The EU, UNODC and NIALS organised a prosecution course for NDLEA prosecutor in August 2015, the Managing Partner, Akinlawon&Ajomo, Mr. Ibukun Ajomo was a facilitator at the training.

Leave a Comment / Legal Opinions / By

On the 18th of August, 2015, Mr. Ibukun Ajomo, Managing Partner, Akinlawon & Ajomo, was a facilitator at the training organised for Nigeria Drug Law Enforcement Agency prosecutors. The training was organised by the European Union, United Nations Office on Drugs and Crime in conjunction with the Nigerian Institute of Advanced Legal Studies.

The paper was on Prosecuting Complex/High Profile Cases and Inchoate Offenses and Best Practices in Drafting Charges and Evaluating Evidence.

Mr. Ajomo started his legal career started as a State Counsel at the Federal Ministry of Justice 1985/86 for his National Service Year. He was thereafter an associate with M.I. Jegede & Co between 1986 and 1996. He rose to be a partner at M.I. Jegede & Co in 1997, a post he held till 2001. He is currently the Managing Partner of Akinlawon & Ajomo.

In his years of experience, Mr. Ajomo has been a veteran prosecutor of Non-Violent and White Collar Crimes.

PROSECUTING HIGH PROFILE CASES

Prosecution is simply the process of trying to prove in a court of competent jurisdiction that somebody is guilty of a crime for which he/she has been duly charged. Often times, the prosecution will be faced with high profile or complex cases which will require skill in handling.

  1. KNOWINGLY POSSESS.

It is not in all cases that the mere commission of an offense constitutes a crime. There is generally the requirement of some element of wrongful intention or other fault known as mens rea.

Expressions connoting the requirement of a mental element include: with intent; recklessly; maliciously; willfully; knowingly; knowing or believing; fraudulently and; dishonestly. Even in some offences of strict liability, some mental element must normally be proved.

A common provision in the offenses sections of the NDLEA Act is KNOWINGLY POSSESSING (Sections 11(d), 18, 19, 20(d), (e), (f), (h), (i)). The mental element can be difficult to establish in some instances; where the person in possession alleges that he thought it was another substance that he has in his possession and especially where his supplier of the drug has not been arrested.

For example, a person may not be guilty of an offense of possession of Cocaine under section 19 of the NDLEA Act merely because it was found on him as he could reasonably have thought he was given another substance to deliver.

The hurdle of proving intention can however be crossed by:

  1. Direct evidence of what the defendant said contemporaneously with the act.
  2. By the defendant’s prior or subsequent admission of what he intended to do.
  3. By evidence of what the defendant did on the occasion in question. For example, if a defendant is contracted by a well known drug dealer to him, to transfer substances and advised to evade security agencies searches all through his journey, and he actually did try to evade a search on his way, this can prove the ingredient of knowingly possessing against such a defendant.
  4. By the defendant’s prior or subsequent conduct. This is evidence of previous planning or a subsequent flight from justice.
  5. Evidence of other offences. Ordinarily a charge is not framed on the strength of previous offences committed by the accused, but if the various crimes exhibit striking similarities, the other crimes – previous or subsequent – may be given in evidence in order to show that the defendant had a “system” of committing such crimes.
  6. Evidence of possible motive will be of some weight in supporting other evidence. Section 6(1) of Evidence Act, any fact is relevant which shows or constitutes a motive for any fact in issue or relevant fact.
  1. EXTRADITION

Extradition generally is regulated by the Extradition Act, CAP E25, Laws of the Federation of Nigeria, 2004.

By virtue of section 6 of the Act, after a request has been made by a country for the surrender of a fugitive in writing together with a duly authenticated warrant of arrest or certificate of conviction in that country, to the Attorney General (AG), the AG may or may not signify by an order that a Magistrate (the Federal High Court has since assumed jurisdiction over matters of Extradition) deal with the matter under the provisions of the Act depending on whether the criminal is precluded by any of the provisions of section 3 (1) to (7) of the Act – Section 6 (2).

Subsection 3 of the Section 6 further provides that the AG may refuse to make an order for extradition procedure to the Court in respect of any citizen who is a Nigerian.

The procedure for Extradition under the Act can be summarized as follows:

  1. The requesting country makes a request for the surrender of a fugitive in writing to the Attorney General through it diplomatic representative or consular officer accompanying a duly authenticated warrant of arrest or certificate of conviction in that country to the request. – Section 6(1) of Extradition Act.
  2. The AG after receiving the request may by an order under his hand signify to a FHC Judge (as it is now the case) to deal with case accordingly – Section 6 (1)
  3. Upon receipt of an order of the AG by a Judge, the Judge looks into the matter and decides upon the evidence before him whether to issue a warrant of arrest or not depending on if the offence in question committed by the fugitive would have justified the issue of the warrant if committed in Nigeria or if the fugitive had been convicted in Nigeria. – Section 7(1)
  4. Where the Court issues the warrant of arrest, the security agency in charge proceeds to effect the arrest which can be done anywhere in Nigeria, for the purpose of presenting the fugitive for extradition proceedings before a Court as soon as practicable. – Section 7 (2)&(3)
  5. The fugitive may thereafter be found liable to being transferred to the requesting country at the end of the extradition proceeding and consequently transferred.

It can therefore be said that a request for surrender sent by a requesting country directly to a SECURITY AGENCY and not the ATTORNEY GENERAL may be defective. However, it is proposed that this defect can be regularized by the agency forwarding the request to the AG who comply with the procedure as highlighted in para. 2 above and the process proceeds forward accordingly.

Also the warrant of arrest which accompanies a requesting country’s request for surrender of a fugitive does not give local security agencies here an automatic right of arrest of the fugitive, not even for the purpose of presenting the fugitive before the Court. So also an order of the Court for arrest is to present the fugitive back to the Court and not to surrender the fugitive forthwith.

Going forward, the leeways that allow fugitives to escape extradition are:

  1. When an arrest is sought to be made before the Court directed by the AG to deal with the matter has granted an arrest warrant.

Section 7 of the Act says a warrant of arrest may be issued by a Court on receipt of an order of the AG relating to a fugitive, if such evidence is produced as would in the opinion of the Court justify the issue of the warrant if the offence had been committed in Nigeria or the fugitive convicted of it in Nigeria.

It follows therefore that arrest under the Extradition Act can only be made pursuant to a Court warrant of arrest. The style of rushing to arrest without a warrant, probably on the strength of the request of the foreign country, thereby allowing the accused criminal a loophole in procedure to frustrate the matter is not the way to go.

  1. Another angle is in the process of ‘Making the Actual Arrest’ itself.

Too many at times, fugitives are allowed to exploit technicalities in the arrest procedure and thereby evade arrest altogether. The latest episode of Senator Buruji Kashamu comes to mind.

Senator Kashamu extradition is being requested by the United State pursuant to the Extradition Treaty between Nigeria and the United States entered into as far back as 1935. The Act specifically provides for the offense for which he is being sought in the U.S.

In pursuance to executing the arrest warrant against him, the NDLEA laid siege on his premises in Lekki on the weekend of May 23 for over two days in what can at best be described as ‘House Arrest’, without actually effecting the arrest of the alleged offender.

It is however not clear whether the arrest NDLEA sought to make was for the purpose of presenting the alleged accused before a Court; or to effect his transfer forthwith to the requesting country; or even whether the arrest was based on a Nigerian Court warrant of arrest; or on the strength of the foreign warrant of arrest which accompanied the request of the requesting country.

One thing was clear though: the Agency did not succeed in ‘ACTUALLY’ arresting the accused.

Going forward, assuming the proper procedure has been followed and the required warrant of arrest is in place, arrest is provided for in the NDLEA Act for officers in Section 41 (1) (iii). To further strengthen the powers of security agencies, the new Administration of Criminal Justice Act 2015 (ACJA) envisaged a situation where an accused sought to be arrested is inside a building or house.

Section 12 (1) ACJA 2015 provides that ‘where a person or police officer acting under a warrant of arrest or otherwise has reason to believe that the suspect to be arrested has entered into or is within any house or place, the person residing in or being in charge of the house shall, on demand by the police officer or person acting for the police officer allow him free access to the house or place and afford all reasonable facilities to search the house for the suspect sought to be arrested.’

Subsection 2 further provides that ‘where access to a house or place cannot be obtained under subsection 1, of this section, the person or police officer may enter the house or place and search it for the suspect to be arrested, and in order to effect an entrance into the house or any place, may break open any outer or inner door or window of any house of place whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot obtain admittance.’

For the closure of any doubt, by the combined provisions of Section 3 (1) (q), Section 4 (4) of the NDLEA Act and Section 1 (2) and Section 2 of the Administration of Criminal Justice Act 2015, reference to ‘the Police’ as made in Section 12 of the ACJA 2015 refers to all security agencies including of course the NDLEA.

Further to the above, the ACJA 2015 in Section 43 further provides for execution of warrant and procedure. Subsection 1 provides that a warrant of arrest may be executed on any day, including a Sunday or Public Holiday. Subsection 2 states that the warrant may be executed by any police officer at any time and in any place in any state other than within a court premises where a court is sitting.

It therefore behoves on the NDLEA to follow laid down criminal procedure to obtain results.

  1. EVIDENCE GATHEREING AND INVESTIGATIONS

The bulk of the challenges associated with High Profile Drug cases are usually associated with evidence gathering and investigations.

Evidence gathering is particularly more daunting in circumstances where the prosecutor is sure the accused is up to something illegal but the evidence is so concealed.

In such cases, any detention of the suspect made for the purpose retrieving evidence without actually getting the evidence out of the suspect and charging such person to Court will become illegal after 48 hours as provided under Section 35 (4) and (5) of the Constitution of the Federal Republic – issues arising in NDLEA V Babatunde Omidina (2013) 16 NWLR pt 1381 at pg 589.

Remedies include

  1. Keeping a close and continuous surveillance on the suspect. This may be costly, long and daunting but most times, it pays off eventually.
  2. Team work. Though considering the work load on the agency and how under staffed it may be, deploying a team of investigators and prosecutors on a case, especially the high profile cases rather than just one or two persons, may be unavoidable at times to get a full result.

Also provisions in the ACJA 2015 as contained in Section 15 which are designed to aid investigations are:

  1. Taking records of the suspect, essentially the part that provides for photographs and full fingerprint impressions of the suspect. This can be used for comparison at the scene of the offense or in the case of fingerprints with evidence retrieved at the scene of the offense.

It could also be useful to establish a ‘system’ of committing crimes by a suspect where there is a history of similar offenses.

  1. Subsection 4, provides that confessional statements should be in writing, recorded electronically or in a retrievable compact video disc. This in some way settles the issue of voluntariness of confessional statements which plagues criminal trials.
  1. CONTINUITY AND INTEGRITY OF EXHIBITS

Continuity and the Integrity of evidence are another two factors considered seriously in the process of prosecution. Continuity is meant to refer to the measures in place to ensure that the exhibit that is examined by the forensic scientist is actually the one that was recovered at a known date, time and place and which is considered to be of importance in the investigation of the alleged offence. Thus there should be clear documentation of an intact ‘chain of custody’ or unbroken continuity.

Integrity of evidence on the other hand relates to the procedures in place to ensure that the exhibit, once seized, is not altered, damaged or tampered with before it is examined by the forensic scientist and presented in court.

These issues among others came up in the case of John Timothy v Federal Republic of Nigeria (2013) 4 NWLR part 1334 pg 213. In the case, the defence raised the question of continuity and integrity of the evidence presented by the NDLEA to wit – ‘whether the exhibit (cocaine) tendered in court was proved to be the same that was recovered from the appellant.’

Within security agencies, departments variously referred to as ‘Exhibit Management Centre’ Forensic Centre’ etc. are saddled with these responsibilities of exhibit continuity and integrity.

According to Triple A Forensic – an independent Forensic Consultancy Firm in the UK –continuity and integrity of exhibits can be achieved as follows:

  1. The exhibit recovered should be sealed in a so called “tamper-evident bag” which has a unique seal number. This seal number is, or should be, recorded in the statement of the officer who seized the exhibit. It is usual then to seal this tamper-evident bag into a second bag, to reduce further the possibility of contamination during storage, and the seal number of this also recorded,
  1. If the “scene of crime” is relatively large, or a number of people are involved in the search for exhibits, the scene has to be carefully managed and an individual is usually designated as the “exhibits officer” with all exhibits being given to him or her to be processed. The exhibits are then transported back to the agency’s office and their details entered before they are placed in secure storage. The process of recording recovered substances into the computer based “property system as is the practice in developed countries should be initiated in Nigeria too.
  1. Statements relating to each of these operations should be prepared by all of the individuals involved, and at each stage the seal number(s) recorded and the ‘chain of custody’ established for each exhibit.
  1. It may be that before an exhibit is sent to a forensic scientist for examination, it is removed from its secure storage. This may happen for a number of reasons such as for the actually testing of substances in drug cases. Any such action should be documented and adequate precautions to prevent the contamination of the exhibit should be taken. In circumstances such as these the original tamper-evident bag(s) will, of necessity, be opened and this/these should then be sealed in a new tamper-evident bag and the seal number of this recorded. The fate of the exhibit after this, e.g. its return to secure storage, should then be recorded and a new chain of custody established.
  1. The subsequent removal of the exhibit from secure storage and its delivery to the laboratory for examination should then be documented as should its arrival at the forensic science laboratory. It is usual for the forensic scientist then to record whether or not the packaging of the exhibit shows any signs of damage.

Only when this procedure is adopted and fully documented can the defence team be satisfied that the correct exhibit has been examined, the chain of custody is intact and the results reported by the forensic scientist may have some relevance.

In deciding the case mentioned above, the Supreme Court stated that ‘there is a rebuttable presumption that the exhibits (cocaine) were kept in safe custody before they were sent for analysis. Failure of the appellant to prove the contrary makes the presumption irrebuttable. The suggestion by the appellant that the exhibits might have been tampered with remains in the realm of speculation which is very unreliable evidence.’ –per Rhodes Vivours J.S.C pg 234 paras E-F

A further question as to whether prosecution need send the entire substance recovered from accused for analysis in drugs trafficking cases was also resolved in the opinion that the prosecution need not send the entire substance recovered from a suspect for analysis. The court observed that sending a part of the larger chunk recovered is usually the practice. – per Peter Odili J.S.C at pg 250 paras D-F.

In preventing the speculations of defences to crystallize like those canvassed in the Timothy v FRN supra, it is important prosecution and investigators adhere to the above continuity and integrity procedure of exhibits and maybe add to it:

  1. Inviting a representative or legal practitioner of the defendant by notice to witness the transfer or analysis of the exhibit especially in cases where the exhibit will have to be transferred and re-recorded from one tamper proof bag to another for the purposes of transporting the exhibit or after analysis of the exhibit.
  2. Conducting preliminary analysis as quick as practicable, if possible at the scene of recovery of the substances with the defendant present.
  3. The longer the time for conducting analysis on a recovered exhibit, the more probable the chances of adulteration, contamination, mix-up and tampering.
  4. Taking photographs or video recordings of the suspect together with the exhibit recovered from him/her as soon as practicable after the arrest of suspects. (such photographs and videos not for newspaper publications or television broadcast though)

 

INCHOATE OFFENCES

Ordinarily, criminal intentions as long as they reside in the mind without any attempt at carrying them through are not punishable.

However, the minutest of steps taken to manifest the intention changes the position. A man who starts on a criminal path but is checked before he can accomplish his purpose may commit what is in itself an offence. Inchoate offences may be defined as offences committed by doing an act preparatory to or with the purpose of committing some other offence (called the ‘substantive offence’ or ‘consummated offence’ or ‘completed offence’)

Inchoate offences are variously provided for under part II of the National Drug Law Enforcement Agency Act (NDLEA ACT) LFN 2004 CAP N30. The offences include an Occupier unlawfully permitting use of Premises (Section 12) Conspiracy (Section 14), Escape or Permitting to Escape (Section 17), Attempts (Section 14), Aiding, Abetting, Procuring and Counseling Exportation  of Drugs (Section 14).

They will be examined thus.

  1. ATTEMPTS

Section 14 of the NDLEA Act provides for the offence of Attempt. Section 14(b) enacts: any person who conspires with, aids, abets, counsels, attempts to commit or is an accessory to any act or offence referred to in this act shall be guilty of an offence under this act…

For a holistic analysis of this offence, it is important to import the provisions of Section 4 of the Criminal Code Act (CCA) and some judicial interpretation to determine when evidence will establish an attempt to commit an offence.

Section 4 of CCA provides that ‘when a person, intending to commit an offence begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence’

Proximity Test in Offences of Attempt

It is now trite that for the prosecution to succeed in a charge of attempt, it must prove that the steps taken by the accused person must have reached the point where they indicate beyond reasonable doubt the end to which they were directed. The accused must have done more than mere preparation for the offence charged.

In Shurumo v State (2010) 16 NWLR PT 1218 65 C.A, the Court of Appeal stated thus: ‘to constitute an attempt, the act must be immediately connected with the commission of the particular offence charge and must be something more than mere preparation for the commission of the offence. The mere intention to commit a misdemeanor is not criminal. Some act is required but not all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it. But those immediately connected to it are.’

The court continued by saying ‘in determining what acts may be considered an attempt to commit a crime; it is not necessarily the last act in every case which proves an attempt. All that is required is an act immediately connected with the commission of the particular offence which clearly shows that the offender was attempting to commit it. The act may be the last of a series of overt acts because up to that point it is not clear whether the offender is attempting to commit the particular offence charged or some other offence. It may be the first act because that act was unequivocally an attempt to commit the particular offence and no other.’

In Geoffrey Ozigbo v Commissioner of Police (1976) 2 S. C. at 74, the Supreme Court had earlier in time 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 mere preparation for the commission of the offence’

Extract from the above passages:

  1. An act constituting Attempt must be immediately connected with the commission of a particular offence.
  2. Act remotely connected are not Attempts.
  • Acts immediately connected to the commission of an offence need not always be the last act in a chain of events.
  1. Acts immediately connected may be the first act in a chain of events so far it unequivocally establishes the intention of the accused to commit the offence.
  2. It is immaterial whether the accused discontinued of his own volition, ceased from further perpetrating of his intention or he was involuntarily prevented from carrying it out.

REAL ANALYSIS

  1. If commission of the offence is impossible, would the accused still be guilty of Attempt

Yes. It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.

  1. What if the prosecution is sure the accused is up to no good and was in fact attempting to commit some crime but is not sure which?

He cannot be charged of an attempt, because the prosecution can only charge an attempt to commit a particular crime.

  1. Why should a mere attempt be prosecuted, at least he didn’t succeed?

We should feel the need to punish the unsuccessful attempter by way of particular deterrence (preventing him from trying again). Otherwise, the offender might simply resolve to be more careful in future. To some extent, letting off the person who attempts a crime would also weaken general deterrence (preventing other people from trying such offence). Assuming A unsuccessfully attempts to cultivate Opium plant for the production of narcotic drugs contrary to Section 20 (1) (b) because he miscalculated the suitability of the soil or weather. A may seek further knowledge as to proper cultivation of the plant next time. Perhaps  it happens that A has even lost interest in cultivating the plant, it is not obvious that we are justified in punishing A on a speculation that he may try again in the future but we are justified in punishing A under the guise that no one must even try to commit the offence in the first place.

  1. So B will be guilty of an attempt to sell Cocaine if he sells to D white powder believing it to be Cocaine?
  1. Suppose B thinks he has actually committed an offence, thinks he is financing the importation of Narcotic Drugs meanwhile the Drugs has already been delivered, can he be prosecuted?
  1. B attempts to launder money mistakenly believing that its money derived from Drug Trafficking (meanwhile it was not), can B be prosecuted?

Most likely the chances of the success of the prosecution are high. Though it may be argued that an essential element of the offence is missing – Money derived from Narcotic Drugs –

However, the fact that it is immaterial that the offence unknown to the offender cannot be carried out still constitutes an Attempt generally under Criminal Law establish the possibility of successfully prosecuting this kind of our example. A charge for this purpose may look something like ‘attempted to launder money believing them to be monies from narcotic drugs’

  1. Assuming B thinks it is an offence to import some certain drug into Nigeria either under a Law in Nigeria or in some International Instrument, and thus he’s ‘smuggling’ them in, meanwhile the drug is not prohibited, is that an attempt?

No. because the offence he has in mind does not exist as an offence. He is attempting an imaginary crime not an impossible crime. In considering impossible attempts, we are speaking only of mistakes of fact, not mistake of law.

  1. B was caught asking around for the contact of anyone who cuold use him for drug trafficking, can he be successfully prosecuted?

No. the court has consistently held that the defendant must be on the brink of committing the offence. Reconnoitering, or looking around for an opportunity to commit an offence has never been held to be sufficiently proximate.

 Can C be charged for the offence of accessory to an attempt by B?

Yes.

  • Where C incites B to export Narcotic Drug to Indonesia, at the moment of incitement, C would be guilty of incitement (and if as usual, C and B act by arrangement together, they are both guilty of conspiracy to commit the offence).
  • When B attempts to commit the crime, C becomes an accessory to the attempt.
  • If and when the attempt succeeds, C becomes an accessory to the offence.

The law is that one can be accessory to an attempt, but one cannot attempt to commit a crime as accessory – one cannot attempt to abet.  It would be strange if a person could be guilty of attempting a crime as accessory when the intended perpetrator has not yet carried out the attempt.  This is because the offence of being an accessory cannot stand on its own without an offence of attempt or the carrying out of the offence itself.

 

  1. CONSPIRACY

This is rovided for under section 14 of the NDLEA Act. It enacts that any person who conspires with, aids, abets, counsels, attempts to commit or is an accessory to any act or offence referred to in this act shall be guilty of an offence under this act…

In Olusegun Haruna & Ors v The State, (1972) 8/9 S. C. 174 at pages 200-201, it is stated thus- ‘Conspiracy as an offence is nowhere defined in the Criminal Code but since the common law is in force in Nigeria, the word must bear the same meaning as in England. It means under 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 do which constitutes the offence of conspiracy under the criminal code.’

In Oyediran v The Republic (1967) N.M.L.R. 122 at 127/8 instances of conspiracy have been given to mean –

  1. Where the conspirators directly communicate with each other at a particular place and time and enter into an agreement with a common design.
  2. Where there is a person who is the hub around whom the others revolve like a centre of a circle and the circumference.
  3. Where a person communicates with A, then A with B and B with C – WHICH IS CHAIN CONSPIRACY.

In a charge of conspiracy evidence of the mere agreement of parties, express or implied is sufficient for a conviction – R v Adebanjo (1935) 2 WACA 315. ‘We observe that conspiracy as a crime is complete upon agreement and it is not necessary in order to complete the offence that any one thing should be done beyond the agreement. – Irikefe Jsc in W. O. Mumni & Ors v The State (1975) 1 All N.L.R. (part 1) 294 at pg 306-307.

The offence lies not in the doing of the thing, but in the agreement to do the unlawful thing – R v David (1960) WNLR 170.

The difficulty in determining the nature of the agreement in conspiracies has necessitated drawing reasonable inferences of such agreements from the acts of the parties.

It is established law that it is not necessary in a conviction for conspiracy, that the conspirators should come together for the purpose or that there should have been previous consultation.

The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of the performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is therefore the agreement for the execution of the unlawful conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful act at the same time, or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not however necessary that each conspirator should have been in communication with every other.

REAL ANALYSIS

Can conspirators adhere to the pact at different times?

Yes. Conspirators may for example, be enrolled in a chain –  A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend, even though each member knows only the person who enrolled him and the person whom he enrolls. Similarly, there may be a kind of umbrella-spoke enrolment, a single person at the centre doing the enrolling and all other members being unknown to each other by name, though they know that there are to be other members.

This kind of arrangement is familiar in big organized drug cartels.

Conspiracies are hatched in private; e.g. Chief D procures C to export Cocaine for him from Nigeria to Malaysia. The agreement is done in Chief D’s living room. How can they be proved?

It is true that only rarely is it possible to establish conspiracy by direct evidence. Usually, both the fact of the conspiracy and its object has to be inferred from conduct.

Circumstances from which conspiracy can be inferred from include:

  1. The act signifying the agreement;
  2. Acts preparatory to the offence;

Section 6 (1) of the Evidence Act makes relevant any fact which shows or constitutes preparation for any fact in issue or relevant fact;

  1. The commission of the offence itself.

For example, in relation to the instant hypothetical situation, evidence of Chief D transferring or depositing money into C’s account which is what C used to foot his travelling expenses to Malaysia can be linked to establish conspiracy.

However in instances where a party derogates from an agreement, and goes ahead on his own volition to commit the crime, the chances of the other party being convicted for conspiracy alongside the derogating party are slim. For example, where A, B and C agree to sell drugs locally but A and C secretly agree between themselves to export the drugs to Singapore, the commission of the offence of exporting the drugs does not make B guilty of conspiracy to export drugs with them.

Chief D who is looking for someone who will help him export drugs to Italy approaches B who knowing his purpose procures C. C is subsequently arrested at the point of carrying out the offence, could B be charged for conspiracy alongside Chief D and C?

The appropriate offence for which B should be charged is not Conspiracy for he only supplied the instrument of transfer and did not take part in the scheming between Chief D and C on how they would go about carrying out the offence. It is more appropriate to charge B as a principal offender (as counseling or procuring the commission of the offence without adding him in the charge of conspiracy) by virtue of Section 14 (b) of the NDLEA Act.

It is known to the NDLEA investigators that C has conspired with Chief A, a notorious Drug King, whose arrest has continued to elude the Agency, can C nevertheless be charged of Conspiracy?

Yes. He can be charged for conspiracy with a known person currently at large or even with an Unknown Person.

  1. ACCESSORIES

In as much as being an Accessory to an offence is an inchoate offence, perpetrators are categorized as principal offenders and punishment for the offence is equally as heavy as for the person who actually does the act constituting the offence.

Sections 14 (b) and 21 (2) of the NDLEA Act provide for the culpability of accessories. This basically involves aiding, abetting, procuring or counseling the commission of an offence by act or omission.

The purport of section 14 (b) and 21 (2) of NDLEA Act is that a person who facilitates another to carry out his criminal intentions is just as guilty as the perpetrator, even though the person aiding and abetting may not participate in the actual crime. A person who has pre-knowledge that a crime will be committed may be liable under the paragraph where he is present at the scene of the offence and it is established that his presence encouraged the commission of the offence even though he did not participate in the actual commission.

As for counseling or procuring, presence at the scene of crime or actual partaking in the commission of the offence is not necessary. It extends to principal who commits an offence through an agent. See Bode George v FRN (2011) 10 N.W.L.R (pt 1254) 1, State v Mukoro – Mowoe (1973) N.S.S.C, Idika & Ors v The Queen (1959) N.S.S.C 83

Section 17 (b) of NDLEA also talks about what can be classified as an accessory after the fact. It relates to persons who assist another to escape. Here the person assisted to escape must have been in lawful custody.

To succeed, the prosecution must be able to prove that:

  1. The accused received or assisted the person who has committed an offence;
  2. The accused was aware at the time he received or assisted the person that he committed an offence;
  3. The accused received or assisted the other person in order to enable him escape punishment. – R v Ukpe (1938) 4 W.A.C.A 141

 REAL EXAMPLES

An airport official who deliberately disabled the scanning devices in the airport to allow a drug carrier access without checking, can he be prosecuted as an offender under this provision?

Yes. However the mere fact of being present when the passenger passed through the checkpoint without a routine check is not enough – as that could also pass as a mere act of negligence or dereliction of duty – there must be sufficient evidence to show that the accused person acted in collusion to perpetrate the commission of the offence.

Suppose E counsels F to engage in drug trafficking, that it is highly lucrative, and F does not take up the business on the ground that it is immoral, is E liable to prosecution?

No, for accessory to be liable, it must be established that the offence has been committed, not contemplated or abandoned. E can however still be charged for the offence of INCITEMENT under section 14 (a) of the Act.

Can an accessory be tried alone without the actual party (ies) who carried out the offence?

Yes. Let’s not forget that an accessory is a principal offender like the perpetrator of the offence – see section 21 (2) and (3). However the commission of the crime must be established. It does not matter the real actors in the crime are still at large. Practically speaking though, it is more reasonable to try them together.

In the event that the real actors are acquitted in a separate trial, this too does not bar the accessory from being convicted. (The perpetrators may have been acquitted based on procedural, technical or any other ground, so this does not obviate the fact that an offence has been committed of which the accessory ‘left the gate wide open’ for ‘mystery person’ who committed it)

The Distinction between Accomplices and Perpetrator is still very much relevant to prevent the prosecution from muddling up charges and saving themselves some embarrassment.

  1. The commission of the offence must have been established and in most cases, probably someone charged with committing it. There cannot be an accessory without a ‘principal’ offender.
  2. Attempt to aid and abet may not be possible to establish as there cannot be an accessory to a non existing offence (though an attempt to incite can be established) but attempt by the real perpetrators is always possible.
  3. The mental element for an accessory is not necessarily the same as perpetrators. An accomplice must really have two mental states: 1) to assist the principal, and 2) to commit the substantive offense. This is why an accomplice may come away with a greater punishment as defences such as provocation which may avail a man who shot his wife at the scene of adultery may not avail an accomplice who aided him.

 

BEST PRACTICES IN DRAFTING CHARGES  AND EVALUATING EVIDENCE

In all criminal trials, a charge sheet is usually drawn or drafted by the prosecution and brought before the court.

A charge sheet is the document before the court which informs the court and the accused of the allegation(s) leveled against the accused by the prosecution.

Section 36(6)(b) of the CFRN 1999 (as amended) provides that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.

In law, specific or laid down rules must be followed in drafting charge sheets.

The drafting of charges is guided and regulated by some rules.

The rule against ambiguity

The rule against misjoinder of offenders

The rule against misjoinder of offences/duplicity.

The rules of drafting charges are extremely important in criminal trials. These rules engender clarity and accuracy in the accused and his counsel’s understanding of the charges brought by the prosecuting authority.

Presently, the law guiding criminal procedure in Federal Courts is the Administration of Criminal Justice Act (ACJA), 2015. Its provisions on drafting charges will form the basis of this training.

THE RULES OF DRAFTING CHARGES: PROVISIONS OF ACJA TO NOTE

THE RULE AGAINST AMBIGUITY

This rule demands that all the particulars required by law must be stated methodically, clearly and accurately in a charge sheet. This rule also applies to the counts of alleged offences. The charge to which an accused is called upon to answer must be certain.

  1. You must state the offence with which the defendant is charged. (Section 194(1))
  2. Use the specific name the law uses to describe the offence. If no specific name, use as much of the definition of the offence to give the defendant notice of the offence with which he is charged. Section 194(2)
  3. You must state the law, the Section of the law, and the punishment section of the law.

E.G  …You thereby committed an offence contrary to Section 20(1)(b) and punishable under Section 20((2)(b) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004

  1. Include sufficient particulars as to give notice to the defendant of the offence for which he is charged of the:
    1. Time
    2. Place of alleged offence
    3. The person or thing against whom the offence is committed. (Section 196(1))
  2. File with a photograph of defendant and finger prints if available. (Section 196(2))
  3. It is better to state the Defendant’s correct name even though the Act says it is not necessary to state the person’s correct name , residence, occupation as long as he has been reasonably described to identify him. This will mean you can draft a charge using a person’s nick name.
  4. The description of a property should be in an ordinary language indicating with clarity the property referred to. (Section 201)
  5. If the law states offences in alternative the defendant may be charged in the alternative. (Section 190)
  6. Do not describe a defendant as a ‘Person unknown’ (Section 190(4))

THE RULE AGAINST MISJOINDER OF OFFENDERS

The general rule is that every accused person should be charged separately and tried separately for any offence alleged against him. This rule applies to the entire charge sheet.

EXCEPTIONS:

  1. You can charge two defendants together when:
  1. They committed the same offence in the course of the same transaction

E.G Osabo Timothyis the head of a syndicate that imports Cocaine to Nigeria.  In June 2003, he takes a consignment of the drug from Jude O’Neil, his partner, in Illinois. He beckoned on his friends Chukwuma Denton and Friday James and they all ingested 30 wraps each and boarded a flight to Nigeria. They were apprehended at Muritala Mohammed Airport in Lagos. Chukwuma Denton and Friday James can be charged together under this exception.

  1. One commits an offence and the other abets, is an accessory or attempts to commit the same offence.

E.G Blessing produces  methamphetamine and Everest has provided his house for Blessing to set up his laboratory.

  1. They have jointly committed more than one offence of the same or similar character.

E.G Kasunmu and Nofiu Alele together run a business of importing and exporting heroine.

  1. They have committed different offences in the course of the same transaction

E.G Eric Eze  runs a drug conglomerate, he promised $50,000 to Fred Paul for Fred to carry 1.167 kg of cocaine to Israel.

THE RULE AGAINST MISJOINDER OF OFFENCES/DUPLICITY

  1. If it’s a distinct offence file a separate charge or put in a different count.

E.G In 2002 Azu Okafor was a prison official. He allowed the escape of 5 drug trafficking convicts. By 2015 He had started to import to cocaine and heroin to Israel. It will be a bad charge to lump these offences together in one charge sheet.

  1. You can charge distinct offences together if:
  1. 3 offences were committed by the defendant within 12 months. It will not matter if they are of the same or similar character
  2. The defendant commits any number of the same type of offence
  3. The defendant commits any number of offences in the course of the same transaction having regard to time and place, continuity of action and community of purpose.

E.G  Akolu purchased a property with intent to start to grow cannabis sativa. In August, 2010, he begins growing the plant and by June 2011 he starts to export the drug to Benin Republic.

Trial can also be conducted together (Section 211).

  1. The acts and omission constitute an offence falling within two or more separate definitions in the law, the defendant may be charged with and tried at one trial.(Section 212)

E.G In the example where Everest has provided his house for Blessing to set up his laboratory to produce methamphetamine. The offence can be charged under Section 12 and also 14(b) of the NDLEA Act.

  1. The acts or omission by themselves constitute an offence and when combined constitute another offence, the defendant may charged with offence constituted when combined or for the offence constituted by each of the acts or omission. (Section 213)
  2. The acts or omission are of such nature that it is doubtful which of several offences the facts can prove, the defendant may be charged with all or any of the offences and be tried together. He may also be charged in the alternative.(Section 214)

WHAT IS THE EFFECT OF AN AMBIGUOUS, ERRONEOUS  OR DEFECTIVE CHARGE?

  • Effect of error (Section 220): An error as to
    • Stating the offence
    • Particulars of offence
    • A duplicity, Mis joinder of Non joinder of the particulars of offence.

is not material unless the defendant was misled by the error.

See Oduah v FRN (2012) 11 NWLR PT 1310 P76.

  • No objection is to be taken during the proceeding or trial on the ground of imperfect or erroneous charge. (Section 221). If the defendant wishes to raise an objection it must be done immediately the charge is read to him. Shehu v The State (2010) 8 NWLR PT 1195 P112.
  • A defect in the section of the law or even the legislation itself cannot sustain quashing the charge. Egunjobi v FRN (2013) 3 NWLR PT 1342. P 534This should however be avoided.

CASE STUDY

Timothy v FRN (2013) 4 NWLR PT 1344 P 21,

John Timothy, on 20th November, 2003, boarded a KLM plane at Amsterdam’s School Airport and took a direct flight to Nnamdi Azikwe International Airport, Abuja. On arrival, his bag was searched by NDLEA officials. As a result of movement of his bowel, he was ordered into the toilet where he excreted well-wrapped substances found to be cocaine.

His one count charge read:
That you John Timothy (male) on or about the 20th of November 2003 at the Nnamdi Azikwe International Airport, during the inward clearance of KLM flight No. KL 557 from Amsterdam imported 1.5 Kilogrammes of cocaine a narcotic drug, without lawful authority and thereby committed an offence contrary to and punishable under section 10(a) of the National Drug Law Agency (sic) Cap 253 , Laws of the Federation of Nigeria 1990

The defendant/appellant contended at the various courts (Federal High Court, Court of Appeal, Supreme Court) that the fact that the word ‘Act’ was missing should vitiate the charge.

It was held at the Supreme Court that:

  1. The omission was not such as should vitiate the Charge
  2. Section 166 of the Criminal Procedure Act (equivalent of (Section 220 ACJA) provided that an error as to stating the offence or particulars of offence is not material unless the defendant was misled by the error
  3. The defendant in this case was not misled. To be misled the defect must be fundamental and misleading.

NOTE: Even though NDLEA won at the Supreme Court, the time and money could have been saved by just adding the word ‘Act’ to the charge (This is barring that the defendant may still find the slightest reason to appeal a decision).

CASE STUDY 2

Olatunbosun v The State (2013) 17 NWLR PT 1382 P 167

The defendant was charged under the punishment section and not the main section defining the offence. He raised this objection on appeal. the Supreme Court held that:

  1. The Charge was properly framed
  2. Even if it was not the defendant should have raised the objection at the time of taking the plea.

NOTE: As earlier stated, mistakes like this should be avoided. This case started in 2004 and ended at the Supreme Court in 2013 and one of the strongest point of the appeal was this issue.

  • Effect of material error (Section 222 (1) & (2) ):
    • If an appeal court is of the opinion that the absence of the charge or erroneous charge misled the defendant and occasioned miscarriage of justice it order a recommencement of trial.
    • Where the defendant is charged under a non existent law, a conviction will be quashed. Paulson v The State (2012) 6 NWLR PT 1297 P 456, Section 36(12) 1999 Constitution (as amended)
    • If the appeal court is of the opinion that no valid charge could have been preferred on the facts proved it may quash the charge.

ALTERATIONS AND AMENDMENT OF CHARGES

SECTION 216 ACJA 2015

  • You can alter, amend or even frame a new charge before Judgment.
  • It will need to be read to the defendant and a fresh plea taken

CASE STUDY

Bude v State ( 2013) 17 NWLR PT 1384 P 585

The charge was amended but no fresh plea was taken. The Court of Appeal held that:

  • Where an accused person does not plead to an amended charge the trial will be a nullity.
  • Where the defendant is committed to trial and there is no charge or an imperfect or erroneous charge, the Court has powers to frame a charge or  alter or amend the Charge.
  • Upon amendment, a note of the amendment should be endorsed on the charge. (Section 218(2))
  • Where the amendment or alteration is after trial has commenced the prosecutor and defendant is allowed to recall, re-summon, and examine any witness or to call further witness. (Section 219)
  • The examination in respect of the above will limited to the alteration, amendment or substitution made. (Section 219)

 

EVALUATION OF EVIDENCE.

Pre Trial Procedure:

Most cases are fought and won at the stage of preparation. The period between filling the charges and actual commencement of trial is very important for the purposes of preparation. At this time, thoughts are geared towards controlling the random elements that may crop up unexpectedly in the course of trial.

  • Review the facts of the case
  • Consider how long is the trial likely to last
    • Availability of witnesses
    • Readiness of relevant departments to produce evidence
    • Production of Defendant if in custody
    • Likely nature of Defence
  • Develop a strategy to be adopted in prosecution

Checklist of questions to ask.

  1. What offence do you want to charge him for?
  2. Are the elements of the offence complete in this case?
  3. What words were used in the Act or at least similar words?
  4. If knowledge or other factor is made part of the offence, a charge must allege knowledge or such other factor. G Section 20(d) makes it an offence to engage in the acquisition, possession or use of property KNOWING at the time of acquisition, possession or use that such property was derived from any offence referred to in the section.
  5. Consideration of Evidence to be adduced.

It is under this head you examine the issue of admissibility. Proper research must have been done to avoid protracted trials based on objection to evidence.

Ask the questions:

  • What is my case?
  • What evidence do I need to secure a conviction?
  • What evidence do I have?
    • Oral evidence or Documentary evidence
    • Direct or Circumstantial Evidence
    • Real or Hearsay Evidence

Depending on the evidence, you should ask:

  • Is it Relevant
  • Is it admisssible
  • If it’s a document,
    • Does it need a certification? G a Report in the Newspaper needed in evidence will need certification from the National archives
    • Do you need to file a certificate under Section 84 of the EA?
    • Would you need to send a notice to produce?

Note:

  • An oral confession of the defendant is admissible (Section 15(5)ACJA)
  • A Statement recorded electronically on an audio visual means is admissible (Section 15(4)ACJA. NOTE: Section 258 EA. The rule guiding admissibility of documents will apply)
  1. Relevance and Admissibility: A few things to note
  • Evidence that is too remote to be material would be considered irrelevant.(Section 1(a) Evidence Act)
  • A fact that shows motive or preparation for a fact is relevant. (Section 6(1) EA)
  • Things said by a conspirator in reference to a common intention are admissible against other co-conspirators to prove the existence of a conspiracy and to prove that a person is a party to it. (Section 8(1)) EA)
  • When there is a question whether an act is intentional or accidental or done with a particular knowledge or to rebut a defence that may be open to the defendant, it is relevant to prove that the act formed part of a series of similar occurrences each of which the person was concerned. (Section 12 EA)

E.G.  Mbanefo Ijike aka Papa, without lawful authority, sold a quantity of Ephedrine to Hilary Micheal Igwe. In his defence during trial he claims he did not know the substance was forbidden or was used for producing narcotic drugs. It will be relevant to prove that he also sold to Ape Nadi alias Felixe, his cousin, who was arrested 2 months before he, Igwe, was arrested for production of narcotic drugs and had even given Felixe extra funds for such production.

  • Improperly obtained evidence or evidence obtained in contravention of a law is admissible except the Court determines that it is undesirable to admit it (Section 14 EA).
  1. Determining what witness to call

You need not call all the witnesses available. You must avoid duplication and superfluosity in your choice of witnesses. Too many witnesses on the same issue may lead to avoidable inconsistencies and may be fatal to your case.

From a study of the various recorded statements in the file, you must determine the most critical witnesses to call. They must be:

  • Witnesses whose presence on the stand would most likely guarantee that the evidential requirements for a conviction are satisfied
  • Witnesses whose evidence will cover the elements and ingredients of the offence
  • Witnesses whose testimony is direct and unambiguous
  • Witnesses who would provide corroboration where it is important

NOTE:

  • Do not call a witness who will contradict your case and favour the defence
  • Fresh information may change your view about calling a witness

The evidence of a co-conspirator or participant in the crime

Sometimes, a case can only be established through the evidence of a conspirator or participant in the crime. The decision to call such witness is described as a delicate one and you will need to factor in the possibility of him turning hostile or proving un-cooperative when he enters the box.

However, in some instances you may have no choice but to take the risk especially in high profile and complex cases involving a drug syndicate and also to prove conspiracies.

In those cases a participant or co conspirator may be the best person to reveal the existence of facts.

The reliance on the evidence of insiders is a commonly used and legitimate tactic where your target is a crime boss or an enemy of the State and the witness to be used is a subordinate or someone low down the organizational ladder and who merely follows instruction in pursuance of the objectives of the conspiracy.

Coker J.S.C Njovens & Ors v State {1973} NSCC, Vol 8. 366

When it is proposed to give evidence of the happenings of hell It is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell… indeed it would be preposterous to look for such evidence in other direction.

Things to do:

  • Meet with the witness to determine the truth and veracity of his story
  • Establish a rapport with them and offer some quid pro quo by way of immunity from prosecution or other inducements.
  • Ensure you have corroborative evidence

 

EXAMPLES OF GOOD AND BAD DRAFTING.

SAMPLE COUNT ONE

That you Abiodun Alamoko ‘m’ and others still at large, sometimes in December, 2001 at Lagos, within the jurisdiction of the Federal High Court did engage in the production and sale of a particular hard drug and thereby committed an offence contrary to S. 11(a) and (c) of the National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004.

This charge will be void for ambiguity. Neither the defendant nor the Court will know the exact drug he is been charged to have committed.

SAMPLE COUNT TWO

That you Rotimi Wilmat Olubeko ‘m’ and others still at large, sometimes in February, 2014 at Lagos, within the jurisdiction of the Federal High Court did conspire among yourselves to contravene the provisions of the National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004 and thereby committed an offence contrary to S. 14(b) of the National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004.

This charge will be void for ambiguity. The National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004 has over 52 sections. It is necessary to be able to identify the particular sections in respect of which there was alleged to be a conspiracy to contravene.

SAMPLE COUNT THREE

That you Okafor Micheal Emenuo alias Papa ‘m’ on 20th of February, 2014 at the at the E-arrival hall of the Murtala Mohammed International Airport, Ikeja, Lagos within the jurisdiction of the Federal High Court were knowingly in possession of the 3.67 kg of the drug popularly known as Heroine without lawful authority and thereby committed an offence contrary to S. 19 and punishable under the same Section 19 of the National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004.

This is an example of a good charge. It has

  1. A proper description of the defendant.
  2. The time of the commission of the offence
  3. The place of the commission of the offence
  4. It uses the exact words and includes the exact ingredients specified under the law.
  5. It states the section contravened and the punishment section.
  6. It gives the correct citation of the law

 

 

 

Leave a Comment

Your email address will not be published. Required fields are marked *