Sansani V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Kaduna Division or lower Court or Court below, Coram: Adewale O. Abiru, Oladotun A. Adefope-Okojie and Amina Audi Wambai JJCA on the 26th day of February, 2016 dismissing the Appellant’s appeal and affirming the conviction and sentence of the Appellant and his co-accused person per G.I. Kurada J.

FACTS BRIEFLY STATED

The appellant as the 1st accused was arraigned alongside two other accused persons before the trial Court on the 4th day of November, 2008, charged with criminal conspiracy and culpable homicide punishable with Sections 97 and 221 of the Penal Code Law respectively, to which he pleaded not guilty.

The Respondent in its efforts to prove its case against the Appellant and the other accused persons, called five (5) witnesses who testified as PW1 to PW5, and it tendered in evidence several documents which were admitted in evidence, amongst which are the extra-judicial confessional statements of the Appellant which were admitted and marked as Exhibits 3, 3A and 5. It is worthy to note, that the confessional statements of the Appellant Exhibit 3, 3A and 5 were admitted in evidence through PW4 and PW5 without objection from the Appellant or his counsel.

The Appellant testified as DW1 in his defence and called no other witness. After the close of the respective parties’ cases, their counsel addressed the Court, and in a considered judgment, the learned trial Court found and held, that the Respondent had proved beyond reasonable doubt that the Appellant was guilty of the said offences of criminal conspiracy and culpable homicide not punishable with death. It therefore convicted the Appellant of the said offences of criminal conspiracy and culpable homicide not punishable with death and sentenced him to one (1) year imprisonment on Count 1 dealing with criminal conspiracy and five (5) years for the offences of culpable homicide not punishable with death, both sentences to run concurrently.

The Appellant being dissatisfied with the judgment of the trial Court, appealed against the same to the Court below via his Notice of Appeal dated and filed on the 17th day of May, 2011, containing ten (10) grounds of appeal.

​In accordance with the rules and practices of the Court below, the parties filed and exchanged their respective Briefs of Argument which they duly adopted at the hearing of the appeal on 26th January 2016.

The Court below dismissed the appeal and further dissatisfied Appellant has come before the Supreme Court upon a Notice of Appeal containing five (5) grounds.

On the 3/2/2022 date of hearing, learned counsel for the Appellant Paulyn O. Abhulimen Esq. adopted the further amended Appellant’s brief of argument filed on 16/6/2021 and deemed filed on 2/12/2021. In the brief, learned counsel raised two issues for determination, which are as follows:-

i. Whether there were sufficient, cogent and credible evidence of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code law of Kaduna State which warranted a substitution of conviction for conspiracy and culpable homicide not punishable with death instead of an outright acquittal and discharge of the accused persons?’ (Grounds 1, 2, and 5)

ii. Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the offences preferred against the Appellant beyond reasonable doubt as required by law. (Grounds 3 & 4).

Learned counsel for the Respondent, Biola Oyebanji Esq adopted the amended Respondent’s brief of argument, filed on 25/11/2021 and deemed filed on 3/2/2022. In the brief was formulated a single issue, thus:

Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicting him of a lesser offence than the one he was actually charged with (Distilled from all grounds of the Notice of Appeal)

The sole issue of the Respondent seems to me to cover the field and I shall make use of it in the determination of the appeal.

SOLE ISSUE

Whether or not from the totality of the facts and law, the lower Court was justified to have found the appellant culpable and thereby convicted him of a lesser offence than the one he was actually charged with.

Advancing arguments for the Appellant, learned counsel stated that the two Courts below failed to adequately consider whether the standard of proof for culpable homicide not punishable with death under Section 222 (7) of the Penal Code Law of Kaduna State was attained before convicting the Appellant. That there was no intention to kill the deceased and the conviction based on speculation, should fail. He cited Archibong v ITA (2004) 2 NWLR (pt.858) 590 at 597 etc.

He submitted further that from the available facts of this case, the scuffle leading to the death of the deceased was instigated by the deceased and the force applied by the Appellant on the deceased was not disproportionate to what the Appellant and his co-accused claimed the deceased did to them. That the defence of self defence or provocation availed the Appellant. He cited Uwaekweghinya v The State (2005) 9 NWLR (pt.930) 227 at 285.

For the Appellant, it was contended that the learned trial Judge raised a point suo motu that the evidence of the prosecution only revealed a case of a rash act by the 1st and 2nd accused and he did not give the Appellant the opportunity to be heard on that issue. The implication is that there was a lack of fair hearing. He cited Dickson Moses v The State (2006) All FWLR (pt.322) 143 at 1477.

It was submitted for the Appellant that before he could be convicted of a lesser offence as was the case in this instance, the Appellant ought to have been called to address the Court in that regard. She cited Okey Uzoho & 4 Ors v National Council on Privatisation & Anor (2007) All FWLR (pt.394) 370 at 387.

That the Court below failed to evaluate the facts and evidence as challenged by the Appellant and so fell into the same error as the trial Court. It was cited Action Congress of Nigeria v Lamido (2012) 8 NWLR (pt. 1303) 560; Dawodu & Ors v Ologundudu & 5 Ors (1986) 4 NWLR (pt.33)104 at 115-116.

Learned counsel for the Respondent submitted that the trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients of the offence of conspiracy had been proved and it so found that by the confessional statement of the Appellant and his evidence the Respondent had proved the count of criminal conspiracy.

That the Appellant had not challenged the findings of the trial Court at the Court below and so those findings stood.

​That the defence of self defence or provocation did not enure in favour of the Appellant and that the Respondent proved the offences charged beyond reasonable doubt.

RESOLUTION:

As a starter, I need to restate the often quoted principle that in all criminal trials, the onus of proving the guilt of any accused person over the commission of a crime lies on the prosecution and that duty gets to the prosecution establishing its case beyond reasonable doubt which is not akin to proof beyond all shadow of doubt. This requirement is achieved by ensuring that all necessary and vital essential elements of the charge are proved by evidence. See Okoro JSC in The State v James Gwangwan (2015) 13 NWLR (pt.1477) 600 at 621; Yongo v. Commissioner of Police (192) LPELR-3528 (SC), (1992) 4 SCNJ 113; (1992) 8 NWLR (Pt.257) 36; Ogundiyan v. State (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519; Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516; Babuga v State (1996) LPELR-701 (SC); (1996) 7 NWLR (Pt.460) 279.

See also the case of MOHAMMED IBRAHIM vs THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192.

​The Appellant in the instant appeal was arraigned before the trial Court on charges of criminal conspiracy and culpable homicide punishable with death, contrary to Sections 97 and 221 of the Penal Code Law. The trial Court after taking evidence from the prosecution’s witnesses and the Appellant who testified in his own defence and the other accused persons, found the Appellant guilty of criminal conspiracy and the lesser offence of culpable homicide not punishable with death, pursuant to the powers granted to the Court under Section 218(2) of the Criminal Procedure Code Law, having held that the prosecution proved beyond reasonable doubt that the Appellant committed the said offences. The trial Court in its judgment held pertaining to culpable homicide punishable with death, with which the Appellant was charged in count 2 thus:

“The Accused simply acted rashly. I hold that the evidence of the prosecution has only revealed a case of a rash act by the 1st and 2nd accused. And by Section 218(2) of the Criminal Procedure Code;

(2) Where a person is charged with the offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it ”

I accordingly find the 1st and 2nd Accused persons guilty of causing the death of Mallam Makama Adamu by a rash act and I hereby convict each of them for culpable homicide not punishable with death under Section 224 of the Penal Code.”

The trial Court stated further as follows:

“By Exhibit 3, 3A and 4 and 4A, the 1st and 2nd Accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left their house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased. However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused’s at that point agreed to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd Accused to beat the deceased and which act resulted in the death of the deceased. I find the 1st and 2nd Accused guilty of Count one of the charge and I accordingly convict each of them of criminal conspiracy to commit culpable homicide not punishable with death under Section 97 of the Penal Code.”

The guides as provided in a large number of decided cases that in all criminal trials, the guilt of an accused person for the commission of an offence can be established by any one or more of the following methods or ways:-

1. By eye witness evidence.
2. By a free and voluntary confessional statement of the accused person; and
3. By circumstantial evidence.

Reference is made to the following cases:

1. SUNDAY UDOR vs. STATE (2014) 12 NWLR (Pt.1422) 548 at 561 para B
2. AKEEM AGBOOLA vs THE STATE (2013) 11 NWLR (Pti366) 619 at 648 paras A-C
3. EMEKA vs STATE (2002) 14 NWLR (Pt.734) 666 at 683 pars G-H.

By virtue of the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and that of Section 135 of the Evidence Act, the onus of proving the commission of the offences alleged against the Appellant, lies on the prosecution in this case represented by the Respondent, more so, the Appellant having pleaded not guilty to the two counts against him. It therefore clearly lies at the door of the Respondent to prove all the ingredients of the offences with which the Appellant was charged in respect to the counts of criminal conspiracy and culpable homicide punishable with death.

In the quest to prove the offences charged, the Respondent relied on the eye witness evidence of PW1, John Aruwa whose evidence and that of DW3 Amuenza Likita Micheal whose evidence in addition to the confessional statements of the Appellant which were admitted in evidence without objection and marked as Exhibits 3 and 3A.

​As stated earlier, the extra-judicial confessional statements of the Appellant were admitted in evidence without objection and since the said statements are confessional in nature, they are relevant and having been voluntarily made, they are admissible and having been so admitted, the Court was entitled to accord them full weight and consideration in the determination of whether the Appellant is guilty of the offences he was charged with. The trial Court was therefore perfectly in order when it found the Appellant guilty of the lesser offence of culpable homicide not punishable with death pursuant to the provisions of Section 218(2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

The trial Court having found the Appellant guilty of the lesser offence of culpable homicide not punishable with death, went on to consider if the ingredients for the offence of criminal conspiracy had been proved and it soundly found, that by the confessional statements of the Appellant and his evidence in Court in his defence, the Respondent had proven the count of criminal conspiracy.

The Court below in its judgment noted that the trial Court in its judgment dealt first with the substantive offence of which the Appellant was convicted which is culpable homicide not punishable with death, before going back to see if the offence of criminal conspiracy, was proved beyond reasonable doubt.

The Court below in making its decision put down the ingredients of the offence of culpable homicide not punishable with death as follows:-

i. That the deceased died;

ii. That the death of the deceased resulted from the voluntary acts of the defendant;

iii. That the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent; and

iv. That in the circumstances of the case, the act of the defendant was not such to amount to culpable homicide punishable with death.

The lower Court stated that though the beating was an unlawful and rash act but could not amount to culpable homicide punishable with death. The Court below held that the Appellant did not challenge these findings of fact and therefore the law presumes him as having accepted those findings, and are thus bound by them. The Appellant still did not challenge the same firm holding in this appeal. As such by the failure of non-challenge to those findings of the Court below, and by several decisions of this Court, the Appellant is bound by those findings. I refer to the case of ALHAJI TSOHO AMALE VS SOKOTO LOCAL GOVT. & ORS (2012) 5 NWLR (Pt.1291) 181 at 197-198.

The submissions of the Appellant on rash action hold no water in that, inferable from all the submissions is that there was no preconceived position taken by the Appellant to kill, but however death still occurred by the beating of the deceased. This act of inflicting blows on the deceased by the two accused was found by the concurrent judgments to be rash acts. The challenge by the appellant that the decision was speculative was informed by the fact that the hospital was negligent by not administering proper medical care. This contention is more speculative than what the Appellant alludes to the Court in respect to the fact that no head scanning was undertaken to determine the justification of the finding by the Courts that the death was due to head injury.

For a fact, both at trial and appeal to the lower Court, the Appellant did not destroy the above finding nor did he, as he had the right to, call another contradictory testimony of another doctor to establish that the above finding was unproved, unjustified and medically impossible. All the suppositions of the deceased having a speculative high blood pressure, hemorrhagic disease were not established by the Appellant. In this instance, the facts before the Court being well established as to the cause of death resulting from running blows on the head of the deceased. That made the production of the medical report within the sphere of abundance of caution but not necessary.

The conclusion reached that the cause of death was as a result of bleeding from the orifice was not dislodged and remained sacrosanct. The onus shifted back to the Appellant to produce alternative medical evidence to contradict the documented one, in default of which the concurrent findings had not been contradicted to establish any doubt from which the Appellant could benefit. Medical report is not a sine qua non to establish the guilt of the Appellant when there was other evidence. Suffice to state that non-production of medical report or the absence of the medical personnel is not mandatory, in this appeal, when the cause of death is already known. It is not the law that a hard object must be proved to have been used to inflict the grievous bodily harm as contended by the appellant.

​The Courts have severally held that, in order to prove a charge of culpable homicide not punishable with death or manslaughter, there is no need to prove that there was an intention to cause death or to kill the deceased person, for indeed, it is the very absence of the intention to kill or cause death, that reduced the offence from culpable homicide punishable with death to manslaughter.

Reference was made to the case of STATE vs BOKA (1982) 1 NCR 85 at page 93 where Karibi Whyte, JCA (as he then was) held thus:

“It would seem to me on the concepts of “rash” or “negligent” act used in Section 222(7) that the offence is committed where there is no intention to cause death and no knowledge that the act done would, in all probability, cause death. The act complained of must be done without any criminal intent, the relevant considerations being the “rashness” or “negligence” of the act, These, or one of them alone, being the essential ingredients of liability, it would seem sufficient if the act complained of is the direct cause of death.”

I am persuaded to rely on the case of EMMANUEL AYO vs. THE STATE (2015) 16 NWLR (Pt.1486) 531 at 546-547 the Court of Appeal per Abiriyi, JCA held thus:-

“The death must be caused by the unlawful act of the accused person. It must be proved not merely that act of the accused person could have caused the death of the deceased but that it did. See Apugo v. State (2006) 15 NWLR (pt.1002) 227, and R v. Oledinma (1940) 2 WACA 202.”

See also the cases of:

1. CHARLES EGBIRIKA vs THE STATE (2014) 4 NWLR (Pt.1398) 558 at pages 578, 579 paras G-A and 580 para A.
2. SHINA OKETAOLEGUN vs THE STATE (2015) 13 NWLR (Pt.1477) 538 at page 560 paras B-F.

The Court below at page 188 of the records in its judgment after reviewing the contentions of the Appellant in his Brief before the Court, held thus at pages 188-189:

“Thus, to sustain a charge of culpable homicide not punishable with death, it is sufficient if the Respondent proved that the said act of the Appellant was unlawful, and reckless without due regard or consideration for its consequences and/or that it was negligent – STATE VS BELLO AYINDE (1976-1977) NNLR 38, BABALOLA VS STATE AYINDE (1978-1979) NNLR 31, ADAMU VS STATE (2014) LPELR – CA/K/373/C/2013. The respondent led cogent evidence to prove, in the instant case, that the action of the Appellant in beating the deceased in such a manner as to cause death was rash or non-consideration for its consequences.”

​The Appellant has contended, that the Court below was wrong in affirming the judgment of the trial Court when it failed to consider the defence that enured to the Appellant, which defence was that of self defence before the Court concluded on non-availability of same to the Appellant, the trial Court having held that the Appellant and his co-accused had no intention to kill the deceased when they beat him, as such should not have convicted him for culpable homicide not punishable with death.

The Appellant was wrong in that posture as the trial Court in its judgment considered in great detail the defence of self defence and held that, the same was unavailable to the Appellant. The Court below on its part, as an appellate Court, considered the complaint of the Appellant raised in his appeal, nowhere in the Appellant’s Brief of Argument was an issue raised challenging a failure by the trial Court to consider the defence of self defence raised at the trial.

The Appellant having failed to challenge the finding by the trial Court that he was not acting in self defence when they beat up the deceased and prevented him from entering his house, the Appellant must be taken as having accepted that finding, and the Court below lacked the jurisdiction to look into the issue.

With reference to the offence of conspiracy to commit culpable homicide not punishable with death for which the Appellant was also convicted and sentenced and the Court of Appeal affirmed. It has to be stated albeit for the umpteenth time that the Courts have in a long time of judicial authorities held that the offence of conspiracy in the absence of an express agreement between the parties can be inferred from the criminal acts of the parties, including the act of complicity and the attainment of a common end or goal.

I shall cite as guide some of the dicta of my learned brother hereunder:-

In the case of IDOWU OKANLAWON vs THE STATE (2015) 17 NWLR (Pt.1489) 445 at 477 this Honourable Court per Ariwoola JSC thus:

“As shown earlier the appellant was charged along with others with the offence of conspiracy and armed robbery. It is already held that the proper approach to an indictment which contains offence of conspiracy as a charge and a substantive charge is to deal first with the main charge and then the charge for conspiracy.

Conspiracy is generally an agreement between two or more persons to do an unlawful act in an unlawful manner or lawful act in an unlawful manner, Indeed, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence in itself, independent of the actual offence said to have been conspired to commit. See BALOGUN V. ATTORNEY GENERAL, OGUN STATE (2002) 2 SC (PT.11) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196; (2002) 6 NWLR (PT.763) 52; OSETOLA & ANOR v. STATE (2012) 12 SCM (PT.2) 347.”

Again in the case of KAYODE BABARINDE & ORS vs THE STATE (2014) 3 NWLR (Pt.1395) 568 at page 594 this Honourable Court per Kekere-Ekun, JSC had the following to say on what is conspiracy and how it can be proved:

She stated as follows:-

“Section 96 of the Penal Code, which defines Criminal Conspiracy’ has been reproduced earlier in this judgment. It is trite that conspiracy is seldom proved by direct evidence. In OBIAKOR V. THE STATE (2002) 6 SC (Pt.11) 33 at 39-40; (2002) 10 NWLR (PT.776) 612 at 628, PARA G-H this Court held, per Kalgo, JSC

“Conspiracy as an offence is the agreement of two or more persons to do or cause to be done an illegal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.”

On the nature of proof required to establish conspiracy, Achike, JSC (as he then was) stated thus in ODUNEYE v. THE STATE (2001) 1 SC (PT.1) 1 @ 6-7, (2001) 2 NWLR (PT.697) 311 @ 324.

“A conviction for conspiracy is not without its inherent difficulties… a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which evidence is not of the fact in issue but of other facts from which the fact in issue can be inferred…

Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as to the guilt of the accused” (Italics mine)

In the case at hand the Court below had held as follows:

“By Exhibits 3, 34 and 4 and 4A and the 1st and 2nd accused decided to go to the deceased’s house to ask him why he burnt their farm. They went to the house. They asked the deceased and because the deceased said he was not going to answer them, the two of them jointly beat him. That they left the house together with a common purpose of going to ask the deceased cannot be said to be an agreement to go and beat the deceased. However, by jointly beating the deceased even when he tried to leave them and enter his house but they held and dragged him back and beat him, an agreement to beat the deceased can be and it is inferred therefrom by me. The 1st and 2nd accused agreed at that point to beat the deceased and their act was illegal. I hold that the prosecution has proved conspiracy or agreement by the 1st and 2nd accused to beat the deceased and which act resulted in the death of the deceased… ”

The Court below in considering the submissions of the Appellant in his Brief of Argument before that Court under Issue 1, held at page 190 of the records as follows:

“There was unchallenged evidence before the lower Court that the Appellant jointly beat the deceased and that even when the deceased tried to leave them and enter his house, they held and dragged him back and beat him until he collapsed and that it was the beating that caused the death of the deceased. The appellants acted in obvious concert and inference of conspiracy drawn by the lower Court from these unchallenged facts and finding made hereon were thus solid and cannot be tampered with by this Court. This Court thus finds that the lower Court was correct when it found that the Respondent led sufficient cogent and credible evidence before it to prove the offences of conspiracy and culpable homicide not punishable with death under Section 222(7) of the Penal Code Law beyond reasonable doubt to warrant the conviction and sentence of the appellants for those offences…”

The Appellant had not proffered any challenge whatsoever to the above finding by which failure the findings of the lower Court in affirming the trial Court’s finding stays till eternity and incapable of being dislodged.

The learned counsel for the Appellant had gone to great lengths in disparaging the findings of the Court below which that Court referred to as “rash acts” of the Appellant and co-accused. The line of thought which Appellant’s counsel wanted the Court to tow is to exculpate the Appellant since the acts leading to the death of the deceased were rash acts. I say to that, not so fast, as rash acts or reckless acts cannot be easily so dismissed as leading nowhere. This is because rash acts or reckless acts or reckless conduct are much more than mere negligence. Black’s Law Dictionary definition in relation thereto as “intention cannot exist without foresight but that foresight can exist without intention.” See Nwabueze v People of Lagos State (2018) 11 NWLR (pt. 1630) 201 per Eko JSC.

In expatiation, I would say that a man may foresee the possible or probable consequence of his conduct and yet not desire them to occur, NONETHELESS, if he persists on his course or knowingly runs the risk of bringing about the unwished. This therefore undermined the essence of the conduct of the Appellant in that a man is responsible for the outcome or consequence of his act.

​The cause of death can be proved by direct or circumstantial evidence. The direct evidence required to prove the cause of death must be clear as to connect the deceased person with the act of the accused. The circumstantial evidence that will meet the requirements of the law of onus of proof, is the evidence that fixes the accused to the crime with sufficient cogency which excluded that someone else had committed the crime. Apart from summation, conjecture and importation of suppositions, the Appellant did not contradict the testimonies that the deceased died as a result of flurries of blows inflicted on him by the two accused persons. This finding cannot be ignored when there was none proffered by the Appellant for this Court to set aside the solemn finding of the learned trial Judge as upheld by the lower Court. See the case of Nwaeze v State 96 NWLR Pt.428 pg 1 at 11.

On the issue of medical report, I would say without hesitation that it is not in all cases that medical evidence is sacrosanct in proving the cause of death. Medical evidence is dispensed with when the cause of death is known and occurs immediately. My lords, the prosecution notwithstanding went the extra mile to produce a Medical Certificate which was not objected to.

​Medical evidence is not imperative where the victim died in circumstances in which there was abundant evidence of the manner of death which occurred immediately or so soon thereafter upon the occurrence of the act, is to enable the contemporaneity of the causation and effect.

Unless and until there is a proved and established fact of intervening cause in this appeal, the Appellant cannot undermine the effect of punches by two accused persons which uppercut may be more lethal similarly like any weapon.

The evidence before the Court which is not contradicted and upheld by the Court was that… “he beat me and I beat him, he held me and I held him and he fell” convincingly, since after the fall, there was no intervening cause until the victim gave up the ghost at 4pm. The arguments of the Appellant pertaining to any intervening cause must be discountenanced.

It is surplusage on the part of the prosecution to have tendered the medical report in that the law excuses the production of medical or export evidence where death was instantly caused by the act of the attacker.

The Appellant’s submissions on the defence of provocation and self defence go to no issue.

​By Section 218 (2) of the Criminal Procedure Code, it allows a Court of trial to convict an accused, rather than for the greater offence or the actual charge the accused is formally charged with, by finding the accused guilty of a lesser offence using a combination of some of the particulars of the offence charged.

The operative word here is “lesser” not “another” charge. As wrongly contested by the Appellant, that he was not in the know of the offence he was charged with, nor given the opportunity to address on it, nor generally that his fundamental right to fair hearing had been breached, had been taken care of, in that before anyone can be found guilty of any such lesser offence, he must be seen to have had notice of the lesser offence charged, by virtue of the notice of the greater offence he was charged with. This came by, in that the evidence produced at the hearing in support of the greater offence is short of sustaining the charge BUT established beyond doubt, the lesser offence. See the cases of;

OKOBI V STATE 84 7 SC 47

NWACHUKWU V STATE 86 2 NWLR PT. 25 pg 765 at 782

OYEDIRAN V REPUBLIC 67 NMLR 122

​Therefore, for the conviction of the lesser offence to be valid, the accused must have sufficient notice of the lesser offence as in Section 218 CPC. In the absence of sufficient notice of any lesser offence or if the lesser offence was not a constituent element of the larger offence, a conviction on the lesser offence just because the substituted offence conveys lesser punishment, shall not be sustained. See the case of ONUKWUBE V STATE 2021 NWLR PT.1767 pg 558 at 577/578.

However, for Section 218 (2) to be properly invoked as done in this appeal, the following must be observed, namely;

(i) The indictment in respect of which the accused is subsequently found guilty of; i.e the lesser offence must;

a. Contain words to include both offence such that the evidence led and facts found, though insufficient for conviction of grave or aggravated offence.

b. Must support the conviction of lesser offence. It is trite to note here that the law does not insist nor is it necessary to charge the accused formally with the lesser offence with which he is convicted in that the great/aggravated offence include by necessary implication the lesser offence with which he was charged and convicted. I rely on the case of Amadi v State (2019) NWLR (pt.1677) 366 at 378.

​A lesser offence has been described as a combination of some of the several particulars making up the offence with which the accused was charged with, as such the particulars constituting the lesser offence are carved out of the offence charged. The lesser offence with which the accused is convicted arises out of the facts and evidence led in support of the aggravated charge. This therefore has been established over the years that when an accused had notice of the aggravated charge, he is deemed also to have notice of the lesser charge for which he could be convicted, though he was not formally charged with same. I refer to the case of:

(i) RABIU V STATE 2010 10 NWLR PT.1201 at 148/149;

(ii) NWACHUKWU V STATE 862 NWLR PT 25 pg.765 at 778/782.

The parties of the main/aggravated offence of culpable Homicide and being found guilty of rash and negligent act are the same in that Section 222 (7) provides thus:

“Section 222 Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act”

​Again to be said is that the same evidence or facts proffered in support of the main charge are the same, except that the evidence was insufficient to ground conviction of the main charge, but supportive and adequate to sustain the lesser charge. The Court is mostly concerned with the similarities of the supportive evidence of both main and lesser charge. Where there are no similarities between the elements or ingredients/circumstances of the commission of the offence, the Court would not be right in convicting for a lesser offence. See the case of ADOBA V STATE 2018 NWLR PT 1633 pg 236 at 254/255. Thankfully, this is not the contention of the Appellant.

In order to convict for a lesser offence there must have been a trial and the elements/particular relied upon must have been proved, before there could be any sustainable justification for the conviction for a lesser offence. See

(i) R V ADOKWU 20 NLR 103

(ii) TORBAMBO V POLICE 1956 NRNLR 94

(iii) AGUMAGU V Q.63 1 SCNLR 203

Coming home to Section 218 (1) of the CPC, it envisaged and anticipated against the position taken by the Appellant when it was argued that the Appellant was not formally charged with the lesser offence nor was the main/aggravated charge amended to accommodate the lesser. The word used in the said section was emphatic when it states

“Though he was not charged with”

See the case of KADA V STATE 91 8 NWLR PT 208 pg 134 at 157

EZEJA V STATE 2005 6 NWLR PT 921 pg 269 at 278.

It is easy to hold that the cause of death was well laid out, informed and there were direct account of the act that led to the death of the victim as was done in this matter. See also BAKURI V STATE 65 NMLR 163, ONYIA V STATE 2006 11 NWLR PT 991 pg 267.

The Appellant raised tacitly the defences of self defence and provocation which the Courts found not extendable to him.

In the case of OKONJI V STATE 87 1 NWLR PT 52 pg 659 at 668, the Court held that before the Appellant could enjoy the benefit, he must have reasonable belief that his life was in danger and that the quality of the force used on the deceased must be the same.

In the present appeal, there was no threat to the life of the Appellant nor that the quality of the force used in repelling was the same in that the Appellant and his co-accused beat the deceased blue and black. By this, the defence does not enure to the Appellant’s advantage in that the attack offered never raised reasonable apprehension of death or grievous hurt or death to himself.

From the totality of what is before the Court which learned counsel for the respondent has properly brought to light, I have no difficulty in going along the paths taken by the two Courts below in their concurrent findings of fact and to hold that the Appellant was properly convicted of the lesser offence of “rash and negligent act”. Also, the Courts below were right in rejecting the defences of provocation and self defence. Certainly, the medical report was not needed as the cause of death was well known and the conspiracy adequately inferred from the resultant act.

This appeal from the foregoing lacks merit and I dismiss it. I affirm the judgment of the Court of Appeal which affirmed the conviction and sentences dished out by the trial Court.

Appeal Dismissed.

---

SC.654/2016