Surv. Emmanuel B. Akpan V. The State (2016)
LawGlobal-Hub Lead Judgment Report
CHIOMA NWOSU-IHEME , J.C.A.
This criminal appeal was filed by the Appellant who was arraigned before the High Court, Uyo Division of Akwa Ibom State presided over by Andrew Okon J, on an information of two count charge of conspiracy to commit murder contrary to Section 331 of the Criminal Code Law, Cap. 38, Vol. 2, Laws of Akwa Ibom State, 2000 and also attempted murder contrary to Section 327 of the same Criminal Code.
In a considered judgment delivered on the 18th of March, 2013, the Appellant was found guilty of conspiracy to commit murder and sentenced to Two years imprisonment or a fine of N300,000.00. The Appellant was acquitted on the second count of attempted murder.
The Respondent (The State) being aggrieved by the low term of imprisonment in Count One for conspiracy, cross appealed against the sentence. The Respondent also cross appealed on count two following the acquittal of the Appellant on a charge of attempted murder.
A summary of the case as presented by the prosecution (Respondent) at the trial Court was that on the 28th of January, 2008, the Nigerian Institute of Surveyors Akwa Ibom State branch where
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the Appellant and his co-convict were members held a meeting, the Executive and the General meeting. The Appellant who was said to have been removed as a secretary of the branch in July, 2007 attended the meeting and insisted on sitting with the Executive despite his removal.
Mid-way into the General meeting, the first convict Surveyor Ebong Uyah came into the meeting with a machete, which naturally caused a stir. The State Surveyor General who later testified at the trial Court as PW4 inquired from Ebong Uyah why he came into the meeting with a machete. The said Surveyor Ebong Uyah responded by saying that he did not come for the meeting but that he came to kill Surveyor Bassey James Akpan (PW1).
At that point, the Appellant was said to have verbally abused the Surveyor General and asked if he did not know that Bassey James Akpan (PW1) was starving and killing the 1st convict Surveyor Ebong Uyah by not issuing him with beacon stone numbers for his survey practice. He said there was nothing wrong with the first convict, Surveyor Ebong Uyah coming to the meeting to kill Surveyor Bassey Akpan.
?After the meeting, other members headed home, the first convict Ebong
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Uyah followed Surveyor Bassey Akpan to his office and attempted to carry out his threat. He aimed at Surveyor Bassey Akpan’s head, but the said Bassey Akpan raised his hand and the first convict gave him a machete cut on his hand.
While the victim was bleeding from the machete cut, the Appellant who had openly supported the threat to kill Bassey Akpan still went into the victim’s office, held him and pushed him against the wall despite the fact that he was already bleeding from the machete cut. The Appellant was found guilty of conspiracy to commit murder and discharged and acquitted on attempted murder. This appeal is predicated on the said judgment convicting the Appellant of conspiracy to commit murder.
Learned counsel for the Appellant/Cross Respondent Essien Andrew Esq. distilled one issue for determination thus:
(1) ?Whether on the weight of the evidence adduced the Learned trial Judge was right in this case to convict the Appellant for conspiracy to commit murder.”
The Respondent/Cross Appellant’s counsel Anietie Inyang Esq., Assistant Director, Ministry of Justice, Uyo, Akwa Ibom State also distilled one issue on the main Appeal thus:(1)
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?Whether the prosecution had proved the two count charge of conspiracy to murder and attempted murder against the Appellant to warrant his conviction.”
Learned counsel for the Respondent/Cross Appellant also distilled two issues for determination on the Cross/Appeal as follows:
(i) “Whether the sentence of 2 years imprisonment was not too low for an offence that carries 14 years imprisonment.
(ii) Whether the trial Court was not wrong to acquit the Appellant on count 2 after holding that the prosecution has proved the two counts against the accused persons.”
The issues raised by both counsel in the main appeal are similar though couched differently and can conveniently be compressed into one straight forward issue, it is:
“Whether on the facts and circumstances of this case, the trial Court was right in holding that the prosecution proved its case beyond reasonable doubt to justify the conviction of the Appellant for conspiracy to commit murder.”
Taking the issue, Learned counsel for the Appellant/Cross Respondent, Essien H. Andrew Esq contended that the allegation that the Appellant and the 1st convict were nursing personal grievances against PW1, the
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comment said to have been made by the Appellant in support of the 1st convict turned up at the meeting with a machete and that when PW1 was macheted by the 1st convict that the Appellant held PW1 to enable the 1st convict Surveyor Ebong Uyah escape were all not properly evaluate by the Learned trial Judge before he decided that these pieces of circumstantial evidence have established beyond reasonable doubt the Appellant’s involvement in a conspiracy with Surveyor Ebong Uyah to kill PW1.
He argued that it was erroneous for the Learned trial Judge to convict the Appellant of conspiracy to commit murder even after holding that there was no evidence of the Appellant’s involvement in the substantive offence of attempted murder. Even though counsel pointed out that a person could be convicted for conspiracy after been acquitted on the substantive offence.
He cited authorities to drive these points home. There was also the Appellant/Cross Respondent’s Reply brief where counsel reacted to some of the issues raised by the Respondent/Cross Appellant in his amended brief.
?Reacting to the above argument, Learned counsel for the Respondent/Cross Appellant Anietie Inyang Esq
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submitted on the issue of conspiracy to commit murder, that apart from openly supporting the 1st convict Surveyor Ebong Uyah at the meeting even when he made it clear that he came to the meeting with a machete to kill PW1, that having declared their intention to kill PW1, the Appellant and the 1st convict Ebong Uyah put that intention into execution when both of them went to PW1’s office. While the 1st convict aimed the machete towards the head of PW1 and ended up inflicting deep machete lacerations on PW1’s left hand, the Appellant went ahead to hold PW1 despite the fact that he was bleeding as a result of the deep machete cut inflicted on him.
Arguing on the Cross Appeal, counsel for the Respondent/Cross Appellant contended that the two years imprisonment for the offence of conspiracy to commit murder which carried a jail term of 14 years was too low. He urged the Court to review the sentence imposed by the trial Court and increase the term of imprisonment accordingly.
On count two for attempted murder, counsel opined that it was erroneous for the learned trial Judge to discharge and acquit the Appellant after holding that the prosecution has proved the two
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counts against the then accused persons. He urged the Court to set aside the order of acquittal of the Appellant on Count Two for attempted murder and convict and sentence him to life imprisonment.
Count One of the charge at the trial Court is conspiracy to commit murder under Section 331 of the Criminal Code. I will start with count one. It is trite the offence of conspiracy is often difficult to prove. I say so because it is often contrived in secrecy. More often than not, circumstantial evidence is therefore used to point to the fact that the conspirators had agreed on the plan to commit the crime.
To prove conspiracy therefore, there must be an act done in the open to justify the inference of conspiracy. The offence of conspiracy is said to have taken place when people have acted by agreement or in concert.
?When the first convict Surveyor Ebong Uyah sauntered into the meeting of surveyors with a machete and declared openly that he came to kill PW1, the Appellant herein openly supported his co-convict. Such an approval and encouragement of such a despicable act couldn’t have happened on the spur of the moment. The Appellant did not stop at supporting the
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behavior of his co-convict, but went ahead and gave the reason why the threat and action of his co-convict were justified. The reason according to the Appellant was that PW1 was starving the Appellant by not issuing him with beacon stone numbers for his survey practice. (See pages 166-167 of the Records). This crucial information couldn’t have been obtained at the meeting, but obviously before the meeting and therefore the Appellant and his co-convict came to the meeting with a motive which was premeditated and that was to deal with PW1, which they carried out. They were definitely nursing personal grievances against PW1. They allowed their personal grievances affect their entire behavior and sense of judgment and therefore degenerated to a level most unbecoming of normal human beings.
?The defence by the Learned counsel for the Appellant that it was erroneous for the Learned trial Judge to associate the Appellant with the Criminal intention of the co-convict who openly admitted that he came to the meeting to kill PW1 was in my view puerile. This is so because at page 167 of the Record the testimony of PW2 was very clear as to the attitude of the Appellant in
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reaction to the rather abominable behavior of his co-convict who stormed the meeting carrying a machete and who openly admitted that he came to kill PW1. Hear the evidence of PW2:
“… The Appellant started raining abuses on the Surveyor-General.
?saying that whether he was not aware that they have been killing Surveyor E. E. Uyah by not giving him beacon stone numbers to practice, whether the machete is the only instrument of killing somebody.”
The above testimony of PW2 was very clear and unambiguous and corroborated the evidence of PW1. The case of IBEH V. STATE (1997) 1 SCNJ 256 at 258 cited by counsel for the Appellant on contradiction was cited out of con and irrelevant.
It is also in evidence that while other surveyors who attended the meeting headed home after the meeting, the Appellant and his co-convict headed to the office of PW1 to make good their threat. All these couldn’t have taken place on the spur of the moment, but pre-planned before the meeting of surveyors. It was merely executed on that day.
?Once common intention is proved, it becomes irrelevant that the Appellant and his co-convict did not arrive or enter the meeting hall at the
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same time or that the person did not personally carry out the act. See ABACHA V. THE STATE (2003)3 ACLR pg.344.
?It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time.”
I therefore agree with the Learned trial Judge that the prosecution proved the offence of conspiracy under Section 331 of the Criminal Code beyond reasonable doubt and was accordingly convicted and sentenced.
On the second count, the Appellant was charged with the offence of attempted murder under Section 327 of the same Criminal Code. He was however discharged and acquitted on the said charge.
A person is said to attempt:
“If a person intends to commit an offence and in the process of putting his intention into execution by means he has adopted to its fulfillment and thereby manifest his intention by some overt act, but actually falls short of his intention to commit that offence either through an intervening act or involuntary obstruction, he is said to commit the attempt of that offence.”
See JEGEDE v. THE STATE (2003) 3 ACLR pg. 86.
To constitute an attempt to commit an offence, the act must
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be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. The offender must have crossed the “Rubicon and burnt his boat.” The acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped. See SHURUMO v. STATE (2010) 19 NWLR (Pt. 1226) pg.73.
The prosecution at the trial Court failed to prove beyond reasonable doubt the Appellant’s involvement in the substantive offence of attempted murder.
However, it is trite that a person could be convicted for conspiracy after he has been acquitted on the substantive offence.
In the premise, the sole issue in the main appeal is resolved against the Appellant in favour of the Respondent. This appeal is unmeritorious and is hereby dismissed.
The Cross Appeal succeeds in part only as it affects the sentence. In Count One, the Appellant is sentenced to Two years improvement without an option of fine for conspiracy only. He is discharged and acquitted in Count Two for attempted murder.
Other Citations: (2016)LCN/8736(CA)
