➥ CASE SUMMARY OF:
ONYEMUCHE ONUKWUBE v. STATE (2020) – SC
by “PipAr” Branham-Paul C. Chima, SAL.
Supreme Court – SC.1214C/2018
➥ JUDGEMENT DELIVERED ON:
Friday, December 18, 2020
➥ AREA(S) OF LAW
Lesser offence conviction.
➥ PRINCIPLES OF LAW
⦿ FOR CONVICTION FOR A LESSER OFFENCE, THE LESSER OFFENCE MUST HAVE SOME OF THE PARTICULARS OF THE GREATER OFFENCE
From TORHANBA V. POLICE (1956) NRNLR at 94 through to SHOYMBO V. STATE (1974) 10 SC 91, OYEDIRAN V. REPUBLIC (1967) NMLR 122, OKOBI V. STATE (supra) and thence to JOHN NWACHUKWU V. STATE (1986) LPELR – 2085 (SC), the Court persisted on the import of the procedure it propounded under Section 179 of the Criminal Procedure Code Act. In all these cases the Court insists that “the lesser offence” Section 179 allows a Court to convict an accused rather than the greater offence he was formally charged for is a combination of some of the several particulars of the offence charged. The ‘operative’ word is “lesser” and not “another” offence. To justify the conviction of the accused for the lesser offence he must be seen to have had notice for the lesser offence by virtue of the notice of the greater offence he was given by the formal charge. The evidence on which the accused is convicted though short of proving the greater offence, it is such that it establishes the lesser offence. See OLUMIDE SEGUN V. THE STATE (2018) LPELR – 44693 (SC) and SALIU V. STATE (2018) LPELR – 44060 (SC). — M.D. Muhammad, JSC.
⦿ BEFORE AN ACCUSED CAN BE CONVICTED FOR A LESSER OFFENCE
This power cannot be exercised at large. It is subject to certain limitations. Before an accused person can be convicted of a lesser offence, the ingredients of the lesser offence must be subsumed or embedded in the original offence charged and the circumstances in which the lesser offence was committed must be similar to those contained in the offence charged. See: The Nigerian Airforce vs Kamaldeen (2007) 2 SC 113: (2007) 7 NWLR (Pt. 1032) 164: Saliu Vs The State (2018) 10 NWLR (Pt. 1627) 346; Agugua vs The State (2017) LPELR 4202 (SC). — K.M.O. Kekere-Ekun, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
⦿ FOR THE APPELLANT
Tochukwu Maduka, Esq.
⦿ FOR THE RESPONDENT
Chief M. E. Eze, the Attorney-General of Enugu State.
➥ CASE FACT/HISTORY
The Appellant, as the 2nd accused person, was charged and tried for the offence of armed robbery contrary to 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 111 LFN 2004. The particulars of the offence are that: the Appellant and three others “on or about 18th Day of April, 2014 at No. 1/3 Umu-Anaghara Close Achara Layout, Enugu -, while armed with gun did rob one Ugochukwu Francis Nwaiwu of the following items: two Laptops, four cell phones, one Techno Tab, One Laptop Hard-Disk, a box containing jewelries, two Travelling bags, One National ID Card, Two ATM Cards of Eco Bank and Keystone Bank and a sum of N100,000.00— cash.”
In this appeal, the trial Court found that the appellant could not be convicted for the offence of armed robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, he was originally charged and tried – a reasonable doubt having been created that he participated in the alleged armed robbery by reason of the prosecution witnesses not properly identifying and fixing him to the alleged armed robbery. The trial Court nonetheless, at page 113 of the Record, proceeded to hold — Since the evidence before the Court shows that the 2nd accused person aided or conspired with the accused person and others to commit the offence of armed robbery, the Court finds that he is deemed guilty as a principal offender. Accordingly, the 2 accused persons are found guilty as charged. The lower Court, finding that this “view is seriously erroneous in law,” held, correctly, that “before an accused is convicted on a charge of conspiracy to commit armed robbery instead of (the) armed robbery for which he was charged and tried, a new charge of conspiracy must be framed”. This dictum notwithstanding, the lower Court proceeded, on the presumption (under Section 167(a) of the Evidence Act, 2011) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen, unless he can give account for his possession; to convict the appellant of “receiving goods obtained by means of armed robbery”. The Court purportedly acted under Section 16 (sic: 15) of the Court of Appeal Act and Section 179 of the Criminal Procedure Act.
➥ ISSUE(S) & RESOLUTION(S)
♎ I. Whether the lower Court was right in convicting and sentencing the appellant to imprisonment for life for receiving goods which are proceeds of armed robbery?
RULING: IN APPELLANT’S FAVOUR.
A. BEFORE ACCUSED IS CONVICTED OF A LESSER OFFENCE, HE MUST HAVE SUFFICIENT NOTICE
“The sine qua non, for the invocation of Section 179 of the CPA (substantially in pari materia with Section 218 of the CPC and Section 236 of the Administration of Criminal Justice Act, 2015), is the accused/appellant having sufficient notice of the offence he is convicted for to facilitate his defence consistent with Section 36(6)(a) of the 1999 Constitution. I agree with the Appellants’ Counsel that in the absence of sufficient notice of any lesser offence or if the lesser offence is not a constituent element of the larger or aggravated offence a conviction for the lesser offence, on the ground only that the substituted offence carries lesser punishment of penalty violates the spirit and substance of Section 36(6)(a) of the Constitution.”
“The lower Court, in convicting the Appellant for receiving goods which he knew were obtained by means of armed robbery, was no doubt influenced by the provisions of Section 167(a) of the Evidence Act, which entitles the Court to presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The trial Court, at page 112 of the Record, convicted the appellant on the grounds that he admitted in Exhibit 7 that he participated in planning the robbery and receiving some of the items robbed. He was earlier acquitted of the offence of armed robbery charged. The lower Court, at page 195 of the Record, expressly set aside that conviction of conspiracy. By that holding the first presumption under Section 167(a) that the Appellant was the robber no longer availed the prosecution. That leaves them with only the second tranche of the presumption: that is a receiver of goods knowing them to be stolen. And that is the catch. Being in possession of, or receiving goods knowing them to be stolen is not a constituent element of the offence of armed robbery charged. The charge having not sufficiently given the Appellant the notice of that offence, consistent with Section 36(6) of the Constitution, the lower Court had wrongly invoked Section 179 CPA in convicting the Appellant of the offence of receiving contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act.”
B. ACQUITTED OF A STATUTORY OFFENCE, CANNOT BE CONVICTED OF LOWER OFFENCE WITH SAME DEFENSE
“In other words, where the accused is acquitted on the successful plea of a statutory defence for the offence charged; it would be wrong to convict him for the lesser offence having the same statutory defence. Therefore, since the accused person can, on the same fact or defence, plead autrefois acquit, to convict him on the same fact of the lesser offence would be wrong in law. That is the implication of Section 36 (9) of the Constitution viz-a-viz AGUMADU v. THE QUEEN (supra).”
C. THE APPELLANT WAS CONVICTED FOR A TOTALLY DIFFERENT OFFENCE THAT CANNOT BE CARVED OUT OF THE GREATER OFFENCE
“Was what the lower Court did in the instant case in conformity with what this Court outlined in all its decisions pertaining the procedure under Section 179 (1) and (2) of the Criminal Procedure Code Act? Certainly not. I agree with learned appellant’s counsel that the lower Court is off the mark in its purported invocation of the section in convicting and sentencing the appellant for the offence it did in place of the offence he was charged. The offence of receiving stolen property with the knowledge that same was stolen cannot be carved out of the offence of armed robbery the appellant was charged with. In convicting the appellant for the offence that is not a constituent part of the offence the appellant was charged with, the Court stands in breach of Section 36 of the 1999 Constitution (as amended) which makes it mandatory for the appellant to be informed in detail the nature of the offence with which he was tried. There cannot be a better example of a perverse decision than the lower Court’s as herein before demonstrated.”
LEGISLATION: Section 167(a) of the Evidence Act, 2011, Section 179 of the Criminal Procedure Act, and Section 15 of the Court of Appeal Act the Court.
“In sum total, I allow this appeal. The conviction of and sentence to life imprisonment imposed on, the Appellant for “receiving goods which he knew were obtained by means of armed robbery” are hereby set aside and the Appellant is hereby acquitted and discharged. Appeal allowed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
⦿ CONVICTING FOR A LESSER OFFENCE: PARTICULARS OF CHARGE SHOULD BE SAME
The law espoused in SAMUEL TORHAMBA v. I.G.P (1956) NRNLR 87 at 94, very apposite and persuasive, is that: for the offence of stealing, one cannot produce “the offence of being in possession of something which is reasonably suspected of having been stolen or unlawfully obtained” as a constituent element or particular of the offence of stealing. It is for this reasoning that Bairamian Ag. C.J. and Hurley, J in TORHAMBA v. I.G.P (supra) acquitted the appellant, Torhamba, of the offence of receiving, substituted for the charge of stealing he was charged and tried — reasoning that it should be obvious that it is not possible to convict for the offence of receiving when the charge is stealing. TORHAMBA v. I.G.P. (supra) had since been cited with approval in AGUMADU v. QUEEN (1963) 1 ALL NLR (SC).
⦿ COURT CAN CONVICT FOR LESSER OFFENCE IF SAME HAS SOME PARTICULARS OF THE GREATER OFFENCE
This Court affirmed the invocation of Section 218 of the CPC in EZEJA v. THE STATE (2008) 10 NWLR (pt. 1096) 513, Onnoghen, JSC (as he then was) stated – It is settled law that the Courts, including this Court, have the power under Section 218 of the Criminal Procedure Code to convict an accused/appellant for a lesser offence or an offence for which he was neither charged nor pleaded to. The Appellant in this case, was charged with causing grievous hurt to Cyprian Okpala by shooting and wounding him with his service pistol, but the evidence, at the trial, disclosed a lesser offence of causing hurt without provocation hence the conviction of the Appellant by the trial Court under Section 246 of the Penal Code. I hold the view that the lower Court was right in affirming the said conviction and in correcting the error made by the trial Judge in referring to Section 218 of the Penal Code instead of Section 218 of the Criminal Procedure Code as his authority for substituting a conviction for a lesser offence (sic) for charged.
➥ REFERENCED (OTHERS)