Emmanuel Ugboji v. The State (2017)



Emmanuel Ugboji v. The State (2017) – SC

by NSA PaulPipAr

⦿ TAG(S)

– Armed robbery;
– Conspiracy to commit armed robbery;
– new charge;
– convicting without charge;
– beyond reasonable doubt;
– confessional statement;


Emmanuel Ugboji


The State


(2017) LPELR-43427(SC);


Supreme Court


Amiru Sanusi, J.S.C







⦿ FACT (as relating to the issues)

The facts of the case, as could be gathered, from the printed record are that the present appellant and five others were charged before the trial High Court sitting in Otukpo and tried on five counts of conspiracy to commit series of robberies and armed robbery.
At the trial, the prosecution called four witnesses to prove its case against the appellant and other five co-accused persons. After the close of the prosecution case, the defence made a No case Submission. The trial Court in its considered ruling on the “No case Submission” ruled in favour of three accused persons. The trial Court discharged the appellant on the first count of conspiracy to commit armed robbery. The appellant was thereby called upon to enter his defence on the second count of armed robbery as well as another co-accused named Mathias Garuba Idoko and one other. The trial Court ruled that the appellant and two other co-accused had a case to answer, as prima facie case was made against them on counts 4 and 5.

After the conclusion of the trial the appellant was found guilty, convicted and sentenced to death. Piqued by the decision of the trial Court, the appellant herein, appealed to the Court of Appeal, Makurdi Division (the lower/Court below), as his appeal was dismissed by the lower Court. Still dissatisfied, the appellant appealed to this Court.



1. Whether in the circumstances of this case it was proper to convict the appellant to conspiracy (sic) to commit armed robbery proffered against the appellant.

2. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt as required by law?




i. After it presented its evidence in proof of the five counts, the trial Court discharged and acquitted the appellant with the offence of conspiracy along with the other co-accused as the trial Court found at that stage, that count or charge was not proved. The trial Court later went ahead in its judgment, to find in its conclusion, that the appellant and one other co-accused person did commit the offence of conspiracy, and without framing any formal charge of conspiracy, let alone taking his plea convicted him of that offence which it had earlier discharged and acquitted him. In doing so, the learned trial judge invoked the provisions of Sections 216 and 217 of the Criminal Procedure Code which said provisions had been extensively reproduced supra. Surprisingly, the lower Court endorsed such finding. The trial Court arrived at its finding in that regard without any charge framed, not to talk of, taking the plea of the appellant and calling him to present his defence. It therefore suo motu convicted him even without it being agitated to do so by the defence/respondent. It simply went ahead to sentence the appellant to death without the appellant being given any information about the offence he was accused of committing or the chance to admit or deny the allegation of committing the offence of conspiracy. This is rather bizarre, especially when one notes that the learned justices of the Court below affirmed such queer finding of the trial Court.


ii. By the provisions of Section 36 (6) (a) of the 1999 Constitution as amended, reproduced supra, any person charged with a criminal offence must be informed promptly and in detail, the nature of the offence he is charged with or accused of committing in the language he understands. It seems to me that by the provisions of Section 36 (6) (a), the Constitution has decreed that a formal charge has to be framed which also must be read to the accused person in the language he understands, as well as the details of the nature of the offence. The trial Court must also be certain that the accused has not been misled in his defence. The invocation of the provisions of Section 216 and Section 217 of Criminal Procedure Code to convict the present appellant of the offence of criminal conspiracy to commit armed robbery by the learned trial Judge without a formal charge framed in the circumstance, is a total breach of the constitutional provisions mentioned above.


i. In the instant case, the learned trial Judge having noticed that there was no reliable eye witness account fixing the appellant to the scene of the commission of the offence he was charged with and also no reliable or credible evidence incriminating him, the learned trial Judge resorted to relying on the purported confessional statement of the appellant Exhibit C and thereupon invoked the provisions of Section 217 of CPC to convict him. In this instant case, there is no doubt that offence or offences of armed robbery had been committed. That notwithstanding, the prosecution remains duty bound to adduce evidence fixing the appellant at the scene of the crime per se. This is because, it is not sufficient for the prosecution, (now respondent,) to lead evidence to prove that robbery or robberies took place without proving that the appellant had participated at the robbery along with the other co-accused. In an effort to prove the element of participation in the crime by the appellant herein with crime charged, the prosecution’s vital eye 30 witnesses (the victims) i.e PW1 and PW4, failed woefully to identity the appellant as one of the robbers who robbed them on the day of the incident.

ii. Looking at the first part of Exhibit C vis-a-vis the contents of the two counts, it can be said that there had been ambiguity as to which, who or how many robbery suspects participated and which of the robberies took place on 9th September 2001 or on 9th of October 2001. The two charges also did not specify the exact scene of the crime or the actual date the robberies took place. For instance, in count 4 it was mentioned that five accused persons took part in the robbery but only four suspects were named by the victim Adekole Ogale. It is worthy of note, that in the surrounding circumstance of this case/appeal, no charge was framed by the trial Court against the appellant as would have enabled the appellant to state his position when presenting his defence. This certainly must have been misleading and therefore must had ultimately led to gross miscarriage of Justice to the appellant/accused. The absence of a formal charge before his conviction, is infringement of his right to fair hearing as I have remarked earlier.

Available:  Paul Odi & Anor V. Gbaniyi Osafile & Anor (1985) - SC


– Section 216 & Section 217 of the Criminal Procedure Code;
– Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999;
– S. 1 & 5 of the Robbery and Firearms (Special Provisions) Act;



Ezechukwu v. C.O.P (1996) NWLR 96 @ 101, the Court of Appeal held that where Section 217 is to be relied upon in convicting an accused person of an offence with which he was not charged it must be apparent (1) that it had been doubtful which of several offence the facts which could be proved would constitute and (2) such doubt must apply only to the law and not to the fact; that is to say the fact charged must have given the accused person notice of the offence with which he is to be convicted, I think this view accords with sound reasoning and I adopt it.





The appellant merely raised two issues for the determination of the appeal. It is rather unfortunate that he did not marry or tie each of the two issues for determination to particular ground or grounds of appeal as contained in the notice of appeal dated 15th January, 2014 which contained ten grounds of appeal. This attitude is highly deplorable, as this Court had in the past admonished counsel for not marrying or stating the relevant ground or grounds of appeal to which the issue or issues proposed for determination relate to in their briefs of argument However, the learned counsel to the respondent herein had done a good job by specifically linking all the five issues for determination he raised, to particular or relevant ground or grounds of appeal in the notice of appeal. The learned counsel for the respondent deserves commendation for doing that. – Sanusi, JSC. Ugboji v. State (2017)

It is trite law, that grounds of appeal on which no issue was raised is deemed to have been abandoned and deserves to be struck out. – Sanusi, JSC. Ugboji v. State (2017)

It is settled law; that there are three methods for proving an offence by the prosecution in order to obtain conviction. These three methods of proof are as follows:- (a) By the testimony or testimonies of eye witness or witnesses; (b) Through voluntary confessional statement of an accused person; (c) Through circumstantial evidence. – Sanusi, JSC. Ugboji v. State (2017)

This Court had in plethora of its decided authorities held that a Court of trial should always examine confessional statements in the light of other evidence in order to determine whether: (a) there is anything outside the confessional statement showing that the confession is true; (b) that the facts contained in the confessional statement are true as far as they can be tested; (c) that the accused had opportunity of committing the offence; (d) that the confession is possible; (e) that the confession is consistent with other facts which have been ascertained and proved. – Sanusi, JSC. Ugboji v. State (2017)

Available:  Mrs. O. Adekoya v. Federal Housing Authority (2000)

Thus, it is not enough for the prosecution to prove that there was armed robbery, it must go further and establish beyond reasonable doubt that the accused/appellant had participated in the robbery. – Inyang Okoro, JSC. Ugboji v. State (2017)

An admission is only a confession if at the time it was made the maker had been charged with a crime and the maker therein admitted the crime. Ejembi Eko, JSC. Ugboji v. State (2017)

A witness discredited can no longer be credited with probative value. A Court can no longer rely on the evidence it has discredited, or which it found unreliable. Doing so, the same Court will be reprobating and approbating on the same evidence at the same. – Ejembi Eko, JSC. Ugboji v. State (2017)


The learned trial Judge invoked the provisions of Sections 216 and 217 of the CPC to convict the appellant. My understanding of the two provisions is that Sections 216 of CPC can only be invoked in a situation where series/several offences were suspected to have been committed and the prosecution is in doubt, as to which of the possible or available facts if proved, tend to constitute the offence. In such situation/circumstance, the prosecution is at liberty to charge the accused with all the offences or any one or more of such offences. He may even be charged in the alternative. Conversely, Section 217 of CPC only comes in to play, in a situation where an accused is charged with one of several offences but the evidence available clearly shows that the accused had instead, committed a different offence with which he is supposed to be charged initially, but was not so charged. ln that situation the Court of trial is at liberty to convict such accused of that other offence even though he was not formally charged with it. – Sanusi, JSC. Ugboji v. State (2017)

In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the under mentioned elements, namely:- (I) that there was a robbery (II) that the robbers or any of them was armed at the time of the robbery; and (III) that the accursed person or persons was/were the armed robber(s). – Sanusi, JSC. Ugboji v. State (2017)

Section 216 of the Criminal Procedure Code (CPC) seeks to address a situation where several offences might have been committed and the prosecution is in doubt as to which of the possible offences the available facts, if proved, could constitute. It permits the prosecution to charge the accused with all or any one or more of such offences. He may also be charged in the alternative. – Kekere-Ekun, JSC. Ugboji v. State (2017)




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