be given during investigation and not during hearing in Court. He referred to EGBOMA V STATE (2014) ALL FWLR (pt 760) 1439 at 1452 to justify the rejection of the appellant?s defence of alibi by the trial Court.
On issue No. 6, the learned counsel for the appellant restated the established legal position that the burden of proving that any person has been guilty of a crime or wrongful act is on the person who assert it whether the commission of such act is or is not directly in issue in the action. The burden is always on the prosecution to establish by credible evidence the fact that the appellant was involved in any conspiracy
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to commit arson or murder which according to the learned counsel the prosecution had failed to discharge. He referred to Section 135 (2) of the Evidence Act.
Still in contention, learned counsel argued that the assertion that the appellant took part in cutting down the economic trees at the deceased?s premises and or damaging his premises were not proved. He referred to the evidence of pw2 which he contend was contradicted and not worthy of belief.
In further contention, the appellant argued that the prosecution did not adduce any evidence to show that he molested the children of the deceased and that the crimes of the late children of late Michael Inyang must not be visited on the appellant based on their blood ties. And that in the absence of credible evidence, the lower Court ought to have discharge and acquit the appellant as suspicion cannot ground a conviction, no matter how strong. He referred to SHEHU V THE STATE (2010) ALL FWLR (pt 523) 1841 and UZOMA OKEREKE V STATE (2016) 5 NWLR (pt 1504) 69 at 101 in urging this Court to allow the appeal and set aside the judgment of the lower
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Court.
On the part of the respondent, it was argued that pw2 and pw3 vividly identified the appellant and others who were present during the incident of arson and murder and stated the individual role they placed. Learned counsel submits that in order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator except that the criminal design alleged must be common to all. He referred to ERIM V THE STATE (2012) 9 ACLR 344 at 367 to the effect that a person may involve himself in the crime of conspiracy by his mere assent to and encouragement of the design; although nothing may have been assigned or intended to be executed by him, personally. Thus, from the evidence of pw2 and 3, there was a clear evidence of agreement by the appellant and aforementioned of others to set the house of Etim Akpan Udo aka spanner ablaze.
It was further submitted that inference can also be drawn from the overwhelming evidence on record that there was a meeting of minds by the appellant and his cohorts to effect an unlawful purpose of murder. He finally urged this Court to resolve all the issues against the
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appellant and to dismiss the appeal.
I have also considered the appellant?s reply brief which in my humble view did not qualify as a reply brief. It is nothing but an improvement on the appellant?s brief. Reply briefs are not meant for restating the issues already made in the appellant?s brief. In a reply brief the appellant is expected to address such new issues which the respondent had developed in the respondent?s brief which is not the case here.
It seems to me that the first important issue to be resolved in this appeal is whether the appellant was properly arraigned before the lower Court. The appellant?s complaint here is that he was not validly arraigned pursuant to Section 314 (3) (b) of the Criminal Procedure Law, Cap 39, vol. II, Laws of Akwa Ibom State 2000 as the prior consent of a judge of the High Court was not sought and obtained. The relevant provisions of Section 314 (3) (b) of the aforesaid law provides:
?(3) No information charging any person with an indictable offence shall be preferred unless ?
(b) the information is preferred by the direction or with consent of a judge or
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pursuant to an order made under part 31 to prosecute the person charged for perjury.?
The intention of the legislature in making the above provision is very clear and easily ascertainable. The person accused of committing an offence is to have an advanced notice or knowledge of the case of the prosecution against him. It also give the judge before whom the information is filed or who is required to give leave to the prosecution to prefer or file the charge an opportunity to peruse those documents and know whether prima facie offence had been disclosed or made out against the said accused person before granting leave to the prosecution to file the charges.
Another reason for the filing of information and securing the leave of the judge is to ensure that an innocent person is not victimized, framed or persecuted before the High Court, which is a superior Court of record on false allegations, or on the basis of an act, which does not constitute an offence in law. See EGBE V STATE (1980) NCLR 341, IKOMI V STATE (1986) 3 NWLR (pt 28) 340, ABACHA V STATE (2002) 11 NWLR (pt 779) 437, OHWOVORIOLE V F.R.N. ?
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(Supra) and ALAMIEYESEIGHA V F.R.N. (2006) 16 NWLR (pt 1004) 7 at 16.
In KAJUBO V THE STATE (1988) 1 NWLR (pt 73) 721, Wali JSC, delivering the lead judgment laid down the requirement of a proper arraignment. He said at page 731 thus:
?For a valid and proper arraignment of an accused person, the following conditions must be satisfied:-
1. He shall be placed before the Court unfettered unless the Court shall see cause to otherwise order.
2. The charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law).
Oputa JSC, in his own contribution at page 737 reiterated the requirements when he said:-
?For there be a proper arraignment: –
(i) The accused person shall be present in Court
(ii) The charge or information shall be read over to him in a language he understands.
?(iii) The charge or information
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after being read over in such language should then be explained to him avoiding as much as possible the use of technical expressions. This explanation should acquaint accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.
(iv) To make assurance doubly the trial judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.
It is good practice for trial Courts to specifically record that the charge was read and fully explained to the accused to the satisfaction of the Court “before then recording his plead thereto.?
Thus, failure to comply with any of these conditions will render the whole trial a nullity. See EYOROKOROMO V THE STATE (1976) 6 ? 9 SC3.
I have stated that the appellant?s contention is that his trial before the lower Court was flawed and oppressive because there was no consent of a judge to prefer a charge or information against him and that the trial judge did not sign the proceedings of the day when
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the purported arraignment was taken. It is on record in this case that the appellant was in Court on 12th January,2016 when the information was read, and interpreted to him in Ibibio to his understanding. After the explanation of the charge to the appellant, he pleaded to it. The trial judge if not satisfied would not have proceeded to take the plea of the appellant. And by his taking the plea therefore, it must be presumed that he was satisfied that the information/charge was properly explained to the appellant and the later understood same. I agree with the submission of the learned counsel for the appellant that the exact recording of plea of the appellant is not the requirement of the law. In DERBY V BURY IMP. CONMOR L.R. 4 EX 226 it was held that in the absence of proof to the contrary credit should be given to public officers who have acted, prima facie, within the limit of their authority, for having done so, with honesty and discretion.
?The above principle also applies with full force to the contention relating to non-signing of the record of proceeding of the 12th January 2016. At pages 34 ? 36 of the record of appeal, the
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name of the trial judge, Hon. Justice B. J. Ilaumo was clearly reflected. I have already set out the requirements for valid arraignment and non-signing the record of proceedings by the trial judge is not one of them. After all, the maxim is, omnia praesumuntur rite et solemniter esse acta meaning, all acts are presumed to have been done rightly and regularly.
By virtue of the provisions of Section 1 of the Criminal Procedure (Amendment) Law, 2006 of Akwa Ibom State which came into force on 31st December, 2016, Section 314 of the Criminal Procedure Law, 2000 was specifically amended and thereby deleting the entirety of paragraph (b) of Subsection (3) thereof. Hence, the requirement of leave to prefer an information or charge is dispensed with. Consequently, the first issue is resolved against the appellant.
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The second important issue worthy of consideration is the alleged mix-up in the date when the offence of conspiracy to unlawfully set fire to the house of the deceased, Mr. Etim Akpan Udo (Alias Spanner) took place. Learned counsel for the appellant contended that the mix-up in the dates had occasioned a miscarriage of justice on the appellant.<br< p=””
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Generally, an objection shall not be taken or entertained during proceedings or trial on the ground of an imperfect or erroneous charge or information. Where there is an error in stating the offence or particulars required to be stated in a charge/information or an omission to state the offence or those particulars or any duplicity, multiplicity or non-joinder of the particulars of the offence shall not be regarded at any state of the case as material unless the defendant was infact misled by such error or omission. And to be misled, the defect must be fundamental and misleading. Thus, for an appellant to benefit from any defect in a charge/information, he has the duty to prove to the satisfaction of the Court that the omission is material to the case and the omission actually misled him? TIMOTHY V F.R.N. (2013) 4 NWLR (pt 1344) 213 at 240 ? 241.
In the instant case, the appellant has failed to show that the mix-up in the date as contained in the information on which the offence of conspiracy to commit Arson actually misled him into giving evidence which he ought not to have given. Also having failed to raise this objection
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at the point of arraignment, it is too late in the day for the appellant to raise same on appeal. See Section 165 of the aforesaid Criminal Procedure Law. This issue is also resolved against the appellant.
I now move to the appellant?s issue No.6 dealing with proves of the offence of conspiracy to commit arson and murder wherein the appellant contended that same were not proved by the respondent.
Conspiracy to commit an offence is a separate and distinct offence and independent of the actual commission of the offence to which the conspiracy relates. Thus, the offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted, or may have become impossible to commit. SeeALABI V STATE (1993) 7 NWLR (pt 307) 511 and ADAMU V STATE (2017) 7 NWLR (pt 1565) 459.
The gist of the offence of conspiracy is the meeting of the minds of the conspirators. This is having capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the
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parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the commission, design may be and very often given in evidence against any other or others of the conspirators. It is therefore the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with that offence. See ABACHA V STATE also reported in (2002) 7 SC (pt 1) 1 at 51 and AKWUOBI V STATE (2017) 2 NWLR (pt 1550) 421 at 444 ? 445.
What was the evidence accepted by the learned trial judge in convicting the appellant for conspiracy to commit arson and murder in counts one and two of the information? At page 75 of the record of appeal, the learned trial judge has this to say:-
?It is the conspiracy to effect an unlawful purpose and the conspiracy or agreement could invariably be inferred from the acts of the accused perpetrated on the 25/51/2014 and continued on the 26/5/2014 comprised in the accused more or less billeting the home and premises of Etim
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Akpan Udo, holding the former?s daughter to ransom, where she was rendered naked by them tied with a rope so that she would not escape and beaten because the marauders including the accused did not find her father who they were after. They clearly told all that cared why they were there. They even claimed they had the backing of their village head. The evidence is that they had gone to the home of the village head so that pw3 could find out if the village head was aware of their action. When earlier on 25/5/2014 the councilor was driving by and had seemed to utter words in support of their cause they jubilated and seemed to have received an added pep to orchestrate their illegal act. They had gone back to lay siege in wait for their prey. They had assaulted the son of the said Etim Akpan Udo, Gabriel who had managed to escape their crasp. They had continued the next day and were found again holding the same Florence hostage, again tied with a rope even after the former was rescued from them the previous day. What more planning or agreement should one require to infer conspiracy? In carrying out the overt act they had cut down economic trees in the
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compound of the man whom they did not find. They had damaged his house. Pw2?s evidence is that they did not set the house ablaze. They had packed his properties outside including properties of the church which was resident in a part of Etim Akpan Udo?s premises and burnt these properties after pouring out oil that was in drums. These they all burnt together. They did not burn the house itself but had damaged and pieced every roof. All are overt acts from which a conspiracy to effect the unlawful purpose of arson can and should really be drawn and which I draw. In all these the accused was well situated and amongst the throng. They were 15 or 16 or thereabout in number. They came majority from Calabar and were all acting in concert with some youths of Ukwok village. I find that the offence of conspiracy as charged in counts 1 and 2 are established. I find the accused person guilty of courts 1 and 2.?
The law is firmly settled that where a person is charged with criminal conspiracy, the elements of conspiracy as disclosed in the charge must be proved and it must be established against the person or persons so charged that he or they
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have engaged in it. However, it is not always easy as stated earlier to prove the actual agreement. The Court can nonetheless, infer the agreement from surrounding circumstances of each case and from the inferred circumstances, it can safely presume the conspiracy. Also the conduct of the accused and or his co-conspirators often go a long way to suggest or establish that there had been implied or express agreement amongst them to commit a criminal offence (s). See AKWUOBI V STATE (Supra).
In the instant case, both pw2 and pw3 gave detailed account on how the appellant and his cohorts went to the home of the deceased on 25/5/14 and continued on 26/5/14 wherein they subjected his daughter, Florence to all kinds of humiliations and held her hostage for allegedly assisting her father?s escape. The said throng, comprising the appellant as per the evidence of pw2 and pw3 took part in damaging and destroying properties in the deceased?s compound. It is therefore my humble view that the trial Court had considered the conduct of the appellant alongside that of his co-conspirators in arriving at the right decision that the appellant and
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the throng were all acting in concert towards committing an unlawful purpose. Thus, there is no justification in disturbing the inference made by the trial Court in respect of the offence of conspiracy to commit arson and murder as charged. I unhestitantly resolved this issue against the appellant.
The next issue is on the propriety of convicting the appellant on the kindred offence. The main contention here is that the trial Court was wrong in convicting the appellant for the offence for which he was not specifically charged. There is no gainsaying the fact that the appellant was charged and prosecuted for arson under Section 464 (a) of the Criminal Code Law Cap 38, Laws of Akwa Ibom State, 2000. He was however convicted for felony under Section 465 (b) of the said law.
As a general rule, an accused person can only be found guilty in respect of an offence for which he is charged. It is this offence he has pleaded not guilty and in respect of which the onus is on the prosecution to establish the charge beyond reasonable doubt. However, there are circumstances where evidence adduced by the prosecution in support of the charge against the accused has
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failed to support a conviction for that charge but fully establishes the commission by the accused of a kindred offence. It is in this respect interest rei publicaeut sit finis litium, that Courts are empowered to convict an accused person of an offence than the one with which he is expressly indicted on the charge. See BABALOLA V STATE (1989) 7 SC (pt 7) 94 at 192.
It was also held in OYEDIRAN & ORS V THE REPUBLIC (1961) NMLR 122 at 125 thus:-
?It is illegal to convict an accused person of an offence on which he was not charged and unless where the conviction is in respect of a substituted offence as provided by law it is apparent that such an accused person was neither arraigned nor tried in respect of such an offence.?
Thus, the facts proved in evidence must necessarily support a conviction for an offence other than that which the accused is charged. The learned trial judge reasoned that having believed in the evidence of the prosecution?s witnesses that the throng which included the appellant brought out the properties from the house of the deceased and proceeded to set fire to them,
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that the fire they set was so situated that the house was likely to catch fire. He accordingly found the appellant guilty under Section 465(b) of the Criminal Code Law of Akwa Ibom State. The relevant provisions of the aforesaid Section 465 (b) read as follows:-
?If a person willfully and unlawfully sets fire to anything which is so situated that such thing as is mentioned in the last proceeding section is likely to catch fire from it, is guilty of a felony.?
Perhaps, the preceeding Section 465 (a) needs to be looked into in order to determine its affinity (if any) with Section 465 (b) for which the appellant was convicted: Section 465 (a) states:-
?Any person who willfully sets fire to any of the following things ?
(a) Any building or structure whatever, whether completed or not is guilty of an offence, is guilty of a felony, and liable to imprisonment for life.?
By virtue of Section 167 of the Criminal Procedure Law, Cap. 39 Vol.2 Laws of Akwa Ibom State of Nigeria, 2000 where a person is charged with an offence but the evidence establishes an attempt to commit the offence, he may be convicted of
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having attempted to commit that offence although attempt is not separately charged. Under Section 218 (1) and (2) of the Criminal Procedure which is similar to Section 167 of the Criminal Procedure Law of Akwa Ibom State, an accused charged with an offence consisting of several particulars, a combination of some of which constitute a lesser offence in itself and the conviction is proved but the remaining particulars are not proved, he may be convicted of or plead guilty of the lesser offence although he was not charged with it.
In the famous decision in the case of TORHAMBA V I.G.P (1956) NRNLR 87 Courts were advised that when considering such scenario, one should write out the particulars of which offence charged consist 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 which it is proposed to convict. For instance, in the case of NWACHUKWU V STATE (1986)2 NWLR (pt 25) 765, the accused was charged for armed robbery but was convicted for simple robbery. It sufficed because both offences are created by the same statute and punishable
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under the same law.
Applying the above principles to the facts in this case, the learned trial judge was right when he convicted the appellant for a kindred offence even though he was specifically charged for arson. This is particularly so because the offence for which the appellant was tried originally is of the same type but less in seriousness. Also being of the same nature or kindred, allow the appellant to work out the same defence so that on appeal it will not pose any problem bordering on fair trial. In other words, the appellant right to fair hearing was never breached by the trial Court in consequence of his conviction for a kindred offence rather than the offence for which he was charged and tried. I also resolved this issue against the appellant.
On the substantive offence of murder as formulated in issue No. 2, learned counsel for the appellant strenuously argued that the prosecution did not link any acts or intention of the appellant to the death of the deceased.
?
It is settled that the commission of a crime by a person charged must be proved beyond reasonable doubt. The burden of proving of a crime rest on the person who asserts it.
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This burden of proof lies on the prosecution and it never shift. In SHANDE V STATE (2005) 12 NWLR (pt 939) 307 at 321 it was held that although the standard of proof is not that of absolute certainty, the Court seized of the matter must convinced itself beyond all proof, that such and such had occurred. Therefore, for evidence to warrant conviction it must exclude beyond reasonable doubt all other conceivable hypothesis than the accused guilt. In UKWUNNENYI V STATE (1989) 7 SC (pt 1) 64, Oputa JCS in his concurring judgment at page 88 said:-
?I will conclude this concurring judgment by saying a few words about proof beyond reasonable doubt. This is the policy of our law. The policy derives from the fact that human justice has limitations. It is not given to human justice to see and know, as the great External knows the thoughts and actions of all men. Human justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to treat cautiously lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty person escape
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than one innocent man is condemned. And that is why the Court gives the benefit of any reasonable doubt to an accused person.?
In a charge of murder the prosecution is required to establish the following essential elements: –
(a) There must be proof that the deceased died,
(b) That the death was in fact caused by the accused?s act, and
(c) That the accused person intended to either kill the victim or cause him grievous bodily harm.
Learned trial judge at pages 72 ? 73 of the record of appeal agreed with the evidence of the prosecution?s witnesses and disbelieved the appellant when he found as follows: –
?I bring this to the fore because it seems to me that a pedestal or tenor of the argument on behalf of the accused is that he was not any of the persons named as using a machete to cut the deceased Etim Akpan Udo. He was there aiding and a sense abetting the commission of the acts carried out by his group. He was not merely present as contended in another breadth by the defence. He rode off on his motorcycle when he was sure that the aim had been achieved. He was not fleeing the scene as contended
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in the compound of the deceased to prosecute that purpose which they had formed the intention of prosecuting. Accused does not have to be shown to be the one carrying a machete or cutting the deceased with one.?
The evidence of all the prosecution?s witnesses left no one in doubt as to the death of the deceased, Etim Akpan Udo and so also the circumstances leading to his gruesome murder by a throng which included the appellant herein. Where as in this case, the victim dies in circumstances in which there is abundance of evidence of the manner of death, medical evidence can be dispensed with. And the question as to whether death was a probable consequence and not merely a likely consequence of the act is certainly a question of fact and not one of Law. See MOHAMMED V STATE (1991) 5 NWLR (pt 192) 438 at 454. The intention of the mob were apparent right from 25/5/2015 to 26/5/2014 was to kill the deceased in order to avenge the death of the late Inspector Michael Inyang. After all, a man is presumed to intend the natural consequence of his act. It is also immaterial on whose unprovoked and dastardly attack that eventually
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killed the deceased. The appellant having been integral part of the mob for two days running cannot escape liability as rightly found by the learned trial judge. I also have no difficulties in resolving this issue against the appellant.
The final issue that is the appellant?s issue No.5 deals with defence of alibi to which the learned counsel for the appellant argued that the police has refused to investigate.
It is well settled that the defence of alibi where successful results in the acquittal of the accused relying on the defence. Thus, it is a claim of absence of both actus, not only that it is not reus, but also that there was in fact no act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission.
?There is no doubt that such a defence being a matter peculiarly within his personal knowledge, the burden of leading evidence of the fact is on the accused. Hence, evidence tending to establish the defence should not
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be disregarded unless there is stronger and more positive evidence of the participation of the accused. See GACHI V THE STATE (1965) NMLR 333, ODIDIKA V STATE (1977) 2 SC 21 and UKWUNNENYI V STATE (Supra).
The onus on the accused was however to adduce evidence which sufficiently contains the particulars of the alibi but the onus to establish the guilt of the appellant remains on the prosecution throughout the case. See NWOSISI V THE STATE(1976) 6 SC 109 and NTAM V THE STATE (1968) NMLR 86.
The pertinent question here is did the appellant adduce evidence before the trial Court which sufficiently contains the particulars of the alibi? In his extra judicial statement at pages 6 ? 9 of the record of appeal, appellant said on 25/5/2014 he was in his house at Usuk Ntatan at about 9pm when market women returning from market told him that there was fire incident at Ikot Obio Assang village. Also on 26/5/2014 while still in his house at about 9 pm, he received information again that there was a fight between the family of late Etim Akpan Udo and late police officer?s
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children.
Learned counsel for the appellant contended that the finding of the trial Court to the effect that the police had investigated the plea of alibi is contrary to the evidence of pw1 given under cross-examination. The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial.
In the instance case, the appellant had no doubt set up the defence in his extra-judicial statement. He however set up entirely different alibi in his trial where he categorically stated that he was in Uyo on both 25/5/2014 and 26/5/2014. But the fact that an alibi ought to have been raised at an earliest opportunity, I shall focus my mind to the alibi raised in the appellant?s extra judicial statement as earlier stated. Even though the appellant did not condescend to particulars, pw1 the police investigation officer at page 39 of the record of appeal had investigated the appellant?s whereabout on the days when the offences were allegedly committed and he emphatically stated that
?I went to that village but did not see anybody.?
?I have stated that the appellant in this case did not give
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the police the requisite particulars of his whereabout in respect of the defence of alibi and thus the duty of the police to investigate its truth did not even arise. At any rate, the trial had considered, the defence of alibi raised but in the end was driven to the conclusion that it was much more weaker than the evidence positively identifying the appellant as one of the throng that went to the house of the deceased on the dates of the incident. Thus, the evidence of pw2 and pw3 who said they saw the appellant at the time and place of the crime was stronger than the alibi set-up by the appellant. It is elementary law that where an accused person is unequivocally pinned to the locus in quo as one committing the offence, the defence of alibi no more avails the accused. The appellant?s alibi on the face of the unequivocal evidence of pw2 and pw3 fixing him at the locus-inquo no doubt destroyed that defence as rightly found by the trial Court. The inevitable answer is that this issue is as well resolved against the appellant.
In the final result and for all the reasons I have given above, this appeal fail and is hereby dismissed. The conviction and
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sentences passed on the appellant by the trial Court is affirmed by me.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion.
I also dismiss the appeal.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the leading judgment delivered by my learned brother: Muhammed L. Shuaibu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.
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Appearances:
Anietie Ekpe, Esq.For Appellant(s)
Uduak Eyonsa (SG, AKS) with him, Akaninyene Akpan (PSC) and Goodness Ogar (Pupil Counsel)For Respondent(s)
Appearances
Anietie Ekpe, Esq.For Appellant
AND
Uduak Eyonsa (SG, AKS) with him, Akaninyene Akpan (PSC) and Goodness Ogar (Pupil Counsel)For Respondent