Benjamin Obiora V. The State (2007)

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AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The appeal is against the judgment delivered on 11/7/2014 by the High Court of Imo State sitting in the Oguta Judicial Division presided over by Ikpeama, J; (hereafter to be simply referred to as the lower Court and ?learned trial Judge? respectively). Having regard to the record, the Appellant was the 2nd accused person in an Information preferred against him and 5 other accused persons and in which they were all charged with the offence of murder contrary to Section 319(1) of the Criminal Code Cap. 30, Vol. II, Laws of Eastern Nigeria, 1963 (hereafter to be simply referred to as ?Cap. 30, LEN?) as now applicable in Imo State. In the particulars of the offence, all the accused persons set out in the Information (including the Appellant) were alleged to have murdered one Victor Okon at Akoi Oshimiri Farmland in the Oguta Judicial Division. (See page 2 of the record). Five accused persons were listed in the Information as at 9/6/2008 with the Appellant being the 1st accused person therein. The pleas of the five accused persons in question were

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taken on the aforesaid 9/6/2008 and each of them pleaded not guilty to the offence charged. The prosecution called 5 witnesses in the proof of its case; and each of the 1st, 3rd, 4th and 5th accused persons testified in his own behalf. It was disclosed in the judgment of the lower Court on page 191 of the record that the 2nd accused person rested his case on the case of the prosecution. Having embarked on an extensive summarization and evaluation of the evidence (including statements of witnesses) before it as well as the written addresses of the prosecution and the accused persons, the lower Court obliquely found that the Appellant not implicated in the murder for which he and his co-accused persons were charged, but found him (Appellant) to be ?an accessory after the fact under Section 10 of the Criminal Code?; while the prosecution was found to have proved beyond reasonable doubt the guilt of the 5th accused person in the Information in respect of the murder in question. The lower Court consequently concluded in its judgment thus: –

?In the circumstances, I hold that the prosecution has proved its case against the 1st accused as an

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accessory after the fact of murder and 5th accused person for murder. I find the 1st accused guilty as an accessory after the fact of murder and the 5th accused guilty of murder as charged.?

(Underline provided by me)

Suffice it to say that while the lower Court sentenced the 1st accused person (i.e. Appellant) to a term of 3 years imprisonment (and apparently with no option of fine), it sentenced the 5th accused person to death as mandatorily required by law.

The Appellant being aggrieved with his conviction as an accessory after the fact to murder and the sentence imposed on him, initiated the instant appeal by an undated notice of appeal lodged in the registry of the lower Court on 6/8/2014. The notice of appeal contains three grounds of appeal. The grounds shorn of their respective particulars read thus: –

?GROUND ONE

The learned trial judge erred in law in convicting and finding the appellant guilty of being an accessory after the fact of murder when the charge was not proved beyond reasonable doubt as required by law.

GROUND TWO

The learned trial judge erred in law when he held as follows:

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-?rather administration of oath of secrecy on PW1 and PW2, which is post killing incident to enable the killers of the deceased to escape punishment for their crime. This makes the 1st accused an accessory after the fact under S. 10 of the Criminal Code? and thereby convicted the appellant and sentenced him to imprisonment for three year.

GROUND THREE

The judgment of the learned trial judge is unwarranted, unreasonable and cannot be supported having regard to the evidence.?

The appeal was entertained on 21/3/2017 with Kelechi Nwaiwu, Esq. adopting and relying on the Appellant?s brief of argument dated 17/11/2015 and filed on 22/11/2015 but deemed to have been properly filed and served on 25/1/2016 and Appellant?s reply brief of argument dated 8/12/2016 and filed on 13/12/2016, in urging the Court to allow the appeal. In the same vein, I.I. Amadi (Mrs.) (Assist. Director of Civil Litigation, Imo State) (hereafter to be simply referred to as ?learned ADCL?) adopted and relied on the Respondent?s brief of argument dated 28/4/2016 and filed on 29/4/2016 but deemed to have been

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properly filed and served on 6/12/2016, in urging the Court to dismiss the appeal and affirm the conviction and sentence passed on the Appellant.

A sole issue was formulated for the determination of the appeal in the Appellant?s brief of argument from the three grounds in the notice of appeal. It goes thus: –

?Whether the charge before the lower Court was proved beyond reasonable doubt as to warrant the conviction of the Appellant as an accessory after the fact to the offence of murder in view of the material contradictions and inconsistencies in the Respondents (sic) (prosecution) evidence at the trial Court.?

A sole issue was equally formulated in the Respondent?s brief of argument for the determination of the appeal. It reads:-

?Whether in the light of the evidence adduced by the prosecution, the learned trial judge was not right to have convicted and sentenced the appellant for being accessory after the facts of murder of the deceased

It is not in doubt that the grouse of the Appellant in this appeal is against his conviction and sentence passed on him as accessory after the fact

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to murder. Having regard to the grounds in the notice of appeal, the Appellant is not questioning the correctness of the decision of the lower Court in convicting the 5th accused person for murder and sentencing him to death. Neither is the Appellant by any of the grounds in the notice of appeal questioning the correctness of the decision of the lower Court impliedly as it were, finding him not guilty of the offence of murder he was charged with or for also not finding the other accused persons (save the 5th) not guilty of the offence of murder for which they were all charged. Having regard to the manner in which the issue formulated for the determination of the appeal by the Appellant was couched, he would however appear to be putting the correctness of the decision of the lower Court in relation to the charge it entertained in issue for the purpose of deciding whether his conviction as an accessory after the fact to murder is supportable. On the other hand, it would appear from the issue as formulated by the Respondent, that though it supports the conviction of the Appellant as an accessory after the fact to murder, it is supporting same because it adduced

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evidence in respect of the said offence and not necessarily on the basis of the findings the lower Court relied upon in coming to its decision in convicting the Appellant for the said offence. Against the backdrop of what I have stated above, I am of the considered view that the issue formulated by the Appellant (and upon which I intend to resolve the appeal) would have been better formulated to read: ?Whether the offence of accessory after the fact to murder for which the Appellant was convicted was proved beyond reasonable doubt as to warrant his conviction?. This in my considered view obliterates the confusion that the words ?charge before the lower Court? appear to have introduced into the matter as no formal charge alleging the Appellant of being an accessory after the fact to murder was preferred against him. I will therefore be resolving the appeal on the issue formulated by the Appellant but as modified or re-couched by me.

?In dwelling on the issue formulated by him, the Appellant stated the position of the law in this country to be that where the statement of a witness made before trial is inconsistent with his

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testimony at the trial, the Court should reject both as unreliable and cited the cases of Ikemson v. The State (1989) 3 NWLR (Pt. 110) 473; and Ifenedo v. The State (1967) NMLR 200 in aid. In the light of the decisions in the cases, the Appellant submitted to the effect that as there were material contradictions and inconsistencies in the evidence adduced by the prosecution at trial regarding his involvement in the administration of oath after the alleged murder of the deceased person named in the charge was inconsistent and contradictory, the doubt created by the said contradictory and inconsistent evidence, ought to have been resolved in his (Appellant?s) favour.

In its brief of argument, the position of the Respondent is that the lower Court was right to have convicted the Appellant for being an accessory after the fact to murder. This in the main is because it is a settled position of law that an accused person, who is being tried for a particular offence can in the absence of credible evidence to convict him for that offence be convicted for a lesser offence if the elements of the lesser offence is proved by the prosecution. (Bold and

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underline by me for emphasis). The cases of Adava v. State (2006) All FWLR (Pt. 311) 1777 at 1788; and Awosika v. State (2011) All FWLR (Pt. 560) were cited in aid; and reference was also made to the provision of Section 10 of Cap. 30, LEN.

The Respondent stated that the mental element required of an accessory after the fact to an offence, is knowledge of the guilt of the person assisted plus intention to facilitate escape from punishment and in aid referred to Criminal Law in Nigeria: Okonkwo and Naish, by Sweet and Maxwell, Second Edition, Chapter 7, page 180.

?It is the stance of the Respondent that the prosecution was able to prove the requisite elements of the offence of accessory after the fact to murder against the Appellant beyond reasonable doubt. That they did this through the evidence of PWs 1 and 2 which is to the effect that the Appellant knew as a fact that the assailants, including the 5th accused ? Musa Ossai, attacked and killed the deceased ? Victor Okon and indeed took part in administering an oath of secrecy on PWs 1 and 2 to prevent them from telling anybody what they experienced in the bush where the deceased was

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killed.

Dwelling specifically on the arguments of the Appellant, the Respondent said to the effect that the stance of the Appellant to the effect that the lower Court should not have relied on the oral testimonies of PWs 1 and 2 because the extra judicial ?testimony? (which I believe should be ?statement?) of PW1 and his oral testimony in Court are contradictory and inconsistent with that of PW2, was misconceived. This is because, it is on record that the counsel to the Appellant at the lower Court did not in any way cross-examine PW1 on the involvement of the Appellant in the oath taking. That PW1 was merely questioned as to whether or not it was Onyeka Maduagwu who brought out the Nzu-like substance with which the oath was administered to him and PW2. That PW1 was never ?controverted? (which I believe should be ?questioned?) as to the presence of the Appellant during the oath taking. Stating that the position of the law is that evidence which is neither contradicted nor controverted must be acted upon, the Respondent submitted that the mere fact that PW1 mentioned the Appellant as being among those

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who administered the oath of secrecy on himself and the PW2 in Exhibit (i.e. his statement to the Police) but failed to mention the Appellant in his oral evidence in Court, cannot amount to inconsistency and contradiction, sufficient enough to discredit the witness. Also stating that even if (but which was not conceded) the evidence of PW1 is inconsistent and unreliable, the Respondent submitted that the evidence of PW2 having not been contradicted was reliable enough to ground the conviction of the Appellant by the lower Court. This is more so as the evidence of a single witness where credible and believed by a Court can sustain a conviction.

The Appellant dwelled in his reply brief of argument on two new points he identified in the Respondent?s brief of argument namely: –

1. Whether a trial Court can convict an accused person charged with murder for the offence of being an accessory after the fact to murder, and what is the prosecution expected to establish in order for such conviction to be sustainable; and
2. Whether the evidence of one credible witness is reliable enough to ground a conviction, and what the Court should

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consider in determining the credibility of a witness.

Dwelling on the first of the new points, the Appellant conceded that it is indeed settled law that a Court can convict an accused person charged with the offence of accessory after the fact to that offence. It is however the position of the Appellant that before this can be done, the evidence adduced in respect of the offence for which the accused was charged must be capable of establishing that the accused became an accessory after the fact to the offence charged and reference was made to Section 171A of the Criminal Procedure Act 2011. Again, stating that the provision of Section 10 of Cap. 30, LEN, is indeed to the effect that a person who receives or assists another who is to his knowledge guilty of an offence in order to enable him to escape punishment is said to become an accessory after the fact to the offence, the Appellant submitted to the effect that at the same time the position of the law still requires the prosecution to prove its case beyond reasonable doubt to secure a conviction for an offence against an accused person. That for this purpose, the prosecution must prove and

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establish each and every single ingredient of the offence in question and that the offence of ?an accessory after the fact to an offence? is no exception. It is the stance of the Appellant that the two elements required to be proved to sustain a conviction for ?an accessory after the fact to an offence? are (i) the prosecution must prove that the accused person received or assisted a person guilty of an offence with the intent to facilitate the escape of that person; and (ii) that the accused person had the knowledge of the person’s guilt; and the case of Abacha v. The State (2002) 11 NWLR (Pt. 779) 437 was cited in aid. Having also referred to the definition of ?an accessory after the fact? as contained in The Criminal Law and Procedure of Lagos, Eastern Nigeria and Western Nigeria by Brett and Mclean, the Appellant submitted that before he could be found guilty of being an accessory after the fact to the murder of the deceased – Victor Okon in the instant case, the prosecution was not only duty bound to prove that the other accused person(s) murdered the deceased, but must also prove that he (i.e. Appellant) knew/believed

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that the other accused person(s) committed the murder and that he carried out overt acts to enable the other accused person(s) escape punishment. That it was wrong for the lower Court having found the 5th accused person (Musa Ossai) guilty of the murder of Victor Okon, and discharging the 2nd, 3rd and 4th accused persons for want of evidence, to have proceeded to convict him (i.e. Appellant) as an accessory after the fact to murder. That the evidence adduced by the prosecution therefore did not prove all the elements of the offence of accessory after the fact to murder against him (Appellant). This is more so as he consistently maintained that he did not know the 5th accused person or any of the accused persons (except the 2nd accused because they were represented by the same counsel), which evidence was unchallenged. It is also the stance of the Appellant that there was no evidence adduced by the prosecution linking him with the 5th accused in anyway. That the 5th accused also did not state that he knew him (Appellant). It is the position of the Appellant that inasmuch as the prosecution could not prove that he knew the 5th accused, and neither led credible evidence

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to show that he knew that the 5th accused murdered the deceased, the prosecution in the circumstances did not prove one of the essential elements of ?accessory after the fact? in view of the decision in the case of Abacha v. The State (supra). It is also the position of the Appellant that when one averts his mind to the fact that the evidence of the prosecution witnesses, particularly that of PW1 (which was manifestly contradictory and not at all credible to sustain the charge of murder) and the history of the long time squabbles between the families of the Appellant and PWs 1, 2 and 3 over land disputes, any Court of law ought to have exercised caution in convicting an accused person based entirely on the oral evidence of such witnesses without more cogent and compelling evidence. That these are circumstances that should have created reasonable doubt in the mind of a Court before a conviction can be found substantiated and where there is a doubt, such doubt should be resolved in favour of an accused person.

?In dwelling on the second of the two new points, the Appellant while conceding that it is settled law that the evidence of one credible

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witness even in a criminal charge is sufficient to ground a conviction, however said to the effect that the issue in the instant case was not whether the trial Court can or cannot convict an accused on the evidence of a single witness but whether there was such credible and cogent evidence before the lower Court to warrant the conviction in the instant case. Having cited many cases considered to be relevant, the Appellant submitted to the effect that there was no such credible evidence before the lower Court.

?I am of the considered view that the grouse or grouses the Appellant has with his conviction and sentence as an accessory after the fact to murder, can only be properly appreciated from the reasoning and conclusion of the lower Court as it relates to him. I therefore consider it expedient to re-produce the portions of the judgment of the lower Court as it relates to the Appellant. The Appellant is shown as the 1st accused in the judgment of the lower Court on page 181 of the record. Having embarked on the review or summarization of the evidence adduced by the prosecution and accused persons as well as their written addresses from pages 181 ?

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201, the lower Court in apparent realisation that it was the offence of murder preferred against the Appellant and the other accused persons that it was dealing with, said on page 201 thus: –

?COURT: From the addresses of counsel for the accused and the prosecution the issue for determination is ?whether the prosecution on the evidence on record proved beyond reasonable doubt the charge of murder against any of the accused.?

Having set out the elements of the offence of murder that the prosecution has to prove to sustain a conviction therefor, and dealing with the first of the elements it set out, to wit: ?that the deceased died?; the lower Court found the prosecution to have established this given the evidence of PWs 1, 2 and 5 coupled with the fact that the defence did not controvert the death of the deceased. The said Court also invoked the principle of law that what is not contested is deemed admitted; and what is deemed admitted needs no further proof.

The second of the elements of the offence of murder the lower Court considered was ?whether the death of the deceased resulted from the act or

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omission of any of the accused? and with specific reference to the Appellant the said Court stated on pages 202 ? 203 thus: –

?1st accused: The PW1 in his evidence in chief mentioned the names of 5th accused as Emmanuel Odogwu now Musa Ossai, 3rd and 4th accused and said all the other accused. It was under cross-examination he said it was Onyeka Maduagwu who brought out the Nzu from his pocket and 1st accused, Chuks Enesha and 2 others administered the oath on them. He knew 1st and 2nd accused before the incident. In his statement to police Exhibit ?A? he said that Chuks Enesha, Ochije Isiodu, Benjamin Obiora (1st accused) and Onyeka Maduagwu administered the oath on them. In his 2nd statement Exhibit ?B? he also mentioned 1st accused. PW2 in his evidence said Onyeka Maduagwu, Chuks Enesha, Benjamin Obiora and 2 others administered oath on them with something brought by Onyeka Maduagwu from his pocket that looked like Nzu. He further said that those with Okon (deceased) in the bush were Benjamin Obiora (1st accused) Chijioke Onyeka Maduagwu, Nnamdi, Chinedu Emmanuel Odogwu (5th accused), Ossai, Ozoemena Ahanwa,

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Ozoemena Sandsill, Chuks Enesha and Chilaka. He knew 1st and 2nd accused very well before the incident. In his statement to the police Exhibit ?C? he said that those who administered oath on them were Onyeka Maduagwu, Ochije Isiodu and Benjamin Obiora (1st accused). The PW3 did not follow the PW1 and PW2 to the bush where they were to. He only looked from his house when they were being taken away and those he saw were 2nd, 3rd, 4th and 5th accused. He did not see 1st accused. He mentioned Onyeka Maduagwu, Emmanuel Odoigwu (sic) (5th accused), Mbanefo Enesha, Ifediora Odogwu and Ozo Ahanwa. In his statement to the police Exhibit ?D? he mentioned those who attacked PW1 and PW2 as Onyeka Maduagwu, Ozoemena Ahanwa, Ifediora Odogwu, Chinedu Odogwu, Chijioke Odogwu, Oliver Enesha, Nnamdi Emmanuel Odogwu (5th accused), Chidi Enebeli, Charco and others.?

Having also dealt with the cases of the other accused persons vis–vis the evidence adduced through PWs 1, 2 and 3, from pages 203 ? 205,the lower Court on the same page 205 proceeded thus: –

?xxxxxxx From the analysis of the evidence of the prosecution

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witnesses the PW1 and PW2 in their evidence and statement saw the 1st accused as one of those who administered oath of secrecy on them in the bush. The PW3 did not follow them to the bush and did not see the 1st accused. The PW1, PW2 and PW3 each saw the 5th accused and said so in his (sic) evidence and statement to police. The 5th accused is Musa Ossai and was formerly known as Emmanuel Odogwu. Each of the 2nd, 3rd and 4th accused were not sufficiently identified by the principal witnesses of the prosecution and therefore cannot be sufficiently connected with the incident and the death of the deceased. Each of the 2nd, 3rd and 4th accused is therefore discharged for want of evidence.

?The role played by the 1st accused according to the PW1 and PW2 was the administration of oath of secrecy on them on the road after the killing of the deceased and the PW1 and PW2 being seriously tortured. The PW1 in his evidence in chief did not say that the 1st accused them rather it was under cross-examination that he said that 1st accused, Onyeka Maduagwu who brought out the Nzu from his pocket, Chuks Enesha and 2 others administered the oath on him and PW2. The role

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played by the 1st accused was the administration of oath on the PW1 and PW2. There was no evidence that the 1st accused participated in the killing of the deceased rather administration of oath of secrecy on PW1 and PW2 which is post killing incident to enable the killers of the deceased to escape punishment for their crime. This makes the 1st accused an accessory after the fact under S. 10

As regards the 5th accused he was mentioned by all the principal witnesses of the prosecution xxxxx In the circumstances I hold that the prosecution has proved its case against the 1st accused as an accessory after the fact to murder and 5th accused for murder. I find the 1st accused guilty as an accessory after the fact of murder and the 5th accused guilty of murder as charged.?

?I am of the considered view that it is incontrovertible from the record before this Court and particularly from the portions of the judgment of the lower Court that have been re-produced hereinbefore, that no express charge of ?accessory after the fact to murder? was at any time in the

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course of the proceedings in the instant case preferred against the Appellant or introduced into the case by way of an amended charge; talk less of the plea of the Appellant being taken in respect of such an offence. It is therefore puzzling to me how the lower Court came to ?hold that the prosecution has proved its case against the 1st accused as an accessory after the fact to murder?. There was never such a charge preferred against the Appellant in the one count Information to which he pleaded not guilty. Be that as it may.

I am of the considered view that both the Appellant and the Respondent are ad idem given their respective submission that have been highlighted hereinbefore that the offence of accessory after the fact to murder is a separate offence known to Cap. 30, LEN. In other words, accessory after the fact to murder is a felony specifically created by Cap. 30, LEN and punishment therefor provided therein. This is so despite the provision of Section 10 of the said Cap. 30, LEN, which defines ?accessories after the fact? thus: –

?A person who receives or assists another who is to his knowledge, guilty of an

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offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence?

with the punishment for accessories after the fact to a felony if no other punishment is provided being imprisonment for two years. See also the commentary at Paragraph 2132 on page 943 of the Criminal Law and Procedure of the Southern States of Nigeria, Third Edition, by Akinola Aguda where it was stated ?Special punishment are provided for accessories after the fact to treason (Section 40(1) and murder (Section 322)?.

The view I have earlier expressed that both the Appellant and Respondent are ad idem that the offence of accessory after the fact to murder is a separate offence known to Cap. 30, LEN, is further reinforced by the elements of the offence as set out in their respective briefs of argument. And I am of the considered view that the Appellant and the Respondent were very correct regarding the elements of the offence which have to be established beyond reasonable doubt by the prosecution to sustain a conviction against an accused as an accessory after the fact to murder; and these are: (i) receiving or

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assisting a person guilty of murder with intent to facilitate the escape of that person; (ii) knowledge of the person?s guilt. That these are the two elements the prosecution need to prove to sustain a charge of accessory after the fact to murder is clear from the precedent in respect of the offence (which is contrary to Section 322 of the Criminal Code) set out in Form 4 on page 279 of the Criminal Law and Procedure of the Southern States of Nigeria (supra). It reads:-

?STATEMENT OF OFFENCE

Accessory after the fact to murder, contrary to Section 332 of the Criminal Code.

Particulars of Offence

A.B. well knowing that one H.C. did on the — day of ——–19—, in the ——— Judicial Division murder C.C. did on the — day of ———, 19—, in the province of ——, and on other days thereafter receive, comfort, harbor, assist and maintain the said H.C.?

It would also appear incontrovertible in my considered view that the lower Court despite its reference to Section 10 of Cap 30, LEN, (which is just one of the sections in respect of parties to offences), dealt with the Appellant

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pursuant to the provision of the Section of Cap. 30, LEN in respect of the offence of accessory after the fact to murder. This is against the backdrop of the punishment of 3 years the said Court gave him and which is in excess of the sentence prescribed for ?accessories after the fact? generally.

I am of the considered view that it is obvious from the provisions of Cap. 30, LEN, in respect of the offence of accessory after the fact to murder that it cannot be said that the elements of the said offence and those of murder under Section 319(1) are the same. In other words, the offence of accessory after the fact to murder even though a lesser offence to murder in the con of the sentence therefor vis–vis that of murder in my considered view is not one for which the lower Court having not found the offence of murder proved against the Appellant, could have without more convicted the Appellant as it could have done in respect of the offences of murder vis-a-vis manslaughter. This is because the elements needed to establish each of the separate and distinct offences are obviously diametrically not the same. In any event I am

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of the considered view that where a person has been expressly and distinctly charged with the offence of murder, such a person cannot be properly convicted of the offence of accessory after the fact to murder for which he has been charged in the absence of legislation permitting the same. This is against the backdrop of the decision of Fatayi-Williams, J; (who later became CJN) in the case of THE QUEEN V. OKPO 1962 NWLR 15 where his lordship said thus:

?A person who receives or assists another who is to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence?.

In my view, where several persons are tried in one charge, some as principals in murder, others as accessories after the fact to the murder, and the principals are convicted of manslaughter or of any lesser offence only, the persons charged as accessories may he convicted as accessories to the manslaughter or to such lesser offence. In this connection reference may be made to the case of R v. Richards (1876-7) 2 Q.B.D. 311 in which several persons were tried in one indictment, some as

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principals in murder, others as accessories after the fact, and the principals were convicted of manslaughter. It was held that those charged as accessories after the fact might rightly be convicted as accessories to manslaughter.

Where, however a person is charged as a principal felon only, he cannot be convicted of being an accessory after the fact. (See R v. Watson, 12 Cr. A.R. 62; also R v. Latunbosun, 3 W.A.C.A. 184). The first accused is charged only with murder. In view of the provisions of Section 339 of the Criminal Procedure Ordinance which state that no other charge shall be joined with a charge punishable with death, the learned Senior Crown Counsel could not, even if he had so wished, have charged the first accused on an additional count of being an accessory after the fact to the offence. Nevertheless, I cannot, in view of the decisions to which I have referred, convict the first accused as an accessory after the fact. In the circumstances, he is acquitted and discharged.?

See also the case of MOHAMMED V. THE STATE (1980) LPELR ? 1895 (SC), (1980) All N.L.R 138, (1980) 3-4 S.C. 56 where the Supreme Court per Bello,

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JSC; (who later became CJN) said thus: –

?xxxx Finally, there is ample evidence that the 1st appellant committed an offence as an accessory after the fact to murder punishable under Section 322 of the Criminal Code. I have given consideration whether we have the power to substitute a conviction for that offence. In a trial under the Criminal Procedure Law of the Anambra State, unlike that of the Criminal Procedure Law of Lagos State wherein Section 171A permits such a conviction, a person charged with an offence cannot be convicted as an accessory after the fact to the offence charged where the evidence shows that he did not commit the offence but was an accessory after the fact: Rex v. Latunbosun (1937) 3 W.A.C.A. 184 and Simon Okoye v. The State F.S.C. 333/1964 delivered on 22nd September, 1964 (unreported). That being the case, neither the Court of Appeal could nor this Court can invoke the powers under Section 21(2) of the Federal Court of Appeal Decree, 1976 or Section 30 of the Supreme Court Act respectively to substitute a conviction under Section 322 of the Criminal

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Code. I would therefore allow the appeal of the 1st appellant.”

?I am of the settled view that it is clear from the above cited two cases, that the lower Court was very wrong in convicting the Appellant as an accessory after the fact to murder (notwithstanding the cogency it chose to ascribe to the evidence of PWs 1 and 2) and apparently acting under the notion that a conviction for said offence being a lesser offence to murder was permissible by Section 10 of Cap. 30, LEN. The lower Court clearly required to have predicated its decision convicting the Appellant as an accessory after the fact to murder, on a provision such as that in Section 171A of the Criminal Procedure Law of Lagos State and which is glaringly non-existent in Cap. 30, LEN, otherwise the Respondent would have founded its support of the decision of the lower Court on the said provision instead of the tenuous submissions it engaged in.

In any event, the decision of the lower Court convicting the Appellant as an accessory after the fact to murder cannot stand inasmuch as the said Court, oscillated between the oral evidence of PWs 1 and 2 vis-a-vis their respective statements and

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indeed used the statements of the said PWs 1 and 2, to prop up or fill the gaps in their oral evidence before it, thereby acting on the said statements as the truth of what was stated therein, in finding the prosecution to have proved ?it case against the 1st accused as an accessory after the fact to murder?. The lower Court would appear to have lost sight of the position of the law in respect of statements made to the police by persons called as witnesses and the use to which such statements can be put. The position of the law in this regard is that the written statement of a prosecution witness is only relevant to the proceedings at which he gives evidence where the witness proves “adverse” or is shown to have made, at other times, a statement inconsistent with his present testimony. Such a statement is not evidence against the accused with respect to the allegation it contains; it is relevant only as to the credibility of the witness. In other words, the only proper use to which it could have been put was the cross-examination on it of the witness, if he had said anything in his evidence which was contrary to what he had said to the Police. That

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it cannot be evidence of its own truth. See the cases of ONWE V. THE STATE (1975) NSCC 375 at 381 ? 382; AKPABIO V. THE STATE (1994) LPELR ? 369(SC); and ASUMOGHA V. THE STATE (2015) LPELR ? 24534 (CA) amongst many others.

Flowing from all that has been said, and in answer to the question for the determination of the appeal as re-couched by me, is that I do not find the offence of accessory after the fact to murder for which the Appellant was convicted to have been proved beyond reasonable doubt by the prosecution as to warrant his conviction given the procedure undertaken by the lower Court and the evidence the said Court relied upon.

In the final analysis, the appeal is meritorious and it succeeds and is allowed. Consequently the decision of the lower Court finding the Appellant guilty of the offence of accessory after the fact to murder is set aside. The Appellant is hereby acquitted and discharged of the murder charge preferred against him as the lower Court should have done had it not wrongly convicted and sentenced him for the offence of accessory after the fact to murder.

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Other Citations: (2007)LCN/2428(CA) (2007)