(2017) LPELR-42384(CA)

Transcription

1 AKINOSI v. STATE CITATION: In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan ON FRIDAY, 3RD MARCH, 2017 Suit No: CA/IB/74C/2015 Before Their Lordships: MONICA BOLNA'AN DONGBAN-MENSEM MODUPE FASANMI HARUNA SIMON TSAMMANI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal NOJEEM AKINOSI - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI

2 1. CRIMINAL LAW AND PROCEDURE - ATTEMPT TO COMMIT AN OFFENCE: Meaning of attempt to commit an offence "Now, the offence of attempt to commit murder has been created by Section 320 (1) of the Criminal Code Law, of Ogun State, 2006 which stipulates as follows: "320. Any person who- (1) attempts unlawfully to kill another; or (2)... is guilty of a felony, and is liable to imprisonment for life. The Criminal Code Law of Ogun State (supra) does not define what "attempt to commit murder" is. However, Section 4 of the Criminal Code Law (supra) has defined what an "attempt to commit an offence" is in general terms. That Section defines "attempt to commit offences" as follows: "4. When a person, intending to commit an offence, begins to put his intention into execution by means adopted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such extent as to commit the offence, he is said to attempt to commit the offence." The said Section (Section 4) of the Law proceeds to stipulate that: "It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. The same facts may constitute one offence and an attempt to commit another offence." Another definition of "attempt" to commit an offence is that provided by Bryan A Garner in Black's Law Dictionary (9th Edition) at page 146 where it is stated that:?"1. The act or an instance of making an effort to accomplish something, especially without success an overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step towards commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed..." It would be seen therefore, that attempt to commit an offence, generally consists of the acts or steps taken by the accused in furtherance of an indictable offence or a felony. I shall now refer to some few judicial decisions of the Supreme Court, out of many, where attempt to commit an offence has been defined. In the case of Ozigbo v. C.O.P. (1976) All NWLR p.109, Alexander, C.J.N. (of blessed memory) defined attempt to commit an offence in the following words: "To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence..." In the case of Jegede v. State (2001) 14 NWLR (pt.733) p. 263, Belgore, J.S.C. (as he then was) said: "If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction, is said to commit the attempt of the offence intended." Similarly, in the case of Shurumo v. The State (2010) 19 NWLR (pt.1226) p.73, Fabiyi, JSC said: "To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence... The mere intention to commit a misdemeanor is not enough. Some act is required. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it. But acts immediately connected to it are of moment. The offender must have crossed the Rubicon and burnt his boat. See: R. v. Eagleton Dears 515, 548, 169 E.R 835 per Parke B. See: also Orija v. I.G.P. (1957) NRNLR 189. It literally means that the acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped."?an attempt to commit an offence is therefore, one which falls short of the commission of the actual offence, but is nonetheless a crime once it is established that the accused person had the guilty mind. Such guilty status of the accused's mind must be manifest in an overt act done by the accused person towards the commission of the offence. To constitute an attempt to commit an offence, the act of the accused must be immediately connected with the commission of the particular offence charged. In other words, the overt act must however, be something more than a mere preparation for the commission of the offence. The last overt act done by the accused usually supplies the necessary link as to whether an attempt has been made or executed to commit the offence for which the attempt is made. See Jegede v. State (2001) 14 NWLR (pt.733) p.264; Nwankwo v. F.R.N. (2003) 4 NWLR (pt.809) P.1; Ahmed v. The Nigerian Army (2011) LPELR-8969 (CA) per Peter-Odili, JCA (as he then was); Osetola & Anr v. the State (2012) LPELR-9348 (SC) per Rhodes-Vivuor, JSC; Ameh v. The State (1978) 6-7 S.C (Reprint) p.21 and Amadi v. F.R.N (2008) 12 S.C. (pt.iii) p.55. Thus, in the case of Sanusi v. The State (1993) 4 NWLR (pt. 285) p.99 at 199, it was held that: "It is the law that in every crime, there is an intention to commit it, secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test of determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence, it would amount to an attempt to commit the offence."per TSAMMANI, J.C.A. (Pp , Paras. B-F) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - ATTEMPT TO COMMIT AN OFFENCE: What prosecution must prove to secure conviction for offence of attempted murder "?I can recall that the Appellant was arraigned, tried and convicted for the crime of attempt to commit murder, to wit: Kill the PW2 (Kehinde Bankole). That being so, and from the definition of attempt to commit an offence stated above, for an attempt to commit murder to be said to have been proved beyond reasonable doubt, there must be an overt act of the accused, so proximate to the offence of murder, such that, when the act is not interrupted, the offence of murder would have been committed. See Ibrahim v. The State (1995) 3 NWLR (pt.381) p. 5. Thus to succeed on a charge of attempt to commit murder, the prosecution must lead evidence of such steps taken by the Appellant which could have resulted in murder. As stated earlier, it is the act by the Appellant immediately before the actual act that would have completed the offence of murder, that would amount to attempt to commit murder, provided such overt steps or acts taken by the Appellant are proved beyond reasonable doubt. In a nutshell, to prove the inchoate offence of attempt to commit murder, the following essential elements must be proved beyond reasonable doubt: (a) The physical or overt act by the accused which is (are) sufficiently proximate to the consummation of the actual offence; and?(b) An intention on the part of the accused person to complete the offence attempted to be committed. For this, see: Ahmed v. The Nigerian Army (Supra): Ibrahim v. The State (supra) at p.45 and Sanni v. The State (supra)."per TSAMMANI, J.C.A. (Pp , Paras. F-A) - read in context 3. CRIMINAL LAW AND PROCEDURE - ATTEMPT TO COMMIT AN OFFENCE: What prosecution must prove to secure conviction for offence of attempted murder "The essential elements or ingredients of attempted murder are three: (a) The nature of the weapon used; (b) The part of the body of the victim to which the weapon was applied; and (c) The extent of proximity of the victim with the person applying the weapon. These facts must be evaluated in order to determine whether the accused person intended to commit murder. It therefore means that for the prosecution to proof the offence of attempt to commit murder, the above stated elements must disclose an intention of the assailant to kill the victim and not merely to cause injury."per TSAMMANI, J.C.A. (P. 33, Paras. B-E) - read in context

4 4. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CONSPIRACY: Nature of the offence of conspiracy; how conspiracy is determined "The offence of conspiracy to commit murder has been created by Section 324 of the Criminal Code Law, Laws of Ogun State, That provision stipulates that: "324. Any person who conspires with any other person to kill any person, whether such person is in Nigeria or elsewhere, is guilty of a felony, and is liable to imprisonment for fourteen years". The key word in this provision is "conspiracy". I have traversed the provision of the Criminal Code Law (supra) but I am unable to find were conspiracy has been defined. Although Section 516 of the said Criminal Code Law creates the offence of "conspiracy" generally, the Section does not define the term "conspiracy" either. In that respect, I have resorted to case law on the subject. Thus, in the case of Haruna & Ors v. The State (1972) 8-9 S.C. p.174 at , the Supreme Court defined "Conspiracy" to commit an offence as follows: "Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the Southern States) but since the common law is in force in Nigeria, the word must bear the same meaning as in England. It means under the common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means... In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code." In the English case of Mulcahy v. R. (1868) 3 HL at 317, Willes J, defined conspiracy as follows: "A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act itself, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means." Conspiracy therefore, is an agreement of two or more persons to do an act or omit to do an act which is an offence to agree to do or omit to do. In other words, conspiracy is said to have been committed when two or more persons agree to do an act which is an offence to agree to do or to do an act which is lawful but through unlawful means. The basic factor is the meeting of the minds of the conspirators to do the unlawful act or to do an act which is lawful but through unlawful means. See Oduneye v. State (2001) 2 NWLR (pt.697) P. 311: Nwosu v. State (2004) 15 NWLR (pt.897) p.466; Osondu v. F.R.N. (2000) 12 NWLR (pt.682) p.483 and Garba v. C.O.P (2007) 16 NWLR (pt.1060) p.378 at 400. That is why in the case of Busari v. State (2015) LPELR (SC); My Lord Muntaka - Coomassie, JSC said that: "Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to do. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy..." It would be seen therefore that conspiracy is usually hatched in utmost secrecy and it is in most cases very difficult to say whether or not conspiracy has been established. Conspiracy therefore often demands that the Judge looks into the mind of the alleged conspirators in order to see whether indeed the conspirators were ad idem that the unlawful act be done. Alas, Judges are human beings and therefore not imbued with the psychic powers to read the minds of men. Indeed, as it is often said, not even the devil knows the mind (heart) of men. That being so, Judges in their wisdom and by their training have devised means of determining what the intention of a person charged with an offence is. This, they do by inferring from the overt acts of the actors to the fact of conspiracy in order to see whether the persons accused were agreed to commit the offence charged. Conspiracy therefore is a matter of inference to be drawn from the overt acts of the conspirators. See State v. Sule (2009) 17 NWLR (pt. 1169) p.33; Aje v. State (2006) 8 NWLR (pt.982) p.345 at 363 paragraphs A - C; Oduneye v. State (2001) 2 NWLR (pt.697) p. 311 and Amachree v. Nigerian Army (2004) 3 NWLR (pt.807) p In the case of Njovens v. State (1973) 5 S.C. p.12, Coker JSC said: "The overt act or omission which evidence conspiracy is the actus reus and the actus reus of each and every conspirator must be referable 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 Caesar, 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 Ribuff (1929) 21 C.A. R.94. They need not all have started the conspiracy at the same time for a conspiracy stated by some person 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. It is therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with that offence."per TSAMMANI, J.C.A. (Pp , Paras. A-C) - read in context

5 5. EVIDENCE - INCONSISTENCY RULE: How the inconsistency rule operates "The inconsistency rule was formulated for the resolution of conflict between the evidence of a witness given in Court and the previous statement of such a witness, made extra-judicially. Thus, in the case of R. v. Golder (1960) 1 W.L.R. p.1169, the testimony of a prosecution witness which was found to be inconsistent with her previous statement, was held to be unreliable while the previous statement was regarded to be no evidence on which the Court could act. The inconsistency rule therefore relates to a previous statement of a witness not made under oath and the sworn testimony of the witness in Court. See also Queen v. Ukpong (1961) 1 All N.L.R. p.25. The inconsistency Rule therefore, is to the effect that, where there is an inconsistency between the previous extrajudicial statement of a witness and his testimony at the trial, his testimony in Court under oath will be treated as unreliable while the previous statement should not be regarded as evidence on which the Court can act. See State v. Sule (2009) 17 NWLR (pt.1169) p.33; Egboghonome v. The State (1993) 7 NWLR (pt.306) p.382; Wankey v. State (1993) 5 NWLR (pt.295) p.542 and Ubani v. State (2003) 18 NWLR (pt.851) p.224."per TSAMMANI, J.C.A. (Pp , Paras. D-D) - read in context

6 HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Ogun State High Court, sitting at Agbara, delivered by O. S. Olusanya, J on the 2nd day of July, 2014 in Suit No: HCA/7C/2012. Before the trial High Court, the Appellant and one Olakunle Aluko were arraigned on a two count charge as follows: COUNT 1: STATEMENT OF OFFENCE CONSPIRACY TO COMMIT MURDER, contrary to Section 324 of the Criminal Code, Vol.1, Laws of Ogun State, PARTICULARS OF OFFENCE NOJEEM AKINOSI (M) and OLAKUNLE ALUKO (M) and others now at large on or about the 25th day of July, 2010 at Idorawa Village, Igbesa in the Agbara Judicial Division conspired together to commit murder. COUNT II: STATEMENT OF OFFENCE ATTEMPTED MURDER, contrary to Section 320(1) of the Criminal Code, Vol.1, Laws of Ogun State, PARTICULARS OF OFFENCE NOJEEM AKINOSI (M) and OLAKUNLE ALUKO (M) and others at large on or about the 25th day of July, 2010 at Idorawa Village, Igbesa in the Agbara Judicial Division attempted to kill Kehinde Bankole (M). The case of the

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8 prosecution against the Appellant and the co-accused as presented before the trial Court has been adequately summarized at page 3, paragraph 2.01 of the Respondent s Brief of Arguments as follows: Facts presented by the prosecution witnesses are that there was a land dispute between the family of the Appellant and that of the PW3, who was PW2 s master. On the 25th day of July, 2010 the Appellant, his co-accused and others at large contracted the services of the PW1 (a driver) to convey them to the said land in Agbara. While at a place in Agbara, the Appellant and his co-accused distributed guns and some pieces of paper to their accomplices and they asked the PW1 to convey them to a site which was the land in dispute. When they got to the site, the PW1 was left in his vehicle while the Appellant, his co-accused person and their accomplices alighted. The appellant and his accomplices went into the apartment of the PW2 and apprehended him. They took the PW2 to a place where he was tied to a pole. The PW2 was shot and tortured and was later released. The PW2 was eventually admitted in hospital where he was treated by the PW4 and given blood 2

9 transfusion to save his life. At the trial of the case, the prosecution called six witnesses and tendered about sixteen (16) exhibits, marked as Exhibits A Q respectively. The Appellant and his coaccused testified in their defence but called no other witness. Learned Counsel then filed Written Addresses and at the close of evidence, in a considered judgment delivered on the 2nd day of July, 2014, the learned trial Judge found the Appellant and the co-accused guilty on both counts of charge and accordingly sentenced them to 14 years each with hard-labour on Count 1 and life imprisonment each on Count two (2). The Appellant is therefore aggrieved by the decision of the trial Court and has therefore filed this appeal. The Notice of Appeal which is at pages of the Supplementary Record of Appeal, was dated and filed on the 4/11/2016 pursuant to order of this Court granted on the 24/10/2016. It consists of six (6) Grounds of Appeal. In compliance with the Rules of this Court, the parties filed and Exchanged Briefs of Arguments. The Appellant s Brief of Arguments is dated the 30/11/2016 and filed on the 01/12/2016 but 3

10 only one issue was distilled for determination as follows: "Considering the legal malady that apparently bedeviled the testimony of the prosecution, could it be said that the offences of conspiracy to commit murder and attempted murder in the instant case were proved beyond reasonable doubt against the Appellant." [Grounds 1, 2, 3, 4, 5 and 6] The Respondent's Brief of Arguments was dated and filed on the 18/1/2017 but deemed filed on the 16/2/2017. Like the Appellant, the Respondent distilled only one issue for determination as follows: "Whether the prosecution proved the case against the Appellant beyond reasonable doubt." It should be noted that the Appellant was arraigned, tried and convicted on a two count charge alleging, conspiracy to commit murder and attempted murder which are offences created by Sections 324 and 320 of the Criminal Code Law of Ogun State respectively. It would therefore be neater if this appeal is considered under the various counts as charged in the charge sheet. In that respect, I hereby postulate the following two issues as the issues to be considered and determined in this 4

11 appeal. 1. Whether the prosecution proved the case of conspiracy to commit murder against the Appellant beyond reasonable doubt. 2. Whether the prosecution proved the case of attempted murder against the Appellant beyond reasonable doubt. Having thus distilled two issues as the issues to be determined in this appeal, it would mean I have to scan the briefs filed by the parties in order to fish out the arguments as I find relevant for the examination of each issue. I shall however resolve issue two first. Now, on issue two (2), learned counsel for the Appellant began by citing the cases of Alabi v. State (1993) 7 NWLR (pt.301) p.511 at 523 paragraphs F H; Ozaki v. State (1990) 1 NWLR (pt.124) p.92 at 115 paragraphs D F; Buba v. State (1992) 1 NWLR (pt.215) p.1 at 10 paragraph F and Okechukwu v. State (1993) 9 NWLR (pt.315) p.78 at 79 paragraph A to submit that the principle as codified in Section 135(1) of the Evidence Act, 2011 is that the standard of proof placed on the prosecution is that of proof beyond reasonable doubt. That to determine whether or not the prosecution have proved the case beyond reasonable doubt, 5

12 the trial Court must examine and asses all the oral and documentary evidence before it. The cases of Yav v. State (2004) All FWLR (pt.231) p.1310 at 1335 paragraphs A B and Onuchukwu v. State (1998) 4 NWLR (pt.547) p.576 at 588 paragraphs D E were cited in support and to further submit that, where the trial Court failed in its primary assignment of evaluation of evidence before it, this Court can do it. The cases of Folarin v. State (1995) 1 NWLR (pt.371) p.313 at paragraphs H C and Iden v. State 8 NWLR (pt.365) p.719 at 728 paragraphs A E were then cited to contend that for the prosecution to prove a charge of attempted murder, they must adduce evidence to show that the Appellant had the intention to kill, and that intention to kill is inferable from: (a) The nature of the weapon used, (b) The part of the body where the weapon was applied; and (c) The extent of proximity of the victim with the weapon used by the accused (Appellant). Learned Counsel for the Appellant then referred to the testimony of the PW2 at page 42 of the Record of Appeal and his extra-judicial statement in 6

13 Exhibit A to submit that the testimony of the said PW2 cannot be relied upon to show the nature of the weapon used in inflicting injury on PW2. That, the testimony of PW4 also did not show that a lethal weapon was used, as from the statements of PW4, he was not sure whether a gun was used. Furthermore, that the testimony of PW4, like that of the PW2, was full of inconsistencies. That, the testimony of the PW5 shows clearly that the injury sustained by PW2 was not serious and that PW2 (victim of the offence) was not taken to the hospital immediately. Learned Counsel for the Appellant went on to submit that, the PW2 testified to the effect that he was asked to prostrate and spread out his hands. That he did, and was shot at the left thumb. That, a thumb is not a delicate part of the body, especially when the testimony of the PW2 is not that his assailants wanted to shoot him in the head, neck, chest, stomach or private part but he dodged before the bullet struck him on his left thumb. Learned Counsel also submitted that there is no evidence of the proximity of PW2 to the weapon used against him. That there must be evidence to prove that fact and must not be 7

14 left to be inferred by the Court. It is also the case of the Appellant that the testimony of PW3 is not helpful as he was never at the scene and so he could testify as to facts from which the Court could infer the intention to kill. Furthermore, that the testimony of PW3 that he saw the PW2 on the ground bleeding cannot be true, in that it contradicts the testimony of the victim (PW2) who stated that his assailants asked him to go home and treat himself, and that he was on his way when he met one of his brothers who then took him to the police station to lay a complaint. Learned Counsel for the Appellant submitted that PW4; Dr. Adeyemi Temitope only came into the picture when the issue of treatment of PW2 came up. That even then, the testimony of PW4 is feeble, doubtful and unreliable. That, Exhibit B prepared by PW4 only came into existence on the 26/7/2010 when PW2 was taken to PW4 s hospital for treatment. That the treatment administered on PW2 as indicated in Exhibit B did not contain anything like blood transfusion. That it was only on the 21/10/2013 when PW4 testified in Court that he made mention of transfusing blood on the PW2. 8

15 That, Exhibit B which is a document authored by PW4 immediately after the act of beating PW4 and therefore inconsistent with the PW4 s testimony in Court. The cases of Mbenu v. State (supra); Onubogu v. State (supra) and Akpabio v. State (supra) were then cited to submit that, if PW4 had transfused blood in PW2, he would have indicated so in Exhibit B. It was further submitted by learned counsel for the Appellant that the testimonies of PW5 and PW6 did not reveal anything that could establish the offences charged against the Appellant. That, indeed the testimonies of PW5 and PW6, and particularly that of PW5 supported the position of the Respondents on the inconsistencies in the testimonies of PW1 and PW2. That PW5 told the Court that PW2 (Complainant) did not mention to him in the course of the investigation that it was the accused persons (Appellant and co-accused) that shot him. That, it goes to show that if PW2 knew the person(s) who inflicted the injury on him, he would have told the PW5 at the time of the investigation. Learned Counsel for the Appellant also contended that, the testimony of PW1 did not point to 9

16 the guilt of the Appellant. That PW1 had told the Court that at Agbara, he stayed back in the bus, so he did not follow the Appellant to the scene of the incident. That a careful evaluation of the extra-judicial statement of PW1 and his oral testimony in Court, will reveal that the testimony of the said PW1 deserves to be ignored on the basis of inconsistency. That the extra-judicial statement of PW1 (Exhibit C) was made on the 20/9/2010, after the incident occurred on the 25/7/2010 which shows that Exhibit C was made about 55 days after the incident. That it therefore means that Exhibit C was made when the incident was still fresh in the memory of PW1. That in that statement, Exhibit C, the PW1 never made mention of the Appellant distributing guns, but only remembered to say so when testifying in Court, over three (3) years after the incident. Furthermore, that in Exhibit C, PW1 referred to his friend as one Orinyode or Oriyide but during his testimony in Court, he denied knowing the said Orinyode or Oriyide. On the testimony of the PW2, learned counsel for the Appellant contended that, the 10

17 testimony of PW1 in Court tends to show that he (PW2) was able to identify the Appellant as one of the assailants through the dress he (Appellant) was wearing; and that the Appellant called himself during the operation as Baale. That in the extra-judicial statement of PW2, which is in evidence as Exhibit A, PW2 could not identify or recognize any of his assailants. That, Exhibit A was made on the very day the incident occurred, and therefore it reflects what actually transpired on the day of the incident, when the facts were still fresh in the mind of PW2. That PW2 did not mention in Exhibit A the type of clothes his assailant(s) wore. It was therefore submitted that the truth is that the PW2 was unable to identify any of his attackers during the attack on him and at the time of making Exhibit A, when all facts of the incident were still fresh in his memory. That, however at the time he testified on oath in Court, he was able to remember the name of the Appellant as one of his assailants and the type of cloth he wore. Learned Counsel for the Appellant went on to submit that, though it would seem that 11

18 PW2 resolved the conflict between his extra-judicial statement and his oral testimony in Court when he stated that he left the scene of the incident at 7.00a.m so he was able to see his assailants and that the Appellant called himself Baale. Learned Counsel however contended that, if it is true that PW2 was able to identify his assailants, he would have told the police at the time he made Exhibit A. That, another explanation given by the PW2 is that he was not in good condition because he had lost so much blood. That if that explanation is true, the evidence on record shows that he did not visit the hospital till the day after the incident and that if he was weak at the time he made his statement to the police, he could have said so, so that his statement is taken later. That in any case, PW5, one of the Investigating Police Officers (I.P.O.) told the Court that at the time the PW2 reported the attack on him, he was not in a serious condition, so he was not taken to the hospital till a day after the incident. Furthermore, that the evidence of the blood transfusion on the PW2 is not true, as if PW2 had been given any blood 12

19 transfusion, PW4 would have indicated so in Exhibit B. Learned Counsel for the Appellant then cited the cases of Abdullahi v. State (2008) 17 NWLR (pt.1115) p.203 at paragraphs E D and pp paragraphs F E; and Udeh v. State (1999) 7 NWLR (pt.609) p.1 at 9 paragrahs H A to submit that, if the PW2 had knowledge of the name of the Appellant and the type of dress he wore, he would have stated so in Exhibit A. That, if the learned trial Judge had evaluated the oral testimonies of PW1 and PW2 along side their extra-judicial statements made to the police, he would have seen the conflicts and inconsistencies in the evidence of those witnesses. On that note, learned counsel for the Appellant submitted that there is no evidence showing any intention to kill PW2. That, this is more so as the part of the body shot is not a delicate part and the prosecution failed to show the proximity of the shooter to PW2. Furthermore, that PW1 could not, in law, give evidence of what he did not see, hear or perceive. That, PW1 was therefore not at the scene to tell the Court that indeed the PW2 was 13

20 shot by the Appellant or any of his cohorts. Finally on this issue, learned counsel for the Appellant drew our attention to the fact that, PW1, PW2 and PW4 made Exhibits A, B and C and also gave oral testimony in Court. We were accordingly urged to re-evaluate the evidence on record by drawing inferences on whether the PW1, PW2 and PW4 were consistent and truthful in their oral and documentary evidence. Learned Counsel drew support on this view from the case of Ezeonu v. Onyechi (1996) 3 NWLR (pt.438) p.499 at 526 paragraphs C G. We were therefore urged to resolve this issue in favour of the Appellant; and to discharge and acquit him. In response, learned counsel for the Respondent relied on the cases of Abirifon v. The State (2013) 9 S.C.M. p.1 at 5 and Nwaturuocha v. The State (2011) 12 S.C.M. (pt.2) p.265 at 265, to agree with learned counsel for the Appellant that, in criminal trials, the onus is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. That, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. On the conviction of the 14

21 Appellant for the attempted murder of PW2, learned counsel for the Respondent submitted that the evidence adduced by the prosecution establish beyond reasonable doubt that the Appellant and his co-accused and others at large attempted to murder the PW2. In paragraphs of the Respondent s Brief of Arguments, learned counsel gave a brief summary of the facts leading to the attempt on the life of PW2. Learned counsel then submitted that, by shooting at the PW2 and tying him to a pole, the Appellant and his accomplices intended the death of the PW2 notwithstanding that he (PW2) was later released. Learned counsel for the Respondent went on to submit that, the prosecution can prove its case against an accused person through direct evidence, circumstantial evidence or Confessional Statement. Learned counsel then cited the case ofafulohai v. State (2014) 12 S.C.M (pt.2) p. 122 at 127 to contend that in the instant case, there is sufficient direct and circumstantial evidence implicating the Appellant beyond reasonable doubt. That, Pw1 testified to the fact that he was hired to carry the Appellant, the coaccused and their 15

22 accomplices to Agbara, and that he (PW1), saw the Appellant distribute guns to his accomplices. That at a certain site in Agbara, the Appellant and his accomplices alighted while PW1 was left in his vehicle, and that the Appellant and his accomplices then went to the site where the PW2 was attacked and shot. That, the PW2 narrated how his attackers, one of whom he identified as the Appellant, attacked and shot him on the hand. That, the PW2 also gave evidence that the Appellant and his accomplices tied him to a pole and left him to bleed profusely but he was later released and treated at a hospital where he was transfused with blood to save his life. That, PW4 who is the medical Doctor that treated PW2, testified that he administered blood transfusion on PW2 who had injury on his hand consistent with a gunshot wound. Learned counsel for the Respondent also submitted that, the circumstantial evidence from PW1 and the direct testimony of the PW2 positively fixed the Appellant to the crime. The case of Adeshina v. State (2012) 6 S.C.M p. 82 at 85 was cited in support. That PW2 testified that the Appellant identified himself as Baale, and also gave a vivid 16

23 description of the cloth worn by the Appellant during the incident. It was contended by learned counsel that, at the trial, the Appellant confirmed that he is a Baale. That on the above facts, the identity of the Appellant is not in dispute. It was further submitted by learned counsel for the Respondent that, the actions of the Appellant and his accomplices was an attempt on the life of the PW2. That the PW2 was shot on the hand, tied to a pole and left to bleed profusely much so that he had to be transfused with blood to save his life. We were then urged to hold that if the PW2 had not been taken to the hospital, and transfused with blood, he could have died. On the argument of learned counsel for the Appellant that there is no evidence to show that the Appellant was the actual person that shot at the PW2, learned counsel for the Respondent submitted that by Section 8 of the Criminal Code Law, Vol.1, Laws of Ogun State, 2010, where it is proved that several people acted in concert to commit a crime, it would not matter who amongst them did what in the commission of the crime. Furthermore, that by Section 7 of the Criminal Code Law (supra), it is 17

24 not only a principal actor in a crime that can be charged with and convicted for the commission of a crime, but a party who aids in the commission of the crime can also be charged with the offence. That, in the instant case, there is evidence that the Appellant distributed guns to his accomplices. On the argument of learned counsel for the Appellant that a certain Ade referred to by PW2 in his evidence was not called to testify, learned counsel for the Respondent cited the case of Amareror v. The State (2014) 7 S.C.M. p. 1 at 5, to submit that, it is not the law that the prosecution must call a village of witnesses to prove its case beyond reasonable doubt. That the prosecution is only required to call those witnesses it may consider necessary for the proof of its case. That, in the circumstances, the fact that the said Ade was not called to testify is not injurious to the prosecution s case. That in any case, the testimony of PW2 has been substantially corroborated by the testimony of PW1. Furthermore, that the oral testimony of the PW2 was not contradictory to his extra-judicial statement to the police. The case of Musa v. State (2013) 3 S.C.M. 18

25 p. 79 at 83 was then cited to submit that, in any case, there is no material contradiction in the evidence led by the prosecution in this case. We were then urged to hold that the learned trial Judge properly considered the evidence adduced by both the prosecution and the defence before arriving at a decision; and to dismiss this appeal. Now, the offence of attempt to commit murder has been created by Section 320 (1) of the Criminal Code Law, of Ogun State, 2006 which stipulates as follows: 320. Any person who- (1) attempts unlawfully to kill another; or (2)... is guilty of a felony, and is liable to imprisonment for life. The Criminal Code Law of Ogun State (supra) does not define what attempt to commit murder is. However, Section 4 of the Criminal Code Law (supra) has defined what an attempt to commit an offence is in general terms. That Section defines attempt to commit offences" as follows: 4. When a person, intending to commit an offence, 19

26 begins to put his intention into execution by means adopted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such extent as to commit the offence, he is said to attempt to commit the offence. The said Section (Section 4) of the Law proceeds to stipulate that: It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. The same facts may constitute one offence and an attempt to commit another offence. Another definition of attempt to commit an offence is that provided by Bryan A Garner in Black s Law Dictionary (9th Edition) at page 146 where it is stated that: 1. The act or an instance of making an effort to 20

27 accomplish something, especially without success. 2 an overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step towards commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed It would be seen therefore, that attempt to commit an offence, generally consists of the acts or steps taken by the accused in furtherance of an indictable offence or a felony. I shall now refer to some few judicial decisions of the Supreme Court, out of many, where attempt to commit an offence has been defined. In the case of Ozigbo v. C.O.P. (1976) All NWLR p.109, Alexander, C.J.N. (of blessed memory) defined attempt to commit an offence in the following words: To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the 21

28 commission of the offence In the case of Jegede v. State (2001) 14 NWLR (pt.733) p. 263, Belgore, J.S.C. (as he then was) said: If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfillment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction, is said to commit the attempt of the offence intended. Similarly, in the case of Shurumo v. The State (2010) 19 NWLR (pt.1226) p.73, Fabiyi, JSC said: To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence The mere intention to commit a misdemeanor is not enough. Some act is required. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it. But acts immediately connected to it are of moment. The offender must have crossed the Rubicon and burnt 22

29 his boat. See: R. v. Eagleton Dears 515, 548, 169 E.R 835 per Parke B. See: also Orija v. I.G.P. (1957) NRNLR 189. It literally means that the acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped. An attempt to commit an offence is therefore, one which falls short of the commission of the actual offence, but is nonetheless a crime once it is established that the accused person had the guilty mind. Such guilty status of the accused s mind must be manifest in an overt act done by the accused person towards the commission of the offence. To constitute an attempt to commit an offence, the act of the accused must be immediately connected with the commission of the particular offence charged. In other words, the overt act must however, be something more than a mere preparation for the commission of the offence. The last overt act done by the accused usually supplies the necessary link as to whether an attempt has been made or executed to commit the offence for which the attempt is made. See Jegede v. State (2001) 14 NWLR (pt.733) p.264; Nwankwo v. F.R.N. (2003) 4 23

30 NWLR (pt.809) P.1; Ahmed v. The Nigerian Army (2011) LPELR-8969 (CA) per Peter-Odili, JCA (as he then was); Osetola & Anr v. the State (2012) LPELR-9348 (SC) per Rhodes-Vivuor, JSC; Ameh v. The State (1978) 6-7 S.C (Reprint) p.21 and Amadi v. F.R.N (2008) 12 S.C. (pt.iii) p.55. Thus, in the case of Sanusi v. The State (1993) 4 NWLR (pt. 285) p.99 at 199, it was held that: It is the law that in every crime, there is an intention to commit it, secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test of determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence, it would amount to an attempt to commit the offence. I can recall that the Appellant was arraigned, tried and convicted for the crime of attempt to commit murder, to 24

31 wit: Kill the PW2 (Kehinde Bankole). That being so, and from the definition of attempt to commit an offence stated above, for an attempt to commit murder to be said to have been proved beyond reasonable doubt, there must be an overt act of the accused, so proximate to the offence of murder, such that, when the act is not interrupted, the offence of murder would have been committed. See Ibrahim v. The State (1995) 3 NWLR (pt.381) p. 5. Thus to succeed on a charge of attempt to commit murder, the prosecution must lead evidence of such steps taken by the Appellant which could have resulted in murder. As stated earlier, it is the act by the Appellant immediately before the actual act that would have completed the offence of murder, that would amount to attempt to commit murder, provided such overt steps or acts taken by the Appellant are proved beyond reasonable doubt. In a nutshell, to prove the inchoate offence of attempt to commit murder, the following essential elements must be proved beyond reasonable doubt: (a) The physical or overt act by the accused which is (are) sufficiently proximate to the consummation of the actual offence; and (b) An 25

32 intention on the part of the accused person to complete the offence attempted to be committed. For this, see: Ahmed v. The Nigerian Army (Supra): Ibrahim v. The State (supra) at p.45 and Sanni v. The State (supra). In the instant case, the facts as disclosed on the printed records, which the prosecution contend amount to attempt to kill or murder Kehinde Bankole (PW2), and for which the Appellant was convicted were led through PW1, PW2, PW4 and PW5 respectively. The summary of those facts is that, the PW1 was hired to carry the Appellant and his accomplices including the co-accused to a certain site in Agbara. That in the home of one bone setter, the PW1 saw the Appellant distribute guns to his accomplices, after which PW1 conveyed them to Agbara. That the Appellant and his accomplices alighted and went to the site where PW2 was shot. The PW2 who is the victim of the assault on him, contended that, he was in his room, the night of the incident when the attackers busted into his room. The attackers then shot him on his thumb and later tied him to a pole where he bled profusely. He was later released after which he went to the hospital where he was 26

33 transfused with blood by PW4 and administered other medications. The PW2 stated that he was able to identify the Appellant as one of his assailants, while the PW4 confirmed that he treated the PW2 of the injury on his hand; of an injury from what looked like a gun shot. The Appellant did not make any Confessional Statement. In his testimony before the trial Court, he denied committing the offence. His testimony is to the effect that, he had sent the 2nd accused to go and paste a Court judgment on the wall of their land which title thereto they had won in a Court case. That the co-accused called to tell him (Appellant) that when he went to paste the judgment he was attacked and shot on the hand. He denied knowing PW1 (Ismaila Giwa). He stated that it was after three months after the incident of the 25/7/2010 reported to him by the co-accused, that the police came from Abuja to arrest him. He also denied knowing Kehinde Bankole (PW2) and stated that PW2 lied against him. His testimony at the trial is substantially the same as his extra-judicial statement made to the police and which is in evidence as Exhibit E. Now, as stated earlier, 27

34 the learned trial Judge disbelieved the testimony of the Appellant and proceeded to convict him as charged. In the determination of the case against the Appellant, the learned trial Judge referred to the testimonies of PW1, PW2, PW3 and PW4 to find the Appellant guilty of attempted murder. However, learned counsel for the Appellant had argued that if the learned trial Judge had carefully appraised the testimonies of those witnesses, he would have found that the testimonies of these witnesses are not reliable as they are inconsistent with the statements they made to the police immediately after the incident when the facts were still fresh in their minds. The inconsistency rule was formulated for the resolution of conflict between the evidence of a witness given in Court and the previous statement of such a witness, made extrajudicially. Thus, in the case of R. v. Golder (1960) 1 W.L.R. p.1169, the testimony of a prosecution witness which was found to be inconsistent with her previous statement, was held to be unreliable while the previous statement was regarded to be no evidence on which the Court could act. The inconsistency rule therefore relates to a 28

35 previous statement of a witness not made under oath and the sworn testimony of the witness in Court. See also Queen v. Ukpong (1961) 1 All N.L.R. p.25. The inconsistency Rule therefore, is to the effect that, where there is an inconsistency between the previous extrajudicial statement of a witness and his testimony at the trial, his testimony in Court under oath will be treated as unreliable while the previous statement should not be regarded as evidence on which the Court can act. See State v. Sule (2009) 17 NWLR (pt.1169) p.33; Egboghonome v. The State (1993) 7 NWLR (pt.306) p.382; Wankey v. State (1993) 5 NWLR (pt.295) p.542 and Ubani v. State (2003) 18 NWLR (pt.851) p.224. Learned Counsel for the Appellant contended that there was inconsistency in the testimony of the PW2 as to the identity of the Appellant as one of the persons that assaulted the PW2. In the testimony of the PW2 to the police, which is in evidence as Exhibit A, the PW2 stated clearly that he was not able to identify any of those that attacked and shot him. He stated in Exhibit A that: I don t know any of the people and I can t 29

36 identify any one of them. They are very many, they are about fifty in number. It should be noted that PW2 made that statement on the 25/7/2010, which is the very day of the incident. The facts surrounding the attack on him was therefore vey fresh in his memory. However, on the day he testified in Court, i.e. on the 9/7/2013, which is a period of about three years after the incident, he told the Court that he was able to identify the Appellant as one of the persons that attacked and shot him. I am of the view that, if PW2 was able to identify the Appellant during the attack on him, he would have certainly told the police but he did not, and only remembered that fact about three years later when he was testifying in Court. The PW1 also told the Court that, he was contracted by one Oriyide an OPC member to carry him and others to one site at Agbara for a fee of N5, That at Agbara, they met one Kunle (2nd accused) who took them into one bone setter s house. That there, he met the Appellant who increased the transport fare by N2, Furthermore, that the Appellant was distributing guns to everyone around. What I find as 30