Inference of Mens Rea from Accused Person’s Conduct

“…….THE WORD INTENTION IS SUBJECTIVE, AND IS WITHIN THE MIND OF THE VERY INDIVIDUAL POSSESSING IT. BEING POSSESSIVE IN NATURE, INTENTION CAN THEREFORE, BE INFERRED FROM THE CONDUCT OF A PERSON BY MANIFESTING THROUGH HIS ACTION”

In the Supreme Court of Nigeria
Holden at Abuja

On Friday the 17th day of February, 2017

Before Their Lordships

Olabode Rhodes Vivour
Musa Dattijo Muhammad
Clara Bata Ogunbiyi
Chima Centus Nweze
Amiru Sanusi
Justices, Supreme Court

Between
Prof. Festus David Kolo………….. Appellant

And
Commissioner of Police ………….Respondent
Lead Judgement delivered by Honourable Clara Bata Ogunbiyi, JSC

Facts
The Appellant, a Professor at the Ahmadu Bello University, Zaria, Kaduna State, was arraigned before a Chief Magistrate’s Court, Kiyawa for enticing a married woman contrary to Section 389 of the Penal Code. The Appellant, who had been warned several times to stay away from the woman by her husband, was eventually caught with the woman in a hotel room in Dutse, Jigawa State. The Appellant pleaded guilty to the contents of the First Information Report (FIR). He was convicted summarily and sentenced to two months imprisonment without an option of fine. He was dissatisfied with the conviction and appealed to the High Court of Jigawa State which upheld his conviction and sentence; he further unsuccessfully appealed to the Court of Appeal. Still dissatis.

Issues for Determination
The Supreme Court adopted the following issues for determination: 1. Whether the Appeal Court was right in dismiss- ing the Appellant’s appeal when it affirmed the decisions of the High Court and Trial Magistrates’ Court by holding that the intention of the Appellant could be inferred from his conducts whereas the FIR with which the Appellant was convicted did not state or contain the essential ingredient of the offence of Enticing a Married Woman under Section 389 of the Penal Code Law of Jigawa State, to wit: “with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman,” such as to justify the conviction of the Appellant on Summary Trial Procedure. 2. Whether from a dispassionate appraisal or evalu- ation of the totality of the evidence i.e. First Informa- tion Report, before the Trial Magistrates’ Court, the learned Justices of the Court of Appeal were right in dismissing the Appellant’s appeal when the decision of the Trial Magistrates’ Court is unreasonable, unwar- ranted and unsupportable to warrant the conviction of the Appellant.

Arguments
The Counsel for the Appellant argued that it was clear on the face of the FIR, that the essential ingredi- ent of the offence of enticing married woman to wit “with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman” was not disclosed or stated on the face of the FIR. The Counsel stated that while ingredients 1 – 3 of the offence was disclosed, the fourth and last ingredi- ent was missing. He submitted that the Appellant could not have pleaded guilty to the offence created under Section 389 of the Penal Code to warrant his conviction. He further argued that Particular 4 was concealed from the Appellant and that he was not given the opportunity to know what constitutes the ingredients of the offence, and that occasioned a miscarriage of justice in a Summary Trial Procedure.

He argued that the conduct of the Appellant by calling and sending love messages to the woman, travelling from Zaria to Dutse to see the woman and the eventual staying together in a hotel room, were not sufficient enough to infer evil intention of enticement. He relied on the case of ABDULATIF AHMED v COP (1971) NMLR 48. On the second issue, Counsel for the Appellant argued that a thorough evaluation of the content of the FIR, revealed that an offence known to law is not shown to have been committed by the Appellant. He contended that in the absence of a full trial to test the facts through the process of cross-examination, the alleged acts are mere allegations and speculation, which the courts have been warned cannot ground a conviction. He relied on ONAH v STATE (1985) 3 NWLR (PT. 12) 236; ANYANWU v STATE (2012) 16 NWLR (PT. 1326) 221 AT 270. Counsel contended that the phrase “caught red handed” as contained in the FIR is very speculative and it gives room for different interpretations. He cited the case of OKEKE v STATE (1995) 4 NWLR (PT. 392) 676 AT 712 where it was held that, when evidence is capable of two interpretations in a criminal case, the one favourable to the accused person must be adopted. He urged the Court to allow the appeal and set aside the conviction of the Appellant.

Counsel for the Respondent argued that the fourth Particular of the offence was reflected on the face of the FIR; that it was not in dispute that the Appellant had understood the contents of the FIR clearly as evidenced by the pronouncement of the Court of Appeal. He contended that if the Appellant had problems with the words used in the FIR, he would certainly have asked for clarification and his Counsel would not have advised him to plead guilty as he did. He argued that the only thing to be inferred from the conduct of the Appellant based on the content of the FIR was that he intended to have illicit intercourse with the woman. He relied heavily on AREBAMEN v STATE (1973) 7 NSCC 194. Finally, in urging the Court to dismiss the appeal, he stated that even if the FIR was defective with regards to the last particular as alleged by the Appellant, the defect is curable by the provisions of Section 206 of the Criminal Procedure Code.

Court’s Judgement and Rationale
Their Lordships stated that the Appellant was convicted and sentenced under Section 389 of the Penal Code as follows:
“Whoever takes or entices any woman, who is and whom he knows or has reason to believe to be the wife of another man, from that man or from any person having the care of her on behalf of that man with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or both”
The Supreme Court held that there are four ingredi- ents contained in the offence for which the Appellant was convicted namely:

(i) That the person enticed or taken away is a married woman (ii) That the accused knew or had reason to believe that the woman was the wife of another, under that care of her husband or of another person (iii) That the married woman is enticed or taken away from her husband or any person while in the care of her husband or any other person (iv) That it is with intent that she may have illicit intercourse with any person or a. Be concealed b. Detained with the same intent.

The Court held that the bone of contention is the absence or otherwise of the last particular of the offence on the FIR. In response to the contention of the Appellant that the FIR did not disclose that the ultimate intention of the Appellant was to have illicit intercourse with any person, and that making that inference would be speculative and thereby casting doubt in the minds of any reasonable man as to the intention of the Appellant, the Supreme Court stated that the word intention is subjective, and is within the mind of the very individual possessing it. Being possessive in nature, intention can there- fore, be inferred from the conduct of a person, by manifesting through his action.

There are abundant reasons from the Appellant’s behaviour which when taken together will depict with certainty the intention of the Appellant. The Court held further that from the facts stated on the FIR, the necessary intention of the Appellant had been revealed. The law is trite and well settled that intention of an accused person can in certain cases be inferred from the conduct of the person and the surrounding circumstances within which he acts and operates. Proof of intention is usually difficult except by confession or by inference flowing from the manifestation of the person’s action. ARABAMEN v STATE (supra).

The Supreme Court also observed that the Appel- lant had made a Confessional Statement during Police investigation and held that Confession is the best form of evidence and an accused person can be convicted on his Confessional Statement alone.

The Court relied on NWACHUKWU v STATE (2007) 17 NWLR (PT. 1062) 31 AT 70. The Court also held that the purpose of any Charge, be it FIR or Information as the case may be, is to precisely inform the Accused Person of the case he is going to face at the trial. The contents of the FIR herein were explicit, precise and adequately informed the Appellant of the case that he was to face before the trial Court. For a Court to consider any defect in a FIR, the Appellant must prove that such error or omission has occasioned failure or miscarriage of justice to him, which the Appellant in this case failed to show.

The Supreme Court dismissed the appeal and affirmed the judgement of the Lower Courts.

Representation: Ibrahim Idris Esq. with J.E. Udor Esq. and S.O. Ogbonna Esq. for the Appellant S.H. Garun Gabbas A.G. of Jigawa State with M. M. Iman DPP, H. Abdullahi Asst. C.S.C, Z. Mohammed PSC and M. Usman SSC for the Respondent

Reported by Optimum Law Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))

Source: Thisday