Offence Not Charged With: When Accused Can Be Convicted Of

“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”

In the Supreme Court of Nigeria

Holden at Abuja
On Thursday, the 14th day of June, 2018

Before Their Lordships
Ibrahim Tanko Muhammad
Kumai Bayang Aka’ahs
Chima Centus Nweze
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC.471/2013

Between

Emeka Mbachu ……… Appellant

And

The State …………Respondent
(Lead Judgement delivered by Hon. Ibrahim Tanko
Muhammad, JSC)

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))

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