Cyril Ogujuba V. The State (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the High Court of Anambra State delivered on 3/6/13 by Hon. Justice C.E.K. Anigbogu wherein His Lordship convicted the appellant and one other accused person.
The appellant was arraigned before the trial Court along with 2 other persons; Livinus Mgbechita and Camilius Ikenso on information and proof of evidence containing a two count charge as follows:
a) Wounding with intent to maim, disfigure or disable or do some grievous bodily harm to one Chinedu Otih and Leornard Udensi, an offence punishable under Section 495 (a) of the Criminal Code Cap 36 Revised Laws of Anambra State 1991
b) Conspiracy contrary to Section 288 of the Criminal Code.
The appellant pleaded not guilty to the charge. To prove its case, the prosecution called six witnesses (PW1 to PW6) at the trial. The first accused person at the trial had absconded after he gave evidence and was cross-examined on 15/11/07. The 2nd and 3rd accused persons now appellants gave evidence on oath in their own defence but called no witnesses. The
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3rd accused person is the appellant in this appeal. The uncontroverted facts at the trial Court were that the appellants and others including the 1st accused at trial were members of the Onyido Gorillas Security Services engaged to guard the town of Ubulu-Isiuzor at night. A locally imposed curfew or restriction of movement was imposed with effect from 9pm or 9:30pm. On 29/11/1998, the appellant with others saw P.W.1 and P.W.3 walking towards the house of a man who just got married. The appellant and others challenged the P.W.1 and P.W.3, a full scale fight ensued between the security outfits? members and the 1st and 3rd P.W. P.W.3 was severely beaten up, dragged on the floor with a severe machete cut on his leg. The leg was later amputated as a result of the injuries.
At the end of trial, the learned trial judge found the appellants guilty as charged, convicted them and sent them to 7 years imprisonment each on the count of conspiracy. On the count of wounding with intent to maim, disfigure or disable, both were each sentenced to life imprisonment.
Dissatisfied with the judgment of the trial Court, the appellant initiated this appeal by a
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Notice of Appeal dated 31/07/13 filed on 1/8/13 containing 13 grounds of appeal and transmitted records on 25/10/13. Appellant?s brief was filed on 13/12/13. Respondent?s brief was filed on 29/4/16 and deemed filed on 16/11/15.
In the appellant?s brief settled by O.J Nnadi, SAN, seven issues were identified for determination as follows:
1) Whether the proceedings and judgment delivered based on the evidence of the 1st accused relied upon by the trial judge and the conviction of the appellant based on the crime of the 1st accused is not a nullity.
2) Whether on the facts of Charge No: HIH/4C/2004, the trial judge was right in holding that the prosecution proved that the appellant is guilty of conspiracy contrary to Section 495(a) of the Criminal Code Cap 36 Revised Laws of Anambra State, 1991 moreso by relying on alleged previous misunderstanding between the complainants and defendants and malice resulting therefrom.
3) Whether the trial Court was right in holding that the prosecution established beyond reasonable doubt the offence of assault occasioning harm (wounding with intent) and therefore was right in convicting the
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appellant.
4) Whether the trial Court was right in holding that as at the time of the incident leading to the fight, the identity of the complainants was not in issue and there was corroboration that the issue of identity was not in dispute and thereby convicted the appellant.
5) Whether the trial judge properly invoked Sections 4,5 and 6 of the Criminal Code Cap 36 of the Revised Laws of Anambra State 1991 on the facts of the charge to find the appellant guilty.
6) Whether on the totality of the statements of the appellant and other accused persons was an admission for which the prosecution was held to have proved the case beyond reasonable doubt against the appellant.
7) Assuming that the trial judge was right in finding the appellant guilty and in convicting the appellant, whether the sentence by the trial judge on the 2 counts on the facts is not too harsh, unjust and must be reduced.
In the respondent?s brief settled by G. C. Emenike Esq, three issues were identified for determination to wit:
1) Whether the lower Court was right in holding that the prosecution proved the offences of conspiracy and wounding with intent
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against the appellant beyond reasonable doubt to warrant his conviction and sentence.
2) Whether the lower Court was right when it held that the appellant with his co-defendants acted under circumstances in which it can undoubtedly be inferred that they conspired and/or acted in concert to commit the offences of conspiracy and wounding with intent to maim.
3) Whether the sentences of 7 years for the offence of conspiracy and life imprisonment for the offence of wounding with intent were in the circumstances of this case, excessive.
After careful perusal of the grounds of appeal and because of the proliferation and duplicity in the issues as identified by learned appellant?s counsel, I have crystallised the following issues for determination from the issues and facts before this Court:
1. Whether on the facts, the learned trial judge was right to have convicted the appellant of the offences of conspiracy and wounding with intent (assault occasioning harm).
2. Assuming that the learned trial judge was right in convicting the appellant, whether the sentences imposed were not too harsh and unjust and should be reduced.
?I shall
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refer to the appellant in this appeal as the appellant and the 2nd accused at the trial who also appealed as the other appellant.
ISSUE ONE
Whether on the facts, the learned trial judge was right to have convicted the appellant of the offences of conspiracy and wounding with intent (assault) occasioning harm.
Learned appellant?s counsel argued that the hearing of this matter commenced on 3/10/06 and each defendant pleaded not guilty to the charge. DW1 was absent on 16/7/07 and 23/7/07. Thereafter a bench warrant was issued for his arrest and that the absence of DW1 stalled the Court proceedings until he was arrested and kept in police custody. Counsel reminded us also that the evidence of DW1 was taken on 21/8/07 and 13/11/07, the matter was then adjourned till 6/12/07 and 12/12/07 respectively for continuation of trial. Counsel stated further that from 6/12/07 till the judgment of the trial Court was delivered on 3/6/13, DW1 did not attend Court again because according to the Divisional Crime Officer for Ihiala Police Station, DSP Umel Effion who appeared in Court, the accused person escaped through the roof of the cell in which he was
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remanded.
Counsel argued that on 31/08/13 without withdrawing DW1 from the charge or striking out his evidence and without the consent of counsel, the Court proceeded to take the evidence of the two remaining accused persons. Counsel cited Sections 36(4) and 36(4) (a) of the Constitution of the Federal Republic of Nigeria 1999 as amended as follows:
36(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or tribunal.
36 (4) (a) A Court or such tribunal may exclude from its proceedings persons other than parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice.
Counsel argued that there was nowhere in the record of proceedings that the Court made or recorded an application that the
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appellant and other appellant agreed to continue with the proceedings in the absence of DW1. He argued also that the evidence given by DW1 was never consented to by the appellant and other appellant to be used against them and that the evidence of DW1 did not state that any of them used the machete on PW3. Counsel argued further that any such agreement is however unconstitutional, null and void except it is recorded, unequivocal and express. He cited Ariori v. Elemo (1983) 1 SC 13; A.G Bendel v. A.G Federation (1983) All NLR Pg. 208.
Counsel contended that since DW1 could not have been found guilty due to his absence, the appellant therefore should not also be found guilty. If at all, DW1 must first be found guilty, convicted and sentenced before the appellant is found guilty under Sections 4, 5 and 6 of the Criminal Code. He cited Kwagshir v. State (1995) 3 NWLR Pt. 386 Pg. 651; Chief of Air Staff v. Iyen (2005) All FWLR Pt. 252 Pg. 425, (2005) 6 NWLR Pt. 922 Pg. 496.
He submitted that the best evidence of conspiracy is obtained from one of the conspirators, it therefore becomes the duty of the Court to ascertain the best that it can in every case
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of conspiracy. He cited Abacha v. State (2002) 11 NWLR Pt. 779 Pg. 437. He argued that even though the account of PW3 as to how he had seen the appellant and other appellant attacking a motorcyclist, how they accosted and demanded money from him were not denied by the appellant and other appellant. He submitted therefore that mere animosity or malice cannot be evidence of conspiracy and that this evidence is not cogent, compellable and irresistible on the facts as to warrant holding that there was indeed conspiracy. He cited Section 135(1) of the Evidence Act 2011.
Counsel submitted further that for a person to be convicted for conspiracy, the proof of the mens rea for conspiracy i.e the knowledge of the facts constituting the basis of the conspiracy must exist. He argued that the PW1 and PW3 were the aggressors who were over powered in self defence and that there was no conspiracy. Onuoha v. State(1988) 3 NWLR Pt. 83 Pg. 460, Okagbue & Ors v. The Queen (1958) 3 FSC 27, (1958) SCNLR 371, Kwagshir v. The State (supra), Alake v. State (1991) 7 NWLR Pt. 205 Pg. 567, Eyo v. Queen (1962) 2 SCNLR 262.
Counsel submitted that any defence raised by an
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accused person in a criminal trial must be considered however slight. He cited Nwaroke v. State (1998) 1 NWLR Pt. 72 Pg. 529, Onuoha v. State (supra), Arabi v. State (2001) 5 NWLR Pt. 706 Pg. 256, Oforlete v. State (2000) 12 NWLR Pt. 681 Pg. 415. He argued that the defence of provocation and self defence were raised by the appellant both of which the trial Court failed to consider since if it had, the appellant would have been discharged and acquitted. Counsel argued also that the failure of the trial judge to put both defences of provocation and self defence into consideration has occasioned miscarriage of justice by the Court when it wrongly found the appellant guilty.
?Counsel argued further that the other appellant in the course of performing his duty as a night guard in Ubulu- isiuzor town, saw the complainants and asked who they were, still in performance of his duty. The other appellant and the others stated that the incident took place between 11pm and 12am. Counsel argued that the complainants alleged that it was first 7:30pm, then 8:30pm and later 9pm and that the trial judge failed to resolve the issue of time. Counsel submitted that it was when
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the other appellant was not getting any response from the complainants about their identities that he flashed his torch light towards their direction and PW3 reacted by attacking the other appellant which led to a fight. Counsel argued that PW3 was the first to use a cutlass on the other appellant thereby inflicting an injury on the other appellant and it was only then that DW1 was able to wrestle the cutlass from PW3. In the process, PW3 was wounded by DW1 while DW1 made a distress call ?gorillas, gorillas? being the call of the security outfit. Counsel argued that the appellant is entitled to the defences in Sections 47, 49 and 51 of the Criminal Code Law of Anambra State.
Counsel cited Okonkwo v. State (1998) 8 NWLR Pt. 561 Pg. 210, R v. Ebi (1936) 3 WACA 36, Akpobasa v. The State (1969) 1 ALL NLR 104, Adeyemi v. The State (1991) 6 NWLR Pt. 195 Pg. 1. Arabi v. State (2001) 5 NWLR Pt. 706 Pg. 256, Kwagshir v. State (supra), Laoye v. The State (1985) 2 NSCC 1251.
?Counsel submitted further that the offence of unlawful wounding must be proved with intent or mens rea, when however there is no intent but mens rea exists and the offence was
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committed in the process of self defence or aiding in self defence, then the offence must be proved with a number of intents as follows:
a) To maim
b) To disfigure
c) To disable
d) To do some grievous bodily harm
e) To resist or prevent lawful arrest or detention of any person is not to be proved.
Counsel argued that there was no evidence in the Court?s record of inspection or display of the amputated leg to prove the wound and its permanent effect or show the division of piercing of the exterior membrane in proof of amputation of the leg of PW3. He argued also that the doctors were not available to be cross examined. He citedState v. Nwankwo Agu (1972) 2 ECSLR 454, Ofoka Alo Iba v. The State 1 ECSLR 174, Onyeachimba v. State (1998) 8 NWLR Pt. 563.
Counsel argued also that the Court did not resolve the precise time of the incident which is a point material to the case. He submitted on the issue of identity that the complainants stated in their evidence that they did not know this appellant but that they were familiar with DW1 and the other appellant before the incident.
?Counsel argued that the trial judge
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descended into the arena of conflict to provide a defence of justification for PW1 and PW3 to be out at night after 9pm in order to find the appellant guilty. He argued further that notwithstanding the wedding ceremony which was held in Enugu State, it was no justification for breaching curfew and being out by 9pm without evidence of curfew being lifted or exempted on the night of 28/11/98. He contended that the issue of the identity of PW1 and PW3 not being in dispute led the trial judge into not considering the defences of self defence and provocation raised where it ought to have been available to the appellant and the other appellant. He cited Onuoha v. State (supra).
Counsel submitted that Sections 4 and 5 of the Criminal Code provide for parties to an offence and offences committed in the prosecution of common purpose and Section 6 of the Criminal Code provides that the mode of execution is immaterial once the parties are ad idem in the prosecution of the common purpose. Counsel cited Adekunle v. State (1989) 5 NWLR Pt. 123 Pg. 505, Akinkunmi & Anor v. State (1987) 1 NSCC 305, (1987) 1 NWLR Pt. 52 Pg. 608, Alarape v. The State (2001) 5 NWLR Pt.
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705 Pg. 79.
?Counsel submitted that each defendant made 2 statements to the police, the first was made on 30/11/98, 2 days after the offence was committed while the second was made months later on 29/1/99. Counsel argued that based on the evidence of DW1 before his escape from police custody, DW1 stated and denied he conspired to commit any offence. Counsel argued further that from DW1?s evidence of what happened on the night of 28/11/98, the defence of self defence and aiding in self defence as provided under Sections 49 and 51 of the Criminal Code or provocation under Section 46 of the Criminal Code should avail the appellant.
Counsel contended that there was no basis for the trial judge to have held that DW1, the other accused and the appellant admitted to conspiring and committing the offences and that it was totally wrong for the trial judge to admit the statement made by the other accused implicating the appellant. He cited Chukwueke v. State (1991) 7 NWLR Pt. 205 Pg. 604, Atanda v. Attorney General (1965) NMLR 225, Mumuni v. State (1975) 6 SC 79, R v. Ajani (1936) 3 WACA.
?Learned respondent?s counsel Mr Emenike argued that a
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careful perusal of the evidence of PW1, PW2 and PW3 being the most vital witnesses shows clearly that there were no material contradictions in their evidence relating to the incident with specific reference to the identities of the appellant and others jointly tried at the lower Court. He conceded that it is trite law that the burden is always on the prosecution to prove beyond reasonable doubt that the accused was at the scene of crime and committed the offence for which he was charged. He cited Almu v. State (2009) 10 NWLR Pt. 114 Pg. 37, Ilodigwe v. State (2012) 18 NWLR Pt. 1331 Pg. 1.
Counsel argued that this issue of the identity of the appellant was only raised in the appellant?s brief and that there was no such issue during trial. He submitted that the lower Court held and rightly so, that it was satisfied from the evidence led by the prosecution that the issue of the identity of the appellant did not arise as PW1 and PW3 knew the appellant before the incident and the appellant equally admitted knowing PW3 under cross examination. He cited Ilodigwe v. State (supra), Adeyemi v. State (1991) 1 NWLR Pt. 170 Pg. 691, Effiong v. State (1998) 8
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NWLR Pt. 512 Pg. 362, Alonge v. IGP (1959) SCNLR 516, Onafowokan v. State (1987) 3 NWLR Pt. 61 Pg. 538, Gako v. State (2006) 6 NWLR Pt 977 Pg. 524, Dagayya v. State (2006) 7 NWLR Pt. 980 Pg. 637.
Respondent?s Counsel on the contention of the Appellant?s counsel that the machete used to inflict the injury was not tendered and prosecution did not lead evidence to show that the machete cut was sufficient to have led to the amputation of the leg of P.W.3 argued that PW2, the medical doctor gave credible, unassailable and unchallenged evidence of the injury inflicted upon PW3, the amputation of his leg and artificial leg he wore to the trial. Counsel submitted also that since the appellant?s counsel did not cross examine PW2 during trial, it is too late to challenge his evidence. He cited Emirate Airline v. Ngonadi No 2 (2014) 9 NWLR Pt. 1413 Pg. 506, Oforlete v. State (2006) 12 NWLR Pt. 681 Pg. 415, Shagari v. COP (2007) 5 NWLR Pt. 1027 Pg. 272, Ejiwumi v. State (2013) 13 NWLR Pt. 1375 Pg. 525. Counsel submitted further that where there is cogent and credible evidence of the commission of crime by an accused person, the fact that the weapon
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used in committing the offence was not tendered is not fatal to the case of the prosecution. He cited Victor Essien Victor v. State (2013) 12 NWLR Pt. 1369 Pg. 465, Bolanle v. State (2009) 8 NWLR Pt. 1172 Pg. 1. He submitted also that the lower Court was right when it held that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt and convicted him accordingly.
Counsel argued that in respect of the appellant and others, on the totality of the evidence adduced by the prosecution and defence, it can be inferred that they conspired and or acted in concert to commit the offence. Counsel contended that when the other appellant could not use his shot gun, he shouted ?gorillas, gorillas? and the others emerged from the bush and joined in attacking the complainants without first enquiring to know what the problem was. Counsel submitted that it is trite that conspiracy is rarely and seldom proved by direct evidence but by circumstantial evidence and inference from certain proved facts. He citedSalawu v. State (2015) 2 NWLR Pt. 1444 Pg. 595, Yakubu v. State (2014) 8 NWLR Pt. 1408 Pg. 111, Tanko v. State (2008)
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16 NWLR Pt. 1114 Pg. 597, Jimoh v. State (2014) 10 NWLR Pt. 1414 Pg. 105, Titus Oyedi and Others v. The Republic (1966) NSCC 252. Counsel cited Sections 495 (a) and 288 of the Criminal Code 1991 Laws of Anambra State 1999.
RESOLUTION
Whether on the facts, the learned trial judge was right to have convicted the appellant of the offences of conspiracy and wounding with intent (assault occasioning harm).
Learned appellant?s counsel has urged us to review and reject the findings of the fact by the learned trial judge. The first complaint is that the trial Court used the evidence on oath of the 1st accused at trial to convict the appellant whereas, he had jumped bail and his name was not struck out of the charge until judgment. In the first instance, the proper procedure after the 1st accused- Livinus Mgbechita escaped from police custody, is for his name to be struck out of the charge since his offence did not come under the category of those that can be tried in absentia. However since the learned trial judge did not convict him, it cannot be said that any unfairness has attached to his self truncated trial. I do not see how the retention
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of his name (even though irregular) on the information has caused any gross miscarriage of justice to the appellant. The name of Livinus Mgbechita could have appeared on the conspiracy count with other accused but ought to have been struck out as an accused person. It is trite that it is not every error that can lead to a reversal of the judgment of a trial Court. A judgment will not be reversed on the basis of an error, in this case a minor error in procedure having no direct adverse impact on the fair hearing given at trial to this appellant.
The facts and circumstances here must be distinguished from the facts in State v. Lawal (2013) 7 NWLR Pt. 1354 Pg. 565. In State v. Lawal, the learned Magistrate took address of counsel and gave judgment in the absence of the accused person. In this case, even though the name of the 1st accused was not struck out, no judgment was given against him. There was no order of conviction and sentence made against the absent accused person. Also the fact that the name of the 1st accused was not struck out of the charge even though irregular has in my view not caused any miscarriage of justice to the appellant.
?The
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more serious complaint is that the evidence of the 1st accused was used to convict the appellants. Let me set out the facts here. The learned trial judge held as follows on pg. 172 of the record:
?At this point I wish to address the unfortunate delay in the hearing of this criminal charge consequent upon the disappearance of the 1st defendant Livinus Mgebchita. The 1st defendant jumped bail in July 2007 and was arrested on a bench warrant on 21st August 2007, the 1st defendant was ordered to be remanded in police custody so as to make it easy for him to come to Court on the 4th of September 2007.
The 1st defendant testified and was cross-examined on the 13th of November 2007. Before the 31st of March 2008 when the matter was adjourned for continuation, the 1st defendant miraculously escaped from police custody. All efforts till date to trace him or his sureties failed.?
I have looked at the proceedings of the Court on 13/11/07 when P.W.6 gave evidence and was cross-examined. Mr Emenike then closed the case for the prosecution. The defence opened with the evidence of the 1st accused Livinus Mgbechita who did not admit any of the
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offences for which he was charged. In fact he put up a spirited defence for himself and other co-accused in his evidence on oath. He insisted that he did not make the statement to the police which was admitted as Exhibit D at the trial. Let me first say that the fact that the witness/ accused denied the signature on the statement to the police does not make it ipso facto inadmissible. It is only inadmissible where an accused agrees that he made the statement but was offered threat or inducement to do so. In this circumstance under review, the learned trial judge rightly admitted Exh. E. SeeHassan v. State (2001) 15 NWLR Pt. 735 Pg. 184; (2001) 7 S.C (Pt. 11) 85, Shittu v. The State (1970) All N.L.R 233.
?In Exhibit D, the 1st accused admitted that he used the cutlass on the P.W.3- the complainant. The tenor of defence is that the wounding was as a result of provocation offered by the complainants. He admitted that after he called ?Gorillas? other security men came to beat the P.W.3 who was already wounded severely in his leg. Whereas his evidence on oath would be admissible as a co-accused against the appellant, needless to say, his
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extra-judicial statement would be inadmissible against a co-accused and is only admissible evidence against the maker. See Fatilewa v. The State (2008) 12 NWLR Pt. 1101 Pg. 518; (2008) 4-5 S.C (Pt.1) 191, Oyakhire v. State (2007) ALL FWLR (Pt. 344) 1, Nwachukwu v. The State (2008) WRN (Vol. 4) 1 at 11.
The Constitution as it stands has no place for trial in absentia so no judgment could be entered against him. Please note that he was in Court when the prosecution witnesses were called, and they were cross-examined. I believe that his evidence on oath if it implicated the appellant would be admissible and can be used by the learned trial judge against the appellant notwithstanding the fact that he had absconded before the end of the trial.
The learned trial judge held that no doubt existed as to whether P.W.3 was wounded and that it was the accused persons who wounded him. On pgs. 176-177 of the record and the judgment of the trial Court, the Court held as follows:
?I am afraid no doubt exists in this respect, because even the 1st defendant Livinus Mgbechita now at large gave evidence as to how Otih sustained the injury. While the 2nd and 3rd
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defendants testified that it was Livinus Mgbechita who inflicted the machete cut on Chinedu Otih. Mgbechita, the 1st defendant had said on oath:
?When we were struggling with Otih, one other security man kicked Otih?s hand and the machete fell down. As Otih tried to run, that boy then flung the machete at Otih. I don?t know the name of that boy. The 2nd accused will know his name. Otih was then injured. We then went to the police to report.?
The learned trial judge seemed to have concluded that the above quoted evidence on oath of the 1st accused was sufficient evidence against the appellant and the other appellant. I cannot agree with that conclusion. The evidence on oath of a co-accused is no doubt admissible against another accused, however, evidence to convict must leave no room for doubt. On oath, the 1st accused did not directly say it was the appellant that flung the machete at P.W.3 but another boy whose name he did not know. Thus, as far as I can see from the record, the evidence on oath of the 1st accused who absconded from trial is of no moment or has little weight and cannot be used as evidence beyond reasonable
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doubt against other appellant.
The learned trial judge found that the appellant and other appellant had conspired to wound the P.W.1 and P.W.3 and had inflicted grievous wound on P.W.3 which led to the amputation of the latter?s leg. The learned trial judge found on conspiracy as follows on pgs. 178, 179 of the record:
?In the instant case, the evidence of the PW1 and PW3 of the earlier threats by the defendants to deal with him or shoot them, will if not rebutted amount to a clear evidence of conspiracy to do injury to the complainants. The evidence was not rebutted and according to the Prosecuting Deputy D.P.P relying on Nasiru v. The State (1999) 1 SCNJ 83 at p.99 when the prosecutor has led its evidence, the burden of proving that the defendants did not commit the offence rests on the defendants. That burden must be discharged.
Considering therefore the totality of the evidence before me, I am satisfied that the defendant and other persons who were not charged are employees of a security outfit called Onyido Gorillas engaged to guard the town of Ubulu-Isiuzor at night. The defendants also testified that they were not to use
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violence but to take persons found late at night to the village security chief if they are unable to identify themselves. I am equally satisfied that the PW1 and PW3 are well known to the defendants and so the issue of their identity did not arise. As for the PW1 and PW3 falling foul of the time restriction one can say without fear or contradiction that they did not breach any security rule as to invoke the wrath of the defendants and their other colleagues. It is also necessary to note here that the evidence of the PW1 and PW3 as to the previous encounter and attitudes of the defendants and their previous threats to deal with or shoot the PW1 and PW3 were not challenged and that the attitude of the defendants and their reaction on that day of the incident proved a clear indication that the defendants acted clearly outside the mandate of their engagement and in pursuance of an unlawful or criminal purpose.?
?At the trial, P.W.3 swore that the appellant stabbed him with a dagger on the left shoulder and that he had a very big cut on the shoulder. The appellant on oath swore that he did not stab P.W.3 with a dagger. The learned trial judge believed the
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evidence of P.W.3.
I have read the evidence on oath of P.W.1 and P.W.3. Certain allegations of malicious intent were pointedly made by P.W.3 in his evidence particularly that of previous contacts and quarrels with the appellant prior to the incident. P.W.3 and the appellant knew each other very well. The issue of mistaken identity does not arise. Throughout the defence of the appellant, he did not deny the grave allegation that there had been previous altercations between him and P.W.3 where he had threatened to deal with P.W.3. P.W.3 insisted that even though he never met the 2nd accused at trial before, after he mentioned his name, 2nd accused at trial started beating him.
Section 495(a) of the Criminal Code Law of Anambra State 1999 provides as follows:
Any person who:
a) Conspires with another to commit felony in the State is guilty of an offence and is liable, if no other punishment is provided, to imprisonment for 7years or if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment of 7years, then to such lesser punishment.
I believe the evidence of P.W.3 and I agree with
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the learned trial judge that at the time all the vigilante or local security men were summoned by the 2nd accused, they formed a common purpose to inflict grievous wound on the complainants. I agree with the learned trial judge that the gist of the offence of conspiracy is the meeting of mind of the conspirators. Hence conspiracy is a matter of inference from certain criminal acts of the parties concerned, done in pursuance of an apparent criminal purpose in common between them. There was in my view a meeting of the minds by members of the security or vigilante group to harm the complainants. In proof of conspiracy, the acts or omission of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. See alsoSule v. The State (2009) 17 NWLR Pt. 1169 Pg. 33, David Omotola & Ors v. The State (2009) 2-3 S.C; 7 NWLR Pt. 1139 Pg. 148.
The general principle of law enunciated over time and case law in Nigeria is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from
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the commission of the substantive offence. It is the common intention as shown by the circumstances that the law looks at. Afterall, there is no history proof that members of the Senate of Rome who stabbed Julius Caesar to death had gathered before at a specific place to plan his murder. They had a preconceived grudge against his ambition, which grudge coalesced in their common intention to kill him after the first person struck the blow. The person who struck the fatal blow is immaterial as they were all guilty of the conspiracy and the substantive offence. The attack on P.W.1 and P.W.3 was the execution of an unlawful purpose. There is proof of concerted criminality in the circumstances of this case.
I believe the evidence of P.W.1 and P.W.3 as regards the correct facts of what occurred particularly the fact that they were actually in front of P.W.1?s compound when the altercation ensued and the relatives of P.W.1 intervened to rescue him. I believe it was an opportunity to further whatever grudge was between P.W.1 and the appellant. The appellant engaged the participation of other members of the vigilante group.
I am convinced that in the
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circumstances of this case, the appellant is guilty of conspiring with others to wound or maim P.W.1 and P.W.3.
On the substantive offence of wounding with intent to maim, the learned trial judge found as follows on pg. 175 ? 176 of the record:
?The uncontroverted evidence of the PW1 and PW3 as to the presence of relations of PW1 which included the mother and uncle of PW1 and one Cyril Eke who confronted the defendants and their gang and pleaded with them to release the PW1 stands out as a corroboration of the fact that it was not the identity of the PW1 and PW3 that was in question. What was the nature of the physical contact? While PW1 says the defendants dragged the PW3 from the front of PW1?s house, the evidence of DW1 and DW2 is that while they were on patrol they saw two men walking and they sought to know their identity. DW2 flashed his torchlight on the face of the PW3 and he knocked the torchlight off his hands and the scuffle ensued. The defendants, 2nd and 3rd admitted that it was a machete cut by 1st defendant that gave the injury which led to the amputation of the left leg of PW3.
From the evidence before me I am
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satisfied that both the PW1 and PW3 and the defendants know themselves very well. The issue of identity does not therefore arise. As to whether there was malice or motive or previous animosity, the evidence of PW3 as to his several encounters with the defendants and members of their security outfit stand unchallenged. His story of how they came to his house to warn that they will deal with him was not even referred to in the defence at all, let alone being denied. The PW3?s account of how he saw them attacking a motorcyclist and how they accosted him and demanded money from him previously was not even denied. The evidence of PW4 the father of the PW3 that the defendants were in the habit of taking bribes from people in the community which confirmed the PW3 earlier statement was equally not denied by the defendants.?
The reasoning and conclusion of the learned trial judge set out above is amply borne out by the evidence before the Court. There is no doubt that the 1st accused and about six other men jointly assaulted P.W.1 and P.W.3 and caused grievous bodily harm to P.W.3. Learned appellant?s counsel complained that the learned trial
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judge did not consider the defence of provocation put up by the appellant. From pg. 171 -173 of the record, the learned trial judge reviewed the evidence of the two accused persons present at trial. The learned trial judge believed the evidence of the prosecution witnesses particularly the complainants regarding the circumstances under which the incident occurred. I am convinced that even if the complainants had broken cover during the locally imposed curfew and were abroad in their own immediate environment, it was not sufficient provocation to the local security outfit to do them any harm. Afterall, killing an unarmed thief is a murder and not manslaughter. See Iteshi Onwe v. The State (1975) 9-11 SC, Inakeru v. The State (1984) 9 SC 17, R v. Udo Ndo Odet Obot 14 WACA 352. The evidence of P.W.1 who was a complainant and who witnessed the incident was not shaken under cross examination. Exh. F the statement of the appellant made on 4/12/98 in evidence states as follows as reproduced on pg. 35 of the record:
?As we were there, we heard a noise from the road and all of us rushed to the place, the person was shouting ?Oyido Gorillas make una come
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o.? When we got there, we saw someone running and two of us, myself and Ayaya started to pursue him. We caught him and we dragged him to where others were fighting. On getting there, we discovered that they had injured one of them. He was given machete cut on his leg and it was bleeding seriously. Our boys whom we met there told us that Livinus alias Shaba injured the boy. All of us that went to the ceremony actually went to the scene of the fight. They were all there when Shaba gave him the machete cut. I only held Leonard but did not touch him. Others were flogging them with canes. We used to see them all the time opposite their house waiting for girls and we know that they are not thieves. Sometimes if we see them, they do give us money to buy cigarettes.?
The evidence led was that the complainants were within their own immediate home vicinity when they were accosted by the local security outfit members who beat them up and wounded them. I do not believe that they refused to answer questions or knocked down the torchlight of the appellant. On the other hand the appellant agreed that he was carrying a stick and a torchlight. Of the three
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accused persons, it was only the appellant that was accused of carrying a gun. They were not armed and could not have offered any serious provocation or threat to the life of the appellant to warrant the extent of the brutality visited on them. Sections 47, 49 and 51 of the Criminal Code Law of Anambra State is as follows:
Section 47:
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is infact deprived by the provocation of the power of self control and acts upon it all of a sudden and before there is time for his passion to cool.
Section 49:
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault.
Section 51:
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm and the person using force by way of defence believes, on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to
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the assailant as it is necessary for defence even though such force may cause death or grievous harm.
I have to agree with the opinion of the learned trial judge when he stated as follows at pg. 179 of the record:
?The magnitude of the injury which apart from the stab wounds includes the severing of the left leg of the PW3 was a clear brutal act. The fact that the defendant cared less after the injury, did not take steps to get the PW3 treated and did not report to the police can only be taken to mean an act in the pursuance of a previously meditated purpose. The effect of the injury on the PW3 which rendered him unconscious and the loss of his limb are outrageous primitive and to say the least uncivilized.?
One main complaint of the appellant is that the learned trial judge did not consider the defence of provocation. I have considered that defence in favour of the appellant in the circumstances of this case. As I said earlier, the complainants P.W.1 and P.W.3 were accosted by the vigilantes in front of the compound of P.W.1. That was why it was possible for his relatives to rescue him from them. I do not believe the evidence of the
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appellant who was 3rd accused at trial that he had nothing to do with the fight when P.W.1 and P.W.3 were assaulted. His statement to the police Exh F made on 4/12/98 confirms that he knew P.W.1 and P.W.3 before that day shows that he knew they were not thieves.
Even if the complainants broke curfew for whatever reason, they were to be arrested and taken to the head of the security unit and not macheted or shot. Breaking curfew or even disobeying the law cannot give the appellant the right to constitute himself as prosecutor, judge or executioner. Such brigandage is unseemingly in a society where law and order exists.
I affirm the conviction of conspiracy and wounding with intent to cause bodily harm handed down to the appellant. This issue is resolved against the appellant.
ISSUE TWO
Assuming that the learned trial judge was right in convicting the appellant, whether the sentences imposed were not too harsh and unjust and should be reduced.
?Appellant?s Counsel submitted that the appellant is not guilty of the offences for which he was convicted and assuming without conceding that he was guilty of the offences, the imposition of
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the sentence of 7years imprisonment for conspiracy and life imprisonment for wounding with intent was excessive and wrong. He cited Queen v. Jinobu (1961) ALL NLR 654, Eyo v. The Queen (supra), Ebhohimen v. State (1996) 1 NWLR Pt. 422 Pg. 44, Alake v. State (1991) 7 NWLR Pt. 20 Pg. 567, R v. Kuge 3 WACA 82, Clark & Anor v. The State (1986) 4 NWLR Pt. 35 Pg. 381, Obidiozo v. The State (1987) 4 NWLR Pt. 67 Pg. 748, Apishe v. The State (1971) NMLR 39, Laoye v. State (supra), Ozuloke v. The State (1965) 125.
Counsel urged this Court to allow the appeal, set aside the verdict, conviction and sentence of the appellant by the trial judge and discharge and acquit the appellant and in the most unlikely event that the Court upholds the verdict of guilty and conviction of the appellant to reduce the sentence by six months commencing from the date of the sentence and substitution thereof of the charge with a lesser offence of assault.
Learned respondent?s counsel in reply submitted that the conviction and sentence passed by the trial Court on the appellant was rightly based on the provisions of the law under which the appellant was charged. He
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submitted further that this is so in addition to the brutality and callousness meted out by the appellant and others to the complainants during the incident.
Counsel contended that there is no law forbidding a trial judge from imposing the maximum sentence which is entirely at the discretion of the Court and must be exercised judicially and judiciously having regard to the peculiar circumstances of each case. He cited Clark v. State (1986) 4 NWLR Pt. 35 Pg. 381, Thomas Dowling v. IGP (1961) ALL NLR 782, V Ball Cr App R 164.
RESOLUTION
Where there are several counts on the same information, separate verdicts must be delivered in respect of several counts. In other words, a trial Court must pronounce its sentences separately on all counts of offences in a case, otherwise the entire proceedings is certainly liable to being set aside on appeal.
?Imprisonment is directed at the legitimate expectation of society that retribution will be meted out to the offender against the laws of society so as to serve as a deterrent to other potential offenders. Thus society is also protected by taking dangerous criminals out of the streets for them to
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reflect on their wrong-doing and be rehabilitated into normalcy. Sometimes the punishment far exceeds what we can rightly say the convict ?deserves?. This may be a subjective or discretionary opinion. However I am of the strong view that punishment and improvement in this case must fulfil the ends of justice and should not be excessive to defeat its purpose. I must emphasize that it is immaterial that it was the 1st accused and not the appellant who struck the blow with the machete. In this case P.W.3 who is a lawyer was attacked without having provoked the assault and from evidence of prosecution witnesses nearly lost his life but lost a limb. However, he did not lose his life. Also P.W.1 survived the stab wound on his shoulder.
?The appellant and the others acted obviously in excess of their mandate as security agents. The sentence provided by law is as follows:
The learned trial judge found the appellant guilty of the offence under S. 288 of the Criminal Code Law which is a felony and the sanction is life imprisonment. On the conviction of conspiracy, I cannot but agree with learned appellant?s counsel that the maximum sentence of
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seven years is too excessive in the circumstances. There was no evidence of an elaborate prior plan to attack the complainants. I believe what occurred was an opportunistic attack on someone (or people) against who they had previous grudge. I hereby reduce the sentence of the appellant for conspiracy from seven years to three years imprisonment. In respect of the life sentence for wounding, I believe that is excessive in the circumstances of this case. The appellant is a young man who can still contribute his own quota to the good of society. It would be a mistake in my view to commit him to the hopeless life of an irredeemable violent criminal given the circumstances of this case. I reduce the sentence of life imprisonment to seven years.
I cannot allow the ink to dry up on my pen without making a point for the benefit of the law makers.
I hope this point will attract their attention. S. 100 of the Criminal Procedure Act is in pari materia with S. 135 of the Administration of Criminal Justice Act 2015 which provides for the power to dispense with the personal attendance of accused persons in certain cases.
?As I?ve said earlier, S. 36
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of the Constitution requires the presence of an accused person in Court throughout his trial in the absence of any necessary allowable reason in law to keep him out of Court for public safety. It is an essential principle in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused and for such purpose trial means the whole of the proceedings including the judgment and sentence. The only exception is where the violent tendencies of the accused may necessitate keeping him out of Court in the interest of public safety for the peaceful conduct of the trial. Obodo v. Olomu (1987) 3 NWLR Pt. 59 Pg. 111; Asakitipi v. The State (1993) 5 NWLR Pt. 296 Pg. 641.
Anything short of that would be in violation of S.36 (1) of the Constitution. Those of us who rose through the ranks of the bench as Magistrates et al can understand the frustration of the learned trial judge at the escape of the 1st accused at trial from police custody after he was arrested by bench warrant after he jumped Court bail. The old CPA and the Administration of Criminal Justice Act did not provide special punishment for an absconding accused
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person or defendant apart from the usual arrest of defendant on failure to appear as provided for under S. 184 of the ACJA. Special punishment for an absconding defendant in my view would act as a deterrent. For example, the Pakistani Penal Code has added another S.172A to the Act which states as follows:
?Whosoever being accused of an offence under any law for the time being in force, and against whom a warrant cannot be executed and the Court has published a proclamation for his appearance before such Courts, absconds or avoids arrest or evades appearance before any inquiry or trial or in a Court proceeding or conceals himself and obstructs the course of justice, shall be liable to imprisonment for a term not exceeding three years or with fine or with both.?
I commend the above amendment to the ACJA.
In any event, this appeal succeeds in part by the review of the sentences passed. The conviction of the appellant by Hon. Justice C.E.K. Anigbogu in Charge No HIH/4C/2004 is affirmed. The sentence for conspiracy is three years. The sentence for wounding is seven years. Both to run concurrently.
Other Citations: (2016)LCN/8878(CA)
