Offence not Charged with: When Accused can be convicted of
Facts
At about 6:45pm on 3rd November, 1995, the Appellant who was the driver of a commercial bus was stopped along the Port Harcourt– Aba Expressway, by members of the Road Marshall known as Special Marshall, for driving with only one headlight. A certain Mr. Azubuike (deceased), who was a member of the Road Marshall, was assigned to book him for the alleged infraction. The deceased stood in front of the bus to inspect the headlights, and invited the Appellant to come down from the bus to answer some questions. Rather than comply with the directive of the Officer, the Appellant moved his bus at high speed, hit the deceased, and dragged him for about one hundred (100) metres, before he crushed him and drove away. This was despite the plea by the deceased, that people should plead with the Appellant to spare his life. The deceased was taken to a private clinic where he died shortly after the incident. The Appellant was later arrested and charged before the High Court of Rivers State, for the offence of murder.
After taking and evaluating the evidence from the Prosecution witnesses and the Appellant as the Accused person, the learned trial Judge found the Appellant guilty as charged, convicted him and sentenced him to death. Thereafter, the Appellant appealed to the Court of Appeal, who dismissed the appeal and affirmed the decision of the trial Court. The Appellant further appealed to the Supreme Court.
Issues for Determination The issues for determination by the Court are as follows:
1. Whether, having regard to the divergent evidence led by the Prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the judgement of the trial court, that the charge of murder was proved against the Appellant beyond reasonable doubt, as required by law.
2. Whether, having regard to the facts established before the learned trial Judge, the Court of Appeal was correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.
Arguments On the first issue, Counsel for the Appellant submitted that, the contradictions in the testimonies of PW1 and PW2 which the Court acknowledged, is a material one that creates doubt as to the intention of the Appellant to kill the deceased; therefore, it would be unsafe to convict the Appellant for the offence of murder. He submitted that, where there is any doubt as to the guilt of an Accused person arising from the contradictions in the evidence adduced by the Prosecution on material issues, such a doubt must be resolved in favour of the Accused person. Counsel for the Appellant thus, urged the Apex Court to hold that the charge of murder against the Appellant, was not proved.
Conversely, Counsel for the Respondent argued that, the substance of the Appellant’s perceived contradictions consist in the mere fact that, whereas PW1 testified that the Appellant did not come down from the bus at the scene of the crime, PW2 testified that the Appellant came down from the bus. He argued that, there is bound to be minor discrepancies in testimonies of witnesses, and that, for a contradiction to be regarded material, it must go to the root of the charge before the Court. Counsel submitted that, the Respondent duly discharged its duty of proving the guilt of the Appellant for the murder of the deceased beyond reasonable doubt, and the said contradictions in the evidence of its witnesses, were immaterial.
On the second issue, it was argued on behalf of the Appellant that, given the facts of the case, the Court of Appeal ought to have invoked the provision of Section 179(2) of the Criminal Procedure Law of the Eastern Nigeria, which provides for the reduction of a charge of murder to the lesser offence of manslaughter, in certain circumstances, and ought to have availed the Appellant, the benefit thereunder. Counsel argued that, although the issue of conviction for a lesser offence was never addressed at the trial Court and the Court of Appeal; however, in view of the facts of the case, the offence ought to be considered as an alternative to the offence of murder. Counsel submitted further that, the applicable test in this case, based on the Appellant’s conduct, is the ordinary principle of the law of negligence, so as to determine whether the Appellant was in breach of his duty of care towards the deceased. He argued further that, such breach is a far cry from the offence of murder which the trial court convicted the Appellant for, and which the Court of Appeal affirmed. He submitted that, both the trial Court and the Court of Appeal erred in law by refusing to reduce the offence charged, in accordance with the provision of Section 179(2) of the Criminal Procedure Law of the Eastern Nigeria.
Responding, Counsel for the Respondent submitted that, the provision of Section 179(2) of the Criminal Procedure Law of the Eastern Nigeria, is applicable only where the available evidence does not support the offence charged, but is sufficient to sustain a conviction for a lesser offence, even though the Accused person was not specifically charged with the lesser offence. He argued that, in the instant case, there was overwhelming evidence beyond reasonable doubt, as to the culpability of the Appellant in the offence of murder he was charged with; and there were no extenuating circumstances that could warrant the reduction of the charge to a lesser offence. Therefore, it would be inappropriate to invoke Section 179(2) of the Criminal Procedure Law of the Eastern Nigeria, to convict and sentence the Appellant on a lesser charge. He urged the court, not to interfere with the concurrent findings of the trial court and the Court of Appeal.
Court’s Judgement and Rationale Determining the first issue, the court found that it is not every trifling inconsistency in the evidence of the Prosecution’s witnesses, that is fatal to the Prosecution’s case. It is only contradictions and/or inconsistencies which are substantial and fundamental to the main issue before the Court, such as would create reasonable doubt in the mind of the trial court, that are fatal to the Prosecution’s case. The Court held further that for a contradiction to be regarded material, it must go to the root of the charge before the Court, and must be one that touches an important element of what the Prosecution needs to prove in that case - OGBA v THE STATE (1992) 2 NWLR (Pt. 222) 164 at 198. In the instant case, the issue of the Appellant coming down from his vehicle or not after the commission of the offence, was of very little or no relevance. The fact that the deceased was knocked down by the vehicle driven by the Appellant was not in doubt as confessed by the Appellant himself, and there was also clear evidence before the trial court that shortly before the deceased was crushed to death, the Appellant had told him that he would kill him, if he did not allow his vehicle to go. The court found that the Appellant’s intention to kill the deceased and his guilt for the offence of murder was established by the Respondent, and the Court of Appeal rightly affirmed his conviction and sentence by the trial court, for the offence of murder.
On the second issue, the Court held that the purport of the provision of Section 179(2) of the Criminal Procedure Law of the Eastern Nigeria, is that when a person is charged with an offence and facts are proved which reduce it to a lesser offence, the Accused may be convicted of a lesser offence, and the appropriate sentence for the lesser offence imposed on him even though he was not charged with it. The provision is however, tenable only where the evidence available before the trial court does not support the offence charged, but is sufficient to sustain a conviction for a lesser offence, even though the Accused was not specifically charged with the lesser offence. The court relied on the authorities of NWACHUKWU v STATE (1986) 2 NWLR (Pt. 25) 765 at 777-778; ODEH v FRN (2008) 13 NWLR (Pt. 1103) 1 at 23; OTEKI v A-G BENDEL STATE (1986) 2 NWLR (Pt. 24) 648.
The court found that there was overwhelming evidence beyond reasonable doubt as found by the trial court and affirmed by the Court of Appeal, as to the culpability of the Appellant in the offence of murder with which he was charged, tried, convicted and sentenced, and there were no extenuating circumstances to warrant the reduction of the charge or sentence to a lesser charge or sentence; hence, it will be inappropriate to rely on the provision of Section 179(2) of the Criminal Procedure Law of the Eastern Nigeria to convict and sentence the Appellant for a lesser charge - EJEKA v STATE (2003) 7 NWLR (Pt. 819) 408 at 423.
Appeal Dismissed.
Representation: Ayotunde Ayotupe with Eyurade Oguntuase and Faith Edward for the Appellant.
R.N. Godwins Esq. with E.P. Ajudua Esq. for the Respondent.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))
“THE PURPORT OF THE PROVISION OF SECTION 179(2) OF THE CRIMINAL PROCEDURE LAW OF THE EASTERN NIGERIA IS THAT, WHEN A PERSON IS CHARGED WITH AN OFFENCE AND FACTS ARE PROVED WHICH REDUCE IT TO A LESSER OFFENCE, THE ACCUSED MAY BE CONVICTED OF A LESSER OFFENCE, AND THE APPROPRIATE SENTENCE FOR THE LESSER OFFENCE IMPOSED ON HIM, EVEN THOUGH HE WAS NOT CHARGED WITH IT”