Court can convict of lesser offence, for which accused person was not charged
AKPAN v. STATE
CITATION: (2019) LPELR-48170 (CA)
In the Court of Appeal
(Calabar Judicial Division)
ON THURSDAY, 25TH JULY, 2019
Suit No: CA/C/291C/2017
Before Their Lordships
MOJEED ADEKUNLE OWOADE, JCA
OBANDE FESTUS OGBUINYA, JCA
MUHAMMED LAWAL SHUAIBU, JCA
SAMPSON JACOB AKPAN -Appellant(s)
THE STATE -Respondent(s)
LEAD JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.
FACTS OF THE CASE
This is an appeal against the decision of the High Court of Akwa Ibom State sitting at Ikono.
The facts of the case are that 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 May 25, 2014, there was a mob action wherein the daughter of the said Etim Akpan Udo, Florence was held as captive by the group. They 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.
The next day being May 26, 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 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 to death by the High Court and as a result he appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on these following issues: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 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 irresistibly establish the guilt of the appellant in the offence of conspiracy to commit arson and conspiracy to commit murder.
APPELLANT’S COUNSEL SUBMISSION
On issue one, learned counsel for the Appellant relying on the authorities of 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, inter alia argued 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. This according to Counsel was never sought nor given as mandatorily provided for in Section 314 (3) (b) of the Criminal Procedure Law, Cap 39 Vol. II, Laws of Akwa Ibom State, 2000. The failure to obtain the requisite consent according to Learned Counsel made the trial of the appellant flawed and oppressive.
It was the 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 NEWSWATCH COMMUNICATIONLTD 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.
On the issue of alibi, 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 May 25, 2014 and May 26, 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 contended that the lower Court ought to have dismissed the charge for failure of the police to investigate the appellant’s plea of alibi.
RESPONDENT’S COUNSEL SUBMISSION
In response to arguments on issue one; the respondent’s Counsel countered with the submission 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 January 12, 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 of the appellant is not fatal to the arraignment. He referred to OGUNYE V STATE (1999) 5 NWLR (pt 604) 548 at 565 – 566.
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.
In response to the issue of alibi, 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. 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.
RESOLUTION OF ISSUES
In resolving the issues, the Court held that the first important issue to be resolved in this appeal is whether the Appellant was properly arraigned before the lower Court. That 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 neither sought nor obtained.
The Court considered the relevant provisions of Section 314 (3) (b) of the Criminal Procedure Law, Cap 39, vol. II, Laws of Akwa Ibom State 2000 and the requirement of a proper arraignment has stated by Wali JSC in the case of KAJUBO V THE STATE (1988) 1 NWLR (pt 73) 721 which is to the effect that: “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).”
Thus, failure to comply with any of these conditions will render the whole trial a nullity. The Court however submitted that, by virtue of the provisions of Section 1 of the Criminal Procedure (Amendment) Law, 2006 of Akwa Ibom State, which came into force on December 31, 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. Issue one was therefore resolved against the appellant.
On proof of the offence of conspiracy to commit arson and murder, the Court held that 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. See ALABI V STATE (1993) 7 NWLR (pt 307) 511 and ADAMU V STATE (2017) 7 NWLR (pt 1565) 459.
The Court after considering the fact of the case and the evaluation of the evidence as done by the trial Court, unhestitantly resolved this issue against the appellant.
The Court held 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. The Court stated the general rule that 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, the Court held that 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 reipublicaeut 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. Relying on BABALOLA V STATE (1989) 7 SC (pt 7) 94 at 192. The issue was thus resolved against the appellant.
The Court also rejected appellant’s plea of alibi as the law is 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.
In conclusion, the Court of Appeal found the appeal to be lacking in merit and same was dismissed.
Anietie Ekpe, Esq. -For Appellant(s)
Uduak Eyonsa (SG, AKS) with him, Akaninyene Akpan (PSC) and Goodness Ogar (Pupil Counsel) -For Respondent(s)
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