➥ CASE SUMMARY OF:
Patrick Njovens & Ors. V. The State (3 May 1973, SC.7/1972)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Armed robbery;
Aiding and abetting;
Conspiracy;
Police officer.
➥ CASE FACT/HISTORY
The evidence of the prosecution witnesses is of the same pattern, that is to say, it is to the effect that the accused persons well knew of the plan to commit the robbery later committed along the Bacita Road in Ilorin, Kwara State on the 13th day of April, 1971 before the date, that those of them that could prevent its commission refused, failed or neglected to do so tendentiously and that all the accused persons encouraged the commission of the robbery by the 17th P.W., Felix Dumeh, an armed robber, and his gang, that later that night the parties, including all the accused persons, took an oath of secrecy in the house of Felix Dumeh to ensure the continued protection of the robbers from detection, and that thereafter the accused persons collected from Felix Dumeh, as their own share of the loot, an amount of £5,000 which was part of the money stolen in the cause of the robbery.
The accused persons were charged for aiding and abetting.
In a reserved judgment, in which the learned trial judge extensively analysed and appraised the evidence, he came to the conclusion that the accused persons were guilty of the charges against them, and convicted them accordingly. He set out in a manner perhaps open to the blame of prolixity rather than that of inadvertence the evidence of the several witnesses and dealt fully with the effect of the evidence of those witnesses one by one.
This appeal is from that judgment.
➥ ISSUE(S)
I. Whether the offence charged of the accused/Appellant is spelt out in the Northern Penal Code thus giving the Court jurisdiction?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE ACCUSED PERSON ENTERED A NORTHERN STATE THUS TRIABLE
‘The evidence of the prosecution as to the entry of the accused person into Kwara State has been reproduced by us earlier on in this judgment. That evidence is to the effect that all the accused persons were arrested in the Kwara State and that all had come into Kwara State by themselves at different times in different ways. The evidence is also to the effect that the accused persons were not arrested before they entered into Kwara State. There was positive evidence by the 7th P. W. that the 3rd accused went on his own to Ilorin on the 3rd July, 1971 that the 1st accused went to Ilorin in his own car with Lieutenant Usman on the 18th May, 1971 P.W.7. The prosecution evidence is also to the effect that the 4th accused went to Ilorin on the 26th May, 1971 in his own Mercedes Benz car, WR 6666 8th P. W. The 2nd accused himself stated in his evidence that he went on his own to Ilorin on the 5th July, 1971 on the instructions of his boss. It seems to us clear therefore that the argument concerning the voluntariness or otherwise of the entry of the accused persons into the Kwara State, did not strictly speaking arise on the facts of this case but it is well to point out that our view of the subsection is that any type of entry would satisfy the section, the important factor being the availability of the accused person for trial within the State.’
THE ELEMENT OF THE CHARGE TOOK PLACE IN KWARA STATE
‘It is obvious that the section requires that, apart from the abetment, the act abetted should have been actually committed. The section requires the proof not only of the acts or omissions constituting the abetment but also of the commission of the act abetted in consequence of the abetment. This indeed was the contention of the learned Director of Public Prosecutions who also pointed out that the robbery manifestly committed in the Kwara State on 13th April, 1971 is an element of the offence contemplated by section 85 of the Penal Code. We do not agree with the submissions of learned counsel for the accused persons that no element of the charge of abetment under section 85 (as opposed to abetment under section 91) of the Penal Code had taken place within the Kwara State. It is significant that Dr Alan Gledhill in his book entitled “The Penal Codes of Northern Nigeria and the Sudan” in illustrating the meaning and effect of section 4 (2) gives the following example at p. 775- “If A in the Western Region instigates B to commit robbery in the Northern Region and the robbery is committed and, after the instigation, A enters the Northern Region, A is punishable under section 91, N.N.P.C. If A writes a letter in Northern Nigeria and posts it to B, who receives it in the Western Region, the contents being an instigation to B to do something in Western Nigeria which, if committed in Northern Nigeria, would be an offence, A would be punishable under section 91, N. N . P . C. , the instigation is not complete until B has read the message; the initial element in the act of instigation, the posting of the letter, was done in Northern Nigeria.’
‘Section 4 (2) of the Penal Code Law does not deal with venue but with guilt and it would be doing violence to its purpose and import to construe it with an eye on excluding rather than asserting the applicability of the Penal Code. The principles embodied in this section are well known and are universally recognized. See R. v. Ellis (1899) 1 Q.B.230: also The King v. Oliphant [1905] 2 K.B.67. In a charge of abetment of an offence the “initial element” is the instigation or positive act of encouragement to do the act or omission which constitutes the offence. By the charge in count 1, the prosecution case is that the accused persons are in a conspiracy by which they instigated those who committed the robbery of the 13th April, 1971 to do so and promised to protect them from detection and/or prosecution. Obviously the “initial element” took place outside the Kwara State but the act abetted, an element of the charge under section 85, took place in Kwara State. We have earlier on made our own analysis of the meaning of section 4 (2) of the Penal Code Law and for the reasons which we have set out as well we are firmly of the view that section 4 (2) of the Penal Code clearly covers the charge on count 1 with which the accused persons are charged and that by virtue of that subsection, they are properly triable for an offence under the Penal Code. See also in this connection, the judgment of this court in Olusegun Haruna v. The State (1972) 8/9 S.C. 192 et seq. The accused persons are charged on the 2nd count with receiving under section 317 of the Penal Code.’
‘That section of the Penal Code is in the conventional form and reads thus; “317. Whoever dishonestly receives or retains any stolen property knowing or having reasons to believe the same to be stolen property shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.” It was submitted by the learned Director of Public Prosecutions that the robbery committed was the “initial element” of the charge of receiving whilst learned counsel for the accused persons argued that the offence of receiving had nothing to do with the robbery committed. By the provisions of section 317 and in order to sustain a charge under that section, the prosecution must prove that the receiver knows that the property he was receiving was “stolen property” and in the case in hand the prosecution has set out to prove that the accused persons knew that the amount of 5,000 pounds which they received in the evening of the 13th April, 1971 was part of the money which the robbers stole along Bacita Road in the morning of the same day as alleged in the charge. A parcel containing the money was identified all the way by prosecution witnesses and indeed it was not argued before us that the identity of the parcel and its contents should be or was infact in any doubt. We hold therefore that the argument against the applicability of section 4 (2) (a) of the Penal Code Law fails and that that subsection makes the accused persons triable for an offence under section 317 of the Penal Code.’]
.
.
.
✓ DECISION:
‘We think that the learned trial judge was right to conclude that all the accused persons took part in abetting the offence of robbery committed on the 13th April, 1971 on the Bacita Road.’
➥ FURTHER DICTA:
⦿ MEANING OF ‘ENTER’ IN PENAL CODE
We are satisfied ourselves that to construe the word “enter” in the subsection as meaning only a voluntary entry would be completely ridiculous since in that circumstance no criminal will ever enter the State when he known or realizes that such entry may make him triable by the laws of the State … Looking back at section 4 (2) (b) of the Penal Code Law we are of the view that the entry postulated by the subsection is not necessarily a voluntary entry and, whether the offender be apprehended in the State or be in custody in the State, his entry is complete within the purpose and intent custody in the State, his entry is complete within the purpose and intent of the subsection and he is triable in the State under the Penal Code. — Coker JSC.
⦿ ALIBI; NO EVIDENCE CALLED BY THE ACCUSED
the accused person made no efforts whatsoever to establish the fact of his being at home or at the police station-which facts must be and are facts peculiarly within his own knowledge. There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished … These observations also apply to the alibi set up by the 4th accused and the complaint against the decision of the learned trial judge on this aspect of his case. The prosecution investigated the alibi, as they ought to do, and left the result to the court on the basis of the evidence available both from the prosecution and the accused person himself. The learned trial judge heard the evidence on all sides and disbelieved and rejected the evidence of the defence witnesses who had come to support the alibi of the 4th accused. In other words, the evidence accepted by the learned trial judge fixed the 4th accused in Ibadan in the house of Felix Dumeh at the time when he tried to suggest that he could not have been in Ibadan. This was a straight issue of fact and the learned trial judge saw and heard the witnesses before him. We are satisfied that the learned trial judge was not shown to have erred in any way in his conclusions in this respect. — Coker JSC.
⦿ CONSPIRACY; THE MEETING OF THE MIND
The learned trial judge then discussed the implications of a conspiracy and observed that the conspirators must have engaged in some act or omission in pursuance of the conspircy and that there is no conspiracy as long as it rests on intention only. The overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referrable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick and Ribuffi (1929) 21 C. App. R. 94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. — Coker JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
G. B. A. Coker, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ CREDIBILITY AND ALIBI – CALLING EVIDENCE IN SUPPORT
The Supreme Court had had the occasion to consider this point in Hemyo Atam and Anor. v. The State, S.C. 632/66 decided on the 11th January, 1967 and had observed on this point as follows: “Each of the appellants made a statement under caution after his arrest, setting up an alibi. The police officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason justice had been denied to the appellants and there should at least have been a reasonable doubt as to their guilt. There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a ease such as this where the appellants were identified by three eyewitnesses there was a straight issue of credibility and we are not able to say that the judge’s findings of fact were unreasonable or cannot be supported having regard to the evidence. If the alibis had been true it would have been open to the appellants to call witnesses in support of them and neither of them did so.”
➥ REFERENCED (OTHERS)
