⦿ CASE SUMMARY OF:
Ajor Eneji v. The State (2013) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Criminal Law
– Grievous harm;
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Mohammed Lawal Garba, JCA
* FOR THE APPELLANT
– F. N. Nachamada.
* FOR THE RESPONDENT
– Okoi Ukam.
⦿ FACT (as relating to the issues)
The Appellant and two (2) other persons, Adie Christopher Ebodo and Olom Adie were arraigned before the Cross River State High Court sitting at Ogoja on a two (2) count charge of conspiracy and grievous harm contrary to the provisions of sections 520 (6) and 355 respectively, of the Criminal Code Law Cap C16 Vol. 3, Laws of Cross River State, 2004.
At the trial, the prosecution called four (a) witnesses while the Appellant and the other accused persons testified for their defence and also called two (2) other witnesses.
At the end of the trial, Adie Christopher Ebodo was discharged and acquitted while the Olom Adie and the Appellant were convicted for the offences of conspiracy and causing harm in the judgment delivered on the 31/1/2012.
The Appellant being aggrieved have appealed to this Court of Appeal.
1. Whether the trial court was right to have held that the offence of causing harm was proved by the prosecution against appellant beyond reasonable doubt.
2. Whether the trial court was right in convicting the Appellant for the offence of conspiracy to assault.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Worthy of note in the evidence before the High Court adduced by the prosecution is that the evidence of PW1 and PW2 that the Appellant and 2nd accused person were at the door of the meeting when PW1 wanted to go out and that the two of them beat him, was not challenged let alone, discredited under cross examination. In fact the direct evidence of PW3 that he saw the three (3) accused persons beating the PW1 and that the Appellant was holding a slippers/sandal was not challenged at all. In its judgment, the High Court had carefully considered and assessed the evidence adduced in support of the charge against the Appellant before ascribing probative value to it. In evaluating the credibility of the evidence of the Appellant who was the 3rd accused person, the High Court had in its judgment stated that:
“Third accused person said he did not touch PW1, his uncle. That he was only separating the fight between PW1 and second accused like I asked before; why then did PW1 say third accused hit him with a fist blow, particularly as third accused has no problem with PW1. PW2 said accused person were raining blows over her head on PW1. PW2 gave details and said second accused was holding a stick white third accused was holding slippers/sandals. Why did 3rd accused person not call those he said witnessed the fight to come and testify. Second accused said PW1 called him a thief and a tout and slapped him twice, third accused who said he was present makes no mention of the thief and thug. I believe the story told by PWs, 1, 2 & 3 and hold that third accused hit PW1 with a fist blow and a leg of sandals/slippers.”
ii. Apparently, the Police Medical Form was made in original and duplicate copies such that both are executed in parts by PW4 who gave the original to PW1 and kept a duplicate copy made through the same mechanical process with the original, in the duplicate case file. In the circumstances, I agree with the learned counsel for the Respondent that being a counter part of the exhibit 1, it was not a secondary but primary evidence of the original Form which required no certification to be admissible in evidence.
The High Court had rightly considered, evaluate and weighed the contents of exhibit 1, which is at page 15 of the record of the appeal before it found the Appellant guilty of causing harm to PW1 when he assaulted him. I find no justification for interfering with that finding because the High Court had duly discharged its primary duty of evaluation of the evidence which in law satisfied the standard of proof of the offence charged.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the Appellant’s case, the unchallenged evidence by PW1 & 2 was that the Appellant and 2nd accused had stood at the door of the Hall where the meeting in question was held and when PW1 stepped through and outside the door, the two of them beat him. The evidence was supported by the evidence of PW3 who said he saw PW1 being beaten by the Appellant, 1st and 2nd accused persons. The evidence that there was communication between 1st accused and the Appellant and 2nd accused when PW1 stood up to go outside the Hall of the meeting and evidence of the beating of PW1 by the Appellant and 2nd accused leave no doubt on the common agreement or intention of the Appellant & 2nd accused to effect the premeditated act of beating PW1, which was unlawful. There was no need to prove how the Appellant and 2nd accused or 1st accused were connected or that they knew each other in the face of the evidence of the fact that though they were not invited and attending the meeting in question, the Appellant & 2nd accused person positioned themselves, deliberately, at the entrance door to the venue of the meeting in clear execution of their agreement to beat PW1 which they eventually carried out. The evidence of the agreement as can be reasonably inferred from the proved facts of the Appellants’ case, leaves no reasonable doubt of the meeting of the minds of the Appellant and 2nd accused person to effect an unlawful purpose of beating PW1. The evidence has satisfied the standard of proof required by law and the High Court was therefore right to have accepted and relied on it to convict the Appellant of the offence of conspiracy.
– S. 89, 86(2), Evidence Act 2011;
– Section 520(6) of the Criminal Code Law, Cap. 110 of Laws of Cross River State;
⦿ SOME PROVISION(S)
Section 355 of the Criminal Code Law which provides thus:- “355. Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years.”
Section 252 of the Criminal Code defines assault as follows:- “252. A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a presentability to effect his purpose, is said to assault that other person, and the act is called an assault.”
Section 253 provides that:- “253. An assault is unlawful, and constitute an offence unless it is authorized or justified or excused by law.”
Section 90 (1) of the Evidence Act, 2011 makes the following provisions: “90 (1). The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows: (c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence is admissible.”
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
I would always emphasize the need for counsel to in their brief of argument, indicate from which grounds of an appeal the issues they raise for determination therein were distilled because of established principles of law in respect of formulation of such issues, the breach of which may render the issues incompetent. – Lawal Garba, JCA. Eneji v. State (2013)
Proof beyond reasonable doubt therefore does not depend on and is not attained by the number of witnesses called by the prosecution but on and attained by the quality of the evidence adduced by it against an accused person. – Lawal Garba, JCA. Eneji v. State (2013)
The combined effect of the above provisions is that an uncertified copy of a public document is inadmissible in law as secondary evidence of the contents of the original document. Because such an uncertified copy is rendered inadmissible in evidence by law, acquiescence, consent, failure or omission to object to its admission when it was tendered would not render it admissible in evidence. – Lawal Garba, JCA. Eneji v. State (2013)
From a community reading of the above provisions, an unlawful assault causing harm punishable under the provisions of Section 355 of the code would simply mean a strike, touch or application of any kind of force, directly or indirectly, by one person on another which is not authorized, justified or excused by law and which causes that other person, harm. The essential ingredients or elements which constitute the offence and which must be proved beyond reasonable doubt in order to secure conviction for the offence are: a) that there was a strike, touch or application of any kind of force by the accused person on another person b) that harm was caused to that other person thereby, and c) the strike, touch or application of the force was not authorized, justified or excused by law. These elements or ingredients must be established to the satisfaction of the court, beyond reasonable doubt in the sense that the evidence must be strong and cogent in showing that the accused person and no other, in fact committed the offence. The burden on the prosecution does not shift but remains on it throughout the trial and can only be discharged by the production of material, credible, sufficient and admissible evidence which leaves no other reasonable possibilities than that the accused person committed the offence. Nothing short of this would suffice. – Lawal Garba, JCA. Eneji v. State (2013)
The law recognizes that the offence of conspiracy is a separate and distinct offence and is independent of the actual commission of the offence to which it is related. Consequently, the law is that an accused person can be convicted of conspiracy even if he is not found guilty of the substantive offence to which it relates. – Lawal Garba, JCA. Eneji v. State (2013)
The law is also settled that conspiracy is proved or established once it is shown by evidence that the agreement alleged is common to all the people accused and proof of how they are connected among themselves is not necessary. As a matter of law and fact, they need not to know each or shown to have started the criminal design at the same time. The bottom line of the offence of conspiracy is the agreement or meeting of the minds of the conspirators. – Lawal Garba, JCA. Eneji v. State (2013)
Thuggery in whatever form should be discouraged among right thinking members of the society. The appellant had no respect for prominent members of his community that had assembled to determine the ownership and management of Eyatem Primary School situate in his community which if not him, his children or relations may in future, benefit from the services the school will render to all and sundry. I am of the opinion that the learned trial Judge was right to convict and sentence the appellant without an option of fine. This may serve as a deterrence to other thugs who may be like minded to, in future, take laws into their hands. – Tine Tur, JCA. Eneji v. State (2013)