Criminal Law and Procedure I

• Pages: 6-959

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CRIMINAL LAW AND PROCEDURE.

(1) ABETMENT.

Distinction between conspiracy and abetment.

“For my part, I must turn to examining this question by scrutinising the distinction between the

offences of conspiracy and abetment as properly accentuated by the trial Court in its judgment

at p. 66 LL 13 – 22 of the record where it said thus: “I am of the view that from the nature of

the provisions of Section 85 and 97 of the Penal Code the two provisions are distinct.

Conspiracy is distinguished from abetment (sic) in that the crime consist of simply in the

agreement or confederacy to do some act, no matter whether it is done or not. In the other (i.e.

abatement) (sic) the intention to do a criminal act is not a crime itself until something is done

amounting to do or attempting to do some act to carry out the intention. Moreso, the offence of

abatement (sic) deals only with offenders who may be described as accessories before the fact

and at the fact. Abattors (sic) must have committed acts or omissions which must take place in

pursuance of the conspiracy. I therefore find the two charges as framed by the prosecutions

are distinct.” This is a correct statement of the law on the distinction between conspiracy vis-

à-vis abetment and I uphold it. The exposition recognises the distinction between the persons

otherwise known as principals in the first degree who actually did the criminal act and those

other parties or co-confederates who are secondary parties present at and assisting in the

commission of the felony, for example by keeping watch. And so conspiracy is distinguishable

from abetment; the two offences have different ingredients, in the case of conspiracy prior

agreement is necessary, it is not so in abetment. See Mohan v. R. (1967) 2 All E.R. 58.” – Per

Chukwuma-Eneh, J.S.C., in Kaza v. State Suit No. S.C. 212/2004; (2008) 7 N.W.L.R. (Pt.

1085) 125 at 162 – 163.

Ingredients of abetment.

(1) “For an accused person to be convicted of abetment, under section 85 of the Penal Code,

the prosecution must prove the following ingredients: (i) That there was an encouragement,

incitement, setting on, instigation, promotion or procurement of offence. (ii) Any of the above

acts must be positive and unequivocal specifically addressed to the commission of the offence.

(iii) The act abetted must be commi tted in consequence of the abetment. (iv) An accused person

could be convicted of the offence of ab etment on proof by the prosecution of any of the acts

mentioned in (i) above. In other words, the acts mentioned in (i) above are in the alternative

and not cumulative. An encouragement here means an act of making someone to feel brave or

confident enough to do something by giving active approval in support of the crime. Incitement

also has the element of encouragement. By incitement, the person is provoked by a strong

passion of feeling to commit an offence. The word “set” is a word of quite a number of

synonyms. The two words “set on” connote the semblance of causing to attack or chase like

one may say the fisherman prepared the bait to set on the fish. It also has the element of

antagonism. An instigation, the act of instigating, means something happening by the action or

conduct of a person, who is the starter. By the act of instigation, the co-accused is propelled

or gingered to commit an offence.” – Per Tobi, J.S.C., in Kaza v. State Suit No. S.C. 212/2004;

(2008) 7 N.W.L.R. (Pt. 1085) 125 at 177.

(2) “The charge against the 2nd appellant to which issue 2 raised by the appellants relates is

abetment under section 85 of the Penal Code. That section reads as follows: - “85. Whoever

abets any offence, shall, if the act abetted is committed in consequence of the abetment and no

express provision is made by this Penal Code or by any other law for the time being in force

for the punishment of such abetment, be punished with the punishment provided for the

offence.” It is obvious that the section requires that, apart from the abetment, the act abetted

should have been actually committed. The section required the proof not only of the acts or

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omission constituting the abetment but also of the commission of the act abetted in

consequence of the abetment: - See Patrick Njovens & Others v. The State (1973) N.M.L.R.

331 at 346. In a charge of abetment of an offence the ‘initial element’ is the instigation or

positive act of encouragement to do the act or omission which constitutes the offence: - See

Patrick Njovens & Others v. The State (supra) at page 347.” – Per Obadina, J.C.A., in Upahar

v. State Suit No. CA/J/177C/99; (2003) 6 N.W.L.R. (Pt. 816) 230 at 260.

(3) “For an accused person to be convicted of abetment under section 85 of the Penal Code the

prosecution must prove the following ingredients: 1. That there was an encouragement,

incitement, setting on, instigation, promotion or procurement of offence. 2. Any of the above

acts must be positive and unequivocal specially addressed to the commission of offence. 3. The

act abetted must be committed in consequence of abetment. 4. An accused person could be

convicted of the offence of abetment on proof by prosecution of any of the acts mentioned in

(1) above. In other words, the acts mentioned in (1) above are in the alternative and not

cumulative. An encouragement here means an act of making someone to feel brave or confident

enough to do something by giving active approval in support of the crime. Incitement also has

the element of encouragement.” – Per Muntaka-Coomassie, J.S.C., in Oguno v. State Suit No.

S.C. 391/2010; (2013) 15 N.W.L.R. (Pt. 1376) 1 at 27.

Meaning of abetment.

“Abetment is an act of encouraging, inciting or aiding another. The verb variant “abet” means

to encourage, incite or set another on to commit a crime. An abettor is an instigator, or setter

on, one who promotes or procures a crime to be committed. See Black’s Law Dictionary (Sixth

edition) page 5. Abetment is easier to prove than conspiracy because it entails or involves more

overt actions.” – Per Tobi, J.S.C., in Kaza v. State Suit No. S.C. 212/2004; (2008) 7 N.W.L.R.

(Pt. 1085) 125 at 176 – 177.

Ingredients to be proved by the prosecution to secure conviction for abetment.

“Thus, the Courts have highlighted what the prosecution must prove, in order to secure a

conviction for an offence of abetment. In the case of Oguno v. State (2013) 15 N.W.L.R. (Pt.

1376) p. 27 paras A – H, this Court has held thus: “For an accused person to be convicted of

abetment under Section 85 of the Penal Code the prosecution must prove the following

ingredients: a. That there was encouragement, incitement, setting on, instigation, promotion or

procurement of the offence. b. Any of the above acts must be positive and equivocal, specially

addressed to the commission of the offence, c. The act abetted must be committed in

consequence of abetment. An accused person could be convicted of the offence of abetment on

proof by the prosecution of any of the acts mentioned above, In other words, the acts mentioned

above are in the alternative and not cumulative. An encouragement here means an act of making

someone feel brave or confident enough to do something by guiding active approval in support

of the crime. Incitement also has the act of encouragement”. per Muntaka-Coomassie J.S.C. at

page 27 (Underlining mine). Chukwuma-Eneh J.S.C., in Kaza v. The State (2008) 1-2 S.C. 151

at 194-195 stated thus:- “On the offence of abetment - this is covered under Section 85 of the

Penal Code and it provides as follows: “85 whoever abets any offence shall, if the act abetted

is committed in consequence of the abetment and no express provision is made by this Penal

Code or by any other law for the time being in force for the punishment of such abetment, be

punished with punishment provided for the offence. The clear purport of the above provisions

of Section 85 of the Penal Code is clear to the extent that to secure the conviction of an accused

person as the appellant here the prosecution has the responsibility to establish as follows: (1)

that the accused abetted the off ence (2) that the abetted offence was committed in consequence

of the abetment (These stipulations flow naturally from the definition of abetment as per the

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foregoing provisions). Pp. 21 – 22.” – Per Peter-Odili, J.S.C., in Suleiman v. State Suit No.

SC.1306C/2018; (2022) L.P.E.L.R. – 57577 at 32 – 34.

Meaning of abetment and requirements for proof of abetment.

“Section 85 of the Penal Code 1991 provides: “85. Whoever abets any offence shall, if the

offence abetted is committed in consequence of the abetment and no express provision is made

by this Penal Code or any other law for the time being in force for the punishment of such

abetment, be punished with the punishment provided for the offence.” “Abetment” is defined

in Section 83 as follows: “83. A person abets the doing of a thing who - (a) instigates any

person to do that thing; or (b) engages with one or more other persons in any doing of that

thing; or (c) intentionally aids or facilitates by any act or illegal omission the doing of that

thing.” In Njovens v. The State (1973) 5 (S.C.) 17, this Court, per Coker, J.S.C. interpreted

Section 85 as follows: “It is obvious that the Section requires that, apart from the abetment, the

act abetted should have been actually committed. The Section requires the proof, not only of

the acts or omissions constituting the abetment but also of the commission of the act abetted in

consequence of the abetment.” See also: Kaza v. The State (2008) 1-2 S.C. 154 @ 194-195 per

Chukwuma-Eneh, J.S.C.” – Per Kekere-Ekun, J.S.C., in Suleiman v. State Suit No. S.C.

1306C/2018; (2022) L.P.E.L..R–57577 at 14 – 15.

Punishment for abetment of crime.

“The charge against the 2nd appellant to which issue 2 raised by the appellants relates is

abetment under section 85 of the Penal Code. That section reads as follows: - “85 Whoever

abets any offence, shall, if the act abetted is committed in consequence of the abetment and no

express provision is made by this Penal Code or by any other law for the time being in force

for the punishment of such abetment, be punished with the punishment provided for the

offence.” – Per Obadina, J.C.A., in Upahar v. State Suit No. CA/J/177C/99; (2003) 6 N.W.L.R.

(Pt. 816) 230 at 260.

The primary element of the offenc e of abetment and when is abetment committed.

“In a charge of Abetment, the primary element in establishing guilt is the instigation of a

positive act geared towards committing the offence. Therefore a person is said to have abetted

the doing of a thing when he (i) instigates any person to do that thing; or (ii) engages with one

or more other persons in any conspiracy for the doing of that thing; or intentionally aids or

facilitates by any act or illegal omission, the doing of that thing. See Njovens v. State (1973)

All N.L.R. 371 and Upahar v. State (2003) 6 N.W.L.R. (Pt.861) 230. See also case of Jibrin v.

COP (2006) ALL F.W.L.R. (Pt .305) P.777 paras B-C.” – Per Peter-Odili, J.S.C., in Suleiman

v. State Suit No. SC.1306C/2018; (2022) L.P.E.L.R. – 57577 at 31 – 32.

(2) ABUSE OF OFFICE.

Can an act by a Board member outside his prescribed authority amount to abuse of office.

“The appointment as a board member comes with the prescribed authority. Any other authority

outside that which is not given is self acquired and hence any act done in pursuance to that

authority is wrongful and therefore is an abuse of office.” – Per Ogunbiyi, J.C.A., in George

v. F.R.N. Suit No. CA/L/21/2010; (2011) 10 N.W.L.R. (Pt. 1254) 1 at 86 – 87.

Does the Public Officers Protection Act au tomatically protect any public officer who had

abused his position and on whom lies the burden of proving abuse of office by a public

officer.

“In Muhammed v. A. B. U., Zaria (supra), this Court further expressed that the law does not

automatically protect any public officer who had abused his position. It means that a Court