Imieka v. F.R.N (2021)

Imiekav.F.R.N.

OSAYEH IMIEKA

V.

FEDERAL REPUBLIC OF NIGERIA

SUPREME COURT OF NIGERIA

SC. 781/2016

NWALI SYLVESTER NGWUTA, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C. (Read the Leading Judgment)

JOHN INYANG OKORO, J.S.C.

CHIMA CENTUS NWEZE, J.S.C.

AMINA ADAMU AUGIE, J.S.C.

FRIDAY, 5TH JUNE 2020

APPEAL – Concurrent findings of fact by trial court and Court ofAppeal – Attitude of Supreme Court thereto.

CRIME – Aiding and abetting – Meaning of – Accessory – Who is- Person who was not present during or did not physicallyassist with commission of crime – Whether can be chargedwith aiding and abetting.

CRIME – Aiding and abetting – Whether lesser offence to offenceof conspiracy.

CRIME – Conspiracy – Meaning of – Nature of.

CRIMINAL LAW AND PROCEDURE – Offences – Aiding andabetting – Meaning of – Accessory – Who is – Person who wasnot present during or did not physically assist with commissionof crime – Whether can be charged with aiding and abetting.

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CRIMINAL LAW AND PROCEDURE – Offences – Aiding andabetting – Whether lesser offence to offence of conspiracy.

CRIMINAL LAW AND PROCEDURE – Offences – Conspiracy -Meaning of – Nature of.

CRIMINAL LAW AND PROCEDURE – Offences – Lesser offence –What constitutes.

CRIMINAL LAW AND PROCEDURE – Offences – Lesser offence- Whether accused can be convicted of lesser offence notcharged with – Section 179(2), Criminal Procedure Law -Need to appraise accused of offence.

CRIMINAL LAW AND PROCEDURE – Offences – Offences ofconspiracy and aiding and abetting under section 14(b),National Drug Law Enforcement Agency Act – Punishmenttherefor – Section 14(b), National Drug Law EnforcementAgency Act.

CRIMINAL LAW AND PROCEDURE – Offences – Where accusedconvicted of offence not charged with – Proper course.

PRACTICE AND PROCEDURE – Appeal – Concurrent findings offact by trial court and Court of Appeal – Attitude of SupremeCourt thereto.

WORDS AND PHRASES – Aiding and abetting – Meaning of.

WORDS AND PHRASES – Offences – Conspiracy – Meaning of -Nature of.

WORDS AND PHRASES – Offences – Lesser offence – Whatconstitutes.

Issue:

Whether, in the circumstances of this case, the Court ofAppeal was right to affirm the conviction and sentence ofthe appellant of the offence of aiding and abetting.

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Facts:

The appellant, as the 2nd accused person, was arraigned atthe Federal High Court, Abuja along with one Friday Uwadiea,the 1st accused person, on count three of a three-count charge.The appellant was charged with having knowingly, on or about 3rdSeptember 2011, conspired with the 1st accused person to transport499.4 kilograms of hemp, otherwise known as cannabis sativa,in a white J5 bus with registration number DELTA XB 277 LHEwithout lawful authority and thereby committed an offence contraryto and punishable under section 14(b) of the National Drug LawEnforcement Agency Act. Counts one and two of the charge wereagainst the 1st accused person alone.

Upon the charge being read, both the appellant and the 1staccused person pleaded not guilty to the third count. During trial,the prosecution called six witnesses and tendered exhibits.

At the conclusion of the prosecution’s case, the appellant’scounsel made a no-case submission which the trial court overruled.The appellant later testified for himself in his defence.

In its judgment, the trial court found that the prosecution failedto prove the offence of conspiracy against the appellant and the1st accused person beyond reasonable doubt and it discharged theappellant of the offence. However, it found that the facts showedthat the offence that was proved against him by the prosecution wasthe offence of aiding and abetting the transportation of the 499.4kilograms of cannabis sativa, contrary to and punishable undersection 14(b) of the National Drug Law Enforcement Agency Act. Itthereupon convicted him of the offence and accordingly sentencedhim to ten years imprisonment.

Dissatisfied, the appellant appealed to the Court of Appeal. TheCourt of Appeal dismissed the appeal and affirmed the judgment ofthe trial court.

Still dissatisfied, the appellant appealed to the Supreme Court.

In determining the appeal, the Supreme Court considered theprovisions of section 14(b) of the National Drug Law EnforcementAgency Act, Cap. N30, Laws of the Federation of Nigeria, 2004 andsection 179(2) of the Criminal Procedure Law which respectivelystate thus:

Section 14(b) of the National Drug Law Enforcement AgencyAct:

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“14. Any person who –

conspires with, aids, abets, counsels, attemptsto commit or is an accessory to any act oroffence referred to in the Act shall be guiltyof an offence under this Act and liable onconviction to be sentenced to imprisonmentfor a term not less than fifteen years and not(b)exceeding 25 years.”

Section 179(2) of the Criminal Procedure Law:

“179(2) When a person is charged with an offence and factsare proved which reduced it to a lesser offence, he maybe convicted of the lesser offence although he was notcharged with it.”

Held (Unanimously allowing the appeal):

1.On Punishment for offences of conspiracy and aidingand abetting under section 14(b) of National DrugLaw Enforcement Agency Act –

By virtue of section 14(b) of the National DrugLaw Enforcement Agency Act, Cap. N30, Laws ofthe Federation of Nigeria, 2004, any person whoconspires with, aids, abets, counsels, attempts tocommit or is an accessory to any act or offencereferred to in the Act, shall be guilty of an offenceunder the Act and liable on conviction to besentenced to imprisonment for a term not less thanfifteen years and not exceeding twenty-five years.(P. 347, paras. C-E)

2.On Meaning of conspiracy –

Generally, conspiracy is an agreement between twoor more persons to do an unlawful act, coupledwith an intent to achieve the agreement, objectiveand action or conduct that furthers the agreement.Therefore, conspiracy is a separate offence in itselffrom the crime that is the object of the conspiracy.[Kayode v. State (2016) 7 NWLR (Pt.1511) 119;Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556;

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Ajuluchukwu v. State (2014) 13 NWLR (Pt.1425) 641referred to.] (P. 347, paras. F-G)

3.On Meaning of aiding and abetting –

Aiding is assisting, supporting or helping anotherto commit a crime while abetting is encouraging,inciting or inducing another to commit a crime.Aiding and abetting is a term often used to describea single act. An accessory is someone who doesany of the things above in support of a principal’scommission of crime. Generally, in order to deterpeople from helping criminals get away with theircrimes, the law makes giving aid a crime in andof itself. A person may be charged with the crimeof aiding and abetting even though he was notpresent during or did not physically assist withthe commission of the crime. Someone who aidsand abets a crime may provide support by givingadvice, financial support or by taking action notdirectly related to the crime itself for the purposeof facilitating its success. (P. 348, paras. E-G)

4.On Proper course where accused to be convicted ofoffence not charged with –

Whenever it is anticipated that an accused personmay be convicted of an offence other than the onewith which he has been charged, such possibilityshould be brought to his notice and that he shouldbe given the opportunity to meet the particularoffence. In the instant case, the charge with whichthe appellant was arraigned was not amendedby the prosecution but the appellant was foundguilty and convicted for the offences of aiding andabetting the transportation of 499.4 kilograms ofcannabis sativa. There was nothing on record toshow that the appellant was notified of the changeand given the opportunity to meet that particularoffence. The trial court was in error to have foundthe appellant guilty of the offence of aiding withwhich the appellant was not charged and tried.

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[Okonofua v. State (1981) 6 – 7 SC 1 referred to.] (P.349, paras. A-E)

5.On Whether aiding and abetting lesser offence tooffence of conspiracy –

The offences of aiding, abetting, counseling oracting as an accessory to the commission of any actor offence referred to in the National Drug LawEnforcement Agency Act, Cap. N30, Laws of theFederation of Nigeria, 2004 are separate offences,which must be preferred against any personsuspected to have committed any of the offences.That is the reason why each of the offences isseparately mentioned in the Act. If the prosecutionintends or desires to try an accused person for theoffence of aiding and abetting, it must charge theappellant for the offence. In section 14(b) of theNational Drug Law Enforcement Agency Act, bothoffences of conspiracy and of aiding and abettingare of equal weight attracting the same sentenceand term of imprison upon conviction. Therefore,the offence of aiding and abetting cannot be a lesseroffence. In other words, the offence of aiding andabetting does not carry a lesser punishment thanthe offence of conspiracy and, therefore, the offenceof aiding and abetting is not a lesser offence. In theinstant case, the Court of Appeal was wrong to haveheld that the appellant was convicted for a lesseroffence. The court was wrong to have affirmed theappellant’s conviction and sentence of the offenceof aiding, with which he was not charged and notbeing a lesser offence. The trial court was wrong inconvicting the appellant of aiding purportedly as alesser offence to the offence of conspiracy for whichhe was tried. (Pp. 349, paras. E-G; 351, paras. C-E)

6.On What constitutes lesser offence –

A lesser offence is a combination of some of theseveral particulars making up an offence charged.In other words, the particulars constituting the

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lesser offence are carved out of the particulars ofthe offence charged. For example, if the chargeis wounding with intent to do grievous harm, thelesser offence is unlawful wounding and if unlawfulwounding is proved but not the intent to do grievousharm, the accused person may be convicted ofunlawful wounding. Again, if a person is chargedwith murder, he may be convicted of manslaughterfor murder is unlawful killing with malice andmanslaughter is merely unlawful killing, or it maybe murder reduced to manslaughter by provocation.In substance, the lesser offence is a slice carved outof the particulars of the graver offence charged. Alesser offence carries a lighter punishment than theoffence charged. [Torhamba v. I.G.P. (1956) NRNLR94; Okwuna v. State (1964) 1 All NLR 366; Agumaduv. Queen (1963) 1 SCNLR 379; Nwachukwu v. State(1986) 2 NWLR (Pt. 25) 765 referred to.] (Pp. 350-351, paras. A-B; 355, paras. B-E)

7.On Whether accused can be convicted of lesser offencenot charged with –

By virtue of section 179(2) of the Criminal ProcedureLaw, when a person is charged with an offenceand facts are proved which reduced it to a lesseroffence, he may be convicted of the lesser offencealthough he was not charged with it. Ordinarily, bythe provisions of the law, the court is empoweredto convict for the lesser offence either on the trialof the offence charged or by the accused pleadingguilty to such lesser offence with which he was notcharged. However, section 179(2) of the Law doesnot, directly or indirectly, dispense with the needto appraise the accused of the offence, upon whichhe never joined issue with the State but for whichhe is to be convicted. The purpose of a charge isto give the accused due notice of the case he is tomeet in court. In the instant case, there was a fatalerror in the proceeding which led to the appellant’sconviction for an offence of which he was left in the

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dark until his conviction was pronounced. In thecircumstances, the appellant was denied of his rightto fair hearing. He was convicted without beinggiven the opportunity to be heard in his defence inthe supposedly lesser charge of aiding and it wastantamount to a violation of the principle of audialteram partem. [Aruna v. State (1990) 6 NWLR (Pt.155) 125; Abacha v. State (2002) 5 NWLR (Pt. 761)63 8; Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963)151 referred to.] (Pp. 352-353, paras. A-C)

8.On Attitude of Supreme Court to concurrent findings offact by trial court and Court of Appeal –

It is not the practice of the Supreme Court,ordinarily, to disturb the concurrent findings of atrial court and the Court of Appeal. In the instantcase, the case fell within the exceptions to the rule.The perversity demonstrated in the judgments ofthe trial court and the Court of Appeal had to beaddressed. The Court of Appeal perpetrated theinjustice by its affirmation of the judgment of thetrial court. [Bankole v. Pelu (1991) 8 NWLR (Pt.211)523; Lokoji v. Alojo (1983) 2 SCNLR 127 referredto.] (Pp. 353, paras. C-D)

Nigerian Cases Referred to in the Judgment:

Abacha v. State (2002) 5 NWLR (Pt. 761) 638

Adava v. State (2006) 9 NWLR (Pt. 984) 152

Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556

Agumadu v. Queen (1963) 1 SCNLR 379

Aikhadueki v. State (2014) 15 NWLR (Pt.1431) 530

Ajuluchukwu v. State (2014) 13 NWLR (Pt.1425) 641

Aruna v. State (1990) 6 NWLR (Pt. 155) 125

Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523

Bolanle v. State (2009) 15 NWLR (Pt.1172) 1

Dibie v. State (2007) 9 NWLR (Pt.1038) 30

Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151

F.R.N. v. Sani (2014) 16 NWLR (Pt.1433) 299

Gbadamosi v. State (1992) 9 NWLR (Pt. 266) 465

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I brahim v. State (2015) 11 NWLR (Pt.1469) 164

Ikemson v. State (1989) 3 NWLR (Pt. 110) 455

Kalu v. State (1988) 4 NWLR (Pt. 90) 503

Kayode v. State (2016) 7 NWLR (Pt.1511) 119

Lokoji v. Olojo (1983) 2 SCNLR 127

N.A.F. v. Kamaldeen (2007) 7 NWLR (Pt.1032) 164

Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765

Nwokedi v. C.O.P. (1977) 3 SC 35

Odeh v. F.R.N. (2008) 13 NWLR (Pt. 1103) 1

Okolie v. State (2012) 1 NWLR (Pt. 1281) 385

Okonofua v. State (1981) 6 – 7 SC 1

Okwuna v. State (1964) 1 All NLR 366

Onogwu v. State (1995) 6 NWLR (Pt. 401) 276

Stephen v. State (2013) 8 NWLR (Pt.1355) 153

Torhamba v. I.G.P. (1956) NRNLR 94

Foreign Case Referred to in the Judgment:

Rex v. Chancellor, University of Cambridge (1723) 1 Str. 557

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999 (asamended), S. 36(6)(a)(b)(c)(d)

Criminal Procedure Act, Ss. 179(1), 215

Evidence Act, 2011, S. 135(1)

National Drug Law Enforcement Agency Act, Cap. N30, Lawsof the Federation of Nigeria, 2004, S. 14(b)

Appeal:

This was an appeal against the decision of the Court of Appealdismissing the appeal against the judgment of the Federal HighCourt which convicted the appellant of the offence of aiding andabetting. The Supreme Court, in a unanimous decision, allowed theappeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal:.Nwali SylvesterNgwuta, J.S.C. (Presided); Olukayode Ariwoola, J.S.C.(Read the Leading Judgment); John Inyang Okoro,

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J.S.C.; Chima Centus Nweze, J.S.C.; Amina AdamuAugie, J.S.C.

Appeal No.: SC. 781/2016

Date of Judgment: Friday, 5th June 2020

Names of Counsel: U. O. Sule, SAN (with him, P. U.Adejoh, Esq.; C. O. Ogbodo, Esq.; Hafsat I. Usman, Esq.and G. E. Oti, Esq.) – for the Appellant

Etukwu Onah, Esq. – for the Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Abuja

Names of Justices that sat on the appeal:.TinuadeAkomolafe-Wilson, J.C.A. (Presided); Tani YusufHassan, J.C.A.; Joseph Ekanem, J.C.A.

Date of Judgment: Wednesday, 29th June 2016

High Court:

Name of the High Court: Federal High Court, Abuja

Name of the Judge:.Aliyu, J.

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Counsel:

U. O. Sule, SAN (with him, P. U. Adejoh, Esq.; C. O. Ogbodo,Esq.; Hafsat I. Usman, Esq. and G. E. Oti, Esq.) – for theAppellant

Etukwu Onah, Esq. – for the Respondent

ARIWOOLA, J.S.C. (Delivering the Leading Judgment): Thisis an appeal against the judgment of the Court of Appeal, AbujaDivision – Coram: Hon. Justice Tinuade Akomolafe-Wilson,Hon. Justice Tani Y. Hassan, Hon. Justice Joseph Ekanem, JJCAdelivered on the 29th June, 2016 wherein the appellant’s convictionand sentence of ten years imprisonment for the offence of aidingand abetting the transportation of cannabis sativa, by the trial courtpresided by Hon. Justice Balkisu Bello Aliyu of the Federal HighCourt, Abuja were affirmed.

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The appellant had been arraigned before the Federal HighCourt sitting in Abuja along with one Friday Uwadiea in count 3 ofa three count charge as follows:-

Count Three:

That you Friday Uwadiea (M) and Osajeh Imieka onor about 3rd September, 2011 at Oruwa village EdoState, within the jurisdiction of this honourable court,knowingly conspired, transported 499.4 kilograms ofhemp, otherwise known as cannabis sativa, a narcoticdrug in a white J5 Bus with registration number DELTAXB277LHE without lawful authority and therebycommitted an offence contrary to and punishable undersection 14(b) of the NDLEA Act, Cap. N30, Laws ofthe Federation of Nigeria, 2004.

Counts 1 and 2 of the amended charge were against the 1staccused person alone while count three above only, which isconspiracy, was against both the 1st accused and the appellant as 2ndaccused person.

Upon the charge read, both accused persons pleaded not guiltyto the third count. During trial, the prosecution called six witnessesand tendered couple of exhibits.

At the conclusion of the prosecution’s case, learned counselto the appellant made no case submissions on the count three ofthe charge which concerned him. The submission of no case washowever overruled by the trial court. The appellant later testifiedfor himself in defence. The court then ordered counsel to file theirrespective addresses. The counsel to the respondent failed to fileany written address as ordered by the court but the appellant’scounsel duly filed and adopted same at the next hearing date.

In its judgment delivered on 28th day of June, 2013 the trial courtfound that the prosecution failed to prove the offence of conspiracyagainst the appellant and the 1st accused person beyond reasonabledoubt but thereupon convicted the appellant for the offence ofaiding the transportation of 499.4 kilograms of cannabis sativa,contrary to and punishable under section 14(b) of the NDLEA Act.The appellant was however discharged of the offence of conspiracywith which he was charged. He was accordingly sentenced to 10years imprisonment.

Being dissatisfied with the said judgment of the trial court, ledthe appellant to file a notice of appeal on 27th September, 2013 of

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three grounds of appeal. The lower court in its judgment deliveredon 29th June, 2016 dismissed the appeal and affirmed the judgmentof the trial court.

Being further dissatisfied led the appellant to appeal to thiscourt on 27th July, 2016. The appellant distilled the following twoissues from the five grounds of appeal filed.

Issue 1

Whether in the circumstances of this case/appeal thelower court was right to affirm the conviction andsentence of the appellant of the offence of aiding whichthe appellant was not charged with and not being alesser offence. (Distilled from grounds 1, 5, and 6)

Issue 2

Whether in the circumstances of this case/appeal and inview of the material contradictions of the prosecution’switnesses, the lower court was right to hold that theprosecution/respondent proved the ingredients of theoffence of aiding beyond reasonable doubt. (Distilledfrom grounds 2 and 3)

Upon careful consideration of the two issues distilled by therespondent in its brief of argument, it is clear that they are the sametwo issues as formulated by the appellant from the grounds ofappeal filed by the appellant, though differently couched and notattached to specific respective grounds. I shall therefore rely on thetwo issues of the appellant to decide the appeal.

As earlier stated, issue No.1 is whether in the circumstancesof this case the lower court was right to affirm the convictionand sentence of the appellant of the offence of aiding which theappellant was not charged with and not being a lesser offence.

Learned counsel for the appellant in arguing this issuecontended that the evidence of prosecution witnesses, particularlyPW2, PW3 and PW4 cast doubts as to the criminal involvement ofthe appellant in the alleged aiding.

He referred to the evidence of PW2 under cross examinationon pages 75-76 of the record of appeal. Also, the testimony of PW3both in his examination in chief and under cross examination onpages 76-77 of same record. He submitted that the above evidenceof both PW2 and PW3 did not link the 1st accused with the appellanton the charge of aiding in the transportation, an offence the twocourts below found and affirmed the appellant guilty of.

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Learned counsel referred to the testimony of PW4, the PoliceOfficer who recorded the appellant’s statement at the PoliceStation on pages 77-88 of the record. He submitted that none ofthe witnesses fixed the appellant to the commission of the crimeof aiding in the transportation of Indian hemp. He contended thatall the evidence adduced by the prosecution were not only hearsayevidence and suspicion but they are contradictory in nature andnone of the evidence fixed the appellant to the crime. He relied onBolanle v. State (2009) 18 NWLR (Pt.1172) 1 at 9-10; Kalu v. State(1988) 4 NWLR (Pt.90) 503.

Learned counsel referred to the testimony of the 1st accusedperson under cross examination and contended that it did not in anyway disclose how the appellant conspired or aided him criminallyin the transportation of the Indian hemp. He contended furtherthat it was based on the above that the trial Judge discharged theappellant of the offence of conspiracy and the court below agreedwith the trial court’s position and held that there was no evidenceadduced to prove that the appellant conspired to transport the 499.4kilograms of cannabis sativa.

Learned counsel referred to the findings of the trial court whichled to the conclusion that the prosecution failed to prove the offenceof conspiracy. The fact that the 1st accused person was dischargedof the offence of conspiracy while the appellant was found guiltyas 2nd accused of aiding the 1st accused person in transporting the499.4 kilograms of cannabis sativa. Learned counsel contendedthat the trial court never mentioned anywhere in the judgmentthat the appellant was convicted for a lesser offence as held by thecourt below. He submitted that the lower court’s holding that theappellant was convicted for a lesser offence is perverse, misplacedand against the printed record. He urged the court to so hold.

Learned counsel contended that the appellant was nevercharged with aiding and abetting the transportation of the 499.4kilograms of cannabis sativa but with conspiracy to transport Indianhemp otherwise known as cannabis sativa. He again referred to theamended charge of count three and submitted that in the saidonly count where the appellant was charged, there was no mentionof aiding the transportation of cannabis sativa. He contendedfurther that the appellant never had notice of the particulars ofthe alleged offence of aiding which only came out to light in thejudgment of the trial court. He relied on Onogwu v. State (1995) 6)

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SCNJ 1; (1995) 6 NWLR (Pt. 401) 276; Aikhadueki v. State (2014)15 NWLR (Pt.1431) 530 at 546-551.

Learned counsel referred to section 135(1) of the EvidenceAct, 2011 and submitted that the ingredients of an offence mustbe established beyond reasonable doubt by the prosecution.He contended that the court below erred in law in affirmingthe conviction of the appellant for the offence of aiding in thetransportation of 499.4 kilograms of cannabis sativa, an offencewhich is not a lesser offence to conspiracy with which the appellantwas charged.

Learned counsel conceded that the two courts below wereright to have discharged the appellant of the offence of conspiracy,the evidence led by the prosecution having been at variance withthe charge (count three) preferred against the appellant. Yet hecontended that it was wrong of the lower court to have affirmedthe conviction of the appellant of the offence of aiding in thetransportation of 499.4 kilograms of cannabis sativa with which theappellant was not charged, nor lesser to the offence of conspiracywith which the appellant was charged. He referred to page 163 ofthe record on the conclusion of the trial court. He relied on F.R.N.v. Sani (2014) 16 NWLR (Pt.1433) 299 at 337; Ibrahim v. The State(2015) 11 NWLR (Pt.1469) 164 at 199; Nwokedi v. COP (1977) 3SC 35.

Learned counsel referred to section 36(6) (a), (b), & ofthe 1999 Constitution and section 215 of the Criminal ProcedureAct and contended that valid arraignment of the appellant isfundamental on the offence of aiding the transportation of cannabissativa and failure to take the appellant’s plea on this offence ofaiding the transportation of cannabis sativa which is not lesser toconspiracy in view of the unambiguous provisions of section 14of NDLEA Act will entitle the appellant to discharge and acquittalas the trial was a nullity. He urged the court to so hold, relying onOkolie v. State (2012) All FWLR (Pt.607) 770; (2012) 1 NWLR(Pt. 1281) 385.

Learned counsel contended that the appellant never confessedto have conspired or aided the transportation of the cannabissativa and on this fact, the courts below discharged and affirmedthe discharge of the appellant of the offence of conspiracy whichwas the only offence the appellant stood trial for. He relied onGbadamosi v. The State (1992) 9 NWLR (Pt. 266) 465.

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Learned counsel referred to the original charge against theappellant as 2nd accused and one Friday Uwadiea as 1st accusedfor the offence of conspiracy to transport 499.4 kilograms ofcannabis sativa from Edo State to Abuja on 14/12/2011 but the saidcharge was amended by the prosecution on 25/4/2006 after threeprosecution witnesses had testified. The charge was again amendedsometime on 28/3/2013. He referred to the law pursuant to whichthe appellant was tried and contended that the common ingredientsof the offence of conspiracy, aiding, abetting and attempting tocommit an offence under section 14 of NDLEA Act is mens rea- intent which gives birth to knowledge and actual participation inthe commission of the purported crime and the lower court havingfound that the prosecution failed to prove the offence of conspiracyagainst the appellant, he ought to have been discharged also ofaiding which equally anchored on intent. He urged the court to sohold.

Learned counsel contended that a person, such as the appellantherein, who is alleged to have purportedly aided the 1st accused inthe commission of the alleged crime cannot be validly convictedwhen the alleged principal has been discharged and acquitted forthe same offence. He urged the court to resolve the issue in favourof the appellant.

In arguing issue No.1, learned counsel for the respondentreferred to exhibit PW4B – said to be a statement earlier made tothe Police by the appellant. He contended that the said statement isa confessional statement, which is direct, positive and unequivocalas to the participation of the appellant in the transportation of thecannabis sativa.

Learned counsel contended further that it is trite law thatan accused person can be convicted solely on his confessionalstatement. He relied on Ikemson v. State (1989) 1 CLRN 1 at 22;(1989) 3 NWLR (Pt. 110) 455. He stated that the said statementof the appellant was amply supported by other pieces of evidenceadduced by the prosecution witnesses. He relied on Stephen v. State(2013) 8 NWLR (Pt.1355) 153; Dibie v. State (2007) 9 NWLR(Pt.1038) 30.

Learned counsel referred to the testimony of PW2 both underexamination-in-chief and under cross-examination. He also referredto the testimony of PW3 under cross-examination and contendedthat the prosecution at the trial court adduced overwhelming

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evidence which showed that the appellant had knowledge that thecannabis sativa were being loaded in the J5 bus.

Learned counsel conceded that the trial court discharged theappellant for the offence of conspiracy to transport 499.4 kilogramsof cannabis sativa but convicted and sentenced him for aiding thetransportation of same drug.

He however submitted that a trial court and an appellate courtboth have the power under section 179(1) of the Criminal ProcedureAct to substitute a conviction for a lesser offence on a charge for anoffence containing several particulars, where only such particularsas made up of the lesser offence were proved.

Learned counsel referred to the findings of the trial court onpages 161-162 of the record and contended that the said findingsand conclusions cannot be faulted in law as it flows from theprosecution’s case, hence he submitted that it was safe to convict theappellant for the offence of aiding and abetting the transportation ofthe drugs.

Learned counsel contended that the law ascribes probativevalue to the findings and evaluation of the trial court, being in thebest position of hearing and seeing the demeanor of the witnessescalled, unless such is found to be perverse, appellate court does notform the habit of disturbing such findings. He contended furtherthat the law is settled that where an accused person is charged withone offence and it appears in evidence that he committed differentoffence for which he might have been charged, he may be convictedof the offence which he is shown to have committed by the evidence,regardless of the fact that he was not charged with that particularoffence. He relied on Adava v. State (2006) All FWLR (Pt. 311)1777; (2006) 9 NWLR (Pt. 984) 152.

Learned counsel referred again to section 179(1) of theCriminal Procedure Act and contended that the mere fact that thetrial court exercised its discretion to substitute a conviction of oneoffence for the other under that law did not ipso facto breach theappellant’s right to fair hearing nor did it occasion any miscarriageof justice. He relied on Odeh v. F.R.N. (2008) All FWLR (Pt.424)1606; (2008) 13 NWLR (Pt. 1103) 1; Nwachukwu v. State (1986)2 NWLR (Pt.25) 765; Nigerian Airforce v. Kamaldeen (2007) 7NWLR (Pt.1032) 164. He submitted that what is material is that itmust be clear that the particulars and the facts and the circumstancesof the original offence charged are the same or similar to the lesser

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offence. He submitted that the appellant was rightly convicted bythe trial court, under the provision of section 179(1) of the CriminalProcedure Act, even though not expressly so stated by the court. Heurged the court to resolve issue No.1 against the appellant as thecharge was proved beyond reasonable doubt.

Issue No.1 for the determination of this appeal is whether inthe circumstances of this case, the lower court was right to affirmthe conviction and sentence of the appellant of the offence of aidingwhich the appellant was not charged with and not being a lesseroffence.

As earlier noted, the appellant herein was charged with onlythe 3rd count of the three count charge, with another person as the1st accused. The said charge was for conspiracy knowingly for thetransportation of 499.4 kilograms of cannabis sativa pursuant tosection 14(b) of the NDLEA Act, Laws of the Federation of Nigeria,2004. The said law reads thus:

“(14) Any person who ….

conspires with, aids, abets, counsels, attemptsto commit or is an accessory to any act oroffence referred to in the Act, shall be guiltyof an offence under this Act and liable onconviction to be sentenced to imprisonmentfor a term not less than fifteen years and not(b)exceeding 25 years.”

There is no doubt, that the appellant was charged with havingknowingly conspired with one other person to transport 499.4kilograms of hemp. Generally, conspiracy is an agreement betweentwo or more persons to do an unlawful act, coupled with an intent toachieve the agreement, objective and action or conduct that furthersthe agreement. Conspiracy is therefore a separate offence in itselffrom the crime that is the object of the conspiracy. See; AdesinaKayode v. The State (2016) 7 NWLR (Pt.1511) 119; (2016) LPELR- 40028 (SC); Taofeek Adeleke v. The State (2013) LPELR – 20971(SC); (2013) 16 NWLR (Pt. 1381) 556; Sebastian Ajuluchukwu v.The State (2014) 10 SCM 43, (2014) All FWLR (Pt.149) 1015;(2014) LPELR 23024 (SC); (2014) 13 NWLR (Pt.1425) 641. Onrecord the trial court had, inter alia, found as follows on page 157.

“The third count is for conspiracy to transport thecannabis sativa against the two accused persons. Inthis count the 1st and 2nd accused persons were said

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to have conspired at Uruwa village to transport 499.4kilograms of hemp”

Still in His Lordship’s findings, the learned trial Judge statedclearly as follows:-

“These facts show that the offence that has been provedagainst the 2nd accused person by the prosecutionis that of aiding and abetting the transportation ofthe 499.4 kilograms of cannabis sativa. The offenceof conspiracy has not been proved against the twoaccused persons.”

The trial Judge went further and came to the followingconclusion:-

“Thus the 1st accused is discharged of this offence ofconspiracy in count three while the 2nd accused personOsayeh Imieka (appellant) is hereby found guilty of theoffence of aiding the 1st accused person transport the499.4 kilograms of cannabis sativa as stated above.”(Brackets supplied)

See; page 162 of the record.

As earlier clearly stated, the appellant and one other had onlybeen charged with conspiracy but not aiding or abetting. What isaiding in a crime? Aiding is assisting, supporting or helping anotherto commit a crime. While abetting is encouraging, inciting orinducing another to commit a crime. Aiding and abetting is a termoften used to describe a single act. An accessory is someone whodoes any of the above things in support of a principle’s commissionof crime.

Generally, in order to deter people from helping criminals getaway with their crimes, the law makes giving aid a crime in and ofitself. A person may be charged with the crime of aiding and abetting,even though he was not present during, or did not physically assistwith the commission of the crime. Someone who aids and abetsa crime may provide support by giving advice, financial supportor by taking action not directly related to the crime itself, for thepurpose of facilitating its success.

There is no doubt and it is very clear on record that the trialcourt found that the prosecution failed to prove the charge ofconspiracy against the accused person (appellant). That findingled to the 1st accused person being discharged. The 1st accused was

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said to have been arrested with a vehicle loaded with the allegedcannabis sativa.

It is note worthy that the charge with which the appellantwas earlier arraigned was not amended by the prosecution but theappellant was said to have been found guilty and convicted for theoffences of aiding and abetting the transportation of 499.4 kilogramsof cannabis sativa. There is nothing on record to show that theappellant was notified of the change and given the opportunityto meet that particular offence. There is no doubt that offence ofaiding and abetting are separate offences contained in the particularsection of the law pursuant to which the appellant was charged withan alleged co-conspirator but who was discharged of the offence.

In the case of E. O. Okonofua & anor v. The State (1981) 6-7SC 1 this court per Bello, JSC (as he then was) opined, inter alia,as follows:

“I think it is just and fair that whenever it is anticipatedthat an accused person may be convicted of an offence,other than the one with which he has been charged,such possibility should be brought to his notice andthat he should be given the opportunity to meet thatparticular offence.”

There is no doubt as earlier stated that the appellant was notseparately charged with aiding and or abetting or abetment. Hewas only charged with having knowingly conspired with one otherand the trial court had clearly found that the prosecution failed toprove that only charge, hence the co-accused was discharged. Theoffences of aiding, abetting, counseling or acting as an accessoryto the commission of any act or offence referred to in the Actare separate offences and must be preferred against any personsuspected to have committed any offence. That is the reason whyeach of the said offences is separately mentioned in the law. Theyare therefore, in my view, not just lesser offences to the offenceof conspiracy. If the prosecution had intended or desired to trythe appellant for the offences of aiding or abetment, it must havecharged the appellant for the said offence(s). As can be seen in therecords, reference to the offence of aiding only came up after thetrial court had come to the conclusion clearly that ‘the offence ofconspiracy has not been proved against the two accused persons’.

The 1st accused with whom the appellant was charged withconspiracy was accordingly discharged by the trial court and the

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appellant was said to have been found guilty of the offence ofaiding the said accused to transport the 499.4 kilograms of cannabissativa.

Is aiding a lesser offence to an offence of conspiracy? Whatthen is a lesser offence? In Torhamba v. I.G.P. (1956) NRNLR 94.The court had attempted to provide a guide for the determinationof what constitutes a lesser offence. In that case, Bairaman, Ag. C.J(as he then was) laid down the tests required by section 179 of theCriminal Procedure Law as follows:

“the lesser offence is a combination of some of theseveral particulars making up the offence charged,in other words the particulars constituting the lesseroffence are carved out of the particulars of the offencecharged. For example, if the charge is wounding withintent to do grievous harm, the lesser offence is unlawfulwounding, and if unlawful wounding is proved butnot the intent to do grievous harm, the defendantmay be convicted of unlawful wounding. Again if aperson is charged with murder he may be convictedof manslaughter for murder is unlawful killing withmalice and manslaughter is unlawful killing merely,or it may be murder reduced to manslaughter byprovocation which furnishes an example under sub-section 2.”

Subsection 2 of section 179 of the Criminal Procedure Lawreads thus:

“When a person is charged with an offence and factsare proved which reduced it to a lesser offence, he maybe convicted of the lesser offence although he was notcharged with it”

Ordinarily, by the provisions of the above law, the court isempowered to convict for the lesser offence either on the trial ofthe offence charged or by the accused pleading guilty to such lesseroffence with which he was not charged.

In Michael Okwuna v. The State (1964) 1 All NLR 366following Agumadu v. The Queen (1963) 1 All NLR 203, (1963) 1SCNLR 379, this court per Bairaman, JSC opined thus:

“Suppose that the defendant is charged with theoffence of unlawful wounding with intent to kill; thatthe evidence proved that he unlawfully wounded his

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victim, but that the trial court is not satisfied that hedid so with intent to kill. This is a proper case forconvicting the defendant of the offence of unlawfulwounding merely. It is a lesser offence in the sensethat it carries a lighter punishment than the offencecharged, which carries a much heavier punishmentbecause of the added ingredient which aggravates thewounding, namely the intent to kill. In substance, thelesser offence is a slice carved out of the particulars ofthe graver offence charged.”

As shown above earlier, the trial court had found that theprosecution failed to prove the offence of conspiracy against theappellant and the co-accused but found the appellant guilty ofaiding and abetting the transportation of the 499.4 kilograms ofcannabis sativa. It is clear that the appellant was not charged withthe offence of aiding and abetting and he did not plead to the same.In the law pursuant to which the appellant was tried section 14of the NDLEA Act, both offences of conspiracy, aiding andabetting etc are of equal weight attracting the same sentence andterm of imprisonment upon conviction. Therefore, the offence ofaiding and abetting cannot be a lesser offence. In other words, thetrial court was simply in error to have found the appellant guilty ofthe offence of aiding with which the appellant was not charged and(b)tried.

Furthermore, the court below was in grave error to have heldthat the appellant was convicted for a lesser offence. The lowercourt was wrong to have affirmed the conviction and sentence ofthe appellant of the offence of aiding, with which the appellant wasnot charged and not being a lesser offence. Issue No.1 is thereforeresolved against the respondent but in favour of the appellant.

In the light of the conclusion reached on issue No.1, it is nolonger necessary to consider the 2nd issue, the 1st issue having beenresolved in favour of the appellant.

In the final analysis, this appeal is found meritorious andsucceeds and should be allowed. In the circumstance, the appealis allowed. Accordingly, the judgment of the court below whichaffirmed the conviction and sentence of the appellant by the trialcourt is set aside. The appellant is hereby acquitted and discharged.

Appeal allowed.

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NGWUTA, J.S.C.: I read before now the lead judgment of mylearned brother, Olu Ariwoola, JSC, which has just been delivered.In convicting the appellant for an offence different from that withwhich he was charged the trial court relied on section 179(2) of theCriminal procedure Law which provides

“When a person is charged with an offence and thefacts are proved which reduced it to a lesser offence,he may be convicted of the lesser offence although hewas not charged with it.”

Based on the said section of the Criminal Procedure Law thecourt below affirmed the conviction of the appellant. In my view thetrial court, in convicting the appellant (as accused person), and thelower court in affirming that conviction of the appellant committedtwo fatal errors.

Appellant was charged with and tried for the offenceof conspiracy in the transportation of 499.4 kilograms of hemp.The charge failed and the court of trial, purporting to convict theaccused/appellant of a lesser offence, convicted the appellant ofthe offence of aiding the transportation of the hemp. The offenceof aiding in the transportation of the hemp is NOT a lesser offenceto the offence of conspiracy. The offences of conspiracy and aidingamong others made punishable by section 14(b) of the NDLEA Acteach carry “a term of imprisonment of not less than fifteen fellowsand not exceeding 25 yards.” Of the two offences of conspiracyand aiding none is lesser than the other in terms of punishmenton conviction. They are separate and equal offences in terms ofpunishment upon conviction. The trial court erred in convicting theappellant of aiding purportedly as a lesser offence to the offence ofconspiracy for which he was tried.

Section 179(2) of the Criminal Procedure Law whichempowers the court to convict for a lesser offence under appropriatecircumstances, does not directly or indirectly, dispense with theneed to appraise the accused of the offence, upon which he neverjoined issue with the state, but for which he is to be convicted.The purpose of a charge is to give the accused due notice of thecase he is to meet in court. See Audu Aruna & anor v. The State(1990) 9-10 SC 87; (1990) 6 NWLR (Pt. 155) 125. It was a fatalerror in the proceeding resulting to the conviction of the appellantfor an offence of which he was left in the dark until his purported

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conviction was pronounced. See Abacha & anor v. The State (2002)11 SCN 12; (2002) 5 NWLR (Pt. 761) 638. In the circumstancesthe appellant was denied of his right to a fair hearing. See section36 of the Constitution of the Federal Republic of Nigeria 1999 (asamended), Ezechukwu v. Onwuka (2006) 2 NWLR (Pt.963) 151.

The appellant was convicted without being given theopportunity to be heard in his defence in the supposedly lessercharge of aiding and this is tantamount to a violent violation ofthe time-hallowed principle of audi alteram partem. See Rex v.Chancellor University of Cambridge (1723) 1 Str. 557, 567.

The lower court perpetrated the injustice by its affirmation ofthe judgment of the trial court. It is not the practice of this court,ordinarily, to disturb the concurrent finding of the two courts below.This case falls within the exceptions to this rule. The perversitydemonstrated in the judgments of the two courts below cannot beleft unaddressed. See Bankole v. Pelu (1991) 8 NWLR (Pt.211)523; Lokoji & anor v. Alojo (1983) 8 SC 61 at 68.

It is for the above reasons and the fuller reasons in the deadjudgment of my Lord Ariwoola, JSC, that I also allow the appeal.I abide by the consequential orders in the lead judgment.

OKORO, J.S.C.: My learned brother, Olukayode Ariwoola, JSC,afforded me the privilege of reading before now the judgment justdelivered. I am in total agreement with the reasoning and conclusionthat the appeal has merit and ought to be allowed.

As can be gleaned from the printed record, the appellant wascharged together with the 1st accused only in count 3 of the threecounts with the offence of knowingly transporting 499.4 kilogramsof cannabis sativa, contrary to and punishable under section 14(b)of the NDLEA Act.

The learned trial Judge found that the prosecution failed toprove the offence of conspiracy against the two accused personsand therefore discharged the 1st accused person but convicted theappellant for aiding the 1st accused person transport 499.4 kilogramsof cannabis sativa. At the court below, the judgment of the trialcourt was affirmed. The court went further to state that the offenceof aiding is a lesser offence to conspiracy, hence this appeal.

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Permit me to state first and foremost that the law is settledthat where two or mor persons are charged with the commissionof an offence, and the evidence against all the accused persons isthe same or similar, to the extent that the evidence is inextricablywoven around all the accused persons, the discharge of one must asa matter of law, affect the discharge of others.

See the cases of Ebri v. State (2004) 11 NWLR (Pt. 885) 589;Okoro v. State (2012) 4 NWLR (Pt. 1290) 351; Adele v. State (1995)2 NWLR (Pt. 377) 269; Kalu v. State (1988) 4 NWLR (Pt. 90) 503.

Secondly, section 14(b) of the NDLEA Act already reproducedin the lead judgment provides for the offences of conspiracy,aiding, abetting, counseling, attempting to commit the offence oran accessory to any of the offences, as separate offences whichattracts the same amount of punishment upon conviction. Itfollows therefore that the offence of aiding is not a lesser offenceto conspiracy under section 14(b) of the NDLEA Act. Indeed, bothoffences attract the same strength of punishment.

In the final analysis, I hold the view that the findings of bothlower courts convicting the appellant for the offence of aidingthe 1st accused to commit the offence of transporting cannabissativa was perverse. This is much more in view of the fact that theevidence proffered by the prosecution could not sustain convictionof the appellant for the offence of conspiracy. Having not beenconvicted of the offence of conspiracy preferred against him, it wastherefore wrong to convict the appellant for the offence of aidingwhich provided for in the same law. I also allow this appeal. Theconcurrent findings of the lower courts is hereby set aside and theappellant is accordingly acquitted and discharged.

Appeal allowed.

NWEZE, J.S.C.: I had the advantage of reading the draft of theleading judgment which my Lord, Ariwoola, JSC, just delivered. Iam persuaded by the reasoning and conclusion.

I find the appeal to be meritorious. I, therefore, enter an orderallowing it. I abide by the consequential orders in the leadingjudgment.

Appeal allowed.

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AUGIE, J.S.C.: I had a preview of the lead judgment just deliveredby my learned brother, Ariwoola, JSC, and I agree with him that theCourt of Appeal erred in affirming the conviction and sentence ofthe appellant for the offence of aiding, which is, not by a long short,a lesser offence to the offence that he was charged with.

A lesser offence carries a lighter punishment than the offencecharged, and in substance, “the lesser offence is a slice carved outof the particulars of the graver offence charged” – see Okwuna v.State (1964) LPELR-25195(SC) and Nwachukwu v. State (1986) 2NWLR (Pt. 25) 765 SC, wherein this court adopted its observationin Torhamba v. I.G.P. (1956) NRNLR 94, as follows:

A lesser offence is a combination of some of the severalparticulars making up the offence charged, in otherwords, the particulars constituting the lesser offenceare carved out of the particulars of the offence charged… One should write out the particulars of which theoffence charged consists and see whether it is possibleto delete some words out of these particulars and havea residue of particulars making up the lesser offence ofwhich it is proposed to convict.

In this case, the appellant was charged with the offence ofconspiracy and the learned trial Judge found that the prosecutionfailed to prove the said offence. But he went on to convict theappellant for the offence of aiding and abetting, which he believedwas a lesser offence to the offence of conspiracy charged.

The two lower courts were clearly wrong because as mylearned brother said in the lead judgment, the offences of aiding,abetting, counseling or acting as an accessory to the commissionof any act or offence referred to in the Act are separate offences,which must be preferred against any person suspected to havecommitted any offence. Aiding and abetting cannot be a lesseroffence to the offence of conspiracy because the said offences areall of equal weight, and they attract the same sentence and term ofimprisonment upon conviction.

In other words, the offence of aiding and abetting does notcarry a lesser punishment than the offence of conspiracy that theappellant was charged with, therefore, the offence of aiding andabetting is, certainly, not a lesser offence.

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In the circumstances of this case, I also allow this appeal andset aside the judgment of the Court of Appeal that affirmed thedecision of the trial court.

Appeal allowed.

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