Tag: Crime

Cases and Principles on Criminal Trials in Nigeria

March 7, 2023

Standard of Proof in Criminal Cases

Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011

Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the case of Miller v Minister of Pensions (1947) 2 All ER 372, Lord Denning said on the nature of proof beyond reasonable doubt, said that; It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course, it is possible but not in the least probable the case is proved beyond a reasonable doubt.”

This position has been followed by a plethora of Nigerian cases. Thus, in the case of AKINLOLU v. STATE (2015) LPELR-25986(SC), the Supreme Court described proof beyond reasonable doubt in the following words – “Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Lori & anor v. State 1980 12 NSCC p. 269.” Pp 38 – 38 Paras B – C.

The provision of the law on the standard of proof required in criminal trials must be appreciated against the backdrop of the presumption of innocence of the accused persons (or defendants) as well as the position of the law that mere suspicion is not enough to ground a conviction for an offence.

Decided Cases on the Standard of Proof in Criminal Cases

AJAYI v. STATE (2013) LPELR-19941(SC)

“…the standard of proof in a criminal trial is, proof beyond reasonable doubt. Therefore, it is not enough for the prosecution to suspect a person of having committed a crime, there must be evidence which linked the person accused with the offence alleged.” Per OLUKAYODE ARIWOOLA, JSC (Pp 43 – 43 Paras B – C)

EKPO v. STATE (2018) LPELR-43843(SC)

“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. As was held by Oputa, JSC in Bakare v The State (1987) 1 NSCC Vol. 18 P.267 at 279, the burden is on the prosecution to prove its case beyond reasonable doubt with emphasis on “reasonable”‘ That not all doubts are reasonable. It was further assessed that reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt i.e. a doubt not borne out by the facts and surrounding circumstances of the case. Reasonable doubt does not eliminate the possibility of any doubts whatsoever, including remote possibilities as was expressed by Denning J in Miller v Minister of Pensions (1947) 2 All ER 373 as follows:- “The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt. See also Nwaturuocha v the State (2011) LPELR – 8119 (SC), (2011) 6 NWLR (Pt.1242) 170, Akinlolu v The State (2015) LPELR – 25986 (SC).” Per JOHN INYANG OKORO, JSC (Pp 18 – 19 Paras B – B)

ENEBELI v. STATE (2021) LPELR-54990(SC)

“The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty. The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.” Per ADAMU JAURO, JSC (Pp 16 – 16 Paras D – F)

NWATURUOCHA v. STATE (2011) LPELR-8119(SC)

“It is trite law that it is not the duty of an accused to prove his innocence as a matter of law, there is always a presumption of innocence in favour of an accused. The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However proof beyond reasonable doubt does not mean proof beyond shadow of doubt. Aigbadion v. State (2000) 4SC Pt.1 pg.1, Agbe v. State (2006) 6 NWLR pt. 977 pg.545, Section 138 of the Evidence Act Cap 112 Laws of the Federation 1990, Akinyemi v. State (1999) 6 NWLR pt.607 pg.449, Alonge v. I.G.P. (1959) SCNLR pt.576.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 15 – 15 Paras B – F).

Burden of Proof in Criminal Matters

Relevant Section of the Evidence Act – Sections 135 and 139 of the Evidence Act 2011

IORHEM v. STATE (2017) LPELR-43631(CA)

“In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused so that a wrong person may not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100.” Per JAMES SHEHU ABIRIYI, JCA (Pp 29 – 30 Paras D – A)

OMOREGIE v. STATE (2017) LPELR-42466(SC)

“The Law is settled that in criminal cases, the burden of proof that the accused committed the offence for which he is charged lies squarely on the prosecution, who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 135(2) of the Evidence Act, Alabi v The State (1993) 7 NWLR (Pt.307) 511 8t 531 paras A-C, Solola v The State (2005) 5 SC (Pt.1) 135.” Per PAUL ADAMU GALUMJE, JSC (Pp 22 – 23 Paras F – C)

ADEKOYA v. STATE (2012) LPELR-7815(SC)

“The fundamental aspect of burden of proof in criminal trials is the presumption of innocence in favour of an accused. It is entrenched in Section 36(5) of the 1999 Constitution that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” The Evidence Act Section 138(1) Laws of the Federation 2004 (Now Section 135(1) of the Evidence Act 2011) however stipulates that: “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” Under our criminal law, it is not the duty of an accused to prove his innocence. The standard of proof in a criminal trial is proof beyond reasonable doubt. Which demands that it is not enough for the prosecution to suspect a person of having committed a criminal offence? There must be evidence which identified the person accused with the offence. The consequences of presumption of innocence in favour of an accused person are that the burden placed on the prosecution to prove the guilt of an accused person beyond reasonable doubt must be satisfied. Any slightest doubt raised by an accused person shall lead the Court to resolve this doubt in favour of an accused. Igabele v. State (2006) 6 NWLR (pt.975) pg.100, Agbo v. State (2006) 6 NWLR (pt.977) pg.545, Aigbadion v. State (2000) 4 SC (pt.1) pg.15.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 28 – 29 Paras D – B)

OWOLABI v. STATE (2018) LPELR-46031(CA)

“In criminal trial, the burden of proving the guilt of the accused person is on the prosecution to establish his guilt beyond reasonable doubt and it never shifts. ANI V STATE (2003) 11 NWLR (PT. 830) PG. 142, IFEJIRIKA V STATE (1999) 3 NWLR (PT. 593) PG. 59, IGABELE V STATE (SUPRA).” Per UZO IFEYINWA NDUKWE-ANYANWU, JCA (Pp 25 – 26 Paras F – A)

Mens Rea and Actus Reus

Need to Prove Mens Rea and Actus Reus

LIMAN v. STATE (2016) LPELR-40260(CA)

“It is also trite that criminal responsibility for the commission of a crime is premised on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty mind of the accused person beyond reasonable doubt. In other words, in a criminal trial, before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime; that is, the actus reus and the mens rea. Actus reus is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea. Mens rea is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused and establish that the accused had the correct legal criminal mind of committing the act. The two must co-exist, whether explicitly or by necessary implication – Njoku Vs State (2013) 2 NWLR (Pt 1339) 548.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 12 – 13 Paras E – D)

ABUBAKAR v. FRN (2022) LPELR-58650(CA)

In every criminal trial, the basic components that must be established by the prosecution are actus reus and mens rea. That is, the doing of the act or omission complained of and the guilty mind that procured the act or omission. That means, apart from doing the act (in this case, issuing a dud cheque), there must also be the requisite intention to deceive, cheat, swindle or defraud the recipient of the cheque and deny him of the value accrued to the cheque, after enjoying that corresponding value (by the person who issued the cheque). The legal principle of actus reus and men rea are well defined. See the cases of Eze Vs The State (2017) LPELR-42006 CA: “To establish criminal responsibility, there must be mens-rea – criminal knowledge or intention to commit the offence, to support the actus reus – the actual act. Aminu Tanko Vs The State (2009) 4 NWLR (pt.1131) 430; Okewu Vs FRN (2012) LPELR 7834 (SC).” See also Idagu Vs The State (2018) LPELR-44343 (SC): “It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.” Per AUGIE, JSC” Per ITA GEORGE MBABA, JCA (Pp 17 – 19 Paras B – A)

ONYA v. STATE (2019) LPELR-48500(CA)

“The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is the objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was one of the youths that invaded the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI,JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 27 Paras C – C

TAIWO v. FRN (2019) LPELR-47635(CA)

“Except in cases of strict liability, offences in the Criminal Law are structured to comprise of two parts – a physical part and a mental part, the physical part or actus reus means the whole definition of the crime with the exception of the mental element; See Glanville William Criminal Law 18. See also Okonkwo and Naish Criminal Law in Nigeria 45. There is also the mental element because the law does not ordinarily punish mere intention until it merges into the physical act. It is expressed as “actus non facit reum nisi men sit red’, the act does not constitute a crime unless accompanied by a guilty mind. Every offence is defined by its ingredients or elements. In this appeal, one element of the offence under Section 26 (2) of the Trafficking In Persons Act is “to obtain financial benefit” i.e. an inducement in the alleged trafficker to obtain financial benefit. This can be proved by showing a financial consideration at any stage. It must not be presumed as the trial Judge did in this case. One cannot say “she probably committed the offence as she couldn’t have done it nothing”. Pecuniary benefit in the real sense must be proved. The law is that the prosecution is bound to prove its case beyond reasonable doubt and in doing so must prove all elements of the offence physical and mental. R V. LAWRENCE (1933) 11 NLR 6; 1933 AC 699; R V. ADAMU (1944) 10 WACA 161 SECTION 135 OF THE EVIDENCE ACT 2011. A trial Court would be asking questions such as the following: i. What was paid to the defendant/appellant and why? ii. Can financial proof be established by circumstantial evidence? iii. In what pecuniary way was the defendant/appellant induced? iv. What if the intendment of the defendant/appellant was just to help the mother of Abike have normal and lawful custody of her natural child? v. Is it forbidden by any law for Abike to rejoin her mother in London? The trial Court failed in all these inquiry. The trial Judge acted on her own conjecture and not evidence. The lead judgment in this appeal by my Lord Folasade Ayodeji Ojo, JCA has demonstrated the futility of such conjecture. The stream of the Criminal Law must be kept pure and devoid of all subjectivity. Judges must look beyond the parties in cases before them.” Per NONYEREM OKORONKWO, JCA (Pp 28 – 30 Paras F – E).

STEPHEN v. STATE (2008) LPELR-8360(CA)

“It is imperative to state that the offence of being in an unlawful possession of firearms does not require proof of mens res and actus reus as contended by the Appellant’s Counsel. It is a strict liability offence. The elements do not contain the need for criminal intent or mens rea. Once a person has knowingly taken possession of an article and it remains within his control, he continues in possession of it. So long as the appellant did not come into possession of the weapon in accordance with the Act or any order made thereunder, it can never be argued that his intentions were entirely lawful. It is not necessarily a reasonable excuse that the weapon is carried only for self-defence. One, who is under constant threat, it is said, must resort to the police. He commits an offence if he regularly goes out armed for self-defence. Thus, in Bradley V. Moss (1974) Crim. LR 430, DC: Pittard V. Mahoney (1977) Crim. LR 169, Grieve V. Macleod (1967) SCT 70, it was held that there was no excuse for carrying an ironbar though D had reasonable cause to fear and did fear that he would be violently attacked and intended to use the bar for defence only, and, that, it was not reasonable for an Edinburgh taxi-driver to carry two feet of rubber hose with a piece of metal inserted at one end, though he does so for defence against violent passengers whom taxi drivers sometimes encounter at night. See Smith & Hogan Criminal Law, 10th Edition (2002) p. 461-462. In Olatunji’s case, it was because grenade was not covered by the definition of firearm, that a ballistician was held to have been needed to establish whether the grenade was a firearm or not.” Per THERESA NGOLIKA ORJI-ABADUA, JCA (Pp 16 – 18 Paras E – A).

EGWU v. STATE (2019) LPELR-48499(CA)

“The question is whether the appellant had the mens rea, that is the intention to commit murder or serious bodily harm necessary to convict him for murder. From the entire evidence on record, it is clear that the only intention of sending the task force to bring those not at the meeting was to mobilize the youths for the meeting. I do not think it can reasonable be argued that the appellant had the slightest criminal intent or could have foreseen the murder of the deceased as the consequence of trying to mobilize the youths to attend a meeting. The law presumes that a man intends the natural and probable consequences of his acts and that the test to be applied to the circumstances is objective as opposed to subjective test of what a reasonable man in the street would contemplate as the probable result of his acts. In the instant case, would a reasonable man contemplate the murder of the deceased? In other words, can intention to murder the deceased be inferred from the facts and circumstances of the case? I do not think so. There was no evidence of intention by the appellant to kill the deceased or caused him any grievous harm. In the circumstances of this case, I am of the view that it was not enough for the prosecution to prove that the appellant was the one that sent the task force and/or the youths to the deceased’s house. It was necessary for the prosecution to prove beyond reasonable doubt that the appellant embarked on the act which resulted in the murder of the deceased with a culpable state of mind which in my view the prosecution failed to do. See BOLANLE ABEKE V. THE STATE (2007) LPELR- 31 (SC) AT 18 B-F) where the Supreme Court per TOBI, JSC held that: “I entirely agree with the appellant that to convict on the above subsection, the prosecution must prove that the accused had mens rea and actus reus. Put in common simple parlance, mens rea means a guilty mind. And actus reus means a guilty act. In cases of strict liability, mens rea comes before actus reus. In other words, the accused develops the guilty mind before guiIty act. Put in another language, the guilty mind instigates the guilty act or flows into the guilty act. The period of time between the two cannot be determined in vacuo but in relation to the factual situation in each case dictated by the state of criminality of the accused at the material time. There are instances where the mens rea is automatically followed by the actus reus. The above element of proximity apart, there could be instances of spontaneity too.” In NJOKU & ORS. V.THE STATE (2012) LPELR-20608(SC) AT 21-22 (F-E), the Supreme Court per Onoghen JSC held that: “it is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act. The two must co-exist whether explicitly or by necessary implication. In their interplay of words/phrases reflected in their book: ‘Criminal Law 831’, 3rd edition 1982, Rollin M. Perkins and Ronald N. Boyce, stated that: “The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus.” It is clear to me from the entire evidence on record that the prosecution failed to prove the appellant had the necessary mens rea or criminal intent to murder the deceased.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 24 – 28 Paras D – A)

STATE v. KALIB (2021) LPELR-56084(CA)

“…for a person to be held liable for a criminal offence there must be present the physical and mental elements of the offence which in legal parlance is referred to as the actus reus and the mens rea. Except in strict liability offences, no person will be convicted for a criminal offence if either the actus reus or mens rea is missing. This is an established principle of law. In proving its case beyond reasonable doubt, the prosecution is expected to prove both aspect of the offence. See Taiwo vs FRN (2019) LPELR-47635 (CA). In Olufemi Babalola & Ors vs The State (1989) 7 SC (pt 1) 94, the apex Court per Oputa, JSC of blessed memory drove home this point in these words: “It is not necessary here to go into remote history of mens rea except to say that in common law offences, there are always present two essential elements:- (a) a guilty conduct and (b) a mind at fault. It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea”. Probably from there, the legalists got the now popular latin maxim – actus non facitreum nisi mens sit rea. No man, (including the 1st appellant), should according to this maxim be convicted of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element a mind of fault, a mens rea. The intent and the act must both concur to constitute the crime:- Fowler v. Padget (1997) 7 T. R. 509 at p. 514. And as Stephen J., observed in R. v. Tolson (1889) 23 Q.B.D. 168 at p. 187:- “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.” Per EBIOWEI TOBI, JCA (Pp 11 – 12 Paras B – E)

Proving the Ingredients of an Offence

TEMITAYO v. STATE OF EKITI (2021) LPELR-56039(CA)

“The ingredients of any offence are always discernable from the language used by the legislature in providing for the offence. See the case of ROLAND VS. FRN (2018) LPELR-43686 (CA) where this Court held on page 32, paragraph B, that: It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words, which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per BALKISU BELLO ALIYU, JCA (Pp 21 – 21 Paras B – D)

ROLAND v. FRN (2018) LPELR-43686(CA)

“It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words which the lawmaker did not use in order to ascertain the ingredients of the offence.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 32 Paras B – D)

TAIWO v. FRN (2019) LPELR-47635(CA)

“Having failed to establish that the Appellant benefited financially or materially from the deal, a consideration of proof of the other ingredients of the offence under Section 26(2) (Supra) has become unnecessary. Failure of the prosecution to establish one of the ingredients of the offence is sufficient to defeat the entire prosecution. In other words, failure to prove one essential ingredient of an offence is sufficient to find the case of the prosecution not proved beyond reasonable doubt.” Per FOLASADE AYODEJI OJO, JCA (Pp 25 – 26 Paras F – B)

FRN v. TALAL (2022) LPELR-57088(CA)

“I hold that the learned trial Judge was right when he held that the prosecution did not prove that the pretence or representation made to PW1 was false. Having found as above, it is not necessary to proceed to pronounce on the next element of the offence, which is, whether the Accused/Respondent made the pretence or representation with the intention to defraud. This is because, as stated on the onset of this Judgment, the prosecution have the onerous duty to establish every ingredient of the offence charged, otherwise they would have failed to prove the offence beyond reasonable doubt. In other words, once any one of the essential elements of the offence are not proved, it would mean that the charge has not been proved beyond reasonable doubt, and the accused will be entitled to an acquittal. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Darlington v. FRN (2018) 11 NWLR (Pt. 1629) 152 and Kassim v. State (2017) LPELR-42586 (SC). See also Ameh v. State (2018) 12 NWLR (Pt. 1632) 99 and Aliu v. State (2015) 2 NWLR (Pt.1442) 51. Thus, in Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170, the Supreme Court, per Adekeye, JSC said: “In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged …” It follows therefore that, were the Court finds that an essential element of the offence charged has not been proved, it would mean that the prosecution failed to prove the essential ingredients of the offence beyond reasonable doubt and the Appellant would be entitled to an acquittal. See Ibrahim v. State (2015) LPELR-40833 (SC); Okoro v. State (1988) 5 NWLR (Pt. 94) 255 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. I therefore hold that, for failing to prove that the pretence or representation made to the Accused/Respondent was false, an essential ingredient of the offence charged has not been proved beyond reasonable doubt.” Per HARUNA SIMON TSAMMANI, JCA (Pp 31 – 33 Paras B – B)

Ingredients of the offence of Armed Robbery

MABA v. STATE (2020) LPELR-52017(SC)

“All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate Court. In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the undermentioned elements, namely- (I) that there was a robbery, (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accused person or persons was/were the armed robber(s). All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved; then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit the accused person of the offence of armed robbery. See Per Sanusi, JSC in Ugboji v. State (2017) LPELR-43427 (SC).” Per UWANI MUSA ABBA AJI, JSC (Pp 36 – 37 Paras C – A)

Cont’d

Standard of Proof in Criminal Cases Relevant Sections of the Evidence Act – Section 135 of the Evidence Act 2011 Synopsis – The standard of proof in criminal cases is now established to be proof beyond reasonable doubt and not proof beyond every shadow of doubt. A pertinent question would be what amounts to proof beyond reasonable doubt? In the

Everyday Law

Legal snippets to never forget when dealing with the Nigerian Police

fredericknkobowo

October 18, 2022

In this piece, we will deal with some points of law you should not forget when you are dealing with the Nigerian Police. Our discussions cover the EFCC as well as other security agencies in Nigeria. So, our repeated use of ‘Police Officer’ does not exclude other security agencies.

Also, in between our discussion, we will make reference to what the Courts have said while calling the Police to order and enforcing the rights of citizens.

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Is Police Torture Legal in Nigeria?

No, it is not. The torture of persons by the Police is illegal in Nigeria. Torture by the Police amounts to an abuse of the fundamental rights of suspects who are under investigation for committing crime(s). The Police have no right to torture a suspect – whether as part of means to obtain a confession or as part of routine investigations. To make matters clearer, the Anti-Torture Act of 2017 makes the torture of suspects in Nigeria a crime. This applies to the Police, the EFCC, and other security agencies.

For emphasis, Section 9(1) of the Anti-Torture Act is to the effect that anyone who tortures a suspect can be prosecuted, convicted, and sentenced to imprisonment for as much as 25 years.

You can read – Sections 2, 3, 9 of the Anti-Torture Act 2017

In addition to the provisions of the Anti-Torture Act, a police officer involved in the torture or dehumanizing treatment of a Citizen could be dismissed from the Police Force after proper administrative/disciplinary action. On the 9^th of August 2022, a Police Officer who was caught in a viral video beating a man with machete was dismissed from the Police Force. You could argue that if the video not gone viral, nothing would have happened and the officer would have continued on his merry way. Our Nigerian minds might want to agree with you in part. But, if such a case was tried in Court, chances are the Police officer and the Police Force would bear serious consequences as well.

Where a person is tortured to death, the Police officer (or other security official) responsible for such can be tried for murder and if found guilty, he or she can be punished accordingly – Section 9(2) of the Anti-Torture Act. In other words, a Police officer who indiscriminately[1] kills a fellow citizen has committed murder.

With all we’ve said you might still be tempted to ask – do Police officers ever get punished for indiscriminately killing innocent citizens? Yes, they do. The instances of these punishments may not be frequent enough to bring sanity to the system but the law still takes its course in many cases.

Here are some links to some news reports of Police officers punished for their wrong conduct;

We have mentioned that the torture of persons (suspects) by the Police amounts to an abuse of the fundamental human rights. By Section 36(5) of the 1999 Constitution, every suspect even when eventually charged to Court is presumed innocent. Also, by Section 34 of the Constitution every individual (including a suspect) has the right to be treated with dignity. In effect, a suspect that has been tortured can sue the Nigerian Police Force for their infringement of his fundamental rights and claim monetary compensation.

We will give you an example of a case in this regard.

This example is a real-life story and it happened in Yola, Adamawa State. The story is as simple as it is common[1]. On the 16^th of May 2016, Police officers wearing mufti raided Zaranda Street in Yola. Mr Kabiru Ahmadu who was present during the raid asked the Police officers to identify themselves. This annoyed the Police Inspector who was part of the operation. And Mr Ahmadu was arrested simply because he had the ‘guts’ to ask the Police officers dressed in mufti for some identification. In Mr Ahmadu’s words to the Court, the Inspector said in hausa “ba kasan yan chin ka ba, sai naji maka da dare” meaning “You claimed to know your right I will deal with you tonight”.

Mr Ahmadu was taken to the Police station and locked up. Throughout the night he was beaten until he went into a coma. When the Police officers saw the state in which he was, they attempted to take Mr Ahmadu home to his family. Mr Ahmadu’s father refused to accept his son in such terrible condition insisting that when the Police arrested his son, he was healthy. The Police officers then took Mr Ahmadu to the Hospital where he remained unconscious for 30 days.

Mr Ahmadu sued the Police and the Inspector. The Court gave judgment in his favor and awarded damages (monetary compensation) against the Police.

Don’t forget:

“The mere allegation of crime or wrongdoing against a suspect irrespective of its seriousness cannot operate to curtail the fundamental rights of the suspect nor can it operate to justify the incarceration and torture of the suspect.”

Statement of the Court of Appeal in the case of Duruaku v. Nwoke

Can the Police Detain Anyone for More than 24 to 48 Hours?

Generally speaking, the Police lack constitutional powers to detain anyone for more than a maximum of 48 hours without a court order. But in limited cases, they can detain suspects for more than 48 hours. Section 35 of the 1999 Constitution of the Federal Republic of Nigeria is clear on this point.

Let’s make it a bit clearer – By Section 35 of the 1999 Constitution, a Police officer can detain you for a maximum of 24 HOURS. After that, they must charge you to court. But if it is not possible to bring you to court within 24 HOURS because no court is close by or the following day is a weekend, they must bring you to court within a maximum of 48 HOURS. After this 24 or 48-hour limit, only a court can order that you be detained further. The Police cannot detain you further on their own.

Now if the Police cannot bring you to court within the 24 or 48-hour limit, you must be released on bail except for those cases where you are suspected of having committed an offence punishable with death (i.e. capital offences). The Police have no power to release you in capital offense cases so they must charge you within the 24 or 48-hour time frame or bring you before a court to obtain an order for further detention[2].

Glory Okolie’s Case

You might have read of the case of Glory Okolie; the suspected IPOB spy detained for months by the Police. Some news reports have her name as Gloria Okolie. After her release, she sued the Police and the Court gave judgment in her favour.

What to Note While in Detention

Understand that at the point of arrest, the law presumes you innocent of committing any crime until the contrary is proven in a court of law.
Ask to contact your family, friends or a lawyer. You have that right.
Do not confront Police officers violently or engage them in a heated argument.
If you have not been told, ask them why you are being arrested and detained.
Try to memorize the officer’s name. If they are in mufti, ask the arresting persons to identify themselves.
If you are assaulted, tortured and wounded by the security agent, ensure to take photographs of the wounds and request a first aid.
Say nothing, if you are scared or in doubt and speak with your lawyer first. In other words, you have a right to keep shut until you have spoken with a lawyer or other person of your choosing – Section 35(2) of the Police Act and Section 36(2) of the CFRN. In case you are to be arrested, the Police are to inform you of this right – section 35(2) of the Police Act
You must not make a statement at the Police Station, but it is advisable to do so.
Sign the statement when you are satisfied that it is accurate and reflects the facts fully.
If the Police obtain your statement by force, threat, promises or favours, that statement cannot be used against you in court.

Can the Police Declare Someone a Criminal?

No, the police have no power to declare anyone a criminal. Such power lies with the Court. The police only have power to investigate a crime that they have reason to suspect has happened or is about to happen. They also have powers to arrest people suspected to have taken part in committing a crime. Once these suspects are arrested, they are to be taken to Court where they will be put on trial for the alleged offences. After the trial and if the Court finds them guilty – they will then be convicted and the appropriate sentence will be meted out on them. It is at this point of conviction that a person is really ‘declared a criminal’ and it is only the Court that has the powers to make such a declaration (or in other words convict anyone of crime i.e. declare someone a criminal).

To add to the point being made here, don’t forget that the Constitution presumes everyone innocent until their guilt is proved in Court and accepted by the Court. Because of this presumption of innocence, the police cannot legally declare anyone a criminal before such a person has had his day in Court. See Section 36 (5) of the Constitution for the presumption of innocence provision.

If I am a Suspect, Can the Police Arrest My Relative when They Don’t Find me?

A situation where the Police arrest someone in place of another is called ‘arrest in lieu’. And this practice is illegal. We should sound like a broken record on this point by now. You can read our previous article on this issue here.

Summarily, it is illegal for the Police to arrest you for an offence you did not commit and in place of another person (the real suspect). Criminal liability is not sexually transmitted neither is it transferable by blood ties.

Various provisions of the law support what we have said above, they include; Section 7 of the Administration of Criminal Justice Act 2015 and Section 36 of the Police Act 2020.

Can the Police Just Pick You up and Throw you into a Cell without Any Lawful Instrument?

The Police can arrest you. In some cases, the Police do not need a warrant of arrest (i.e. a lawful instrument) to arrest you. The Law allows the Police to arrest but the Law puts some checks in place to prevent them from abusing this power of arrest. One check is that, the police cannot (or should not) detain you for more than 48 hours without a Court order, just as we have already mentioned.

More precisely, the Police can you arrest without warrant (i.e. a lawful instrument) in some instances provided for under the Law. Section 38 of the Police Act lists some of these instances –

1. Where the offence is committed in the presence of the Police officer

2. When a person escapes from lawful custody

3. When someone obstructs the officer in the performance of his duty

4. When someone is found in possession of an item reasonably suspected to be stolen

The long and short of what we have said is that even where the Police arrest you without a lawful instrument (i.e. a warrant of arrest) they cannot detain you beyond the constitutionally allowed time limits. If they do so, you have the right to sue for the enforcement of your rights.

Can the Police Arrest you because of a Debt, Land or Family Issue?

Let’s make it very clear: The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of civil disputes.

Also, don’t forget, it is not a crime to be in debt in Nigeria. There is no law that makes owing of loans or debts a criminal offence. At best, owing a loan and not paying it back would constitute a civil dispute. And remember, the Police have no business in settling civil disputes. That business is for the Courts. Just to be clear, civil disputes also include – family crisis, land ownership tussles etc.

Should you use the Police to haunt your debtors under the guise that they have defrauded you, you could be courting trouble for yourself. What we fully mean is that you could and would be liable for any fundamental rights infringement the Police carry out on your debtor due to your petition to them (the Police). In the words of the Court of Appeal; “The position is and has always been that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police.”[4]

Also, the police themselves have a duty to sift through petitions presented to them to tell if a truly criminal element exists that is worthy of the exercise of their powers.

Let’s not forget, you are not to be arrested merely because of a civil wrong – Section 32 (2) of the Police Act.

The law is settled that in exercising their powers under the law, the arresting authority must act strictly within the confines of the law. Implicit in the powers of the police or any law enforcement agent to arrest or apprehend a person upon a suspicion of having committed a crime is the duty and responsibility to scrutinize any complaint laid before them and to be reasonably satisfied that there is a ground to proceed on an investigation of a complaint.

– Statement of the Court of Appeal in the case of Obinegbo & Ors v. I.G.P & Ors

SOURCE: ChannelsTv

Key Take Aways:

Point 1: Police Men are not above the Law

A key point you should take from this piece is this – Police officers are to carry out their duties within the limits of the law. Therefore, there are things they are not legally allowed or permitted to do.

So, when Police Officers cross the line (or break the law) in the course of carrying out their duties, they can be sufficiently punished.

As we have mentioned already, a Police officer could be convicted of the murder of a citizen. You can sue a Police officer who violates your fundamental human rights and be compensated in damages. In addition, a Police officer could be dismissed from the Police force for his professional misconduct.

Point 2: Police Officers are to protect the Rights of Citizens, not abuse them

By Section 4 of the Police Act, the Police are to protect lives and property and by Section 5, they are to promote and protect the fundamental human rights of citizens in their custody and all other citizens. The Fundamental rights in question extend to fundamental rights guaranteed under the African Charter on Human and People’s Rights (Ratification and Enforcement Act).

You are not to be arrested merely for a civil wrong – Section 32 (2) of the Police Act.

The Police are not debt collectors, and are not to settle family disputes and business contracts.

By Section 35(1) and (7) of the CFRN the arrest and detention of a person/citizen is to be on the reasonable suspicion that a CRIME has been committed. Usually, the instigation of the Police to recover debts (or to get involved in civil disputes) is carried out by fellow citizens but the Courts are now willing to and often award/grant damages against persons that wrongfully instigate the police in such matters.

Also, the police themselves have a duty to sift through the petition presented to tell indeed if a truly criminal element exists that is worthy of the exercise of their powers.

Written by Nkobowo Frederick LLB

Nkobowo Frederick Nkobowo is an astute lawyer and alumnus of the University of Uyo. He is currently a Senior associate in Compos Mentis Legal Practitioners; one of Nigeria’s foremost indigenous law firms. As part of the Dispute Resolution Practice group of the firm, he currently specializes in Banking law, employment law as well as oil and gas litigation. He is also an Associate of the Chartered Institute of Arbitrators, Nigerian Chapter.

In the Course of his practice, he has successfully represented corporate organizations and individual clients in handling various high net worth claims in various Courts across the nation. With a penchant for detail, he is known to sift through the mesh of facts and law to achieve justice for clients within the bounds of the law. This has led to the win of many multi-Million naira claims filed against his Clients.

When he is not solving knotty legal problems, he could be cooking another hopefully intriguing meal, savoring art or reading. In 2021, he published his first literary work named “Brambles and Roses”.

Case references:

Akila v Director SSS (2014) 2 NWLR (Pt 1392) 443

Obinegbo & Ors v. I.G.P & Ors (2020) LPELR-50980(CA)

Duruaku v. Nwoke (2016) All FWLR (Pt. 815) 351 at 395, Paras. E- F

NPF & Ors V. Omotosho & Ors (2018) LPELR-45778(CA)

Nkpa V Nkume (2001) 6 NWLR, PT 710, 543

Ogbonna V Ogbonna (2014) LPELR-22308 (CA)

Salami V Olaoye (2018) LPERLR-47256 (CA)

Gusau V Umezurike (2012) AFWLR, PT 655, 291

Osil Ltd V Balogun (2012) 7 WRN, 143

Ibiyeye V Gold (2013) AFWLR, PT 659, 1074

CP. Ondo State & Ors V. Kiladejo (2020) LPELR-52286(CA)

[1] Case citation is Nigeria Police Force & 2 Ors v Kabiru Ahmadu (2020) LEPLR 50317 (CA)

[2] Source: Street lawyer Naija – https://streetlawyernaija.com/right-to-personal-freedom-in-nigeria/; See Also, Section 35 of the 1999 Constitution

[3] See also Street Lawyer Naija

[4] Case references – NKPA V NKUME (2001) 6 NWLR, PT 710, 543; OGBONNA V OGBONNA (2014) LPELR-22308 (CA); SALAMI V OLAOYE (2018) LPERLR-47256 (CA); GUSAU V UMEZURIKE (2012) AFWLR, PT 655, 291; OSIL LTD V BALOGUN (2012) 7 WRN, 143; IBIYEYE V GOLD (2013) AFWLR, PT 659, 1074.

In CP. ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA) the Court said – The powers vested in the 1st and 2nd Appellants (the Police) under the Act does not include the use of the criminal process to resolve or influence the resolution of any civil dispute under the guise of investigating criminal features in such disputes.

[1] Indiscriminately is used here to mean kill without legal justification/a trial

Learned Scribbles

Rejoinder: Strange Case; did the Court do justice in this Case?

fredericknkobowo

June 29, 2022

Some days back we told you the story of a strange criminal case. The case was not strange because someone (Miss A) had committed a crime. It was strange because of the verdict of the Magistrate. We ended by saying that that was one case where the Magistrate talked himself into saving a life and he may have done justice. In today’s piece, our professional colleague and friend who is a criminal Prosecutor disagrees. And his reasons are formidable. Do enjoy the read.

So, I just read the article published on your blog a few days ago. I’ll like to share my thoughts considering the facts as a criminal prosecutor

First and foremost, the alternative charge as suggested by the Magistrate in my opinion was incorrect. Miss A should have been charged for robbery and either attempted murder or assault occasioning harm. Never armed robbery.

It is my view that nothing she did from your narration of the facts amounted to armed robbery. This is because for it to be armed robbery, she should have gone to steal the phone or the money with a weapon. But from your narration what happened was that she stole money then bought phone. In my opinion, she therefore committed robbery in stealing the money.

Later on, she went to revenge and stabbed the complainant. This act would amount to attempted murder or assault occasioning harm and both offences are bailable in the high court.

Now on the issue of investigations and police force in our country, it’s well known that the police barely investigate crimes. Apart from that, we do not know what was contained in the file so we cannot say if this case was an exception to the usual police practice.

As much as I blame the police, most of my blame goes to the system. A system that does not make basic provisions for the simplest of things needed to investigate crime is deeply flawed. Things as basis as fuel for the police car to aid in visiting scenes of crimes is often unavailable. There are too many things wrong with the system.

Then the Magistrate. The Magistrates’ Court is a court of summary jurisdiction. Most times, because of the 48-hour constitutional rule, the police seek to charge suspects very quickly and get them off their hands.

Did the magistrate jump into the arena by rendering his opinion after perusing the case without listening to her? I don’t think so. Summary jurisdiction means everything is expedited. Besides Miss A had no lawyer there with her who could speak for her.

The Magistrate only relied on the facts that were before him. If there were opposing facts as presented by Miss A or her lawyer, do you still think the magistrate would have spoken as he did? I don’t think so.

Now on the issue of justice

The whole scenery of ordering Miss A to kneel down and apologize to the Complainant before releasing her because she was pregnant. What does that teach Miss A?

As much as we can say that a 19-year-old girl is still reasonably young and is confused about life, shouldn’t we also be endeavoring to teach our children (and young adults) a lesson that will stick forever with them? In this case, the lesson that every action has a corresponding consequence?

A person who was supposedly confused; stole from her madam, went to buy a phone, was of conscious mind to change the name so it could not be traced to her, when she was caught, later bought a weapon, and went back to stab the person who she assumed blew the whistle on her?

Is that a person that seems confused to you? Or is that the budding mindset of a potential criminal?

And she was let go with a simple tap on the knuckle because she was pregnant?

What has she been taught? That because of her perceived young age and pregnant status, she can get away with serious things? That actions don’t have consequences?

Our system is deeply flawed, yes. But I do not agree that justice was served in this case.

If she committed the robbery alone, I’ll understand forgiveness upon repayment of the money. But if were in the Magistrate’s shoes, I’ll still grant an order for community service or something similar to make her understand that there’s a punishment. But by basically sending her away free, I respectfully think that the magistrate has released a criminal into the society in a jurisdiction other than his own

Justice is 3-way street which is justice for the state, justice for the complainant and justice for the accused. To nobody was justice served in this instance. I’d explain.

For the State, a criminal has been released back into society. From the narration, she had intention for both crimes and she actually committed them.

For the complainant, there was no restitution. You judged (or reached conclusions about) her (as I’m sure others around did) because she did not show any signs of injury does not mean she was not actually injured. If on the other hand, she had gotten something serious and he died, the story would have been different. Did she really want to forgive her but saw to the prosecution of the charge? But when she saw the direction of the Court’s discretion, she may have just bowed to peer pressure and forgave Miss A. So, what restitution did she really get? After all she had spent money at the police and for the little time she spent treating herself, a little bit of punishment could have gone a long way, not the forced forgiveness that seems to have played out.

For the accused, she was not taught the most important lesson that would guide her adult life. Imagine now, as she has gone free, she gets angry and says they made me kneel down in public, so she picks another weapon and goes after the Magistrate or the Complainant, what will the tale be? She is at a formative age and needs to be taught life’s lessons as quickly as possible

As my mother taught me, when a child commits a crime, beat the child with the left hand, then use the right to pull the child back to you. We do not realise the consequences of our actions, the far-reaching effects, until the chicken had come home to roost

Forgive my lengthy writing. But on this issue of justice, occasionally, it is nice to look at it from the point of the one who was living a simple life and his absolute right to peace was brutally violated by someone for very flimsy reasons.

Thank you and God bless.

Justice is 3-way street which is justice for the state, justice for the complainant and justice for the accused. To nobody was justice served in this instance…A Criminal Prosecutor reacts to our previous post.

Everyday Law

Police fit carry me if dem no see my Papa? Arrest by Proxy in Nigeria

fredericknkobowo

May 23, 2022

This leads us to the question under consideration in this article which is – what if the police come to arrest my father and cannot find him, do they have legal powers to arrest me; his son? Simply put – can the police arrest you in place of a suspect?

Our question bothers on arrest by proxy (also called arrest in lieu). Let’s simplify that. Arrest by proxy is a situation where the Police or any other law enforcement agency arrests one person for the offence of another person. A common example is where the relative or loved of a suspect is arrested instead of the suspect himself (or herself). This usually happens where the suspect cannot be found easily.

The justification often used for doing this is that the suspect would come out from his or her hiding once he gets to know that his loved one has been arrested by the Police. Situations like this are common around the country but let us give you an urgent example;

As reported by thecable.ng, on August 26, 2020, Johnson Kokumo, the then Edo state commissioner of police, paraded six suspects in connection with the rape and murder of Vera Omozuwa, a 100-level student of the University of Benin.

During the media interview session after Kokumo’s speech, one of the suspects, said she was arrested in the village after the police were unable to find her son.

“They (referring to police officers) said madam, “where is your child?” I told them I did not know his whereabouts. I was in the village and my son was in Benin. That is how I ended up in the cell,” the woman said.

Her testimony attracted public attention, especially on social media, as it appeared that she was arrested in place of her son who was the actual suspect.

Do the Police Have legal Powers to Arrest by Proxy in Nigeria?

So, what does the law say? Or like we asked before does the Police have legal powers to do this?

The simple answer is a sincere NO. To put that in a moderately long sentence – It is illegal for police or any security agency to arrest any person for an offence committed or suspected to have been committed by another person. No matter the offence. Criminal liabilities cannot be assumed, transferred, inherited or sexually transmitted.

Various provisions of the Law clearly make arrest by proxy illegal. They include –Section 7 of the Administration of Criminal Justice Act 2015 and Section 36 of the Police Act 2020.

The Courts have ruled severally to uphold the law that the Police do not have the powers to arrest by proxy.

Pardon that we have to type it again; It is illegal for the Police to arrest you for an offence you did not commit in place of another person (the real suspect).

Nkobowo Frederick Nkobowo LLB

The central duty of the Nigerian Police Force is to solve crime as well as maintain law and order. In the course of fulfilling this duty, the Police necessarily have to interview and even arrest suspects. This leads us to the question under consideration in this article which is – what if the police come to arrest my father and

Everyday Law

What If I Only Assisted In Planning The Crime…Am I Guilty?

fredericknkobowo

March 9, 2022

In this article, we will be discussing the various provisions of the law that revolve around; being an accomplice, aiding and abetting as well as the offence of conspiracy. To place our discussion in clear perspective, let’s begin by emphasizing the core questions we will be answering in this piece.

The questions are – what if you did not directly pull the trigger, stab the victim or partake in the direct commission of any other crime. What if like in the Money Heist movie series, you only played the role of the Professor? In other words, you gave the strategies, outlay and particularly assisted in the planning of the ‘hit’ but never even went to the scene of the crime. In fact you were only the engine room or brain box but you left the execution of the crime to another person or set of persons. Could you still be considered guilty of the crime committed in these circumstances?

As usual with the ‘what if’ series of writings in this site, we concede to what we expect to be your instinctive response – ’God forbid’ and so we will write this entire piece using ourselves as the point of reference.

So back to the question- what if I only assisted in the planning and carrying out the crime, Am I guilty?

First off, it is important to state that by offering advice for the execution of a crime, I become more than an accomplice. By definition, an accomplice is a person who knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime. The Law looks beyond my mere advisory role and considers me to be a principal offender. The principal offender is in lay terms, the main perpetrator of the offence.

Therefore, my providing of advice and maybe strategy too, by Law places me in two precarious situations namely;

Photo Credit Photo by Max Kleinen on Unsplash

1.By Law, I am A Principal Offender:

I could be charged as a principal offender for the crime committed. Remember that we mentioned earlier that a Principal Offender is the main perpetrator of the offence. Put differently, in law I am deemed to have taken total part in committing the offense and may be charged with actually committing it. This is the effect of the following provisions of the Law – Section 7 of the Criminal Code (which applies in Southern State of Nigeria), Section 16 of the Criminal Law of Lagos State and Section 85 of the Penal Code, Section 8(a) of the Advance Fee Fraud and other Fraud related offences Act, 2004. This situation is commonly referred to with the twin words – aiding and abetting.

It would be ideal to reproduce Section 16 of the Criminal Law of Lagos State hereunder to make the point clearer –

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:

every person who actually does the act or makes the omission which constitutes the offence;
every person who does or omits to do any act for the purpose of enabling another person to commit the offence;
every person who aids another person in committing the offence; or
any person who advises, counsels or procures any other person to commit the offence.

From the Section above, it is not only the person who directly and immediately causes the actus reus (physical expression/execution) of a crime that is solely criminally liable for it. It is more likely that a number of persons may have taken ancillary steps to ensure the successfully commission of the crime. Just like our topic envisions. This situation the law has well envisaged. Consequently, as an accomplice, I might actually not be present when the crime itself is committed but since I have knowledge of the crime before, enabled or aided its execution through advice, actions or financial support, the law considers me properly guilty.

At the risk of over-emphasizing the issue. Take for instance,

Johnson drew out the blueprint of a factory, pointing out where the golden items and accessories which are to be stolen are stored. Okeke and Suleiman carried out the robbery following the details given in the blueprint plan. For a successful operation, Crowther got some cars ready outside the factory to convey the robbers (Okeke and Suleiman) and the stolen items to their hideouts. Here both Johnson and Crowther can be charged as Principal offenders even though they were not at the scene of the robbery.

It is also noteworthy to mention that where I advise a person to carry out a crime, the law (in Lagos State) is now to the effect that it does not matter that the crime later carried out is different from the one I advised. The law deems that I advised the person/suspect to carry out the crime later carried out, which may be different from my initial advice – Section 17 of the Criminal Law of Lagos State.

2. By Law, I am a Co-conspirator in relation to the offence

I could be charged for conspiring to commit the offence concerned. This is commonly called the offence of Conspiracy. It is provided for by the Criminal Code Laws of the various states. By Section 516 of the Criminal Code it is an offence to conspire to commit a felony while by Section 517, it is an offence to conspire to commit a misdemeanor ; see also Sections 96 and 97 of the Penal Code. The effect of this offence is that the intention of a group of persons to do something unlawful, amounts to an offence. So, the plot by a group of persons to carry out a crime, is in itself a crime.

In the circumstance of our current discuss, by taking part in planning out the crime, by Law I could be found guilty of the crime of conspiracy.

In summary, anyone who assists, abets, conspires with, counsels or aids another person in planning or in carrying out a crime is guilty of committing the offence and can be prosecuted in a court of law. Put differently, once it is shown that a person counselled, aided or advised on the carrying out of a crime, it is immaterial that he is not present at the execution or committing of the offence. He is guilty.

Thank you for reading.

Written By Oluboyo Olamide Taiwo LL.B (in view) and Nkobowo Nkobowo BL

Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice, solicit for briefs or suggest a guaranteed outcome as individual situations will differ and the law may change from time to time. Readers considering legal action should consult with a lawyer to get proper advice affecting a specific circumstance. For further information on contents of our site and related topics, please send us an email via contact@ls-ng.com.

Does Planning a crime carry the same punishment and legal effect as actually committing the crime? Read this piece to find out…