Conviction For Lesser Offence

Before Their Lordships

Between

AND

Before Their Lordships

Between

Judgment

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment) : This Appeal No. SC.128/2019 was commenced on 29-1-2019 when the appellant filed a notice of appeal in Appeal No. CA/PH/13CR/2018, against the judgment of the Court of Appeal delivered on 7-12-2018 upholding the judgment of the High Court of Bayelsa State at Yenagoa delivered on 22-6-2017 in charge no.

YHC/173C/2016, finding that the appellant and his co-accused are not guilty of the offences of conspiracy to commit robbery and armed robbery for which they were charged and tried and rather finding them guilty of the offence of conspiracy to commit robbery and the offence of robbery.

Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellant’s reply brief.

The appellants’ brief raised the following issues for determination – 1. Whether the lower Court was right when it affirmed that the trial Court can convict the appellant of a lesser offence of robbery when there is no provision under the Robbery and Firearm (Special provisions) Act, Cap. R11, LFN 2004 to do so? Distilled from ground one of the Notice and Grounds of Appeal. 2. Whether the conviction of the appellant on the basis of Exhibit A and B is not perverse? Distilled from ground two of the Notice and Grounds of Appeal. 3.

Whether the lower Court was right in affirming the conviction of the appellant in the circumstances of this case? Distilled from ground three, four and five of the Notice and Grounds of Appeal

The respondent’s brief also raised three issues for determination as follows:- 1. Whether the lower Court was right in affirming the conviction of the appellant for the lesser offences conspiracy to commit robbery and robbery under the Robbery and Firearms (Special Provisions) Act, Cap. R11, LFN, 2004 by the trial Court as against the offences of conspiracy to commit armed robbery and armed robbery which the appellant was charged. 2.

Whether the lower Court rightly affirmed the reliance of the Court on the extra-judicial statement of the appellant (Exhibit B) which was admitted without objection. 3. Whether the lower Court was not right when it held that there were no material contradictions in the case of the respondent/prosecution which could have been resolved in favour of the appellant and fatal to the case of the respondent/prosecution.

The date of the delivery of the judgment of the Court of Appeal and the date of the filing of the notice of this appeal against that judgment show that the notice of appeal was filed on the 53rd day after the date the judgment of the Court of Appeal was rendered. I am compelled by this situation to find out if this appeal was filed within the time prescribed by Section 27(2)(b) of the Supreme Court Act 2004 before I delve into the merit of the issues raised for determination in this appeal if need be.

Section 27(2)(b) of the Supreme Court Act 2004 provides that “The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are: (a) … (b) In an appeal in a criminal case, thirty days from the date of the decision appealed against.” The record of this appeal shows that the judgment of Court of Appeal was delivered on 7-12-2018. The notice of this appeal was filed on 21-1-2019. It is glaring that the notice of appeal was filed after 53 days from the date of the Court of Appeal judgment.

It was not filed within 30 days from the date of the judgment as required by Section 27(2) (b) of the Supreme Court Act 2004. It was therefore filed out of time. The notice of this appeal is incompetent. See Adelekan V Ecu-Line NV (2006) 5SC (pt. 11) 32, Etim V The State (1982) LPELR-1173(SC). This appeal cannot be sustained on the incompetent notice of appeal and this Court is robbed of jurisdiction to entertain and determine it by the absence of a competent notice of appeal. As it is, the notice of the appeal and this appeal are struck out.

Having struck out this appeal, no useful purpose would be served determining the merit of the appeal that is adjudged incompetent and struck out.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother AGIM, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is incompetent and deserves to be struck out. Accordingly, it is struck out by me. Appeal struck out.

JOHN INYANG OKORO, J.S.C.: I am in agreement with the conclusion reached in the lead judgment which was made available to me before now by my learned brother, Emmanuel Akomaye Agim, JSC.

It has now become trite that criminal appeals from the Court of Appeal to this Court must be filed 30 days from the date of the judgment appealed against. See Okereke Vs. James (2012) 16 NWLR (Pt. 1326) 339, Afribank Nigeria Plc Vs. Akwara (2006) 5 NWLR (Pt. 974) 619. However, Section 27(4) of the Supreme Court Act grants a window for enlargement or extension of time within which an appellant who failed to file within statutory period, may bring his appeal out of time, albeit, subject to the discretion of this Court.

Failure to comply with the statutory requirements which are condition precedent to filing a competent appeal is fatal to the appeal, such that this Court cannot entertain the appeal no matter how well argued. This appeal therefore having been filed out of time prescribed by the Act without obtaining the leave of this Court for extension of time, is invalid and deserves to be struck out.

To this end, the notice of appeal filed on 29th January, 2019 is hereby struck out, same being adjudged incompetent.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and I agree with him that the Notice of Appeal filed outside the prescribed period for filing an appeal from the Court of Appeal to this Court is incompetent, therefore, this Court lacks jurisdiction to deal with the appeal. The notice of appeal is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247 SC.

In this case, the Notice of Appeal is incompetent, and it is struck out.

ABDU ABOKI, J.S.C.: I am in support of the judgment prepared by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, which I had the privilege of reading before now.

This is an appeal against the judgment of the Court of Appeal, holden at Port Harcourt, delivered on the 7th of December, 2018.

The Appellant herein and one Kuroakegha Femowei, were charged before the Bayelsa State High Court, for the offences of Conspiracy and Armed Robbery. The counts read as follows: COUNT 1 STATEMENT OF OFFENCE CONSPIRACY contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004. PARTICULARS OF OFFENCE You KUROAKEGHA FEMOWEI and STEPHEN ALADE on or about 0230hrs on the 1st day of April, 2016 at Alamiesegha Road, Opolo, within the Yenegoa Judicial Division conspired to commit a felony, to wit: Armed Robbery.

COUNT 2 STATEMENT OF OFFENCE ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act CAP R11, LFN 2004. PARTICULARS OF OFFENCE You KUROAKEGHA FEMOWEI and STEPHEN ALADE on or about 0230hrs on the 1st day of April, 2016 at Alamiesegha Road, Opolo, within the Yenegoa Judicial Division of Bayelsa State, while armed with dagger and other offensive weapons, robbed Dr. Ekpebu Douglas of the following items, namely: 3 Plasma Television, a LCD Flat Screen TV, one Samsung phone, one Techno phone, a bag containing my cloths, cash and other valuables.

Upon arraignment, the accused persons (now convicts) pleaded not guilty to each of the Counts and the matter proceeded to trial. In proof of its case, the Prosecution called four (4) witnesses, (PW1 – PW4), and tendered some Exhibits. The Appellant testified as DW2 and tendered no exhibits.

At the close of trial, they were found guilty for lesser offences, that is: the Offences of Conspiracy to commit Robbery, and Robbery and sentenced to twenty-one (21) years imprisonment.

The Appellant was dissatisfied with his conviction and sentence, and appealed to the Court below. The crux of his appeal at the Court below was that the trial Court was in error to have convicted him for a lesser offence, when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so.

The Court below in its judgment, affirmed the judgment of the trial Court, and dismissed the appeal.

The Appellant, further aggrieved by the judgment of the Court below, appealed to this Court.

In his brief of argument filed on the 28th of February, 2019, F.T. Okorotie, Esq., of Counsel for the Appellant, distilled three issues for this Court’s determination. They are: 1. Whether the lower Court was right when it affirmed that the trial Court can convict the Appellant on a lesser offence of robbery when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so? 2. Whether the conviction of the Appellant on the basis of Exhibits A and B is not perverse? 3.

Whether the lower Court was right in affirming the conviction of the Appellant in the circumstances of this case?

A Brief of argument, settled by Arthur, Andrew Seweniowor, the Honourable Attorney General of Bayelsa State, was filed on behalf of the Respondent on the 5th of April, 2019, and the following issues were raised therein, that is: 1. Whether the lower Court was right in affirming the conviction of the Appellant for the lesser offences of conspiracy to commit robbery, and robbery, under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, by the trial Court as against the offences of conspiracy to commit armed robbery, and armed robbery, which the Appellant was charged? 2.

Whether the lower Court rightly affirmed the reliance of the trial Court on the extra-judicial statement of the Appellant (Exhibit B) which was admitted without objection? 3. Whether the lower Court was not right when it held that there were no material contradictions in the case of the Respondent/Prosecution which could have been resolved in favour of the Appellant and fatal to the case of the Respondent/Prosecution?

My learned brother, AGIM, JSC, has, in the lead judgment pointed out that the Notice of Appeal giving birth to this appeal was filed 53 days after the judgment of the Court below. This undoubtedly is in clear contravention of the provisions of Section 27(2)(b) of the Supreme Court Act 2004, which provides that a notice of appeal should be filed within 30 days after the judgment of the Court below. This Court, in Odunze & Ors v.

Nwosu & Ors (2007) LPELR-2252 SC, opined that: “A notice of appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons is in ordinary civil actions… Furthermore, once the notice of appeal is vitiated in any way, the appeal becomes incompetent and liable to be struck out. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out.”

The consequence of the above is that I agree with my learned brother, EMMANAUEL AKOMAYE AGIM, JSC, that the Notice of Appeal, being incompetent has invalidated this appeal. Accordingly, the Notice of Appeal and this appeal are hereby struck out. Appeal Struck Out.

Judgment

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): By an information dated 27/11/2017, the Appellant, and a second defendant, Michi Industries International Ltd, were arraigned before the High Court of Lagos State, Ikeja Judicial Division on the following three counts charge: 1.

Stealing contrary to Section 285(9)(b) of the Criminal Law of Lagos State of Nigeria, 2011 Particulars of Offence Michael Ikechukwu Michael and Michi Industries International Ltd on or about the 9th October, 2012 at Lagos within the Ikeja Judicial Division, dishonestly converted to your personal use the sum of Seven Million Four Hundred and Eight Thousand Naira (N7,408,000.00) being the value of Electronic Equipment and Instruments, property of Ibina Celestine. II. Obtaining goods by false pretence contrary to Section 1(2) and (3) of the Advanced Fee Fraud and other Related offences Act.

Particulars of Offence Michael Ikechukwu Michael and Michi Industries International Limited, on or about the 9th October, 2012 at Lagos within the Ikeja Judicial Division with intent to defraud, induced Mr. Celestine Ibina of NO. BB. 27H Alaba International Market, Ojo, Lagos to supply and deliver Electronic Equipment and Instruments valued N7,408,000.00 (Seven Million Four Hundred and Eight Thousand Naira) to Michi Industries International Limited on the false pretence that after two months of the supply you will pay back the amount, which pretence you knew to be false. III.

Issuance of Dud Cheque contrary to Section 1(1) of the Dishonoured Cheques (Offences) Act Cap D11, Laws of Federation of Nigeria, 2004.

Particulars of Offence Michael Ikechukwu Michael and Michi Industries International Limited on or about the 13th March, 2013 at Lagos within the Ikeja Judicial Division, without sufficient funds to your credit in Zenith Bank Plc domiciliary Account no: 61516920 dated 13th March, 2013 for the sum of N3,408,000.00 (Three Million Four Hundred and Eight Thousand Naira) in favour of Ibina Celestine as payment for the product supplied to Michi Industries International Limited which cheque upon presentation for payment was returned unpaid. The Appellant pleaded not guilty to the offences.

At the trial, the prosecution called four witnesses while Appellant testified for himself, and the 2nd defendant. The evidence before the lower Court can be summarized in this manner: PW1, the primary complaint, was Mr. Celestine Ibina. He testified that sometime in 2012, the Appellant informed him that he had been awarded a contract for the supply of musical instruments/equipment and furniture by African Trinidard & Tobago Company (AT & T) in Agbara, Lagos and that he wanted PW1 to be involved.

The Appellant further informed him that the contract was being financed by the Bank of Industry (BOI) on behalf of AT & T, and that he, PW1, would be paid after BOI releases payment. Upon confirmation that this was indeed the case, PW1 agreed to be part of the business. The Appellant thereupon gave him a list of goods, comprising of musical instruments and furniture, to supply. PW1 gave his prices for the said items. After negotiations, the parties agreed on N9.5 million. The items were supplied by PW1, and inspected by BOI.

Two months after the supply, the Appellant gave him a cheque for N9.5 million, which was returned unpaid. PW1 later found out that the Appellant had been fully paid for the supply. When every attempt at retrieving payment from PW1 failed, he reported the matter at Morogbo Police Station, where the PW1 and the Appellant made statements. At the police station, the Appellant transferred N5 million to the Appellant. He disclosed that some of the items supplied were returned. The police intervened to persuaded PW1 to accept 30% of the items, worth N1.1 million, while the Appellant took 70%.

PW1, who reluctantly accepted the return of the goods, insisted that the transportation cost of N8,000.00 also be paid by the Appellant, bringing the balance due to him from the Appellant to N3,408,000.00. The Appellant wrote a cheque for the said balance of N3, 408,000.00, which was again returned unpaid on presentation. PW1 subsequently wrote a petition to the Economic and Financial Crimes Commission (EFCC). The Appellant gave evidence for himself, largely in line with the evidence for the prosecution.

He admitted that he had a contract with AT & T to supply electronics and studio equipment worth N20,960,000,00, which was to be sponsored and funded by BOI. The aspect of the contract involving furniture was to be supplied by Century Base Ltd. DW1 testified that there was an agreement between himself and PW4, the CEO of Century Base Ltd, that because Century Base Ltd could not supply the furniture awarded to them, he should supply it. But that, since the approval was already given by BOI in the name of Century Base Ltd, when payment will be made, the money will be given to him.

The Appellant however said that when the money was eventually paid, he was not given the money by PW4. At the conclusion of trial, the Appellant was discharged and acquitted on Count 2, for obtaining by false pretences, and count 3, for issuance of a dud cheque, but was convicted on Count 1, for stealing. The learned trial Judge ordered that he should make full restitution to PW1 the sum of N3,408,000.00. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal filed on 20/3/2019, on six grounds of appeal, pages 259 – 264 of the Record of Appeal.

The Appellant’s brief was filed on 24/7/2019 but deemed on 23/1/2020. The Respondent’s brief was filed on 2/7/2021 but deemed on 24/11/2021. At the hearing of the appeal on 24/11/2021, the Briefs of Argument were, respectively, adopted by A. Owolabi, Esq., for the Appellant, and by S.O. Saka, Esq., for the Respondent. The Appellant distilled four issues for determination of this appeal: i.

Whether the learned trial Judge was right convicting 1st appellant of stealing when she said “I must agree with the defence therefore that the element of intention to defraud at the time of obtaining the goods under consideration but yet went ahead to convict 1st appellant when intention to defraud is one of the element(sic) of stealing”. ii.

Whether the learned trial Judge was right when the charge before her alleged 1st appellant dishonestly converted to his personal use sum of Seven Million Four Hundred and Eight Thousand naira (N7,408,000.00) being the value of Electronic Equipment and Instrument property of Ibina Celestine but went ahead to convict him for stealing without stating out what stole (sic) but only said “It is also hereby ordered that the defendant shall make full restitution of the sum of Three Million Four Hundred and Eighty Thousand Naira) to PW1, Celestine Ibina and the prosecution is to employ every means within its power to ensure same”. iii.

Whether the Section 6 of the Economic and Financial Crimes Commission Act is such a robust and elastic statute that empowers the organization to colourate a failed commercial transaction that ought to have found action in a civil suit a crime. iv. Whether from the totality of evidence adduced the offence of stealing has been established against 1st appellant hence rightly convicted.

The Respondent adopted the issues raised by the Appellant but further formulated the following issue: Whether the prosecution proved its case beyond reasonable doubt sufficient enough and whether the trial Judge was right in convicting the defendant for the offence of stealing. The Respondent noted that the Appellant failed to relate the issues raised for determination to any of the four grounds of appeal. Interestingly, I also note that the Respondent fell into the same ditch. The issue framed by the Respondent was not tied to any of the Appellant’s grounds of appeal.

In Idam v NLPC (2021) LPELR-53400(CA) at pages 6 – 8, I expressed the following view: “Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR – 3956(CA), Yussuf v. Ilori (2007) LPELR-5137(CA), Ukwuoma v. Okafor (2016) LPELR-41505(CA), Daisi v IGP (2019) LPELR-47897(CA).

This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain that the issues have been distilled from the grounds of appeal or otherwise, and also ascertain whether any ground of appeal has been abandoned… The point must, however, be made that the extant COA Rules do not prescribe that issues for determination in an appeal must be tied to the grounds in briefs of parties, on pain of a sanction.

Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the current attitude of the appellate Courts appears to be one of liberality. See Agodi v Anyanwu (2014) LPELR-23746(CA), Ukwuoma v. Okafor (supra), Daisi v IGP (supra).

In Otu v ACB International Bank Plc (2008) LPELR-2827(SC), the Supreme Court, per Tobi, JSC said, page 13: “Issues are formulated from grounds of appeal and if they are based on valid grounds of appeal, an appellate Court must consider them.” Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal.

In that light, this Court now resounds the demand that counsel should tie issues for determination to the grounds of appeal in order to remove the additional burden of doing so on the Court.” I stand by this same view. See also Fugro Subsea LLC v Petrolog Limited (2021) LPELR-53133(CA). That said, an examination of the issues formulated by the Appellant for determination of this appeal will confirm that the issues indeed flow from the grounds of appeal.

However, to my mind, Issue IV as formulated by the Appellant, which is the same as the sole issue framed by the Respondent, will resolve the issues in controversy herein. I shall therefore adopt the said Issue IV for determination of this appeal, and consider alongside any other arguments made by the parties.

Arguments The Appellant contended that the element of fraud in obtaining goods under false pretence, for which the Appellant had been acquitted, cannot be said to be different from the one in stealing, especially when the sum claimed to have been stolen was associated with the same goods that were adjudged by the lower Court not to have been obtained under false pretence.

The Appellant argued that the learned trial Judge did not mention precisely what the Appellant was alleged to have stolen in the pronouncement of his conviction and sentence, referring to page 258 of the Record of Appeal, particularly the third line. It was submitted that the fraudulent intention by an accused person, required as element of the offence of stealing is foundational. That the intent to defraud is the act resulting to the commission of the alleged offence, and where the intention to steal is missing, the lower Court ought to have discharged and acquitted the Appellant.

It was submitted, assuming without conceding that Appellant stole, the intention to defraud that can result to his conviction would be the fraudulent intention exhibited at the commencement of the transaction in issue, and this intention must be manifestly established by the prosecution. In this case, that the Appellant did not exhibit at any time of the transaction to the conclusion of same, any intention to defraud PW1. From the outset of the transaction, the Appellant had informed PW1 that he will not be paid until BOI paid him.

PW1 became impatient and did not wait until payment was made by the bank. The Appellant paid the PW1 N5 million of the sum, a day after he was paid by BOI, which was the day PW1 brought police to arrest Appellant. Still on what constitutes an intent to defraud, reliance was placed on Onwudiwe v FRN (2006) no citation supplied. If the Appellant did not have fraudulent intention to obtain goods on false pretence, it is a paradox that he will be convicted for stealing unnamed goods, items, property or materials.

An offender even at conviction must be made to know what he is being convicted for, and not just the pronouncement of stealing as did the trial Judge. It was also submitted that Section 278 of the Criminal Law of Lagos State, 2011 emphasized the need to establish an intention to defraud. ​ The Appellant reiterated that the learned trial Judge ought to have stated exactly what the Appellant was alleged to have stolen. On count 1, the charge was stealing of the sum of N7,408,000.00 being the value of Electricity Equipment and Instrument property of Ibina Celestine.

The learned trial Judge however convicted the Appellant on this count 1 for stealing, without stating out what he stole but said “it is also hereby ordered that the defendant shall make full restitution of sum of Three Million Four Hundred and Eight Thousand Naira to PW1, Celestine Ibina and the prosecution is to employ every means within its power to ensure same”. It was argued that this was at variance with the particulars of offence associated with count 1 which was N7,408,000.00.

It was argued that the failure to state what the Appellant stole in his conviction and sentence occasioned a miscarriage of justice. The case of Commissioner of Police v Agu 1980(1) NCR 234 was cited and relied on. The learned trial Judge had agreed with the prosecution that there was no basis to investigate Century Base Company, mentioned by the Appellant in his defence.

The decisions in Ogunleye v The State (1991) 3 NWLR part 177 at 4, Opeyemi v The State (1985) 2 NWLR (Pt.5)101 were cited and relied on to submit that a trial Court has a duty to consider and examine a defence raised by the defendant, no matter how improbable. To do otherwise would amount to a miscarriage of justice, which would result in the decision being set aside. The evidence of the Appellant against the evidence of the prosecution on the issue of Century Base Company was referred to in submitting that the lower Court ought to have accepted and acted on the evidence of the Appellant.

It was further submitted that the provisions of Section 6 of the Economic and Financial Crimes Commission Act, which gives the EFCC the responsibility of conducting an investigation into whether any person has committed a financial crime under the Act, implies that when a report by way of a petition is made to the agency, it has a responsibility to x-ray such petitions and see whether the report is one that can be established in crime or one of civil action.

That the content of a petition is not what makes it a crime but the transaction to be investigated. ​ It was argued that a business transaction between two persons, where one of the parties paid part of the sum in the agreement and the remaining balance for the goods became contentious between them, cannot be said to amount to economic crime to the extent of the offence of stealing. PW1 and Appellant entered into contractual agreement part of the sum in question was paid and the remaining sum became contentious in form of returned goods.

That having regard to the evidence before the trial Court, it was not a crime. The decision in Diamond Bank v Opara (2018) 7 NWLR (Part 1617) 1 was cited and relied on. It was submitted that from the totality of the evidence by the prosecution, the offence of stealing was not established against the Appellant by credible evidence, citing Ayeni v The State (2016) LPELR 40105(SC); Oyebanji v The State (2015) LPELR 24751(SC). The Court was urged to allow the appeal and set aside the conviction and sentence of the Appellant.

For the Respondent, it was submitted that its duty was to prove the elements of the alleged offences beyond reasonable doubt, citing State v Bakare (1987) 1 NWLR (PT 52) 579; Nwankwo v FRN (2003) 4 NWLR (PT 809) 1; Onagoruwa v State (1993) 7 NWLR (PT 303) 49 at 85; Egbirika v State (2014) 4 NWLR (PT. 1398) 558 at 585. On the elements of the offence of stealing, reliance was placed on Ayeni v The State (SC. 447/2011) (2016) NGSC 85; Aosika v State (2010) 9 NWLR (PT 1198) 49 at 52; Nwaturuocha v State (2011) 6 NWLR (PT 1242) 170 at 174.

The Respondent relied on the evidence adduced to submit that the elements of stealing were established by the prosecution. The evaluation of evidence and ascription of probative value lay within the province of the lower Court, which had the opportunity of hearing the testimony of witnesses and observing their demeanor. It was submitted that an appellate Court would not generally interfere with the findings of a trial Court in this regard unless shown to be perverse. See Onogwu v State (1995) 6 NWLR (PT 401) 276 at 552.

The Court was urged to discountenance the submissions of the Appellant’s Counsel. It was submitted for the Respondent that the EFCC was empowered to arrest, investigate and prosecute financial crimes such as exhibited by the actions of the Appellant. On the elements of the offence of stealing reliance was placed on FRN v Ikpe (2005) 2 QCCR 155 at 196. It was submitted that the money alleged to have been stolen was N9.5 million, property of PW1 and his other colleagues. The learned trial Judge merely ordered the Appellant to pay the unrecovered balance of N3, 408,000.00.

The Appellant did not deny the transaction or deny the outstanding balance. The Respondent contended that the fact that the Appellant opted to use the money for his own purport until later when part of it was recovered as exhibits, meant that he not only intended to deprive the victims of the use of their money, but had conclusively converted the money. That any other explanation was an afterthought. The case of Onwudiwe v FRN (2006) 10 NWLR (PT 988) 382 at 427 was cited and relied on.

The Respondent submitted that the burden of proof placed on it by virtue of Sections 135 and 137 of the Evidence Act, 2011 had been discharged. Reliance was placed on C & C Const. Co Ltd v Okhai (2003) 18 NWLR (PT 851) 79 at 100; Torri v National Park Service of Nigeria (2011) 13 NWLR (PT 1264) 365 at 382. The Court was finally urged to dismiss the appeal. Resolution The Respondent has rightly submitted, and it is well settled that the burden of proving the guilt of an accused person in any criminal trial must be discharged by the prosecution beyond reasonable doubt. See Ogundiyan v.

State [1991] 1 NSCC 448, The State v. Azeez (2008) 4 S. C. 188, Shande v. State (2005) 12 MJSC 152, John Agbo v. State (2006) 1 S.C. (PT. II) 73, Udo v. State (2006) 7 S.C. (PT. II) 83. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011. This simply means there is credible evidence upon which the Court can safely convict; Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373, cited with approval in John Agbo v. State (supra).

Therefore, where all the ingredients of an offence have been credibly and clearly established by the prosecution, the offence is proved beyond reasonable doubt. See Osetola v. State (2012) LPELR-9348(SC), Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523, Ajayi v. State (2013) 2-3 MJSC (PT 1)59. The Appellant was convicted of stealing, punishable under Section 287 of the Criminal Law of Lagos State, 2011.

Section 279 thereof defined stealing as: Any person who dishonestly: (a) takes the property of another person; or (b) converts the property of another person for his own use or to the use of any other person, is guilty of the offence of stealing.

Section 279(2) gave an expose of the meaning of dishonestly in this manner: A person is deemed to dishonestly take or convert the property of another if he does so with any of the following, to: (a) intent to permanently deprive the owner of the property; (b) intent to permanently deprive any person who has a special interest in the property; (c) intent to use the property as a pledge or a security; (d) intent to part with the property on a condition as to its return which he may be unable to perform; (e) intent to deal with the property in a manner that it cannot be returned in the condition it was in at the time of the taking or conversion; or (f) intent to in the case of money, an intent to use it at his will although he may intend to repay the owner afterward.

By these provisions, the offence of stealing is committed where a person fraudulently takes or converts to his own use or the use of any other person, any property capable of being stolen, in any of the circumstances enumerated under Section 279(2) reproduced above.

Simply put, ingredients of the offence of stealing which must be proved by the prosecution are: (a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen; (c) that the accused was dishonest; and, (d) that the accused had unlawfully appropriated the thing stolen to his own use. See also Oshinye v. Commissioner of Police (1960) 5 SC 105, Chianugo v. State (2002) 2 NWLR (PT 750) 225, Adejobi v. State (2011) LPELR-97(SC), Ayeni v The State (2016) LPELR-40105(SC) Chyfrank Nigeria v.

Federal Republic of Nigeria (2019) LPELR-46401(SC), Takim v The State (2014) LPELR-22667(CA). The evidence before the lower Court was largely straightforward. It was not in dispute that the contract entered into by the Appellant and PW1 for the supply of musical instruments/equipment to AT & T, sponsored by BOI, was worth N9.5 million. It was not in dispute that some of the items worth N1.1 million were returned to PW1. It was also not in dispute that the sum of N5 million was paid to PW1 by the Appellant, leaving a balance of N3,400,000.00.

It was also not disputed that the transportation cost for the returned items was N8,000.00. Under cross-examination, the Appellant had said, page 159 of the Record of Appeal: “It is possible I agreed to pay him N8,000 for the transportation of the returned goods to add up to N3.408 (sic), its been a long time.” This was certainly not a categorical denial. The total sum outstanding was therefore N3,408,000.00. This was the sum that the learned trial Judge, in convicting him on Count 1, held that the Appellant intended to permanently deprive PW1.

The learned trial Judge then ordered the Appellant to make full restitution of the said sum of N3,408,000.00. To my mind, the relevant question is whether the Respondent established that the Appellant had acted with fraudulent intention in failing to pay over the outstanding sum of N3,408,000.00 to PW1. As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently, and with an intent permanently to deprive the owner of the thing of it.

Contrary to the postulations of the Respondent, the unsubstantiated evidence of PW1 that he previously had a transaction with the Appellant in which the Appellant defrauded him is not unassailable proof that the Appellant acted herein fraudulently or that the Appellant should be condemned as being a dishonest character. In any event, PW1 gave no details of the said transaction. I do not see its relevance herein. The entire sum due to PW1 on his contract with the Appellant was N9.5 million. The Appellant and PW1 had the understanding that PW1 would be paid when BOI paid for the contract.

The learned trial Judge in evaluating the evidence adduced, made the following findings, pages 255 – 256 of the Record of Appeal: “The evidence before the Court is that when the money eventually hit the Defendant’s Account in Exhibit 6 on 25/02/2012, the 1st Defendant never called PW1 to inform him with a caveat that some goods were rejected so as to work things out between them. PW1’s evidence is that the 1st (sic) goods and both his capital and profit had since then been tied down.

The cheque of N20M paid into the Defendant’s account was well over the N9.5M goods PW1 had supplied the Defendants before the rejection of certain goods. The 1st Defendant never called PW1 on the pretext that he gave “someone” with no name to give a cheque to PW1. This confirms that he admitted owing PW1, but it was PW4 that eventually called PW1 to let him know that the Defendants had been paid while he, the 1st Defendant was still pleading with PW1 to be patient claiming that he had not been paid.

This led to PW1 inviting the police to arrest the 1st Defendant and after much interrogation and interventions, the 1st Defendant reluctantly told the Police that he could only pay N5M to PW1 as certain goods were rejected, it was at that stage PW1 knew for the first time that PW4 returned some goods. The 1st Defendant testified that he was forced to take 70% of the returned goods while 30% was returned to PW1.

Since the N5M had been forced out of the Defendants out of the N9.5M that was the initial value of the goods supplied before the returned goods, the balance would have been N4.5M which the 1st Defendant has alleged was the value of the returned goods out of which 70% was shared to him and 30% to PW1, which culminated in him being again forced to sign a cheque for N3,408,000.00, the N8,000 he admitted was what was agreed as the transport cost of the returned goods to PW1’s shop.

The issue is therefore no longer that the 1st Defendant was forced to take 70% of the goods, but the fact that the goods never left his possession. He did not tell the Court what he did with the said goods, either selling or otherwise making use of same for his own benefit. The value therefore of the remaining 30% is what was agreed at the Police Station and which is also logical, to be N3,400,000.00 which has been due for payment to PW1 since that February 2013 and which has remained unpaid till date. You cannot retain the goods and not pay for them.

The evidence of PW1, PW4 and DW1 also shows that the 1st Defendant actually padded the prices of the goods supplied by PW1 to PW4 and after PW4 found out the truth from the 1st Defendant. He demanded for a refund of the calculated excess of N8M which is also reflected in Exhibit 6. This angered the 1st Defendant so much that he went after PW1 to challenge him for divulging the actual prices at which he supplied the goods to the Defendants, as stated in his own oral testimony in Court.

The evidence of PW4 in supporting his demand for this refund is that what he agreed with the 1st Defendant was a supply of all the goods at the real Market value for which he would be paid N1M for his services. The 1st Defendant himself in his oral evidence in Court testified that when he told PW4 that he would get the supplies for him at the best Market value he would get, PW4 promised that he would give him N1M for this. This had corroborated the said evidence by PW4 and for which the 1st Defendant went charging after PW1.

It therefore confirms the fact that the agreement DW1 had with PW4 was the supply of the goods at the Market value and the Defendants’ profit would only be N1M!

But of course, this would not satisfy the 1st defendant even though he would still have N7M left in the account after the N8M paid back to PW4 and the N5M, he was forced to pay PW1, out of which anyone with a moral uprightness would have paid PW1’s outstanding N3,408,000 and the Defendants would still have a profit about N1.5M. ​It was never in their contemplation that the Defendants would hike up the prices of the good supplied and still be paid N1M. That is why even by his own evidence he went to challenge PW1 for letting PW4 know the exact prices at which he PW1 supplied the goods.

He was and is still smarting from the excess of N8M he was forced to refund. Because of the unwillingness of the 1st Defendant to pay the balance of N3,408,000 to PW1, he secretly parked out of his house which PW1 knew and relocated. It took the private intelligence of PW1 to trace him to his new house where his arrest was eventually executed after surveillance at the break of dawn before he could sneak out. It is therefore clear that the Defendants never intended to pay the balance of N3,408,000.00 even until now when unassailable defences are still being raised.

It does give the impression that the 1st Defendant is not a man given to honouring reciprocal obligations… It should be pointed out that the Defendant’s Account in Exhibit 6 was in perpetual debit balance for 2 years unbroken until the N20M credit arising from the supply of the goods of PW1 to him middleman between PW1 and PW4, PW1 gave up his goods on credit for under N10M while the source of the money was not a windfall to PW4 but a loan to be repaid which happily has been confirmed to have been repaid.

Only the Defendants had no monetary contribution in the whole transaction and he alone wanted to reap the benefit of virtually everything PW1 and PW4 had sown.

There was no single credit inflow in Exhibit 6 for 2 years until the N20M came in for which any reasonable man should have been grateful to both PW1 and PW4 but no, the 1st Defendant chose to cheat them both because PW1 gave him away leading to the “loss” of N8M he was forced to return to PW4, he decided never to pay PW1 either the whole of the value of the transaction or the balance of N3,400,000 which has remained unpaid till date, 6 years on.” In his defence, the Appellant had said that Century Base Ltd, which was to supply furniture to A T & T, backed out of the contract, after their name had been given to BOI.

He had agreed with PW4 and Century Base that he would supply the furniture and when payment is made, it would be transferred to him. The Appellant further said he approached PW1, who introduced him to a certain Chucks, that agreed to supply the furniture. That the total worth of the entire contract with was N20, 926, 000.00 but that he was only paid N20 million. He said that Century Base was later paid for the furniture but that the money due to him, N9.6 million, was not transferred to him by PW4, the CEO of A T & T.

Under cross-examination, the Appellant said, page 159 of the Record of Appeal: “N3.408 million is not with me. It is with PW4. I introduced PW1 to PW4.” Any involvement of Century Base in this matter was not investigated by EFCC. In justifying the failure to investigate Century Base Ltd, PW2 testified that Century Base was not the one awarded the contract by A T & T. Under cross-examination, page 78 of the Record of Appeal, he said: “We did (sic) investigate Century Base because it was not the one that was awarded the contract. It was BOI and the money was paid by BOI, not Century Base.

It is not connected to the contract; the money was paid to the Defendant not Century Base. The excess of N8 million paid to the Defendant was returned by him. This matter had nothing to do with the 2nd Defendant and Century Base. The Defendant executed the contract by supplying the Musical equipment and electronic and he was subsequently paid.” PW4, on his part, said, page 117 of the Record of Appeal: “I contracted the Century Base Company to supply a generator. That is the only relationship I had with Century Base and none between me, Century Base and the Defendant.

Yes, the transaction between me and the Century Base is independent of the transaction between me and the Defendant.” Under cross-examination, PW4 further said, page 119 of the Record of Appeal that if he gave Century Base any supplies to make, outside the generator, it could be confirmed from their invoice, but that for whatever they supplied, they were paid directly. PW4 reiterated that his contract with Century Base had nothing to do with the Appellant.

That the Appellant was paid directly based on his invoice while Century Base was also paid directly for what they had been contracted to supply.

The learned trial Judge found in line with the assertions of prosecution on this issue and held as follows, page 256 of the Record of Appeal: ”It will also appear that the 1st Defendant is trying his defence to a certain transaction with one Century Base Company for the supply of furniture to PW4 on behalf of the Defendants and for which some payment has allegedly been made but in the hands of PW4, PW4 has denied any such transaction in existence stating that the only business he had with Century Base was a direct transaction for the supply of a Generating set which had nothing to do with the Defendants.

This clearly finds support in Exhibit 12 which is the Bank of Industry’s Payment Advice Authorization FCMB showing that all the Century Base ever supplied Africa Trinidad and Tobago Company as a 100 KVA Basic Generator and confirmed by the said Century Base Limited’s letter signed its CEO, Nneji Chike on 20/03/2013. There is no other evidence beyond this before the Court and he who asserts has the burden of proof. The Defendants who assert that any furniture was at all supplied by Century Base to PW4 or anyone at all never proved same.

This confirms PW4’s oral testimony in Court and his extra-judicial. Statements to EFCC in Exhibit 11. The Defendant tendered several documents but none touching on any alleged supply of furniture on their behalf by Century Base. It is very clear from the Defendant’s Statement of Account in Exhibit 6 that the N8M refunded to PW4 was from the N20M and no other money, having been paid the same day the account was credited with the N20M.

I therefore agree with PW2 the Investigating Officer that there was no basis to investigate Century Base Company at all.” The learned trial Judge then concluded that, page 257 of the Record of Appeal: “…the Defendants never intended to pay up the outstanding balance of their indebtedness of N3,408,000.00 to PW1 even though the full value for the goods is with the Defendants which translates to fraudulent conversion.” I see no miscarriage of justice suffered by the Appellant here. He who asserts, proves.

The Appellant failed to prove his assertions that any payment was due to him from Century Base. Further, even if PW4 was meant to have given the Appellant the payment for any furniture he supplied in the stead of Century Base for A T & T, how any such payment impacted on the sum of N3,408,000.00 due to PW1 from the Appellant was not clear. The Appellant did not demonstrate by credible evidence how any such payment due to Century Base but which allegedly ought to have been paid to him by PW4, would in turn affect the unpaid balance due to PW1.

The learned trial Judge, admirably, captured the pith of the evidence of the parties, evaluated and ascribed probative value to the same. The evidence before the trial Court amply demonstrated the fraudulent intention of the Appellant to deprive PW1 of the entire sum due to him on their agreed terms. It was only at the police station that he paid to PW1, N5 million and returned to him N1.1million worth of the items. I see absolutely no reason to disturb the conclusion of the learned trial Judge.

Indeed, the settled position of the law, as expressively stated in Ayeni v State (supra), per Kekere-Ekun, JSC, page 31 of the E-Report, is that: “…it is the primary duty of the trial Court to evaluate the evidence and ascribe probative value thereto. The trial Court has the unique advantage of listening to the witnesses testify and observing their demeanor. See Okoye v. Obiaso & Ors (2010) 8 NWLR (Pt.1195) 145, Amadi v. F.R.N. (2008) 12 SC (Pt. III) 55.

Where a trial Judge has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court would not interfere to substitute its own views for the views of the trial Court. See Gbadamosi V. Dairo (2007) 3 NWLR (Pt.1021) 282, Mogaji V. Odofin (1978) 4 SC 91 Odofin V. Ayoola (1984) 11 SC 72.” See also Iko v The State (2001) LPELR-1480(SC), (2001) 7 SC (PT 11) 115, Egunjobi v FRN (2012) LPELR-15537(SC) and Obidike v The State (2014) LPELR-22590(SC). The Appellant contended that the learned trial Judge failed to state what he stole in the judgment.

The Appellant was charged in count 1 for stealing contrary to Section 285(9)(b) of the Criminal Law of Lagos State of Nigeria, 2011. The particulars of the offence stated N7, 408,000.00 as the sum alleged to have been stolen. The learned trial Judge held, page 258 of the Record of Appeal: “The Defendants intend still to permanently deprive PW1 of the money in issue and they are hereby convicted on Count 1. The punishment for stealing under Section 287 is 3 years imprisonment.

The 1st Defendant is accordingly sentenced to 3 years imprisonment with effect from 13th February, 2018 when he was remanded in prison custody by this Court. It is also ordered that the Defendants shall make full restitution of the sum of N3, 408,000.00 (Three Million, Four Hundred and Eight Thousand Naira) to PW1, Celestine Ibina and the Prosecution is to employ every means within its powers to ensure same.” The conviction of the Appellant was clearly for stealing, as charged.

However, while he was charged for stealing N7,408,000.00, the evidence established the sum in issue to be N3,408,000.00. This is the sum for which the Appellant was ordered to make restitution. The settled position of the law is that where a defendant is charged with an offence and it appears from the evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with that particular offence.

See Odeh v State (2008) LPELR – 2205(SC), Ezeja v The State (2008) LPELR-1202(SC), Segun v The State (2018) LPELR-44693(SC). A fortiori, a trial Court can convict a defendant of a lesser offence where the one charged is not proved. See Adava v The State (2006) LPELR-74(SC); Amadi v The State (2019) LPELR-47041(SC). The conditions to be fulfilled in such circumstance are, first, that the elements in the offence charged and those in the lesser offence for which the defendant is convicted must be the same.

Secondly, the evidence adduced and the facts found to be insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the defendant was convicted. See Adeyemi v The State (1991) LPELR-172(SC), Okobi v The State (1984) LPELR – 2453(SC), (1984) 7 SC 47 and Segun v The State (supra). The Appellant was charged with and convicted for stealing. The sum of N7,408,000.00 was stated in the particulars of the offence. The evidence led however was that the contract sum was N9.5 million out of which N3,408,000.00 remained unpaid.

The evidence established that the sum of money which the Appellant fraudulently intended to permanently deprive PW1 of was N3,408,000.00. The Appellant was not misled or confused. It was the same facts and evidence that was led in support of the offence of stealing, leading to his conviction. There was no miscarriage of justice in the Appellant’s conviction. See also Ogunade v AG of the Federation (1971) LPELR-2320(SC), The Nigerian Air Force v Kamaldeen (2007) LPELR-2010(SC). It cannot therefore be said that the Appellant was not informed of what he stole.

The case of Commissioner of Police v Agu (supra), relied on by the Appellant, which is a decision of the High Court of Imo State sitting in its appellate jurisdiction, is not at all applicable herein. The Appellant had argued that there was no need to have criminalized the delay in payment to PW1. The evidence adduced however demonstrated that this was not merely a business transaction gone sour but a complaint that deserved the attention of EFCC had arisen. Evidence of the Appellant’s fraudulent intent elevated it to criminal activity.

The petition to the police and subsequently, to EFCC, which ignited the prosecution of the Appellant were therefore in order. See Sections 6 and 7 of the EFCC Act, 2004. See also Ahmed v FRN (2009) LPELR-8895(CA); Akingbola v FRN (2012) LPELR-8402(CA). Elements of the offence of stealing were established by the Respondent by credible evidence against the Appellant, beyond reasonable doubt. Issue IV, as well as other issues formulated for determination, are therefore resolved against the Appellant. This appeal is completely without merit. It fails and is hereby dismissed.

The conviction and sentence of the Appellant by the lower Court in Count 1 of Charge No: ID/6590C/2019 is hereby affirmed.

ABUBAKAR SADIQ UMAR, J.C.A.: My Lord and my learned brother, ONYEKACHI AJA OTISI, JCA granted me the privilege of reading before now the comprehensive leading judgment just delivered in this appeal. I entirely agree with the reasoning and conclusion.

The appeal is unmeritorious and deserves to be dismissed. I hereby dismiss the appeal and affirmed the conviction and sentence of the Appellant by the lower Court.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, Onyekachi Aja Otisi, JCA. I am in agreement with the reasoning and conclusions reached therein that the appeal is bereft of merit. I too dismiss the appeal and affirm the conviction and sentence passed on the Appellant by the lower Court.

Judgment

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision of the Katsina State High Court, sitting at Funtua, delivered on the 27th day of February, 2017 by Hon. Justice Ibrahim M. Bako (of blessed memory) whereby the Appellant was convicted and sentenced to 2 weeks imprisonment for the offence of causing grievous hurt, punishable under Section 247 of the Penal Code Law of Katsina State as a lesser offence to the charge of Armed Robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 LFN 2004.

The Appellant was charged alongside one Amadu Abubakar (the 2nd accused) on a one count charge of armed robbery. The Appellant pleaded not guilty to the charge. At the hearing of the case before the trial Court, five witnesses testified for the Respondent (Prosecution). The Appellant testified for himself and called one other witness. ​The learned trial judge examined the testimony of the witnesses vis-à-vis, the ingredients of the offence of armed robbery as charged.

He was not convinced that the Respondent (Prosecution) made out a case against the Appellant and co-accused for the offence of armed robbery. He thereupon convicted the Appellant and his co-accused for the offence of causing grievous hurt punishable by Section 247 of the Penal Code Law, Cap. 96 Laws of Katsina State, 1991.

The reasoning and conclusion of the learned trial judge could be found on pages 59 – 60 of the Record of Appeal thus: “By and large, while I am not convinced that the charge of armed robbery against the accused persons punishable under Section 1(2)(a) and (b) of the Robbery and Fire-arms (Special Provisions) Act, Chapter R. 11 LFN 2004 is not sustainable in view of the absence of the essential elements of the said offence, which I have identified in the preceding paragraphs, it is my view that the accused persons’ treatment of the witness (i.e.

PW 1) whereby they caused him to lose control of his motorcycle and have an accident thereby injuring his face and right hand is wrongful. From the description given by PW2 of the nature of injuries sustained by PW1, it is clear that it is a type that endangers life just like any injury in the face or somewhere on the head. It is the type of hurt envisaged by Section 240(g) of the Penal Code as being among the types of hurt designated as grievous hurt.

Accordingly, and following the footsteps of the Supreme Court in the application of Section 218(1) of the Criminal Procedure Code in its decision in the case of: Ezeja v. State (2008) 10 NWLR (Pt. 1096) P. 513 at P. 526 paras A – E. I can quite conveniently discharge the accused persons of the offence of Armed Robbery as aforesaid/charged, but convict them for the lesser offence of intentionally causing grievous hurt without provocation punishable under Section 247 of the Penal Code.

Accordingly, I hereby find you guilty and convict you of the offence of causing grievous hurt punishable under Section 247 of the Penal Code.” Dissatisfied with the conviction and sentence, the Appellant filed a Notice of Appeal containing three grounds of appeal in this Court on 29-01-2021. The relevant briefs of argument for the appeal are as follows: 1. Appellant’s brief of argument which was filed on 2-7-2021 but was deemed filed on 12-10-2021. It is settled by A. M. IMAM Esq. 2. Respondent’s brief of argument which was filed on 20-10-2021. It is settled by B. F. Abdullahi Esq. Asst.

Director Ministry of Justice, Katsina State. 3. Appellant’s reply brief of argument which was filed on 30-12-2021. It is settled by A. M. Imam Esq. Learned Counsel for the Appellant nominated three (3) issues for the determination of the appeal. They are: “1. Whether the learned trial judge was right when he convicted and sentenced the Appellant for the offence under Section 247 of the Penal Code which he was never charged. 2.

Whether the learned trial judge was right when he discharged the Appellant of the offence he was charged and convicted him of an offence for which he was neither charged nor pleaded to. 3.

Whether the learned trial judge was right when he admitted Exhibits A and A1 made by 2nd accused but credited it to the Appellant and heavily relied upon same in his judgment.” Learned counsel for the Respondent adopted the three issues nominated by the Appellant in determination of the appeal. ​ In arguing his issues 1 and 2 together, learned counsel for the Appellant conceded that it is trite principle of law that a trial Court has the power and discretion to find a defendant guilty of a lesser offence when the principal offence has not been satisfactorily proved as it was in the case of Ezeja v.

The State (2008) 10 NWLR (Pt. 1096) 513 at 526. However, that in the instant case, the Appellant was charged under Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap. R 11 LFN 2004, which is a separate and distinct law from the Penal Code Law, that the learned trial judge thus erroneously exercised his discretion of sentencing the Appellant for a lesser offence under different law.

He submitted that the provision of Section 240(g) (sic) 247 of the Penal Code relied upon by the learned trial judge in convicting and sentencing the Appellant with its particulars are totally at variance with the particulars required to be proved in the offence of armed robbery being the substantive offence the Appellant and his co-defendant took their respective pleas and charged therefor.

Learned counsel for the Appellant enumerated the ingredients of the offence of armed robbery as- a) that there was a robbery b) that the accused person(s) was one of those who took part in the robbery. c) that the robbery was an armed robbery i.e. the accused person or any other participant was armed at the material time.

In contrast, counsel submitted that the particulars under Section 240(g) (sic) 241(g) and 247 of the Penal Code envisage that the hurt suffered by the victim must be of such which endangers life, or which causes the victim to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits. He submitted that by his plea, the Appellant only had notice and prepared his defence for the offence of armed robbery but did not have notice and could have been taken by surprise by a conviction under Section 247 of the Penal Code Law.

Learned counsel for the Appellant submitted further that these two separate offences emanate from different legislations i.e. Federal and State Laws with distinct particulars and cannot therefore be presumed to be capable of being subsumed into particulars of offence in relation to securing a conviction for a lesser offence, as erroneously conceived by the trial Court.

He submitted that the learned trial judge’s purported exercise of discretion pursuant to Section 218(1) of Criminal Procedure Code by convicting for a lesser offence of grievous hurt under Section 247 of the Penal Code was in breach of the Appellant’s constitutional right to fair hearing under Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria (1999) as amended.

He reproduced the provision of Section 218(1) of the Criminal Procedure Code thus: “When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.” Appellant’s counsel submitted that the lesser offence for which the Appellant was convicted was not satisfactorily proved.

That the learned trial judge fell into an error when, without any attempt to examine the ingredients of the offence created by Section 247 of the Penal Code, held that the offence had been proved. ​ He submitted that the entire gamut of the testimonies of the Respondent prosecution witnesses are full of speculations and contradictions which ought to be resolved in favour of the Appellant. Learned counsel for the Appellant faulted the reliance of the trial Court on the case of Ezeja v.

State (2008) 10 NWLR (Pt. 1098) 513 at 526 in reaching its conclusion on convicting the Appellant of the lesser offence under Section 247 of the Penal Code. He reasoned that both the offence charged and the lesser offence convicted upon in the Ezeja case are contained in the same enactment, this is the Penal Code Law (applicable in Benue State) that in contrast, the offence charged in the instant case is under a Federal Legislation, that is Robbery and Firearms (Special Provision) Act Cap. R. 11 LFN 2004 which is separate and distinct from the offence under Section 247 of the Penal Code Law.

He referred to the case of Attah v. State (2010) ALL FWLR (Pt. 540) 1224 at 1244 and emphasised that the provision of Section 218(1) of the CPC is expressed as to a single offence, carrying out a single or set of particulars and from a single law/enactment. Appellant’s counsel concluded his issues 1 and 2 by saying that the concept of convicting for a lesser offence was wrongly applied by the trial Court and not applicable to the instant case.

He submitted that the Appellant was misled by the abrupt introduction of the lesser offence principle when in fact he (the Appellant) could have properly conducted his defence against the offence of intentionally causing hurt, and thereby occasioned a miscarriage of justice. He urged us to resolve issues 1 and 2 in favour of the Appellant. On the said issues 1 and 2, learned counsel for the Respondent also reproduced the provision of Sections 218(1) and (2) of the Criminal Procedure Code and referred to the cases of Idoko v. State (2018) 6 NWLR (Pt. 1614) 117 at 137, John Etim v.

The State (2019) 10 NWLR (Pt. 1681) 401 to restate the principle embodied in the provision of Section 218 of the Criminal Procedure Code that- “An accused person may be convicted of lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence.” Learned counsel for the Respondent submitted that it was held by the Supreme Court in the case of John Etim v.

The State (supra) that the provision of Section  179 of the Criminal Procedure Act which is in pari materia with Section 218(1) of the Criminal Procedure Code Law of Katsina State, 1991, could be invoked to convict the Appellant of an offence lesser than the one with which he was charged and it does not amount to breach of fair hearing if the Appellant was not afforded the opportunity to address it.

In the instant appeal, counsel added, the Appellant was asked by the trial Court whether he understood his conviction and he answered in the affirmative and went ahead to make allocutus through his counsel. He submitted that Section 218(1) and (2) did not make it a condition precedent that for the trial Court to exercise his discretion under the Section the principal offence and the lesser offence must be of the same statute.

The only guiding principle is whether the evidence adduced by the prosecution and the facts found are insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted. ​ He submitted that the testimonies of PW1 and PW2, who were eyewitnesses to the incident provided facts that supported the conviction of the Appellant as founded by the trial judge. And, that there were no contradictions in the evidence of the Respondent’s witnesses. He urged us to resolve issues 1 and 2 in favour of the Respondent.

In his reply brief of argument, learned counsel for the Appellant in anchoring the issue on whether a person charged with a federal offence can be convicted for a State offense he was charged with, referred to the decision of the Court of Appeal in the case of Yakubu Musa v. The State (2021) 12 NWLR (Pt. 1790) 280 – 282 where the question whether a person charged for a federal offence like armed robbery can be convicted for a state offence like dishonestly receiving stolen property was answered in the negative by the Court of Appeal per Ugo J.C.A.

He submitted that the Robbery and Firearms (Special Provisions) Act did not make any provision for a defendant for lesser offence where the main offence cannot be proved. He referred to the cases of Okobi v. State (1984) LPELR – 2453 (SC) (1984) 7 S.C. 47, Mohammed Bello v. State (2020) 3 NWLR (Pt. 1710) 72 and submitted that “… the Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act.

There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action. It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.” He urged us to allow the appeal. Resolution of issues 1 and 2 I must start by saying that the provision of Section 218(1) and (2) of the Criminal Procedure Code itself is not at large. Its application is circumscribed by conditions to be fulfilled within the statute.

It reads: Section 218(1) “When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.”

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it.” By the above provision, the particulars, fact and circumstances of the original offence charged are the same or similar to the lesser offence. In other words, the lesser offence is a combination of some of the several particulars making up one offence charged, the particulars constituting the lesser offence are carved out of the particulars of the offence charged. See e.g. Okwuwa v. The State (1964) 1 ALL NLR 366.

In Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, 1986 1 SC 477, (1986) LPELR – 2085 (SC) Karibi-Whyte JSC threw further light on the application of Section 179 of the CPL (in pari materia with Section 218 of the CPC. His Lordship first cited the decision in Tor hamba v.

Police (1956) N.R.N.L.R. at P. 94 (where) the Court had attempted to give a guide as to the determination of what constitutes a lesser offence (thus): “a lesser offence is a combination of some of the several particulars making up the offence charged, in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged … when one is considering action under Section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of these particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict.

An authoritative example is furnished by the case of Zooray v. The Queen (1953) 2 WLR 965; (1953) AC 407. His Lordship, Karibi-Whyte JSC proceeded thus in the case of Nwachukwu v. The State (supra) “It must be kept constantly in mind that Section 179 in issue in this appeal is concerned (with) where the lesser (offence) charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious in respect of which . . . . the accused is charged.

The operative words are “lesser and not ‘another’ offence” Thus, where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence.

It is therefore important to observe from the judicial decisions and the provisions that, for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed: Firstly, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences. Secondly, the evidence led and facts found, though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence.

Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This last mentioned is ordinary common sense. The greater included by necessary implication the lesser.” In other words, for the invocation of the provision of Section 218 of the Criminal Procedure Law, the lesser offence must not only be a kindred offence with the actual offence charged, its ingredients must be embedded in the actual charge. See Ezeja v. The State (2008) ALL FWLR (Pt. 428) 256/258 – 269, (2008) 10 NWLR (Pt. 1096) 513. In Agugua v.

The State (2017) LPELR – 4202 (SC) 54 – 55; (2017) 10 NWLR (Pt. 1573) 254, the Supreme Court relying on its earlier decision in The Nigeria Air Force v.

Kamaldeen (2007) 2 SC 113; 154-55, (2007) 7 NWLR (Pt. 1032) 164 restated the position that: “The law is that before an accused can be convicted for a lesser offence/the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged.” In the instant case, grievous hurt or causing grievous hurt may possibly be a factual consequence of the offence of armed robbery – causing grievous hurt is however not a lesser offence of the offence of armed robbery.

The legal requirements, ingredients for the offence of causing grievous hurt cannot be subsumed in the ingredients of the offence of armed robbery. ​ The term “Hurt” is defined under Section 240 of the Penal Code – thus: “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” However, it is trite that to secure a conviction for armed robbery, the prosecution must prove the following: (a) that there was an armed robbery (b) that the accused was armed, and (c) that the accused, while with the arm or arms, participated in the robbery.

Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability. See Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 SC, Okosi v. A-G, Bendel State (1989) 1 NWLR (Pt. 100) 642 SC and Martins v. State (1997) 1 NWLR (Pt. 481) 355 CA.

It seems to me also, that the case of the Respondent in this appeal is further weakened by the decision of the Supreme Court in the case of Okobi v. The State (1984) 7 SC 47, 1984 LPELR – 2453 (SC). One of the questions that arose for determination in Okobi v. State (supra) was whether a failure to secure a conviction under the Robbery and Firearms (Special Provisions) Act entitled a High Court to proceed to convict, of a lesser offence under the Criminal Code by virtue of Section 179 of the Criminal Procedure Law (in pari materia with Section 218 of the Criminal Procedure Code).

In that case, Obaseki JSC at page 23, made the following pronouncements: “I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action.

It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction. . . . .” Undoubtedly, it was the above reasoning that led the Supreme Court again in the case of Mohammed Bello v.

The State (2020) 3 NWLR (Pt. 1710) 72 at 93 to hold per Eko JSC, that: “I cannot see from the counts alleging criminal conspiracy to commit armed robbery and armed robbery contrary to Robbery and Firearms (Special Provisions) Act that the appellant (1st accused) herein was sufficiently put on notice of the elements constituting the offence under Section 319 A of the Penal Code Law of Kwara State. I do not think, and I so hold that the conviction for the State offence, in substitution for the Federal offence that the Prosecution failed to prove is proper.

The appellant could not in the circumstance, be deemed to have notice of the particulars of the State offence under Section 319 A of the Penal Code or that the particulars of this State offence were carved out of the Federal offence not proved.

In the circumstance, I allow the appeal…” Similarly, one can conclude in respect of the instant appeal, that the High Court of Katsina State lacks the necessary vires, jurisdiction to convict and sentence the Appellant charged under the Robbery and Firearms (Special Provisions) Act for the lesser offence of causing grievous hurt under Section 247 of the Penal Code Law of Katsina State which is a State law with separate and distinct particulars with the Federal law under which the Appellant was charged. For these reasons, Appellants issues 1 and 2 are resolved in favour of the Appellant.

Having resolved the said issues 1 and 2 in favour of the Appellant, this appeal is meritorious and it is accordingly allowed. The judgment, conviction and sentence of the Appellant for the offence of intentionally causing grievous hurt without provocation punishable under Section 247 of the Penal Code in Suit No. KTH/FT/12c/2012 are hereby set aside. In their stead, I enter an order discharging and acquitting the Appellant for the said offence.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, M. A. Owoade, PJCA.

My brother in the lead judgment has dexterously waded through provisions of Section 1 (2) (6) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation of Nigeria 2004 vis-a-vis Section 247 of the Penal Code Law of Katsina State and several judicial authorities to resolve the main issue to wit; whether in view of the failure by the prosecution to prove the ingredient of the offence provided in the former federal statute, the lower Court was right when it suo motu resorted to the latter state legislation to convict the appellant of a lesser offence.

I agree with and adopt as mine the decision reached by my brother in the lead judgment, supported by plethora of judicial authorities cited and relied upon, that the lower Court has reached a decision that is ultra vires by convicting the appellant of a lesser offence of causing grievous hurt when he was charged with the offence of armed robbery. For the reasons stated in the lead judgment, I also allow this appeal and set aside the conviction and sentence of the Appellant for the offence of causing grievous hurt punishable under Section 247 of the Penal Code Law of Katsina State.

The Appellant is hereby discharged and acquitted.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment) : Appellant filed this appeal against the judgment of Kano State High Court in Charge No. K/197C/2017, delivered on 9th October, 2020 by Hon. Justice A.R.D.

Mohammed, who found the Appellant (and 2 other accused persons) guilty of the offence of attempted armed robbery, under Section 299 of the Penal Code of Kano State, and punished under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990, and sentenced him to 14 years imprisonment. ​Appellant was the 2nd Accused Person, charged with two other accused persons, for armed robbery contrary to Section 298 of the Penal Code, Cap 105 Laws of Kano State. Appellant had pleaded not guilty to the charge.

The prosecution called 2 witnesses and tendered Exhibit A2 – confessional statement of the Appellant. Appellant testified in his defense. At the end of the trial, and after considering the evidence and addresses of counsel, the trial Court convicted the Appellant and sentenced him to 14 years, imprisonment, saying: “The evidence of the 2nd accused as DW2 above clearly clears the defence of not making a statement to the Police. He admitted giving his statement by admitting that he gave the IPO his bio data.

I therefore discountenance the argument that the 2nd accused did not give any statement to the Police at SARS office. Exhibit A2 is his statement which was admitted without objection. At the time of the tendering of Exhibit A2, counsel to the 2nd accused did not object to its admissibility nor did he allege the statement was obtained by torture or involuntarily. The raising of this issue at the time of his evidence in chief is definitely an afterthought. The DW2 is definitely not a witness of truth. Even the allegation of torture can not be supported by any evidence.

He alleged he was hanged, beaten and refused food and water everyday for 24 days. Yet he survived without any medical condition. I believe no human being can survive for 24 days without food and water. I find the 2nd accused is only raising it as an afterthought. Exhibit A2 is a confessional statement. The 2nd accused admitted being with the 1st & 3rd accused persons at the time of the commission of the offence. He also admitted conspiring with them and one other person Umar Snake (now at large) to rob the PW1 of his money.

He further admitted attacking the PW1 and one of them stabbing PW1 with a knife. However, as I stated earlier in this judgment, the 2nd accused person retracted his statement in Exhibit A2. However, the retraction was not made at the time of tendering Exhibit A2 in fact Exhibit A2 was admitted without objection by the 2nd accused person; it is trite law that a confessional statement is proved to have been made voluntarily, when at the time of tendering it into evidence, there is no objection from the accused person or his counsel. See the case of AHMAD V. STATE (2018) LPELR: 46550.

The statement in Exhibit A2 remain admissible and binding. See the case, of AKPAN V. STATE [1992] LPELR 381 SC per Kariba Whyte, JSC. I therefore find the 2nd accused actually participated in the attempted armed robbery. He has also failed to defend the case against him, and I so hold. The 2nd accused was charged jointly with the 1st & 3rd accused under S. 299 of the Penal Code for the offence of armed robbery.

However, the evidence adduced by the prosecution shows that the PW1 did not handover the money or his phone to the 1st, 2nd & 3rd accused person (sic) which resulted in their attack on him and stabbing him. Thus, there was no theft committed which is one of the essential element of armed robbery. However, there is enough evidence of attempted armed robbery proved in this Case. I therefore find the 2nd accused actually participated in attempted robbery together with the 1st & 3rd accused persons sequel to this finding, I find no defence offered by the 2nd accused in his defence.

I therefore in compliance with the Provision of S. 217 of the Criminal Procedure Code (under which the. charge was brought) now S. 231 of the Kano State Administration of Criminal Justice Kano 2019, hereby find the 2nd accused guilty of attempted armed robbery under Robbery & Firearms (Special Provisions). Act Cap 398 LFN 1990. I Aisha R. D.

Muhammad High Court Judge hereby convict you Abdulfatah Murtala for the offence of attempted armed robbery under S. 2 (1) of the Robbery & Firearms (Special Provisions) Cap 398 LFN 1990.” ​That is the decision Appellant appealed against, as per his Notice and Grounds of Appeal, on pages 130-137 of the Records of Appeal, dated 29/12/2020. (Appellant had alleged in paragraph 4 of his Brief that he filed Amended Notice of Appeal, but there is no such Amended Notice of Appeal, in this Appeal).

Appellant filed his brief on 25/6/21 and distilled three issues for the determination of the appeal, as follows: 1) Whether or not the learned trial Judge was right to have convicted the Appellant of offence under Section 2(1) of the Robbery and Firearms (Special Provision) Act Cap 398, when he was charged under Section 298 of the Penal Code Cap 105 Laws of Kano State 1991? (Ground 1 of the Notice of Appeal). 2) Whether or not the learned trial Judge was right to have relied on the confessional statement of the Appellant tendered as Exhibit A and accord probative value to it in convicting the Appellant? (Grounds 3, 4, 5, 6, 8, 9, 10 and 11). 3) Whether or not the prosecution has proved its case against the Appellant beyond reasonable doubt? (Grounds 2, 7, 12, 13 and 14) The Respondent filed its brief on 13/5/2022 and it was deemed duly filed on 24/5/2022.

The Respondent adopted the issues and distilled by the Appellant, for the determination of the appeal. When the appeal was heard on 18/10/2022, the Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly. Arguing the appeal, Counsel for the Appellant A. S.

Abdulkadir, Esq., on Issue 1, said the trial Court convicted the Appellant under a different law other than the one with which he was charged, and so was in error; that Appellant was convicted under the Armed Robbery and Firearms (Special Provisions) Cap 398, LFN 1990, whereas, he was charged under the Penal Code Cap 105 Laws of Kano State, 1991. Counsel said that the two laws are separate, one being a State Law and the other, Federal Law.

Counsel relied on the case of Mohammed Bello Vs State (2019) 77 Part 2 NSCQR 594 at 612, where the Supreme Court, Per Eko JSC, said: “I cannot see from the counts alleging criminal conspiracy to commit armed robber and armed robbery contrary to Robbery and Firearms (Special Provision) Act that the Appellant (1st Accused) herein was sufficiently put on Notice of the elements constituting the offence under Section 319A of the Penal Code Law of Kwara State.

I do not think so, and I so hold, that the conviction for a state offence, in substitution for the Federal offence that the prosecution failed to prove, is proper. The Appellant could not, in the circumstance, be deemed to have notice of the particulars of the state offence, under Section 319A of the Penal Code, or that the particulars of this state offence were carved out of the Federal offence not proved.

In the circumstance, I allow the appeal.” Counsel also relied on the case of Okobi Vs State (1984) 7 SC 47; (1984) LPELR-2453, where it was held: “It is to be observed that the Criminal Code, Laws of Lagos State contains robbery as one of the offences cognizable under that law, but less severe penalty prescribed for it. There is therefore available, a choice between the two laws, which the prosecutor can make.

It is my view that to enable the Court to utilize its power under the criminal procedure law to its advantage, the offence should and must be charged under the two laws in the alternative. The Court is not a persecutor but an adjudicator and its borders on Persecution, for the Court to invoke its powers under a law under which the prosecutor decided not to proceed, or prosecute … it will amount to a denial of justice, to the appellant to convict him of an offence under a law different from that which he was tried, for the sole purpose of securing conviction” Per Obaseki, JSC.

Counsel drew strength from the above decisions, to say that the learned trial Judge was in error to have convicted the Appellant under the Robbery and Firearms (Special Provision) Act Cap 398 LFN, 1990. He further placed reliance on FRN Vs Adeniyi & Ors (2019) 2 SC (Pt 111) 66; Etim Vs The State (2019) 3 SC (Pt II) 143 at 156-157.

Counsel said that the trial Court, having found that the prosecution had proved an offence under Section 299 which is equally attempted robbery, ought not to have resorted to conviction under the Robbery and Firearms (Special Provision) Act; that, the Penal Code has enough provisions under which Appellant could have been convicted, without necessarily relying on the Robbery and Firearms, Act.

Counsel added that Section 217 of the Criminal Procedure Code, relied upon by the trial Court, is not applicable to the facts of this case, as the section is only applicable in cases mentioned in Section 216 of the Act. He argued that, Appellant was never charged of having committed all of the offences charged in the alternative, and so it was wrong for the trial Court to have relied on Section 217 of the Criminal Procedure Code, in convicting the Appellant under Robbery and Firearms Act.

He relied on the case of Okabachi & Ors Vs The State (1995) 3 SC 141, Ogu Vs The State (1963) 1 ALL NLR 234; Oyebade Vs The Queen (1967) NMLR 71. Counsel admitted that a Court can convict an accused person for a lesser offence and relied on the case of Okabachi & Ors Vs The State (supra) and State VS Usman (2004) ALL FWLR (Pt 226) 231 at 271-272.

But he said that, in this case, Appellant was convicted for a more severe offence; that Section 298 of the Penal Code provides for imprisonment for a term that may extend to ten years, or for one who commits robbery and Section 299 provides for attempted robbery, to be punished with imprisonment term that may extend to 7 years or fine, but that the trial Court in this case opted for a more severe punishment under the Federal Act.

He relied on the case of Babalola Vs State (1989) 7 SC (Pt 1) 94 at 112, to the effect that the accused person can only be found guilty in respect of the offence for which he is charged, being the offence, he pleaded to.

Counsel added that the charge, dated 2/7/18, was not competent and valid, because it was substituted with the charge filed on 29/11/2017, that would have provided the basis for the substituted offence; thus, he said the charge dated 2/7/2018 cannot stand in place of a non-existing process and does not equally have the stamina to stand on its own, having not been birthed with a life of its own, but to draw strength from the earlier one.

On Issue 2, Counsel said the trial Court was wrong to rely on Exhibit A (confessional statement) to convict Appellant, in view of the fact the Hausa version of it was not tendered. He said that PW2 (IPO) had said that he recorded the Appellant’s statement in Hausa and in English languages. Counsel relied on Adamu VS State (2019) 8 NWLR (Pt 1675) 478 at 493-494, to say that both the Hausa and English versions ought to have been tendered; that issue of fair hearing would arise where the Appellant did not understand the English language used in trying him.

He relied on Olanipekun Vs State (2016) 13 NWLR (Pt 1528) 100 (among other cases), and added that, having admitted to recording the statement in Hausa language, PW2 cannot just tender the translated copy in English language, without the original made in Hausa language. He relied on the case of Adeyemi Vs State (2013) 3 NWLR (Pt 1340) 78. Counsel further said that Exhibit A2 (reproduced on pages 103-104 of the Records) was not actually a confessional statement as claimed at the lower Court.

Counsel also said that the offence alleged (armed robbery) against Appellant, meant robbery with violence (FRN Vs Usman (2012) LPELR-7818 SC). He said that before there can be robbery, something must be stolen; he said that, in this case, nothing was stolen; that Exhibit A2, clearly stated that nothing was stolen – when Appellant said: “We both ran away… we did not collect anything from him.” Counsel said that, since nothing was stolen, Appellant could not have committed or confessed to a crime of armed robbery, which did not happen.

Counsel relied on Ikemson Vs State (1989) 3 NWLR (Pt 11); The State Vs Yahaya (2019) 13 NWLR (Pt 1690) 297, to say that, for extra-judicial statement to constitute confession, the maker must admit or acknowledge that he committed the offence for which he was arrested and charged.

He said that the trial Court did not make any finding against Appellant, that he admitted committing the offence; rather that the Court found on page 121 of the Records, that Exhibit A2 was a confessional statement; that he admitted being with 1st and 3rd Accused persons at the time of commission of the offence and admitted conspiracy with them to rob PW1, and one of them stabbing PW1 with a knife. Counsel said that, with the above, Appellant could only be charged with offence of conspiracy!

Counsel further relied on the cases of Ajiboye Vs FRN (2018) 13 NWLR (Pt 1657) 430 and Olaoye Vs State (2018) 8 NWLR (Pt 1621) 281, on the requirements of a confessional statement, that it must meet the requirements to be so called, including words of caution. He said that Exhibit A2 was not a confessional statement; especially as the said Exhibit was extracted, under duress-torture. ​For Issue 3, Counsel answered in the negative, saying that the offence was not established beyond reasonable doubt, as the evidence of prosecution was riddled with inconsistencies and contradictions.

He referred us to pages 24, 25 of the Records, to highlight on the evidence of PW1, which he said were in conflict. He also relied on the case of Aiguokhian Vs The State (2004) 3 SCM 56, on the effect of inconsistent and contradictory evidence. Counsel stressed that PW1 could not have identified Appellant, as he (PW1) said some of the people who attacked him in his house were masked (covered their faces) and it was in the night! That PW1 said 1st accused mentioned their names – 2nd and 3rd Accused, but the 1st Accused denied this (Page 37 of the Records).

Counsel said PW2 had told the Court that the community members told them (police) one Abdulfata Abdullahi and Umar (i.e. 2nd Accused and a person, now at large) were the people who conspired and attacked a sugarcane seller. ​Counsel said the people who gave that information to PW2 did not give evidence. Moreover, that Appellant’s name was not Abdulfata Abdullahi, but Abdulfata Murtala!

He also said that the evidence of Appellant on page 37 of the Records was not discredited, when he said that, on 14/2/2017, he returned from school at 3pm; went to his tailoring shop; returned home from work, prayed and then the police came in from their van and arrested him, in front of his house and took him away. Counsel said it was doubtful whether Appellant was at the scene of crime, at all; that the alleged persons who mentioned him to the police was not called as a witness; he said that was fatal to the case of the prosecution.

He relied on Adamu Vs State (2019) 8 NWLR (Pt 1657) 478; Imhanria Vs Nigeria Army (2007) 14 NWLR (Pt 1053) 76 at 94; State VS Nnolim (1994) 5 NWLR (Pt 345) 394 17. Counsel urged us to resolve the lingering doubts for Appellant, and urged us not to depend on the confessional statement. He urged us to resolve the issues for Appellant. ​Responding, the Counsel for the Respondent Muhammad Nasir Faruk, Esq., (SSC Kano State), on Issue 1, said that the Prosecution had proved the case against Appellant, beyond reasonable doubt.

He relied on the three ways of proving commission of offence – namely (1) by eye witness(es) account; (2) by confessional statement or admission voluntarily made; (3) by circumstantial evidence. He relied on Ilodigwe Vs State (2012) 5 CM 134; Yakubu Vs State (2014) 35 CM 254.

He also relied on the case of Dibia Vs The State (2017) 12 NWLR (Pt 1597) 196, on the ingredients of armed robbery and attempted armed robbery, that: “The offence of attempted robbery is committed when any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault uses or threatened to use actual violence to any other person or any property in order to obtain the thing intended to be stolen” Counsel said it was further held in the case of Dibia Vs State (supra): “The act or conduct of the accused in furtherance to his intention to commit the offence and in relation to the principal offence, must be something more than mere preparation for the commission of the principal offence.

The act or conduct of the accused must be such that, but for intervening circumstance, the principal offence would have been completed or executed.” Counsel for the Respondent then referred us to the evidence of DW2 (Appellant) on pages 103-104 of the Records, when he said in Exhibit A2: “…I know (sic) Abdul Umar and Abba about two years ago, I knew them at our joint were (sic) we used to smoke Indian hemp.

I could remember on the 14th February, 2007, I met with them (sic) behind Hajiya Maria house; while moving towards our house one Abba (the 1st accused) among us told us that he don’t (sic) have money, he also advised us to go and attack one sugarcane seller along the same street that he has money. Myself, Umar and Abdullahi went straight and attacked him and said Abdullahi used knife and subdued him. We both runaway (sic) after that, we did not collect anything from him.” Counsel said that evidence was corroborated by the 3rd accused in Exhibit A3. (See page 104 of the Records of Appeal).

Counsel referred us to the evidence of PW1 on page 25 of the Records, and recounted how he was attacked by the robbers and stabbed by the accused, in the course of robbing him; that they ran away when he shouted and a neighbor came out, that he was able to identify them. PW1 had stated, under cross-examination, that the Appellant was with the 1st accused at the time of the attack and also beat him up. See page 25 of the Records, where he said: “…The 2nd accused was together with the 1st accused and he also beat me up. Yes, I did not know the 2nd accused before this incident.

Yes, 5 of them came. Yes, 2 covered their faces. It was the 1st accused person that mentioned their names. I still insisted that the 2nd accused had covered their faces, with Hirami, so I did not see his face… yes, the 2nd accused was one of these who covered their faces I can’t recognize him…” Counsel said that the testimony of the Appellant in Exhibit A2 corroborated the evidence of PW1 and PW2; and that when Exhibit A2 was tendered, the Appellant raised no objection to the admission of same, and so it was admitted, without any objection.

He said that the trial Court was entitled to convict even on the basis of the confessional statement of Appellant alone, and relied on Ada Vs State (2008) 7 MJSC 46: Azabada Vs State (2014) 6-7 MJSC (Pt 1) 55; Saliu Vs State (2014) 5-6 SC (Pt 1) 26. ​Again, Counsel said the evidence of PW1, PW2, DW2 (Appellant) and Exhibit A3 corroborated the veracity of the confession; that no shred of evidence was adduced to suggest that the confession was not free and voluntary. He also said that the evidence of the prosecution was consistent and there was no contradiction.

He urged to resolve the issue for Respondent, and relied on Shurumo Vs State (2010) Vol. 12 MJSC 52, to say that only material condition can affect evidence. On Issue 2, whether the trial Court was right to rely on the confessional statement to convict Appellant, Counsel answered in the affirmative, and said that even where the confessional statement is retracted, the Court can still rely on it, where it is adjudged credible. He relied on Abdullahi Vs State (2013) 11 NWLR (Pt 1366) 435.

Counsel repeated the arguments made under issue one, relating to the confessional statement (Exhibit A2) and relied on the cases earlier stated. On Issue 3, whether the trial Court was right to convict Appellant of offence under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, when he was charged under Section 298 of the Penal Code, Cap 105, Laws of Kano State, Counsel answered in the affirmative. He relied on the cases of Okabichi Vs The State (1975) 3 SC 141 and Ogu Vs Queen (1963) 1 ALL NLR 234, which he said had to do with substituted convictions.

He also relied on Sections 216 and 217 of the Criminal Procedure Code which he said empowers the Court to substitute charge, against accused person, if the main charge has not been proved. Counsel also relied on Salisu Vs State (2019) ALL FWLR (Pt 972) 260, where it was held that an accused person can be convicted for lesser offence, disclosed, if the principal offence is not proved. Counsel also relied on Agugua Vs State (2017) ALL FWLR (Pt 888) 355, where it was held: “…The offence of attempted robbery is a lesser offence than the robbery charged.

The ingredients are less onerous to prove, the law is that before an accused person can be convicted for a lesser offence, the ingredient of lesser offence charged is subsumed in the original offence charged, and the circumstance the lesser offence was committed must be similar to those contained in the offence, charged.” See Nigerian Airforce Vs Kamaldeen (2007) ALL FWLR (Pt 361) 1676.

Counsel also relied on Section 231 of the Administration of Criminal Justice Law of Kano State, 2019 to the effect that: “Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be, convicted of having attempted to commit that offence although the attempt is not separately charged” Counsel urged us to resolve the issues against the Appellant to dismiss the appeal.

RESOLUTION OF THE ISSUES I shall consider this appeal on the three issues donated by Appellant, which I shall take together, but summarized into 2, as follows: (1) Was the trial Court right to convict the Appellant of a lesser offence of attempted armed robbery under the State law, but punished under Section 2(1) of the Robbery & Firearms (Special Provision) Act, Cap 398 LFN, when Appellant was charged under Section 298 of the Penal Code Cap 105, Laws of Kano State 1991? (2) Did the prosecution establish the commission of the lesser offence of Attempted Armed Robbery, as per the evidence, including the confessional statement of the Appellant – Exhibit A2? ​A brief fact of this case, at the lower Court, showed that Appellant and three other persons (one could not be arraigned, being at large) went to the house of the PW1 to rob him.

At the house of the PW1, they attacked him and threatened him to surrender his money and other valuables, but PW1 resisted them, and was beaten and stabbed, severally. He (PW1) raised alarm which attracted neighbours and the assailant ran away, without taking anything. Three of them, including the Appellant, were arrested. Appellant was the 2nd Accused person. The 1st Accused was the first to be arrested, at the scene and he gave the names of the others, who took part in the robbery attempt. The accused persons made confessional statements to the Police, which were admitted, without objection.

Appellant’s confessional statement was Exhibit A2, which he retracted at the trial. The trial Court found the three accused persons guilty of attempted armed Robbery, instead of armed robbery since they did not take anything from the PW1, as they ran away in fear. Appellant’s main argument in this appeal, is that the trial Court was wrong to convict him under a Federal Law, Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, when he was charged under the State Law, Section 298 of the Penal Code, Cap 105, of the Kano State, 1991.

He also argued that the trial Court was wrong to convict him of attempt to commit the armed robbery, relying on the Confessional Statement (Exhibit A2, the English version), when the Hausa version of the confessional statement was not tendered as Exhibit.

Appellant’s Counsel stated that Section 298 of the Penal Code provides for the punishment for robbery that: “Whoever commits robbery shall be punishable with imprisonment for a term which may extend to ten years and shall be liable to fine.” He also said that, by Section 299 of Penal Code, “Whoever attempts to commit robbery shall be punished with imprisonment for a term which extend to seven years and shall be liable to a fine.” Appellant’s Counsel also submitted that the Court has power under Sections 217 and 218 of Criminal Procedure Code to convict an accused person of a lesser offence, and relied on the case of State Vs Usman (2004) ALL FWLR (Pt.226) 231.

Counsel said that Section 217 of the Criminal Procedure Code is only applicable in cases mentioned in Section 216 of the Law, which says: “… If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved, will constitute, the accused may be charged with having committed all or anyone or more of such offences and any number of such charges may be tried together, or he may be charged in the alternative with having committed someone or other of the said offences.” Counsel argued that Appellant was never charged of having committed all the offences or charged in the alternative and so it was wrong to have relied on Section 217 of the Criminal Procedure Code, to convict the Appellant under the Robbery and Firearms (Special Provision) Act, a Federal Law, contravening armed robbery and related offences.

Counsel, however, admitted that there are equivalent provisions in the Kano State Law, for the offence of attempted armed robbery The charge at the lower Court against Appellant, and the other accused, was: “That you Abba Nuhu, Abdulfatah Murtala and Abdullahi Musa, on or about 14th February, 2017 at about 1930 hours or thereabout at Ramin Gaza, Sharada Quarters, Municipal Local Government, Kano within Kano Judicial Division while armed with a dangerous weapon i.e. a knife did commit the offence of Armed Robbery by doing an act to wit: you stabbed one Musa Mukhtar Umar thereby instilling fear with the intention of collecting money and other valuables from the said Musa… thereby committed the offence of Armed Robbery punishable under Section 298 of the Penal Code, Cap 105 Laws of Kano State…” Appellant and his colleagues were, therefore, tried for armed robbery under the relevant State Law – Section 298 of the Penal Code, Cap 105, Laws of Kano State 1991.

But at the end of the trial, the Learned trial Court found that the evidence rather established a lesser offence of attempt to commit armed robbery, since the accused persons did not take away anything from their victim, after stabbing and beating him, as they ran away in fear, upon the victim raising alarm. Of course, the intention to rob was established, as well as the use of threat and arms, to do so. ​The decision to convict the Appellant and his co-accused for an attempt to commit armed robbery, appears well founded, in the circumstances, in my opinion.

And I think Appellant should be thankful that he was convicted of a lesser offence of attempted armed robbery. It was not because Appellant and his gang were not about to rob the PW1 of his valuables, but were only prevented from taking away the valuables by the alarm raised by PW1, which brought people to the scene, causing them (robbers) to bolt away, in fear.

I do not, however, know why the Learned trial Judge elected to predicate the punishment of Appellant (and the other accused persons) under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN 1990, when it was clear that Appellant (and the other accused person) was charged under Section 298 of the Penal Code of Kano State – Cap 105 Laws of Kano State.

The resort by the learned trial Court to Section 2(1) of the Robbery and Firearms (Special Provision) Act, was wrong, in my opinion, and I think that was a slip, which, alone cannot defeat or nullify the trial and conviction of the Appellant for a lesser offence of attempt to commit armed robbery, especially as the learned trial Court had stated how she arrived at the decision to convict Appellant of the lesser offence, when she said: “However, there is enough evidence of attempted armed robbery proved in this case.

I therefore find the 2nd accused actually participated in the attempted robbery together with 1st and 3rd accused person (sic); sequel to this finding I find no defence offered by the 2nd accused in his defence.

I therefore in compliance with the provision of S. 17 of the Criminal Procedure Code (under which the charge was bought) now S. 231 of the Kano State Administration of Criminal Justice (Law) Kano, 2019, hereby find the 2nd accused guilty of attempted armed robbery, under Robbery & Firearms (Special Provision) Act…” (See pages 122-123 of the Records of Appeal). ​It is clear that Appellant was tried and found guilty under the State law – Criminal Procedure Law of Kano State, and Penal Code, Cap 105 Laws of Kano State, and so the conviction stands, despite the slip by the Court to resort to the section, with which Appellant was punished – Section 2(1) of the Robbery and Firearms Act, Cap 398 LFN, which was imported, strangely, into the case, instead of the relevant State Law- Section 299 of the Penal Code, Cap 105 Law of Kano State, which the Court kept referring to and which had made provisions for punishment in respect of attempted armed robbery.

I think the trial Court had a duty to abide by that provision, in determining the punishment of Appellant. But because the State law also allows for a term up to 14 years imprisonment, and a fine for a convict, (not 7 years as wrongly stated by Appellant’s Counsel), that sentence should not be disturbed, in my opinion. Sections 298 and 299 of the Penal Code of Kano State provide as follows: “298.

Whoever commits robbery shall be punished: – (a) with imprisonment for twenty-one years with or without fine and canning; and (b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment for life, with or without caning. 299.

Whoever attempts to commit robbery shall be punished with imprisonment for a term of fourteen years, with or without fine and caning.” ​The rules concerning conviction for a lesser offence are well established and entrenched in our criminal jurisprudence, where the particulars or ingredients of the lesser offence are also integrated in the main offence, and so the evidence led, to establish the said main offence is subsumed in what is required to establish the lesser offence, enabling the trial Court to convict on the lesser offence, straight away, without any need to amend the charge for the accused to take plea on the said lesser offence.

See the case of Galadima Vs State (2013) LPELR-20402 CA: “To the question whether the appellants, who were not charged with this offence, could be convicted of it, the Court returned an affirmative answer. It explained its reason thus: By Section 218 of the Criminal Procedure Code Cap. 30 of Laws of Northern Nigeria 1963 applicable to Kogi State, an accused person can be convicted of a lesser offence if proven even though he is not charged with it. See Okwuwa v. State (1964) 1 All NLR 366.

The offence of voluntarily causing hurt without provocation is proved in this case against the appellants contrary to Section 246 of the Penal Code. [Italics supplied for emphasis] In Ezeja v The State (supra), the appellant was originally 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.

These decisions have to be contrasted with The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, where this Court held that: It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence. See Okwuwa v.

The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence, the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law. [Italics supplied for emphasis] In Agugua v The State (2017) LPELR-42021 (SC) 54 -55; E- A, this Court explained that: … the offence of attempted robbery is a lesser offence than the robbery charged.

The ingredients are less onerous to prove. The law is that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See The Nigerian Air Force v.

Kamaldeen [2007] 2 SC 113. [Italics supplied for emphasis] In Okobi v The State [1984] 7 SC 47; (1984) LPELR -2453 (SC), one of the questions that arose for determination was whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act entitled a High Court Judge to proceed to convict of a lesser offence under the Criminal Code by virtue of Section 179 of the Criminal Procedure Law [in pari materia with Section 218 of the Criminal Procedure Code].

Speaking for this Court, Obaseki, JSC, at page 23; A – C, made the following enduring pronouncements: I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act.

There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action, it will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.” In the case of Saliu Vs State (2018) LPELR-44064 (SC), my Lord Nweze, JSC, said: “…there is no way the Appellate Court can substitute or abandon the findings of the trial Court, with another, arbitrarily, or substitute the sentence, which is the terminal of the charge and evidence led to prove it.

See the case of SOLOLA V. THE STATE (2005) 2 NWLR (Pt. 937) 460 at 488; ADENIYI v. FRN (2012) ALL FWLR (Pt, 646) 575 at 589 where this Court held: “By the provisions of Section 179 (1) and (2) of Criminal Procedure Act, the Court can convict an accused person on a lesser offence disclosed by evidence at the end of trial, if the main charge fails. But that can only apply where the offence proved is part or element of the offence charged, or related to it.

The offences should be related, having the same or common means of proof, or similar/related ingredients for establishing commission, but the lesser offence, being so called, because the severity of it is less than the main offence, and the punishment thereof is, accordingly, reduced…” That case of Saliu Vs State (supra), it was further held: “THE JURISPRUDENCE OF THE SUBSTITUTION OF LESSER OFFENCES Now, Section 218 of the Criminal Procedure Code provided thus: (1)Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it;

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it. [Italics supplied for emphasis] The lower Court placed reliance on Adava v The State (supra) as authority for its decision in affirming the trial Court’s conviction of the appellant on the “lesser offence.” ​The Section 231 of the Administration of Criminal Justice Law of Kano State, 2019, says: “Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be convicted of having attempted to commit that offence, although the attempt is not separately charged” As earlier stated in this judgment, I cannot fault the decision of the trial Court, convicting Appellant on the said lesser offence of attempted armed robbery, which was clearly established by the evidence led, short of proving the main offence of armed robbery.

But the trial Court should have sentenced Appellant under the Penal Code, Cap 105 of Kano State, whereof Section 299, prescribes punishment for attempted robbery, being prison terms of up to 14 years, and a fine.

I think the trial Judge should have confined herself to the Penal Code, which also prescribed the 14 years imprisonment, for attempted armed robbery, (not the Robbery and Firearms (Special Provision) Act, Cap 398, LFN, 1990). ​The Argument of Appellant’s Counsel against the conviction of the Appellant on the basis of his confessional statement (Exhibit A2) does not require the waste of judicial time to consider, in full, as the law has become trite, that Appellant can be convicted, even on his confessional statement alone, where the same is adjudged relevant and voluntarily made, and properly before the Court, having been admitted without objection at the trial.

See the recent case of Sule Vs Kano State (2022) LPELR-57542 (CA), where we held: “By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion.

See the case of Husseini Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made.

See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked.

See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.” ​Of course, Appellant, who did not challenge the admission of his confessional statement, at the point of tendering same, at the trial, cannot rise up, on appeal, to oppose or challenge the reliance on the same by the trial Court, and seeking the striking down of the confessional statement.

See the case of Yusuf Vs The State (2022) LPELR-56760 (CA), where we held: “Party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntariness), not on appeal.

See Sunday Vs FRN (2018) LPELR – 46357 (SC)” The argument that the Hausa version of the Appellant’s Statement was not tendered, cannot be true, as it is clear from the Records that both the Hausa and English versions were admitted, together, as Exhibit A2. See Page 29 of the Records of Appeal. I therefore see no merit in this appeal, except in respect of the resort to Section 2(1) of the Robbery and Firearms (Special Provision) Act, for the punishment of Appellant, instead of Section 299 of the Penal Code of Kano State, which I do not think can invalidate the trial and conviction.

I do not think the cases of Bello Vs State (2019) 77 part 2 NSCQR 5941; Okobi Vs State (1984) 7 SC 47, (1984) LPELR-2453 (SC) and FRN Vs Adeniyi & Ors (2019) 2 SC (Pt 111) 66 are applicable to this case, as they had to do with conviction of accused person under a law different from that which they were charged and tried. Appellant in this case was convicted on a lesser offence under the law with which he was charged, but erroneously sentenced on a different law, which has been corrected in this judgment.

The appeal is dismissed for lacking in merit as the 14 years imprisonment is also what the Penal Code of Kano State provides for attempted armed robbery. The error in sentencing Appellant under Section 2(1) of the Armed Robbery & Firearms Act does not affect the merit of the decision of the lower Court, in my view.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft form, the leading judgment of my learned brother ITA G. MBABA, J. C. A. I am in complete agreement with his Lordship that the appeal is devoid of merit; accordingly, I also dismiss it.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the judgment by my learned brother ITA G. MBABA, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine. I too found the appeal unmeritorious. The appeal is equally dismissed by me and I abide by the consequential orders made therein.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of the Court of Appeal, Abuja Judicial Division, delivered on May 19th, 2016 in appeal No. CA/A/683C/2013. By the judgment in question, the Court below dismissed the Appellant’s appeal against the judgment of the High Court of the Federal Capital Territory (FCT) Abuja delivered on March 31st, 2011 in charge No. CR/22/04.

BACKGROUND FACTS The Appellant was a police officer who rose through the ranks to attain the non-commissioned officer’s rank of a sergeant. He was attached to the Operation and Training Command, Abuja. His last duty post was ASO Savings and Loans Ltd, FCT Abuja.

Instructively, the genesis of the Appellant’s travails is traceable to September 10th, 2003. Indeed, that was the day the Appellant, while on duty, was detailed along with the cash officer and the driver of the Bank for the purpose of conveying cash and cheque to the FCDA and Zenith Bank Maitama Branch Abuja, respectively.

​After accomplishing the task, on the way back to their duty post (the ASO savings and Loans Ltd), the Appellant and co. witnessed an accident involving a motor cyclist carrying a pillion passenger and a Toyota Corolla car. Consequent upon the accident, the motor cyclist and pillion passenger fell on the ground. The driver of the Toyota car, however, drove away – a case of ‘hit and run’ accident!

The Appellant made frantic effort to prevent the errant driver escaping from the scene of the accident but to no avail. Thus, the Appellant directed the bullion van driver to activate the siren and pursue the Toyota car with a view to arresting the recalcitrant driver thereof. He also fired gun shots in the air. As the driver drove into a close, the Appellant came down from the Bullion van. In the process, the run-away Toyota driver was shot and killed as a result of a gun shot from the Appellant’s service pistol.

The Appellant reported the incident to the Armourer of the Police Command who marched him before the Deputy Commissioner of Police.

He was detained and later arraigned before the trial Court upon a two count-charge viz: CHARGE COUNT I That you Ex-Sargent Andrew Ogboka being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse II Abuja with intent to kill committed culpable homicide punishable with death by causing the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a Close range with Police Brownie pistol No.

BDA - 380 425 -pm 5.7624 in your possession, having apprehended him for speeding off from an accident scene involving a Toyota Corolla vehicle with Registration No. AV 545 APP driven by the deceased, and a motorcyclist, (which accident was cause the motorcyclist) and thereby committed an offence punishable under Section 221 of the Penal Code Act, Cap 532, vol. XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.

COUNT II That you Ex-Sargent Andrew Ogboka ‘m’ being a serving police officer and a Bank guard attached to Aso Savings and Loan Ltd., Area 8, Garki, Abuja, on or about 10th day of September, 2003 at about 11:30 hours in a close near Children Affairs Super Store, off Ademola Adetokunbo Street, Wuse Il Abuja cause the death of MR ANGYATI DZARMA of No. 76 Niger Barrack, Abuja, by firing a gun shot into his head at a close range which incident you thereafter concealed with the intent to avoid arrest and prosecution, and thereby committed an offence punishable under Section 167 of the Penal Code Act, Cap 532, vol.

XXVII, Laws of the Federation of Nigeria, 1990, as applicable in the Federal Capital Territory, Abuja, and triable by the High Court.

In the course of the trial, a total of four witnesses were called by the Respondent (prosecution), who testified PW1, PW2, PW3 and PW4, respectively. The Appellant testified in his own defence as DW1. At the close of the trial, the trial Court delivered the vexed judgment thereof, on March 31st, 2011, to the following conclusive effect: Contrary to the case for the defence, the prosecution’s case was never challenged in any way. I believe the testimonies of PW1 and 3, as credible evidence and rely upon them.

The prosecution has proved their case beyond all reasonable doubt as required by the law.

The accused is thus convicted. … However, upon a careful reading of the provision in Section 167 discovered that the facts in this case, cannot sustain the offence contemplated under Section 167 of the Penal Code Law. … In this case although there is clear evidence that an offence was committed and the accused knew about it, there is no iota of evidence before me that the accused caused the disappearance of the evidence of the commission or that he gave any false information to anybody to screen the offender. Further, the offence screened by the accused person must have been by another person.

That being the case, the prosecution has not proved the second charge and the accused is discharged and acquitted upon it.

Having convicted the Appellant upon the first count of the charge, and acquitting him on the second, the trial Court proceeded to pass sentence there upon: SENTENCE I have listened to the allocutus pleaded by Counsel to the accused and also that there is no previous record of the accused. However, the charge on which the accused was convicted does not leave the Court with any option in mitigation of his sentence. I appreciate the industry and show of knowledge of the law by respective Counsel in the handling of this case. My hands are tied in this instance. The law must take its course.

The wage of sin is death. The sentence of this Court is that the convict is sentenced to death by hanging.

The Appellant, not unnaturally, was utterly dissatisfied with the conviction and sentence passed thereupon by the trial Court. Thus, appealed to the Court below upon a total of seven grounds of the original notice of appeal.

On May 19th, 2018, the Court below delivered the vexed judgment to the conclusive effect: This Court is satisfied that the trial Court was well within its rights in refusing to convict on the lesser charge, having satisfied itself that the prosecution had proved the offense of culpable homicide punishable with death as charged; accordingly this issue too is resolved in favour of the respondent, against the appellant. Having resolved all the three issues for determination in favour of the respondent, against the appellant, the appeal fails for lack merit, and it is hereby dismissed.

Judgment of the trial Court High Court of the Federal Capital Territory, Abuja of the 31st day of March, 2011 Coram Justice Husseini Baba Yusuf is hereby affirmed.

On February 18th, when this appeal came at long last for hearing, the learned counsel were accorded the opportunity to address the Court and adopt the articulated argument contained in the respective briefs thereof. Thus, resulting in reserving the instant judgment to today.

The Appellant’s brief of argument was settled by Yunus Lambo Akanbi, Esq on 28/02/2017. It spans a total of 29 pages. At page 4, two issues have been raised: 1. WHETHER THERE WAS ANY RELIABLE EVIDENCE IN PROOF OF THE APPELLANT’S INTENTION TO KILL TO SUPPORT THE COURT OF APPEAL’S DECISION THAT THE PROSECUTION PROVED THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE – WITH DEATH AGAINST THE APPELLANT BEYOND REASONABLE DOUBT. (GROUNDS AND 10) 2.

WHETHER HAVING REGARD TO THE TOTALITY OF ADMISSIBLE EVIDENCE, THE LEARNED JUSTICES OF COURT OF APPEAL WERE RIGHT IN REJECTING THE DEFENCE OF ACCIDENT WHICH INURED THE APPELLANT A LESSER OFFENCE OF CULPABLE HOMICIDE NOT PUNISHABLE WITH DEATH THEREFORE. (GROUNDS 1, 2, 4, 6 AND 8).

The issue No. 1 is extensively raised at pages 4-18 of the Appellant’s brief. In the main, the submission on the issue is to the effect that the trial Court was right in holding that the 1st and 2nd elements of the offence of culpable homicide punishable with death has been established by the prosecution, and that the Appellant admitted same in both his statements to the police and testimony in open Court.

However, it is argued that the Court below could not have been right, that the third element of the offence has been proved beyond reasonable doubt by the prosecution against him.

Further argued, that the inference of the Appellant’s intention drawn by the two Courts below in vacuum, when there is no such confession from the Appellant, portray a misconception of law. That its crystal clear, from Exhibit 3, the PW1 evidence that the Appellant did not at any point in time form an intention to kill the deceased person. According to the learned counsel, the corked gun was never meant to kill the deceased; as such, there was never an intention to cause the death of the deceased in the circumstance. See AMAYO VS. THE STATE (2002) 5 WRN 1 @ 6-7.

​Further argued, that the Court flagrantly refused to be bound by the decisions of this Court in IROMANTU Vs THE STATE (1964), ALL WLR 311; ADELUMOLA VS. THE STATE (1988) 1 NWLR (pt. 73) 683.

The foregoing decisions are allegedly in tandem with Section 48 of the Penal Code (supra).

It is postulated that the prosecution, for reason best known thereto, failed to call Taida Dzarma, the person who was with the deceased in the car, to testify. See AHMED VS THE STATE (1999) 7 NWLR (pt. 612) 64; ASANYA VS. THE STATE (1991) 3 NWLR (pt. 180) 422, et al.

Thus conclusively, the Court is urged to hold that the affirmation by the Court below of the trial Court’s findings that the Appellant’s intention to kill the deceased proved beyond reasonable doubt by the prosecution, when such evidence was not on record, is perverse.

The issue No. 2 is extensively canvassed at pages 19 to 26. In a nutshell, it is submitted that from the evidence before the trial Court, the Appellant was a police officer on lawful duty. It was therefore lawful for him to carry a gun. By virtue of the Police Act, he has authority to arrest an offender, suspect, or person who allegedly committed an offence. Therefore, the Appellant was carrying out a lawful duty, when he pursued the deceased to arrest him for causing accident and running away from the scene of the accident.

Copiously alluding to the finding of the below at page 419 of the record, it is argued that, there was intention by the Appellant to kill the deceased but failed to consider his defence of negligence. See EJEKA VS. THE STATE (2003) 7 NWLR (pt. 819) 408; EGBIRIKA VS. THE STATE (2014) ALL FWLR (pt. 725) 237 per Kekere-Ekun, JSC @ 256 paragraphs; et al.

In the circumstance, the Court is urged to resolve the issue No. 2 in favour of the Appellant, against the Respondent, and allow the appeal.

On the whole, the Court is urged upon to allow the appeal, set aside the conviction and sentence of the Appellant, and acquit the Appellant.

Contrariwise, the Respondent’s brief, settled by Etukwu Onah Esq. On 10/06/2020, spans a total of 27 pages. At pages 6-7 of the said brief, two issues have been formulated: 1. Can the defence of accident under Section 48 of Penal Code Act avail the Appellant in the circumstances of this Appeal? (Distilled from grounds 1, 2 and 4 of the Notice of Appeal). 2.

Was the lower Court right to have affirmed the conviction and sentence of the Appellant for culpable homicide punishable with death on the grounds that the prosecution proved its case beyond reasonable doubt at the trial Court? (Distilled from grounds 3, 5, 6, 7, 8, 9 and 10)

The issue No. 1 is submitted in the main, that the trial Court disbelieved the Appellant’s evidence on ground of discrepancy between the extra-judicial statement and his sworn evidence before the Court.

Further submitted, that the Court below in agreeing with the finding of the trial Court, equally had recourse to the extra-judicial statement of the Appellant and statement on oath in question.

It is argued, that the defence of mistake under Section 48 of the Penal Code cannot avail the Appellant. The Court is thus urged upon to affirm the findings of the two Courts below, and resolve the issue No. 1 in favour of the Respondent, against the Appellant

The issue No. 2 is extensively argued at pages 15-24 of the brief. In the main, it is argued that from the evidence of the Appellant at page 29 of the record, he has admitted that, the driver died, and that his death was a result of the Appellant’s gunshot. Thereby establishing the two ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code (Supra).

It is further argued, that by his evidence at pages 28-29 of the record, the Appellant, a trained police officer still had his gun corked after he had arrested the deceased. And after he knew that he had shot the deceased, the Appellant did not report the incident to his companions in the bullion van or his office, the Bank where he worked, or any of the police stations that he had mistakenly killed the deceased, until he was arrested on 15/09/2009.

It is conclusively argued on issue 2, that the Court is not bound by the contention that the Appellant ought to be convicted for a lesser offence of culpable homicide not punishable with death, pursuant to Section 218 of the Criminal Procedure Code.

In the circumstances, the Court is urged to resolve the issue No. 2 in favour of the Respondent, against the Appellant, dismiss the appeal, and affirm the decisions of the two Courts below.

​I have accorded a very critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the extensive submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the record of appeal as a whole. Thus, I have deemed it expedient to adopt the two issues raised and argued in the Appellant’s brief in determination of the appeal, anon.

ISSUE NO 1 As copiously alluded to above, the first issue raises the very fundamental question of whether or not there was any reliable evidence in proof of the Appellant’s intention to kill to support the decision of the Court below that the prosecution had proved the offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant. The first issue is distilled from grounds 3, 5, 7, 9 and 10 of the notice of appeal.

Instructively, the provision of Section 221 of the Penal Code (supra), the prosecution has a duty of proving beyond reasonable doubt the following ingredients: Except in the circumstances mentioned in Section 222 culpable homicide shall be punishable with death: (a) If the act by which the death is caused is done with the intention of causing death; or (b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.

Most cherishingly, the provision of Section 221 of the Penal Code (Supra) is no longer an unchartered coast. Indeed; that Section has been a subject of far-reaching judicial pronouncements by this Court in a plethora of authorities. See ILIYASU VS. THE STATE (2015) All FWLR (Pt. 793) 1917 @ 1923; USMAN VS THE STATE 1917 @ 1923. Most particularly, in the case of USMAN VS.

THE STATE (Supra), our own noble and learned brother, Peter-Odili, JSC aptly postulated: The prosecution faced with that duty of proof of the offence aforesaid, must prove all the ingredients of the offence as contained in Section 221 of the Penal Code which ingredients must coexist, non-missing. These vital components of the offence are stated here under as: 1. That the deceased had died. 2. That the death of the deceased had resulted from the act of the accused person. 3.

That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See YAKI VS THE STATE (2008) ALL FWLR (PT. 440) 618 (2008) 7 SC 128 AT 129; SHANDE VS. STATE (2004) ALL FWLR (PT 223) 1955 (2005) 1 NWLR (PT. 907) 218 @ 238.

Parties are ad idem, as aptly found by the trial Court and duly upheld by the Court below, that the first and second ingredients have been proved beyond reasonable doubt by the prosecution (Respondent).

The fact that the Appellant was responsible for firing the gunshot which resulted in the unfortunate death of the deceased person is not in doubt at all. However, the issue at stake is regarding whether or not the Appellant had the intention of killing, or causing bodily harm to the deceased person in question.

On this note, I have deemed it expedient to copiously allude to the finding of the trial Court at pages 165 (lines 23-29) and166 (lines 1-4) of the record of Appeal: There is evidence that the accused pursued the deceased through several streets in Abuja during which he admittedly fired shots into the air when he caught up with the deceased and the deceased was cut down by his bullet, he returned to the van, did not tell co-traveler, neither did he report the accident to his office and was attending to his work in the bank for days thinking he could escape the long arms of the law.

All these in my view points to the fact the accused intended the death which is the killing of the deceased…

In affirming the foregoing findings of the trial Court, the Court below at pages 424 (lines 17-19) and 427 (lines 9-13) of the record of appeal equally stated: The action or conduct of the accused almost always determine his or her intention, and in this particular case, a few of the appellant’s actions standout as lead to his intention. … It is the considered opinion of this Court that there was sufficient evidence before the trial Court to rightfully convict the accused/appellant of the offense of culpable homicide punishable with death; accordingly this issue too is resolved in favour of the respondent, against the appellant.

Undoubtedly, the actions (conducts) which have been construed by the two Courts below could be found both in the Appellant’s testimony (viva voce) in Court and the extra-judicial statement thereof (Exhibit 3) contained at pages 28 and 151 of the record of appeal.

In Exhibit 3 (pages 27-30 of the record of appeal), the Appellant narrated in great detail the circumstances surrounding the ‘hit and run’ accident; how he pursued and hot-chased the errant driver to many streets within Wuse, Maitama up to Amigo Plaza where: There was a hold-up then I fired my pistol in the air. So as to scared (sic) him but he still refused and drove away. He drove away. He drove and finally plucked in a close near children affairs at Wuse ll.

I came down from our bullion van to arrest him, in the process of dragging him to enter his car so that I can take him to the nearest police station by then my pistol was still cocked as a result when I was holding the pistol within my right hand unknowingly I trigged then the bullet hit the driver of the Toyota Corolla on his head. He fell down and I touched his body which I discovered that he was death (sic).

Again, in his viva voce under oath, he narrated the circumstance surrounding the incident leading to the unfortunate death of the deceased person. His evidence is not dissimilar from the narratives in Exhibit 3, copiously alluded hereto above. According to the Appellant: The accident was between a motor-cyclist and a driver of a Toyota Car. There were two people on the motor cycle and 2 people in the car. The driver of the vehicle negotiated and drove from the scene. This time the occupant (sic) of the motor cycle were lying down.

I tried to stop the driver he refused and continued. … in the process I was raising my pistol up and shouting that we were police. He were driving in a bullion van carrying siren. We continued in the process and he refused to stop. He did not stop. He drove to the close and I jumped down from the vehicle to arrest him. As we were dragging I did not remember that the pistol was on and all of a sudden it exploded. Before this point we have chased the vehicle of the deceased for up to an hour.

The Appellant equally testified that he did not know the cyclist involved in the accident in question. And that when – The deceased fell down and I started crying. Went back to the vehicle and directed the driver to drive to the office and report myself I felt that something must have happened to the deceased so I left him and went away to report myself. On getting to the command office, I reported to the armourer who matched me before the deputy commissioner of police. I was later detained at Wuse police Station.

On the 16/09/031 was brought out of detention and force headquarters where it was said that the Inspector General of Police had directed that I should be taken to Court

On the question of whether the Appellant had reported the incident to the Police authority, he has this to say: I mentioned in my statement to the police that I did not inform anybody after the incident because I was told by the police to say so since the was not aware of the detention, it was my second that was signing attendance register for me at the Bank. He is Sgt. Samuel. I regret the mistake I made. I was trying to save life. My dad heard of this incident and developed stroke. The gunfire is not deliberate. It was accidental. During my incarceration, I have become a born again.

Under cross-examination by the prosecution counsel, the Appellant equally had this to say: I joined the police in 1991… in the course of training, I was trained on how to handle weapons. The pistol I was holding that day has a safety position. When I was pursuing the deceased, I left the pistol in a firing position. This is because when we carry money, armed robbers used to attack us. It is not true that I was careless while pursuing the deceased.

The evidence of the eye witnesses of the incident (PW1 and PW2) is contained at pages 132-134 and 135-196 of the Record. Most particularly, the evidence in-chief of the PW1 is to the effect inter alia: PW1: My names are Sanusi Ado. I am 35 years old. I am a banker working with Aso Savings and Loans PLC attached to Wuse Market branch. On 10/9/031 was working with Aso Savings as Cash Movement Officer at Area 8 Garki branch, Abuja. On that day I was asked to move about N3,000,000.00 from Area 8 branch to FCDA Area 11 branch with some cheques to be delivered at Zenith Bank, Maitama.

I was in company of driver Moses Azi and the police man attached to cash movement.

The testimony of the PW1 is virtually in line with the evidence of the Appellant who testified as DW1. Under cross-examination, the PW1 reiterated: In my opinion the intention of the accused originally was to arrest the deceased and not to kill him… I heard the second shot but I did not see the accused shoot the driver. I can’t say what transpired between the accused and the deceased.

Before now I was arraigned with the accused before another Court along with the driver of that van in the chief magistrate Court… The accused visibly shaken when he returned to us after the encounter with the deceased. I do not know why the accused was shaking … whether there is the only security officer to direct our movement. This is on security ground because armed robbers do not know when we have cash and when we do not have.

The PW2, the second eye witness testified inter alia: PW2 … My names are Moses Azi, a driver with Aso Savings and Loans Ltd., Area 8 Garki, Abuja branch. I know the accused person. He is a police officer attached to my bank… On 10/9/03 I resumed normal work at Garki. We were given cash of N3,000,000.00 to deliver the cash to FCDA branch and the Cheque to Zenith Bank, Maitama. I was with my cash officer (PW1) and the police Sgt. The accused. After delivering the cash at FCDA we took the cheque to Zenith Bank Maitama…

The testimony of the PW2 is virtually in line with that of the PW1. On 20/02/07 the PW2 testified in chief. The case was however adjourned on record to 15/3/07 for cross-examination of the PW2. However, it’s obvious on the face of the record, that the PW2 was neither recalled nor cross-examined at any point in time the trial lasted.

Having critically, albeit dispassionately, reviewed the evidence of the prosecution, most especially that of the key witnesses, the PW1 and PW2, I am unable to uphold the findings of the Court below, to the conclusive effect that the third ingredient of the charge i.e intention to either kill or cause grievous harm the deceased person, has been proved beyond reasonable doubt against the Appellant.

As copiously alluded heretofore, the evidence of most especially the PW1 is very much supportive of the Appellant’s defence, to the effect that. “In my opinion the intention of the accused originally was to arrest the deceased and not to kill him.”

​That evidence of the PW1 clearly supports the Appellant’s defence under oath, to the effect, that his service pistol was corked not necessarily because he had premeditated intention to kill the errant hit-and-run away driver, but due to the fact that: “When we carry money, armed robbers used to attack us. It is not true that I was careless while pursuing the deceased. See page 152 (lines 11-13) of the record of appeal.

My noble Lords, I am not unmindful of the trite doctrine, that to constitute the offence of murder, the prosecution shoulders the burden squarely of proving beyond reasonable doubt that Appellant at the material time, he fired his pistol (gun) had premeditated (intended) to cause the death of the deceased or cause grievous harm thereto.

In the instant case, there is nothing in the evidence of the prosecution star witnesses – PW1 and PW2 or any witness at all, to suggest by any stretch of imagination, that the Appellant willfully aimed and fired his service pistol at the deceased, thereby resulting in the death thereof. As once aptly posited by this very apex Court: It might be that the appellant fired at random. That being so, the necessary intent to constitute the offence of murder has not been established beyond reasonable doubt.

The learned trial Judge ought to have considered the possibility that on the facts before him, a conviction for manslaughter was a verdict open for consideration. I think for this reason alone, the appeal ought to succeed. See AMAYO VS THE STATE (2002) 5 NWLR 1 Per Ogundare, JSC @ 7.

In the instant case, it is so obvious from the totality of the evidence adduced at the trial, that the Appellant was the only eye witness with the exception of the deceased driver’s companion in the Toyota Corolla car, in the person of Tarida Dzarma. Regrettably, the Respondent failed, for reasons best known to him, to call that very vital eye witness to testify in the case. If he had been called, his evidence could have immensely assisted the trial Court in arriving at a more justifiable finding and conclusion therein. See AHMED VS.

THE STATE (1999) 7 NWLR (Pt. 612) 641, ASANYA VS THE STATE (1991) 3 NWLR (Pt. 180) 422. Most particularly, in the case of AHMED VS. THE STATE (Supra), this Court squarely faced with a similar scenario as in the instant case, aptly held: The trial Court was therefore left with the testimony of the Appellant as the only eye witness of what led to the stabling (sic). He made statements to the police and has been very consistent all along. Whatever any other witness would testify to as to the stabbing is hearsay. Not circumstantial evidence.

In a situation where only the evidence of the accused person as to the actual stabbing is the only eye witness account he is either believed or there is no other evidence to believe.” Per Belgore, JSC (as the learned Lord then was) @ 674 - 675 paragraphs H-A. See alsoBUBA VS THE STATE (1994) 7 NWLR (Pt. 355) 195 @ 203. SMART VS THE STATE (2016) All FWLR (Pt. 826) 548 @ 568 Paragraphs E-F, et al.

In the circumstances, the issue No 1 ought to be, and same is hereby resolved in favour of the Appellant.

ISSUE NO 2 The second issue raises the very crucial question of whether or not having regard to the totality of admissible evidence, the Court below was right in rejecting the defence of accident which inured the Appellant a lesser offence of culpable homicide not punishable with death. The second issue is distilled from grounds 1, 2, 4, 6 and 8 of the notice of appeal.

​It has been insinuated upon by the Appellant (page 20 paragraph 7-03 Appellant’s brief), that the Appellant’s conviction under Section 221 of the Penal Code ought to have been substituted for the lesser offence of culpable homicide not punishable with death under Section 222 (7) of the Penal Code.

I have deemed it expedient, at this very point and stage, to allude to the finding of the trial Court at page 67 (lines 4- 8) of the record of appeal: Contrary to the case for the defence, the prosecution’s case was never challenged in any way. I believe the testimonies of PW1 and 3 as credible evidence and rely upon them. The prosecution has proved their case beyond reasonable doubt as required by the law. The accused is thus convicted as charged.

On the other part thereof, the Court below equally found at page 430 of the (lines 12-20) of the record of appeal: The trial Court was justified in rejecting the application to convict for a lesser offense when it is satisfied that what had been charged was proved to its satisfaction and if the prosecution was counting on the exercise of its discretion by the Court, then it has to be said; … discretion is thus not an indulgence of a judicial whim, but the exercising of judicial judgment based on facts and guided by the law or the equitable decision. Per Oputa, JSC IN UNITED BANK FOR AFRICA VS.

GMBH & CO. (1989) 3 NWLR (Pt 110) 374.

Most regrettably, the purported concurrent findings of the trial Court and the Court below are a far-cry from the evidence on record. As copiously alluded hereto above, the evidence of the foremost prosecution’s eye witness, the PW1 was to the effect that in his – “Opinion the intention of the accused originally was to arrest the deceased and not to kill him.”

What is more, the only potential eye witness who could have greatly assisted the trial Court who knows the actual truth of whether or not the Appellant intentionally aimed his pistol “point-blank”, thereby shooting and killing the deceased was never called by the prosecution for reasons best known thereto.

This lapse undoubtedly created a devastating lacuna and serious doubt in the case of the prosecution, especially in regard to the third ingredient of the charge. ​The trial Court ought to have considered the possibility that, on the facts and circumstances presented before it, a conviction for culpable homicide not punishable with death (otherwise known as manslaughter under the Criminal Code) was a verdict open for consideration. See AMAYO VS. THE STATE (supra), Per Ogundare, JSC @ 7.

In the instant case, contrary to the unjustifiable finding of the Court below copiously alluded thereto above, the trial Court has no discretion but to substitute the charge for the lesser offence of culpable homicide not punishable with death under Section 222 of the Penal Code. In my considered view, the purported exercise of discretion, copiously alluded by the Court below, could aptly be likened to what the House of Lords (now Supreme Court of the UK) characterised as the exercise of crooked cord of discretion in the notorious case of PETTITT VS.

PETTITT: To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met wand of the law. See PETTITT VS PETTITT (1977) HL 777 Per Lord Hodson @ 808. Most interestingly, the foregoing rather uncomplimentary remarks of Lord Hodson in PETTITT VS.

PETTITT (Supra), was a blunt reaction to Lord Denning’s dictum so radically enunciated in the case of HINE VS HINE (1962) 1 NLR 1124 @ 1124, wherein the legendary quintessential jurist postulated in his notorious characteristics: Its discretion transcends all legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as may be fair and just in all the circumstances of the case.

However, as aptly postulated hereinabove, the House of Lords did not take kindly Lord Denning’s radically overreaching dictum, hence the remarks copiously referred to in HINE VS HINE (Supra).

In the instant case, the Court below affirmatively held at page 419 of the Record of Appeal, to the following effect: This Court finds the conclusion reached by the trial Court compelling in the circumstance, when it held… an accused as in the instant case cannot take refuge in a defence of accident for a deliberate act, even if he did not intend the eventual result ​From the following findings, the two Courts below were fully appreciative of the fact that the very fundamental third ingredient of the charge – intention – actually had not been proved beyond reasonable doubt by the prosecution.

And yet the law is well settled, beyond per adventure, that unintentional killing of a human being, which is unpremeditated but accidental, tantamounts to culpable homicide not punishable with death (otherwise called manslaughter). See EJEKA VS THE STATE (2003) 7 NWLR (Pt. 819) 408.

In the recent case of EGBIRIKA VS THE STATE (2014) All FWLR (Pt. 725) 237, this Court had the unique privilege of reiterating the trite fundamental doctrine: The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing the result from his act was not intended, the act would not fall within the provisions of Section 316 of the Criminal Code and therefore would not constitute murder.

It has been posited by the Appellant, at page 23 paragraph 7.15 of the brief thereof: 7.15 A calm and dispassionate perusal of the evidence of the Appellant in Court which the two lower Courts found as an afterthought tend to support the defence of accident, while evidence in his extra-judicial statement shows that the Appellant was negligent negatives the defence of accident and the killing of a person by negligent act constitutes manslaughter or culpable homicide not punishable with death. See OMINI VS. THE STATE (1999) 12 NWLR (PT. 630) 168 @ 182 Para A and BANDE VS.

THE STATE (1972) NSCC page 611 @ 614.

I would want to believe, with every sense of responsibility, that the foregoing submission is very much apt and quite in accord with the facts and circumstances surrounding the evidence adduced at the trial. Undoubtedly, the circumstances surrounding the evidence on record are irresistibly to the effect that the Appellant cannot, by any stretch of imagination, be deemed to have intended the killing of the deceased.

However, as aptly posited by the Appellant’s learned counsel, the totality of the evidence on record only establishes the ingredients of the offence of culpable homicide not punishable with death. Regrettably, the two Courts below were gravely in error, when they unwittingly failed to hearken to the learned counsel’s plea to convict the Appellant on the alternative offence of culpable homicide not punishable with death. See AUTA VS THE STATE (1975) NWLR 60.

​In the circumstances, the second issue equally ought to be and same is hereby resolved in favour of the Appellant.

Hence, having considerably resolved both issues in favour of the Appellant, there is no gainsaying that the appeal grossly succeeds, and it is hereby allowed by me. The judgment of the Court of Appeal, Abuja Judicial Division delivered on May 19th, 2016 in appeal No. CA/A/616C/2011, is hereby set aside. The conviction and sentence for the offence of culpable homicide punishable with death under Section 221 of the Penal Code are hereby substituted for conviction and sentence for culpable homicide not punishable with death under Section 222 (7) of the Penal Code.

The Appellant’s death sentence is accordingly substituted with a sentence of Twenty (20) years imprisonment with effect from the date of detention thereof.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC afforded me a preview of the judgment just delivered. I agree with the reasoning and conclusion therein.

​The law is quite well settled that while the prosecution has the burden of proving the guilt of an accused person beyond reasonable doubt, it is equally trite that any doubt must be resolved in the accused person’s favour. See: F.R.N. Vs Abubakar (2019) LPELR-46533 (SC) @ 22 C-D: Okonji vs The State (1987) LPELR-2479 (SC) @ 26 E-F.

My learned brother has ably summarized the facts that gave rise to this appeal in the lead judgment. I adopt and rely on the summary in making a few comments.

In order to prove the offence of culpable homicide punishable with death, the prosecution must prove the following facts beyond reasonable doubt: 1. That the deceased died. 2. That his death was caused by the accused. 3. The act of the accused which caused the death was intentional knowing that death or grievous bodily harm was the probable consequence of his act. See:Udo vs The State (2016) 2-3 SC (Pt. 111) 29; Igabele vs The State (2006) 6 NWLR (Pt. 975) 100; Haruna vs A.G. Federation (2012) LPELR – 7821 (SC).

​In the instant case, the first two elements were established. The third element was the bone of contention. In order to secure a conviction for culpable homicide punishable with death, the prosecution must prove the mens rea of the offence i.e that the act of the accused, which resulted in the death of the deceased, was intentional. The eye witnesses to the offence were the appellant and the passenger in the vehicle driven by the deceased. Unfortunately, the prosecution did not deem it necessary to call him to testify.

In the circumstances of this case, he was a material witness whose testimony would have been of immense assistance to the Court. The Court was left with the evidence of the appellant alone as to what transpired at the moment the deceased lost his life. It is noteworthy that the prosecution relied in part on the appellant’s extra-judicial statement, Exhibit 3, wherein he stated that while chasing the deceased with the bullion van, he fired shots into the air to scare him and to make him stop the car. He refused to stop. The chase led them into a close where he eventually stopped.

He stated that he came down from the van to effect his arrest. In the process of the struggle to arrest him and take him to the nearest police station, his pistol, which was still corked, accidentally went off and a bullet hit the deceased on his head and caused his death. ​He clearly raised the defence of accidental discharge. The statement, once admitted in evidence, forms part of the prosecution’s case. See: Ikpa Vs the State (2017) LPELR-42590 (SC): Egboghonome vs The State (1993) 7 NWLR (Pt. 306) 383. He repeated the same defence at the trial.

Interestingly, PW1, testified under cross-examination, that in his opinion, the appellant’s intention was to arrest the deceased and not to kill him. This testimony, coming from a prosecution witness, supports the defence of accident. Having regard to the scenario that unfolded, I am of the considered view that there was some doubt as to whether there was an intent to kill. The appellant testified that as a Police man on escort duty in a bullion van, the protocol was to keep his weapon cocked and ready due to the frequency of armed robbery attacks on bullion vans.

It was in that state that he chased after the deceased, shot in the air and eventually came down from the vehicle to effect the arrest, when the unfortunate incident occurred. ​In the absence of the testimony of the deceased’s passenger, who would have been able to state exactly what transpired, the appellant was entitled to the benefit of the doubt.

Indeed, the prosecution realized this when it urged the trial Court, in the course of its final address (see pages 116-117 of the record), to convict the appellant of the lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code.

I therefore agree with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, that this is a proper case in which to interfere with the concurrent findings of the two lower Courts.

I allow this appeal and set aside the appellant’s conviction and sentence to death by the trial Court, affirmed by the lower Court, under Section 221 of the Penal Code. In its stead, the appellant is hereby found guilty of culpable homicide not punishable with death under Section 222(7) of the Penal Code. He is hereby sentenced to 20 years imprisonment with effect from the date of his detention in prison custody. Appeal allowed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Ibrahim Mohammed Musa Saulawa, JSC, obliged me a copy of the judgment just delivered and I totally agree with the judgment.

​My brother has painstakingly reviewed the issues in this appeal which to my mind are similar from both counsel.

I shall add only a few comments of my own in appreciation of the judgment and for purpose of emphasis.

I hold the view that what this Court is invited to consider in this appeal is not whether the deceased has died or whether his death was caused by the action of this Appellant but whether the Appellant premeditated or intended killing the deceased. The first and second ingredients of the offence of culpable homicide are not in doubt in this case. However, to complete the cycle, the third ingredient must necessarily be established. A collective proof of the three ingredients is required to sustain an action against culpable homicide. See Famakinwa v. State (2016) 11 NWLR (pt 1524) 538.

The law is trite that where a person unintentionally kills another, he would be guilty of manslaughter. That is to say that such killing is not premeditated but accidental in the sense that it was not intentional. See Ex CPL Ikechukwu Nwabueze v. The People of Lagos State (2018) 11 NWLR (pt 1630) 201 – Ejeka v. State (2003) 7 NWLR (pt 819) 408 – Akpabio v State (1994) 7 NWLR (pt 359) 635.

​In the instant case, it has been established in evidence gleanable from the printed record that Appellant in an attempt to arrest the deceased who was attempting to escape after committing a crime had his gun accidentally exploded and killed the deceased. It is unfortunate that the deceased died on the spot as the gunshot was to his head. However, that cannot automatically impute the act of premeditated killing.

I hold the view that the evidence proved in this case cannot sustain the offence of culpable homicide punishable with death under Section 221 of the Penal Code as there was no premeditated intention on the part of the Appellant to kill the deceased, rather, the offence of culpable homicide not punishable with death is sustainable. I so hold.

In the final analysis, I agree that this appeal is meritorious. It is hereby allowed in part. I abide by the order substituting the death sentence passed on the Appellant with a sentence of twenty (20) years imprisonment commencing from the date of detention. Appeal Allowed.

EJEMBI EKO, J.S.C.: The prosecution, in the charge at page 3 of the Record, had alleged that the Appellant “with intent to kill committed culpable homicide punishable with death by causing the death of Mr. ANGYATI DZARMA. The alleged intentional culpable homicide is punishable under Section 221 of the Penal Code Act of the FCT, Abuja.

The Appellant denied that he intentionally killed the deceased. In his extra-judicial statement, Exhibit P3, which the prosecution, and unfortunately the two Courts below, thought was an unequivocal and positive admission that he intentionally killed the deceased as alleged; the Appellant pleaded inter alia that – As we (himself and the deceased) were dragging I did not remember that the pistol was on and all of a sudden it exploded.

​He testified in that refrain in his defence. He was neither contradicted nor discredited on this plea. He however admitted that he “did not remember his pistol was on”. He has thereby pleaded accident (in some sort of carelessness) in the course of his doing a lawful duty. That is, trying to arrest a “hit and run” driver who after hitting another road user, had fled from the scene and was escaping from the long arms of the law. The Appellant was a police officer at the material time escorting a bullion van.

The plea of accident would ordinarily have availed him under Section 48 of the Penal Code providing- 48. Nothing is an offence which is by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution. Criminal intent, or intention, to cause the death of the deceased is the centre piece, or the kernel, of the charge defended by the Appellant. The Respondent was obligated to prove that fact of criminal intent beyond reasonable doubt. They did not seem to.

Rather, as conceded by the prosecutor, in his final address at pages 117-118 of the Record; they were only able to prove the lesser offence punishable under Section 224 of the Penal Code. He had listed 3 particulars that are consistent with an offence under Section 222(7) of the said Penal Code, punishable under Section 224 of the same Penal Code. Section 222(7) provides – 222-(7) Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act.

Prosecution counsel, in urging the trial Court to consider offence punishable under Section 224 of the Penal Code, submitted that 1. Accused person did not explain the circumstances warranting the “explosion” of the gun that killed the deceased. 2. This is because the accused person failed to observe the high standard of law (sic: care) imposed on persons making use of guns as envisaged in STATE v. BELLO (1975) NNLR 38 (sic: (1976) NNLR 38). 3. Accused person’s degree of negligence is high and he cannot excuse his criminality. STATE v.

BELLO, cited by the prosecutor, is almost on all fours as it also involved negligent or careless handling of firearm at dusk during hunting.

Improper handling of a firearm without proper care and caution negates criminal intention to kill a human being. ​I agree; because firearms are very dangerous in their nature, whoever handles a fire arm is expected to exercise a very high degree of “proper care and caution” to ensure that it does not injure or harm any other person I find from his Exhibit P3 and the defence testimony, no evidence that the Appellant, armed with a loaded police Brownie Pistol, exercised this high degree of duty of care.

This case, in my firm view, falls within Section 222 (7) of the Penal Code and the offence is punishable under Section 224 of the same Penal Code.

The trial Court, at page 160 of the Record, dismissed the prosecutor’s insistence and prayer that the Appellant be convicted for the lesser offence as he (the prosecutor) had admittedly failed to prove the alleged intentional culpable homicide. The learned trial Judge thus had erred in stepping into the arena and usurping the prosecutor’s undoubted function. Every counsel, in the course of performing his professional duties, has enormous powers, including the powers to compromise and concede on facts: OKESUJI v. LAWAL (1991) NWLR (pt. 170) 661; OKONKWO v. KPAJIE (1992) NWLR (pt. 226) 633.

A counsel, at all times, is in full control of the case. He conducts his case in a manner proper to him. The Court’s neutrality or impartiality in the case, under Section 36 (1) of the Constitution guaranteeing fair hearing to the parties before it, is summarised by the phrase – nemo judex in causa sua (a Judge should not be a judge in own cause).

​No evidence proved that the Appellant acted intentionally. The eye witnesses, including Taimada Dzarma, who should have been called to disprove or debunk the Appellant’s plea of accidental discharge were not called. Their evidence was material. That evidence could have been produced. It was not produced. It does, therefore, raise a presumption that the evidence was withheld because its production would be unfavourable to the prosecutor’s case – Section 167(d) (formerly 149(d) of the Evidence Act).

The lower Court was ominously silent on this issue whether the evidence of the eye witnesses, Taimada Dzarma and Emmanuel Okpechi, were relevant and material to debunk the defence of accidental discharge. The failure is fatal as the following cases demonstrate: THE STATE v. AZEEZ (2008) 4 SC 188; OMOGODO v. THE STATE (1981) 5 SC; ONAH v. THE STATE (1985) 3 NWLR (pt. 12) 236.

The unnecessarily exuberant evidence of the PW3, a pathologist disingenuously venturing and muttering the expert opinion of a ballistician, does not fill the fatal lacuna. That bit of PW3’s evidence was as well unreliable.

​I am, in the circumstance, in total agreement with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, in the opinion just delivered, that this appeal be, and is hereby allowed as it relates to the conviction and sentence of the Appellant for culpable homicide punishable under Section 221 of the Penal Code. I also agree that the conviction and sentence for the lesser offence of culpable homicide by doing a rash or negligent act contrary to Section 222 (7) of the Penal Code and punishable under Section 224 of the same Code be entered, and are hereby entered against the Appellant.

All the consequential orders made in the said judgment are hereby adopted by me.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and the conclusion contained therein.

The Appellant both in his extra-judicial statement and his evidence under oath at trial narrated how he caused the death of the deceased in the course of trying to arrest him. The Appellant stated in his extrajudicial statement that: “As we were dragging I did not remember that the pistol was on and all of a sudden it exploded.”

​He testified before the trial Court thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“… I was holding the pistol with the right hand unknowingly I triggered then the bullet hit the driver of the Toyota Corolla on his head”.

Both statements, are to the effect that the killing of the deceased was as a result of the negligent act of the Appellant. There is no scintilla of evidence that the Appellant formed the intention to kill the deceased as erroneously held by the two Courts below. The intention to cause the death of another, which is a key ingredient of the offence of culpable homicide punishable with death for which the Appellant was convicted by the trial Court and affirmed by the Court below, was therefore absent.

It is trite that where a person is charged with an offence, but the evidence led is only sufficient to ground conviction for a lesser offence, the trial Court can convict for the lesser offence, even though the accused person was not charged with the lesser offence. See Section 236 of the Administration of Criminal justice Act, 2015 as well as SEGUN v. STATE (2018) LPELR-44693 (SC).

​The act of the Appellant falls within the offence of culpable homicide not punishable with death provided for under Section 222 (7) of the Penal Code and the trial Court ought to have convicted him for that lesser offence.

​For the above and the fuller reasons contained in the lead judgment, I join my learned brother in allowing the appeal. I abide by the conviction and sentence now imposed on the Appellant in the lead judgment. Appeal allowed.

Judgment

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered on 10th February, 2021 by I. A. YUSUF, J. The brief facts of this case is that the Appellant with seven (7) others on the night of 27th April, 2018, breached the peace and attacked people coming back from the market and other places. They were plenty in number that attacked people destroying motorcycles and vehicles. A report by one of the victims to the Police alerted the Police who swung into action.

Peace was restored to the vicinity and arrests were made. After the investigations, eight (8) people were arrested and arraigned in Court on a Four (4) Count Charge. After, the Prosecution closed its case, the Defendants made a no case submission. This was overruled and the Accused Persons were made to enter their defence. After which, the Counsel on both sides filed and adopted their Written Addresses. The learned trial Judge thereafter, delivered his considered judgment convicting and sentencing seven (7) of the eight (8) Accused Persons.

The Appellant was irked by this judgment hence, this appeal. The Appellant filed his Notice of Appeal with Four (4) Grounds of Appeal on 10th March, 2021. The Appellant’s Brief of Argument was filed on 25th October, 2021 and deemed properly filed and served on 1st December, 2021. The Appellant’s Reply Brief was filed on 14th January, 2022. Counsel adopted both Briefs. The Appellant articulated three (3) Issues for determination in its Brief. It is as follows:- “1.

Whether the trial Judge was right to have convicted and sentenced the appellant for the offence of causing hurt by act endangering life of personal safety of others contrary to Section 253 (1) of the Penal Code Law notwithstanding the dearth of evidence to that effect. (GROUND 1). 2. Whether the headlamp of motorcycles could suffice as means of identifying the appellant by the prosecution witnesses on the night of 27th April, 2018 between the hours of 8.30pm and 9.00pm at the scene of the crime notwithstanding the absence of lighting in the feat of being attacked. (GROUND 2). 3.

Whether the trial Judge was right to have inputted that the appellant attacked PW1, PW2, PW6 and PW7 reprisally in the absence of evidence to that effect. (GROUND 3)”. The Respondent’s Brief was filed on 31st December, 2021 and it articulated three (3) Issues for determination. They are as follows:- i. Whether the trial Judge was right to have convicted and sentenced the Appellant for the offence of causing hurts by act endangering life or personal safety of others contrary to Section 253 (1) of the Penal Code Law. (GROUND 1). ii.

Whether the head lamp of motor cycles could suffice as means of identifying the appellant by the prosecution witnesses on the night of 27th April, 2018 between the hours of 8.30 and 9pm at the scene of the crime. (GROUND 2). iii. Whether the trial Judge erred in law by coming to the conclusion that the attack on PW1, PW2, PW5, PW6 and PW7 by the Appellants and his co-defendants was neither a retaliatory nor mob act, in view of the evidence adduced by the prosecution witnesses. (GROUND 3). The two sets of issues articulated by both parties are almost the same.

However, I will articulate one issue that would adequately cover all the issues and lead to a meaningful determination of this appeal.

The sole issue is this: “Whether the learned trial Judge adequately evaluated the material evidence set before it before he found the Appellant guilty on a lesser offence and convicted him accordingly” ISSUES: The Appellant with seven (7) others were charged on a four (4) Count Charge as follows:- COUNT ONE: That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) while armed with cutlass and other dangerous weapons, conspired to rob one Saliu and 14 others.

You thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap. R11 Laws of the Federation of Nigeria, 2004. COUNT TWO: That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) while armed with cutlass and other dangerous weapons, attacked and rob one Saliu and 14 others.

You thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (Special Provision) Act Cap. R11 Laws of the Federation of Nigeria, 2004. COUNT THREE: That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) attacked and wounded one Saliu and 14 others. You thereby committed an offence punishable under Section 248 of the Penal Code Law.

COUNT FOUR: That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) caused mischief in Kpataringi area of Shonga Emirate. You thereby committed an offence punishable under Section 337 of the Penal Code Law. In proof of the Charge, the Prosecution called eleven (11) Prosecution Witnesses and tendered several Exhibits ranging from D–D7 and E–E13.

Statements of PW5, PW6, PW7 and PW9 were tendered as Exhibits A, B, C, D8. ​The Prosecution proved that there was a type of disquiet between Chigi and Kusogi people on the night of 27th April, 2018 at Kpataringi. The incident was reported to the Police and the Emir of Shonga. The learned trial Judge convicted the Appellant for causing hurt by act endangering life or personal safety of others contrary to S.253 (1) of the Penal Code Law. The grouse of the Appellant is that the Prosecution could not establish any of the ingredients of this crime to attract conviction.

The learned trial Judge ought to have discharged and acquitted the Appellant. Counsel submitted that the Appellant was alleged to have attacked and wounded one Saliu and fourteen (14) others on 27th April, 2018 under S.248 of the Penal Code Law, which provides as follows:- 1.

Whoever, except in the case provided for by Section 244, voluntarily cause hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used (sic) as a weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of electricity or by means of any corrosive or explosive substance or by administration of any poisonous of deleterious substance or by means of any animal, shall be punished with imprisonment for a term which may extend to three years or with fine. 2.

Whoever except in the case provided for by Section 245, voluntarily causes grievous hurt by any of the means mentioned in Subsection (1) shall be punished with imprisonment for a term which may extend to fourteen year and shall also be liable to fine.

To establish that the Appellant committed the offence, the Prosecution would have to prove that: “(a) The Defendant caused hurt. (b) They committed the hurt voluntarily (c) The hurt was caused by means of any instrument for shooting, stabbing or cutting or any instrument which may cause death or by means of fire or heated substance e.t.c. ​Counsel argued that all these ingredients must exist and proved by the Prosecution against the Accused Person before a conviction can be sustained under S.248 of the Penal Code Law.

Counsel argued that there was no evidence to show that the Appellant committed hurt by means of any instrument for shooting, stabbing or cutting or any instrument which can cause death or by means of fire or heated substance, etc. Counsel stated that the Prosecution did not establish the offence of causing hurt or grievous hurt by dangerous means under S.248 of the Penal Code Law.

Counsel argued further that the Appellant did not employ the use of any lethal weapon or object capable of causing bodily pain or infirmity on the persons of PW1, PW2, PW6 and PW7 to warrant conviction under S.253 (1) of the Penal Code Law. Counsel also argued that the Prosecution Witnesses could not identify the Defendants as there was no street light to illuminate the area. Also that the headlight of motorcycles cannot be enough to illuminate the vicinity to facilitate the Prosecution Witnesses in identifying the Defendants.

Counsel submitted that the trial Judge was wrong in holding that the incident was a retaliatory act by the Defendants. Counsel therefore, urged the Court to resolve these issues and allow the appeal. In response, the Respondent’s Counsel submitted that the learned trial Judge can convict the Appellant for a lesser offence which was not contained in the Charge. See AKPAN VS. THE STATE (2019) LPELR 48170. He argued that the Courts are empowered to convict an Accused Person of an offence than the one with which he is expressly charged. See BABALOLA VS. THE STATE (1989) 7 SC PT. 7, PG. 94.

There was overwhelming evidence to convince the trial Judge that the Appellant and others charged with him were guilty for the offence of causing hurt by acts endangering life or personal safety of others contrary to S. 253 (1) of the Penal Code Law. This was achieved through the evidence of PW1, PW2, PW6 and PW7 who positively identified 1st, 2nd–8th Defendants as the persons who attacked them. Counsel also submitted that the Court held that the three other Counts were not adequately proved but the fourth was partially proved. See BELLO VS. THE STATE (Supra).

The lesser offence proved was of a kindred nature. ​Counsel submitted that the light from the motorcycle headlamps was sufficient to see their assailants. The Prosecution Witnesses knew their assailants prior to the attack. Also, that the attack by the Appellant and others was an intentional act of the Defendants. There was no previous attack on the Appellant and the other Defendants as there was no report to the Police or the EMIR. Counsel re-iterated that the Complainants i.e. the Prosecution Witnesses reported their attacks to the Police.

Counsel argued that even reprisal or mob attack is unlawful and it amounts to taking laws into one’s own hands. Counsel stated that it was a simple premeditated criminal wrong in contravention of S. 253 (1) of the Penal Code Law. Counsel finally submitted and urged the Court to resolve all the issues in favour of the Respondent and dismiss this appeal. RESOLUTION: The Appellant’s Counsel submitted that the learned trial Judge was wrong to have convicted the Appellant of a lesser offence. Counsel argued that even that lesser offence was not proved.

Counsel argued further that the learned trial Judge ought not to have convicted the Appellant at all. I have earlier recapped the four (4) Counts of the Charge. The learned trial Judge dismissed the Count of conspiracy, to rob under S. 6 (B) of the Robbery and Firearms (Special 2004 Provision) Act Cap R11 LFN. 2) Armed Robbery and punishable under S.1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004 Count three (3) is an offence punishable under S.248 of the Penal Code Law. Count Four (4) is punishable under S.337 of the Penal Code Law.

The learned trial Judge discharged the Appellant on Counts 1, 2 and 4 but found that the Prosecution did not also prove all the ingredients of the offence. However, the learned trial Judge found that the ingredients proved could sustain a Charge under S.253 of the Penal Code Law.

It is settled Law that: “the Appellant can be convicted for a lesser offence by virtue of the Provisions of S.218 of the CPC CAP 30 Laws of Northern Nigeria, 1953 which states that: (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.

See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152, Per ABA-AJI, JCA (as he then was) in MUSA VS. THE STATE ​ (2014) LPELR 24026. Also, S.179 of the CPA allows a Judge to convict for a lesser offence in cases like this where Armed Robbery is not proved. The Accused Person may be convicted of a lesser offence like robbery. See OGBODU VS. THE STATE (2017) LPELR 43402; OLATAWURA, JSC in KADA VS.

THE STATE (1991) LPELR 1641, held that “When we talk of conviction for a lesser offence, the evidence to be relied upon for such a conviction must relate to and be cogent enough to warrant a conviction for the lesser offence SALIU VS. THE STATE (2018) LPELR 44064”. In the case of COORAY VS.

THE QUEEN (1953) 2 WLR 965, (1953) AC PG 407 where the Court held: “It must be kept constantly in mind that S.179 in issue in this appeal is concerned with where the lesser offence charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious offence in respect of which the accused is charged. The operative words are “lesser and not “another” offence. Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted.

The assumption, which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence”.

It is therefore, important to observe from judicial decisions and the provisions that for S.179 of the Criminal Procedure Act to apply, the following conditions must be observed: (1) The indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences. (2) The evidence led and facts found though insufficient for conviction of the aggravated offence charged must support the conviction for the lesser offence. (3) It is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted”. ​The offence is that charged under S.248 of the Penal Code Law.

The lesser offence is that charged under S.253 of the Penal Code.

S.248 (1) provides as follows: (1) Whoever, except in the case provided for by Section 244, voluntarily cause hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used (sic) as a weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of electricity or by means of any corrosive or explosive substance or by administration of any poisonous of deleterious substance or by means of any animal, shall be punished with imprisonment for a term which may extend to three years of with fine. (2) Whoever except in the case provided for by Section 245, voluntarily causes grievous hurt by any of the means mentioned in Subsection (1) shall be punished with imprisonment for a term which may extend to fourteen year and shall also be liable to fine.

S.253 (1) provides as follows: (1) Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment for a term which may extend to one year or with fine or with both. Section 240 of the Penal Code Law says that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. The ingredients of the offence of causing hurt by act endangering life or personal safety of others under Section 253 (1) of the Penal Code Law are that:

a. The defendant by their act caused bodily pain, disease or infirmity to the complainants, and

b. The defendant cause bodily pain, disease or infirmity by a rashly act or by act of negligent which endangers human life or the personal safety of others” The differences in these two provisions are narrow. The harm done or the pain or disease inflicted in S.248 must be inflicted by or caused by the use of any instrument for shooting, stabbing or cutting or any instrument which may cause death or by means of fire or heated substance. In both Sections 248 and 253 body pain or hurt is inflicted. I dare say that the offence of S.253 is subsumed in S.248.

If the Accused Person in S.253 was proved to have inflicted the injuries sustained with the instruments mentioned above, he would be convicted under S.248. ​The Appellant and the other Accused Persons laid siege on the road that night attacking people, disrupting people from their lawful business. It was proved that Salihu Abubakar, PW1 was attacked and wounded. He reported this attack to the Emir first who saw his injury and advised him to report to the Police as well. This, he did, hence, the intervention of the Police.

I believe, the lower Court was right when he convicted the Appellant of the lesser offence under S.253 of the Penal Code Law. It is a kindred offence with the actual offence charged under S.248 of the Penal Code Law. See AMADI VS. THE STATE (2019) LPELR 4704; EZEJA VS. THE STATE (2008) ALL FWLR PT. 428, PG. 256; AGUGUA VS. THE STATE (2017) LPELR 4202; NIGERIA AIR FORCE VS. KAMALDEEN (2007) LPELR 2010. The Appellant’s Counsel in his brief submitted that the environment was dark as there were no street lights. It was gathered in evidence that the Appellant and the co-accused had torch-lights.

Also, that the victims were mostly on motorcycles. They relied on their headlights to see. More importantly, the victims knew the Appellant and the other Accused Persons. They could identify each other. They were not strangers to themselves. The Prosecution Witnesses had not given any evidence as to a previous attack by them that would engender this attack as retaliatory. However, what happen can best be described as a mob attack which the law frowns at seriously. ​The Appellant and his co-accused breached the peace and they deserved to be punished.

They inflicted pain and suffering to their fellow men. The Respondent proved a lesser offence of kindred spirit in S.253 of the Penal Code Law. Therefore, the learned trial Judge was right in the conviction and sentence of the Appellant. This appeal is without merit. It is hereby dismissed. I affirm the judgment of the lower Court in convicting and sentencing the Appellant.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, UZO I. NDUKWE-ANYANWU, JCA, gave me the privilege of reading the draft of the lead judgment. I agree with the reasoning of my learned brother and the conclusion that the appeal is without merit. Consequently, I dismiss the appeal and abide by the consequential order.

KENNETH IKECHUKWU AMADI, J.C.A.: I have read in advance, the draft of the lead judgment of my learned brother UZO I. NDUKWE-ANYANWU, JCA. I adopt his lordship’s reasoning and conclusion that this appeal has no merit. I too dismiss the appeal and affirm the judgment of the lower Court delivered on 10/2/2021 in this matter.

Judgment

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Adamawa State, presided over by Abdul-Azeez, J. (as he then was) delivered on February, 10, 2021 in case No. ADSY/16C/2017 (hereafter referred to as the trial Court) in which the Appellant was the 4th Defendant. The trial Court convicted the Appellant for the offences charged under counts 1, 2, 3 and 4 of the information filed at the trial Court. It was alleged that count 1 was not specifically mentioned but, that the trial Court convicted the Appellant “as charged”.

It was made out that counts 1 – 3 bordered on conspiracy to commit armed robbery, while count 4 bordered on illegal possession of firearms. The background facts are that there were six defendants that stood trial over a five count information. The six defendants stood trial under counts 1 – 3, the 1st Defendant alone was charged under count 4 (Illegal Possession of Firearms) while the 6th defendant alone was charged under count 5 (Illegal Possession of Firearms). It was made out that the Appellant was arraigned and pleaded not guilty to counts 1 – 4 of the information.

It was alleged by the Respondent that the Appellant and five other Defendants committed two robberies, one on 29th August, 2015 and the other on 31st August, 2015. In proof of her case, the Respondent called eight witnesses, PW1 – PW8. The PW1 (Chief Uduma) testified that he was able to identify the Appellant 2nd and 5th Defendants in respect of the alleged robbery of 29th August, 2015.

It was made out that the PW2 (Fadana Baba) testified that he was informed that some robbers mounted a roadblock, he did not witness any robbery incident, PW4 (ASP Samuel Kaletipwa) was said to have recorded the alleged confessional statements of the 1st and 6th Defendants, while the PW5 (Abba Jabo) recorded the alleged confessional statements of the 2nd and 3rd Defendants.

The PW6 (Inspector Abdullahi Yakubu) recorded that the Appellant, the PW7 (Woman ASP Nora Micloth) recorded the alleged confessional statement of the 5th Defendant while the PW8 (Inspector Williams Joshua) is the Exhibit Keeper at the State CID, Yola. ​ After a trial within trial conducted by the trial Court, the alleged confessions were tendered as follows:

(a) The Appellant’s statement admitted in evidence and marked Exhibits D1 – D4; (b) The 1st Defendant’s statement admitted and marked as Exhibits A1 – A8; (c) The 2nd Defendant’s statement admitted in evidence and marked as Exhibits B1 – B4; (d) The 3rd Defendant’s statement admitted in evidence and marked as Exhibits C1 – C4; (e) The 5th Defendant’s statement admitted in evidence and marked as Exhibits E1 – E3 and (f) The 6th Defendant’s statement admitted in evidence and marked as Exhibits F1 – F6.

The Appellant testified in defence and tendered no Exhibit, denied committing any of the offences charged, testified that he was forced and tortured to say that he committed the alleged offences. On the alleged confession of the Appellant in Exhibits D1 – D4, the trial Court held that the prosecution proved its case beyond reasonable doubt the guilt of the Appellant in respect of the offences charged. The Appellant was convicted for the offences charged under counts 1 – 4 of the information.

It was made out that the Appellant was not charged under count 4 of the information but, was convicted on count four (4), pages 7 and 291 of the printed records of appeal. The Appellant dissatisfied with the decision of the trial Court, appealed to this Court. The Appellant formulated the following two (2) issues for the determination of the appeal thus: 1. “Considering that the trial Court convicted and sentenced the Appellant for an offence with which the Appellant was not charged, is the judgment not a nullity? (Distilled from Grounds 1 and 2 of the Notice of Appeal) 2.

Was the trial Court not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery and conspiracy to commit armed robbery and convicted and sentenced the Appellant to death?” (Distilled from Grounds 3, 4, 5, 6, 7, 8, 9, 14 and 15 of the Notice of Appeal) The Respondent on her part formulated the following two issues: 1.

“Whether the learned trial Judge creditably discharged his judicial duty in considering the defence raised by the Appellant for the first time in his defence as DW1 and his lordship was justified in law in reaching the decision/conclusion. That the defence did not avail the notice of Appellant (sic). (Distilled from Grounds 1 and 2 of the Notice of Appeal). 2.

Whether there was legally admissible evidence before the trial Court to support the decision/conclusion of the learned trial judge that the respondent had proved the guilt of the appellant on the (5) count charges beyond reasonable doubt. (Distilled from Grounds 3, 4, 5, 6, 7, 8, 9, 14 and 15 of the notice and grounds of appeal).” ​ In arguing the appeal, the learned counsel to the Appellant Fidelis Adewole Esq., adopted and relied on his brief of argument filed on 31/3/22, deemed properly filed and served on 11/5/22, as his oral submission in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant. ​ In arguing his issue one, it was submitted that the judgment of the trial Court is a nullity, the trial Court having convicted and sentenced the appellant for an offence with which the Appellant was not charged.

It was argued that the trial Court convicted the Appellant for the offences charged under counts 1, 2, 3 and 4 of the information when the said Appellant was not charged under count 4 of the information but, was convicted on same. It was submitted that the Appellant was neither charged under count 4 nor given an opportunity to defend himself before his conviction on the said count by the trial Court. It was submitted, that an accused person cannot be convicted for an offence not charged. See SIMON EDIBO VS.

THE STATE (2007) LPELR – 1012 (SC), Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) hereafter referred to as “the Constitution”. Further, that the Appellant was denied fair hearing and the judgment a nullity. See WALTER WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 43722 (SC), ANPP VS. INEC (2004) 7 NWLR (PT. 871) 16, DALOBA VS. RIPIYE (2010) LPELR – 4014 (CA) and UGBOJI VS. STATE (2018) 10 NWLR (PT. 1627) 346, 371, D – F.

It was argued that the offence of illegal possession of firearms was not established against the Appellant at the trial in respect of the ingredients to prove same, these are: (a) That the accused was found in possession of firearms; (b) The firearms were firearms within the meaning of the Robbery and Firearms Act; and (c) That the accused had no licence to possess the firearm. See ETIM VS. STATE (2020) LPELR – 51253. It was submitted that the Appellant’s conviction on illegal possession of firearms should be set aside.

On the other hand, it was made out that the PW8, the Exhibit keeper failed to tender the alleged firearm which was argued to have been withheld by the Respondent, which if it had been produced would have been unfavourable to the Respondent. See ZUBAIRU VS. STATE (2015) 16 NWLR (PT. 1486) 504 at 526, E – F. Further, that the trial Court’s finding of guilt of the Appellant on count 4 of the information was based on the alleged confession of the Appellant contained in Exhibits D1 – D4.

It was argued that the trial Court’s reliance on Exhibits D1 – D4 was erroneous and should be jettisoned from the records. It was concluded on this issue that the conviction of the Appellant on count 4 of the information which borders on illegal possession of firearms cannot be sustained. We were urged to set aside the conviction of the Appellant for the offence of illegal possession of firearms as charged under count 4 of the information, allow the appeal and set aside the judgment under issue one alone, discharge and acquit the Appellant.

On issue two, it was submitted that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 36(5) of the Constitution (as amended), Section 135 of the Evidence Act, 2011, STATE VS. ONYEUKWU (2004) ALLFWLR (PT. 221) 1388, 1425 and IGABELE VS. STATE (2004) 15 NWLR (PT. 896) 314, 344. The three methods to prove the guilt of the accused person in a criminal trial were given as follows: (a) Reliance on a confessional statement of an accused person voluntarily made. (b) By circumstantial evidence, and (c) By direct evidence of eye witnesses.

See FAMUYIWA VS. THE STATE (2018) 5 NWLR (PT. 1613) 515 at 534, C; (2017) LPELR 43836 (SC), IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100, UDOR VS. THE STATE (2014) LPELR – 23064 (SC), EMEKA VS. THE STATE (2001) 32 WRN 37, 59 and OKUDO VS. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236D. It was submitted that none of the eight (8) witnesses called by the Respondent established a compelling case of armed robbery and conspiracy to commit armed robbery against the Appellant.

Further, that the testimony of the PW1, PW6 and PW8 as well as Exhibits D1 – D4 did not establish the guilt of the Appellant beyond reasonable doubt in respect of conspiracy to commit armed robbery. The elements of the offence of armed robbery were given as follows: (a) A robbery took place; (b) The person who committed the offence of robbery was armed; and (c) The accused was the person or one of the persons who committed the act of robbery. See ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539, TANKO VS. STATE (2009) 4 NWLR (PT. 1131) 430, ADEBAYO VS.

STATE (2014) 12 NWLR (PT. 1424) 613 and IKARIA VS. STATE (2014) 1 NWLR (PT. 1389) 638. The learned counsel to the Appellant conceded that the evidence of the PW1 established that the first alleged robbery occurred which resolved the first two requirements of the offence of armed robbery. It was submitted that there was no admissible evidence that was led in respect of the second alleged robbery in that the PW2 testified in respect of a robbery that occurred on September, 31st, 2015, page 166, line 18 of the printed records of appeal.

On the bindingness of the records of appeal, reference was made to BASHIR VS. AUDU (1999) 5 NWLR (PT. 603) 433 and MANG VS. IBE (2000) 14 NWLR (PT. 688) 591. It was submitted that there was no armed robbery that occurred on 31st September, 2015 as testified by the PW2 who was not an eye witness, also the evidence of the PW3 which was said to be hearsay. Further, that the PW4 – PW8 were Police Officers who were not eye witnesses, and that their evidence should be discountenanced and expunged from the record of this Court, FRN VS. SARAKI (2017) LPELR – 43392 (CA) and OLADEJO VS.

THE STATE (1994) 6 NWLR (PT. 348) 101. The trial Court was said to have been in error to have relied on same. On whether the robbers were armed, the evidence of the PW1 was conceded to the effect that the robbers were armed in the first robbery incident but, not the second and that the evidence of the PW2 – PW8 was hearsay as they did not witness the alleged incidents of armed robbery. On whether, the Appellant was among the robbers, it was submitted that the Appellant was not linked to the alleged robberies.

The PW1 testified that he could identify the Appellant, 2nd and 5th Defendants, pages 163, lines 9 – 11 of the printed records, for this reason the trial Court held that there was no need for an identification parade to verify the identification of the Appellant by the PW1. Further, that the PW1 testified that the alleged robbery incident occurred around “12 midnight” (page 164 of the printed records of appeal) and could not have clearly identified the Appellant.

It was argued that the Respondent ought to have carried out an identification parade, absence of which created doubt in the Respondent’s case at the trial Court which should have been resolved in favour of the Appellant. It was submitted that even though an identification parade is not always necessary in all cases but, it is necessary in the following cases: (a) The accused was not arrested at the scene, and he denies taking part in the crime and (b) Where the victim did not know the accused before the commission of the crime. See JAMES UFOR VS. STATE (2016) LPELR – 40126 (CA) and OKIEMUTE VS.

STATE (2016) LPELR – 40639 (SC). It was argued that considering the time of the alleged robbery and the circumstances surrounding the said incident, the Appellant should have been properly identified. See OKOH VS. THE STATE (2008) LPELR – 8352 (CA), MUSTAPHA VS. STATE (2008) WRN (VOL. 2) 76 at 83, MARTINS VS. STATE (1997) 1 NWLR (PT. 481) 355 at 370, PARAS. B – G and GHOHOR VS. STATE (2013) ALL FWLR (PT. 709) 1061.

Further, that an identification parade is essential and useful when there is doubt as to the ability of the victim to recognize the suspect who participated in carrying out the crime. It was submitted that there is no evidence that the Respondent conducted an identification parade, this has created doubt in the prosecution’s case, NWANKWO VS. THE STATE (2017) LPELR – 42756 (CA).

It was argued that the trial Court was wrong to have held that there was no need for an identification parade to verify the Appellant’s identification by the PW1. ​ It was submitted that the PW2 – PW4 and PW6 – PW7 were not eyewitnesses, their evidence was said to be hearsay. Further, that the PW5 only recorded the alleged confessional statement of the 2nd and 3rd Defendants; pages 172 – 173 and 214 of the printed records of appeal, the PW6 recorded the alleged confessional statement of the Appellant, Exhibits D1 – D4 at pages 45 – 48 of the records.

While the PW8, who was the Exhibit Keeper did not produce any Exhibit before the trial Court, which created doubt in the case of the Respondent page 218 of the printed records of appeal. It was submitted that the trial Court wrongly relied on Exhibits D1 – D4 in convicting the Appellant. It was argued that the Appellant resiled from his confessional statement which required independent corroboration distinct from the confessional statement itself; OKOH VS. THE STATE (2014) LPELR – 22589 H1 (SC), 27E – 28A, SALAWU VS. STATE (1971) NMLR 249 at 252, AKINFE VS.

THE STATE (1988) 3 NWLR (PT. 85) 729 at 746, IFEDAYO VS. STATE (2018) LPELR – 44373 (SC) 32 – 33, EGBOGHONOME VS. C.O.P. (1993) 7 NWLR (PT. 306) 383, AFOLABI VS. STATE (2016) 11 NWLR (PT. 1524) 497, MOHAMMED VS. STATE (2007) 11 NWLR (PT. 1045) 303, AZABADA VS. STATE (2014) LPELR – 23017 (SC) 14G – 15D, KOPA VS. STATE (1971) 1 ALL NLR 151 and ONOCHIE VS. THE REPUBLIC (1966) NWLR 307 to the effect that where an accused person retracts his confession at the trial, the Court must look for some evidence outside the confession which would make the confession probable. See also STATE VS.

MUHAMMED MASIGA (TSOLO) 2017) LPELR – 43474 (SC) 14D – 15C. It was argued that Exhibits D1 – D4 ought not to have been utilized alone to convict the Appellant. See IMEPURUNGU VS. THE STATE (2019) LPELR – 47047 (CA) and MOHAMMED VS. THE STATE (2019) LPELR – 47045 (CA) decisions of this Court and division.

The learned counsel to the Appellant submitted that for a Court to rely on a retracted confessional statement, the following questions must be answered: (a) Whether there is anything outside the confession to show that it is true; (b) Whether the confessional statement was corroborated; (c) Whether the statement made in the confessional statement, so far as can be tested from surrounding facts, is true; (d) Whether the accused person had the opportunity of committing the offence charged; and (e) Whether the confession is consistent with other facts which have been ascertained, which have been proved.

See R VS. SYKES (1913) 8 CAR, P. 233 and AKPAN VS. STATE (1992) 6 NWLR (PT. 248) 439. It was submitted that from the evidence led by the Respondent at the trial Court, all the above questions would be answered in the negative. Further, that the statement of the PW5 was translated from Hausa Language to English Language but, from Exhibits D1 – D4, no Hausa version of the statement was not tendered in evidence; AJIDAHUN VS. STATE (1991) 9 NWLR (PT. 213) 33 at 41, E – G, QUEEN VS. SAPELE (1957) SC NLR 307, UDO VS. STATE (1964) 1 ALL NLR 21, R VS. OGBUEWU (1949) 12 WACA 483 and OKORO VS.

QUEEN (1960) SC NLR 292 at 136. It was submitted that the trial Court ought not to have admitted and placed reliance on Exhibits D1 – D4, AZEEZ VS. THE STATE (2005) 8 NWLR (PT. 927) 312 at 326, G – H and DURU VS. STATE (1989) 4 NWLR (PT. 113) 24.

On conspiracy to commit armed robbery, the essential elements of the offence of conspiracy were given as follows: (a) That there was an agreement or conspiracy between the accused and others to prosecute an unlawful purpose; (b) That in furtherance of the agreement or conspiracy; the accused took part in the commission of the robbery or series of robberies; and (c) That the robbery or each robbery was an armed robbery. See USUFU VS. THE STATE (2007) 3 NWLR (PT. 1020) 914 at 113 – 114H – I.

It was submitted that if the essential elements of armed robbery are not established, a charge of conspiracy to commit that armed robbery will fail automatically, SALAU VS. THE STATE, (2010) LPELR – 9106 (CA) and RIBIGBOLA VS. THE STATE (2010) LPELR – 9164 (CA). It was argued that there was no evidence of common intention between the Appellant and other persons; OKEKE VS. STATE (1999) 2 NWLR (PT. 590) 247.

The ingredients of common criminal intention were given as follows: (a) There should be at least two persons; (b) They must have a common intention; (c) The common intention must be aimed at the prosecution of an unlawful purpose. (d) In the prosecution of an unlawful purpose, an offence is committed; and (e) The commission of the offence was a probable consequence of the purposes in C and D above. It was submitted that the Respondent did not establish in evidence that the Appellant and the other Defendants knew each other prior to the commission of the alleged incident. ALARAPE VS.

THE STATE (2001) LPELR – 412 (SC). It was argued that this Court has the power to expunge the inadmissible evidence from the records. IFARAMOYE VS. THE STATE (2017) LPELR – 42031 (SC) and ALADE VS. OLUBADE (1976) 2 FRN 10 at 13. It was submitted that the trial Court was wrong to have convicted the Appellant of conspiracy to commit armed robbery. Further, that there is material contradiction in the case presented by the Respondent which should have been resolved in favour of the Appellant, MAGAJI VS. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC) and AGBO VS. FRN (2013) LPELR – 22870 (CA).

It was submitted that the evidence of the PW2 is unreasonable and incapable of grounding a conviction. We were urged to allow the appeal on the material contradictions in the Respondent’s case since there is no 31st September, 2015 in the Calendar. See POPOOLA VS. STATE (2013) LPELR – 21443 (CA) 12 C – G, JIMMY VS. THE STATE (2013) LPELR – 20333 (SC) and AGBO VS. THE STATE (2006) LPELR – 242 (SC).

In respect of doubt in the age of the Appellant, it was submitted that from the age of the appellant, he ought not to have been sentenced to death, the trial Court found that he was a young person, page 292 of the records, GUOBADIA VS. STATE (2004) LPELR – 1344 (SC), (2004) 6 NWLR (PT. 869) 360. The learned counsel to the Appellant conceded that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, BAKARE VS. THE STATE (1987) 1 NWLR (PT. 52) 579 and WUAM VS. AKO (1999) 5 NWLR (PT. 601) 162.

It was submitted that any doubt should be resolved in favour of the Appellant, UCHE VS. STATE (2015) LPELR – 24693 (SC) at 22 – 23, G – C, JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217 at 242 and JIBRIL VS. MILITARY ADMINISTRATOR OF KWARA STATE (2007) 3 NWLR (PT. 1021) 357 at 383. Further, that it is the duty of the prosecution to prove the guilt of the Appellant, ADEYEYE VS. STATE (1968) NMLR 48 and OLUWATOYIN ABOKOKUYANRO VS. THE STATE (2016) LPELR – 40107 (SC) and AIGBADION VS. STATE (2000) 7 NWLR (PT. 666) 686 at 704B.

It was argued that the Appellant ought not to have been convicted on unfounded inadmissible evidence, NWOSU VS. THE STATE (1986) LPELR (2134) 1 at 21, EGBE VS. THE KING (1950) 13 WACA 105, EBRI VS. THE STATE (2004) 11 NWLR (PT. 885) 589 at 605, UKORAH VS. THE STATE (1977) 4 SC 167 at 177, OLAKAIBE VS. THE STATE (1990) 1 NWLR (PT. 129) 632 at 644 and SHEHU VS. THE STATE (2010) LPELR (3041) 1 at 10. It was submitted that an accused person is innocent until proved guilty, SAIDU VS. THE STATE (1982) 4 SC 41 at 69 – 70 and OMOPUPA VS. THE STATE (2007) LPELR (8571) 1 at 45.

On the part of the Respondent, M. A. Umar Esq., the learned Senior State Counsel II, Adamawa State Ministry of Justice in response adopted and relied on his brief of argument filed on 27th April, 2022 but deemed properly filed and served on 11/5/2022 as his argument in this appeal in urging us to affirm the conviction and sentence of the trial Court. In arguing the Respondent’s issue one, it was submitted that the Court should identify the case brought by the parties and not substitute its own case for the parties. See UDENGWU VS. UZUEGBU (2003) 12 NWLR (PT. 836) and ATOLAGBE VS.

SHORUN (1985) 1 NWLR (PT. 2) 60 at P. 373. It was argued that from the evidence adduced at the trial, the Appellant’s issue one is of no moment and should be discountenanced, as it is technical and would overreach the natural and substantive justice judicially and judiciously. Further, that the Appellant is presumed innocent until the contrary is proved beyond reasonable doubt. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 135(1) of the Evidence Act, 2011 respectively.

It was argued that the prosecution could establish the guilt of the Appellant through any or a combination of the following means: 1. The confessional statement of the accused person. 2. Circumstantial evidence or; 3. The evidence of an eye witness. See ABDULLAHI IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394) 305 at 338, PARAGRAPHS D – E, DUNI VS. THE STATE (2017) 4 NWLR (PT. 1554) 1 at 24, PARAGRAPHS F – N, EMEKA VS. THE STATE (2001) 14 NWLR (PT. 734) 666 at 683 and ADIO VS. THE STATE (1986) 2 NWLR (PT. 24) 581 at 593 – 594, PARAGRAPHS F – H.

It was submitted that where inadmissible evidence is inadvertently or improperly received in evidence with or without any objection, the trial Court is duty bound to expunge same from its judgment and decide on the legally admissible evidence. See KANKIA VS. MAI GEMU (2003) 6 NWLR (PT. 817) 496 at 578 – 579, PARAGRAPHS G-B, SHANU VS. AFRIBANK NIG. PLC. (2002) 7 NWLR (PT. 795) 185 at 221 – 222, SHITTU VS. FASHAWE (2005) 14 NWLR (PT. 946) 671 at 690, PARAGRAPHS E – G and OKORO VS. THE STATE (1998) 12 SCNJ at 96.

Further, that the learned counsel to the Appellant was wrong to have argued that the Appellant was not charged under count four (4) that he was convicted of, reference was made to pages 274 – 278, 285 – 287 of the printed records of appeal to the effect that the Appellant confessed or admitted to have been in possession of a single barrel gun and a double barrel pistol with the 1st Defendant. It was argued that there is no dispute that there was a robbery on the 29/8/2015 and that the robbers were armed with offensive weapons at the material time of operation.

The ingredients to be proved in an offence of armed robbery were given as follows: a. That there was a robbery or series of robberies. b. Each or any of the robbers was armed at the time of the robbery operation. c. That the accused was one of the robbers or had taken part in the robbery operation. See BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465 AT 467 and SORBOR VS. THE STATE (2001) FWLR (PT. 78) 1077 at 1000. It was submitted that the trial Court was right to have relied on the confessional statement of the Appellant and that every defence in a criminal trial must be considered.

See KENI VS. THE STATE (1992) 4 NWLR (PT. 233) 17 and LAOYE VS. THE STATE (1985) 2 NWLR (PT. 10) 832. Further, that it is difficult to prove the actual agreement in conspiracy but, it could be inferred from the surrounding circumstances. See GREGORY DABOH & ANOR. VS. THE STATE (1977) ALL NLR 148, (1977) LPELR 904. It was argued that it is not necessary or in all instances of criminal proceedings to have an identification parade. See JIMOH VS. STATE (2012) 3 NWLR (PT. 1286) P. 144, UKPABI VS. STATE (2004) 11 NWLR (PT. 887) 439, IKEMSON VS. STATE (1989) 3 NWLR (PT. 110) 455 and IBRAHIM VS.

STATE (1991) 4 NWLR (PT. 186) 399. Further, that an identification parade in the present case was not necessary because the identity of the accused person was not in dispute. See EGWUMI VS. STATE (2013) 2 SC (PT. 111) P. 119, AGBOOLA V. STATE (2013) 5SC P.1 and BONIFACE ADONIKE VS. THE STATE (2015) 1 SCNJ PG. 157. On the alleged discrepancy in respect of the evidence of the PW2 as to the date of the incident being 31/9/2015, it was argued not be material and that it did not go to the root of the charge against the accused person.

It was concluded on this issue that the prosecution need not have tendered in evidence the items recovered in course of the crime. See SIMON VS. THE STATE (2017) ALL FWLR (PT. 587) 1929 at 1949, 1950. In arguing his issue two, while placing reliance on the case of BELLO VS.

STATE (2018) LPELR – 4408 (CA), it was submitted that the essential ingredients for the proof of the offence of unlawful possession of firearms is the fact of being found in possession of firearms within the meaning of the Act and the lack of licence to possess same, contrary to Section 3(1) of the Firearms Act, reference was made to the evidence of the PW4 to the effect that a single barrel locally made gun was recovered in connection with this case which he kept with the Exhibit keeper. It was argued that the Appellant did not make out that he was licensed to possess the firearms.

On the alleged lack of fair hearing, it was submitted that it was not proved by the Appellant whose duty it was to prove same. See ADEBAYO VS. A.G. OGUN STATE (2008) 7 NWLR (PT. 1085) 201. It was submitted that the trial Court accorded the Appellant fair hearing. In respect of proof of the offence of conspiracy to commit armed robbery, it was submitted that the respondent proved same at the trial Court.

On the issue of identification parade, it was submitted that, it is not always mandatory or necessary in all cases especially when the identification of the perpetrators of the act of armed robbery is not in issue. See IBRAHIM VS. STATE (2018) LPELR – 44 256 (CA).

It was concluded that all the victims of the robbery had testified and identified all the perpetrators of the crime judicially and judiciously and that there was nothing wrong with the trial Court convicting the Appellant based on his confession even if there is no corroboration. ​ I have examined the issues formulated by the parties, I would utilize those formulated by the Appellant in determining the appeal.

The learned counsel argued that the Appellant was convicted and sentenced for an offence with which he was not charged under count 4 of the charge, thus rendering the Judgment of the trial Court a nullity. For ease of reference, I would reproduce count four (4) of the charge below: “COUNT FOUR STATEMENT OF DEFENCE Illegal possession of firearms contrary to Section 27(1)(b)(i) of the Firearms Act and punishable under Section 3 of the Robbery and Firearms (Special Provisions) Act Cap. R11 Law of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE AFU STEPHEN on or about the 1/9/2015 in Boshikiri village in Guyuk Local Government Area of Adamawa State within the Yola Judicial Division of this Honourable Court; had possession or control of a firearm i.e. one locally made single barrel gun without a license in contravention of the Firearm Act.” (underline mine for emphasis) From the above, it is clear that the Appellant was not charged under count 4 of the information but, was convicted on the said count, at page 291 of the printed records of appeal.

The trial Court held thus: “Having resolved the two decoded issues in favour of the prosecution, I accordingly convict the Defendants as charged. 1st Defendant and 6th Defendants are convicted on counts (1), (2), (3), (4) and (5) respectively while 2nd, 3rd, 4th and 5th Defendants are convicted on counts (2), (3) and (4) respectively.” (underlining mine for emphasis) From the records of appeal, the Appellant was not charged under count (4) but rather counts 1, 2 and 3 of the information and as rightly argued by the learned counsel to the Appellant, the Appellant was not given any opportunity to defend himself on count (4).

The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See OKABICHI & ORS VS. STATE (1975) LPELR – 2406 (SC) Pp. 20 – 22, PARAS. C – D and SIMON VS.

THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P.35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH VS. FRN (2008) 13 NWLR (PT.1103) 1. The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1. The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried. See SEGUN VS.

STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F. Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS (2017) LPELR – 42985 (CA) P. 68, PARAS.

A – B, his Lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus: “The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged.” See FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C –E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D.

As also surprisingly noted and reproduced by the learned Senior State Counsel to the Respondent at pages 12 – 13 of his brief of argument, (pages 285 – 287 of the printed records of appeal) the learned trial judge in his judgment found that counts 4 and 5 which dealt with illegal possession of firearms were charges against the 1st and 6th Defendants at the trial Court – (Afu Stephen and Munbe Bala respectively), the Appellant was not charged for illegal possession of firearm and the trial Court’s finding also confirms this and it is correct. I am at one with the finding.

The Appellant was charged under counts 1, 2 and 3 of the information only. The PW1 an eye witness and a victim, in his evidence at the trial Court did not testify that the Appellant was with any firearm at the scene of the alleged incident. For the trial Court to have convicted the Appellant on the said count (4) of the information the evidence adduced must establish the offence beyond reasonable doubt.

On the other hand, if the trial Court was of the view that the Appellant ought to have been charged for the offence of illegal possession, the charge ought to have been amended to include the Appellant amongst those charged under count 4. The Appellant was denied fair hearing under the present circumstances, it is a gross miscarriage of justice contrary to the provisions of Section 36(6)(a) of the 1999 Constitution (as amended).

The resultant effect is that the trial Court’s conviction and sentence of the Appellant on count 4, of illegal possession of firearm is a nullity and it is hereby set aside. Issue one is resolved in favour of the Appellant. ​ In resolution of issue two, the Appellant was charged and convicted for the offences of conspiracy to commit armed robbery and armed robbery. I have earlier in this judgment given the ingredients required to prove each of the two offences, both parties agreed on what is to be proved.

The Appellant conceded that the first robbery took place but, argued that the second alleged robbery did not take place because there is no date as 31/9/2015 as given in evidence by the PW2 but, 30/9/2015. It was contended by the learned counsel to the Appellant that the third required element to prove is that: the accused was the person or one of the persons that committed the act of robbery, which was not established. The lower Court partly relied on Exhibits D1 – D4, the confessional statement of the Appellant recorded by the PW7, at pages 142 – 145 of the printed records of appeal.

At page 163, it is on record that the Appellant as the 4th Defendant speaks Hausa. The recorder and interpreter, the PW6 (Inspector Abdullahi Yakubu) an investigating Police Officer at pages 174 – 175 of the printed records of appeal testified that he recorded the Appellant’s statement in English which he translated into Hausa language. The evidence of the PW6 was as follows: “The 4th defendant gave me his statement in Hausa and I recorded his statement in English under a word of caution. I wrote it down in English without torture.

After recording his statement I read over to his in English and interpreted same to him language he agreed to be the one who made the statement. He then thumbprinted the statement and I also countersigned as the recorder. Thereafter I took him before our sectional head Asp. Suleiman Yahya who endorsed the 4th Defendant statement. After he read over to the 4th Defendant and interpreted same to him in Hausa language of which he understood he accepted making the confessional statement and thumbprinted the statement and Asp.

Suleiman Yahya counter signed.” From the records of Court, the Appellant thumb printed below the cautionary words and at the end of his statement, confirming his level of literacy or otherwise. On the face of the statement, it is clear that the statement was recorded in English and translated into Hausa language as stated by the PW7. At page 283 of the printed records of appeal, the trial Court held that from the confessional statement of the Appellant, Exhibits D1 – D4, he participated in the armed robberies of 29/8/2015 and that of 31/8/2015 along Lafiya – Savannah Sugar Company Road.

It was held that the prosecution established the three essential ingredients of the offence of armed robbery against the Appellant. The learned counsel to the Appellant had argued that Exhibits D1 – D4 needed corroboration before the trial Court could act on it having been retracted by the Appellant, also that outside evidence ought to have been adduced which would have made the confession probable.

I would keep these areas of submission in abeyance for now and would address these issues if need be in due course and if necessary. ​ The Hausa version of the statements were not tendered in evidence. I agree with the submissions of the learned counsel to the Appellant that such statement as in the present case be recorded in the closest possible language of the Appellant, which is Hausa. Further, it is the law that the statement of an accused person to the police should be written in the language in which the accused made it.

In the present case, the Appellant is an illiterate, his statement was recorded in English and interpreted into Hausa. The caution was given and explained to the Appellant from English to Hausa language. The statement being confessional in nature, was read over to the Appellant before a superior officer in English and same was interpreted into Hausa language and the Appellant thumb printed . The law is that both the English and Hausa versions ought to have been tendered together. The Respondent has not given any reason for this laxity.

The trial Court ought not to have utilized Exhibits D1 – D4 to hold that the prosecution had proved its case beyond reasonable doubt. The statement the Appellant ought to have thumb printed is that made in the language the Appellant understood and not the English version. See YAHAYA & ANOR VS. DANKWANBO & ORS (2016) LPELR – 48364 (SC) PP. 34 – 35, PARA. D and PP. 55 – 57, PARAS. C – B. Therefore, the issue of corroboration does not arise in respect of Exhibits D1 – D4, the Appellant’s alleged confessional statement.

The Hausa version not having been tendered in evidence, there was nothing to corroborate. It is noteworthy that the Appellant thumb printed the English version of his statement which is not the language he speaks and most likely did not understand the contents of what he thumb printed. The Respondent made a fundamental blunder by not tendering the Hausa version of the Appellant’s statement to the police. It was the duty of the Respondent to have ensured that the English and Hausa versions were tendered in evidence before the trial Court, the Respondent failed to do so.

The Apex Court has in the past emphasized the position of the law to the effect that the statement the witness (Appellant in this case) ought to have thumb printed or signed is that made in the language the Appellant understood and not the translated version. See GUNDIRI VS. NYAKO (2014) 2 NWLR (PT. 1391) 211 at 241 – 242, THE STATE VS. ALI SAIDU (2019) LPELR – 47397 (SC) and JUBRIL & ANOR. VS. INEC & ORS. (2019) LPELR – 51318 (CA).

The essence of recording and tendering the statement of an accused person in the language he understands is to ensure the correctness or accuracy of the said statement. See HAMZA VS. STATE (2019) LPELR – 47 858 (SC) 28. A – D, OLANIPEKUN VS. STATE (2016) LPELR – 4044 (SC) 8, B – D, ASUQUO VS. STATE (2016) LPELR – 40597 (SC) 15 – 16, E – D and OLALEKAN VS. STATE (2001) 18 NWLR (PT. 746) 793. In ADAMU VS. STATE (2019) LPELR – 46902 (SC) 12 – 13, PARA.

A, his Lordship Kekere – Ekun, JSC stated the position of the law thus: “In the instant case, it is argued on behalf of the Appellant, that being illiterate in English Language, for his confessional statement to have been properly before the Court for consideration, both the English and Hausa versions ought to have been tendered.

In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation.

It enables the Court to be satisfied that it is his true statement. For this reason, it was held by this Court that the recorder of the statement as well as the interpreter must be produced in Court as witnesses; otherwise the statement remains hearsay and inadmissible in evidence. See FRN VS. USMAN (2012) 8 NWLR (PT. 1301) 141 at 159 – 160 D –B, 161 C-D; 163 C-H; NWAEZE VS. THE STATE (1996) 2 NWLR (PT. 428) 1 at 20, QUEEN VS.

ZAKWAKWA (1960) VOL. 1 NSCC 8 at 9.” ​The Respondent did not explain why the Hausa version of the Appellant’s statement was not tendered along with the English version where the PW6 was the recorder and interpreter who also investigated the matter. The non-tendering of the Hausa version of the Appellant’s statement is fatal to the case of the Respondent.

The trial Court relied on the English version, Exhibits D1 – D4 in convicting the Appellant who did not speak English and an illiterate, this clearly exhibits lack of fair hearing as guaranteed under Section 36 (6) of the 1999 Constitution (as amended). The resultant effect is that Exhibits D1 – D4 ought not to have been relied upon, it is hereby discountenanced. From the records of appeal, the trial Court did not convict the Appellant based on Exhibits D1 – D4 alone as alleged by the learned counsel to the Appellant.

No doubt, the PW1, an eyewitness and a victim linked the Appellant with the offences under counts 1, 2 and 3 of the charge, testified that he identified the Appellant at the scene of the crime and that the Appellant participated in the alleged robbery, pages 163 – 164 of the printed records of appeal in respect of the robbery of 29/8/2015. The PW1 (Chief Uduma) testified thus: “I live at Jambutu, I am a businessman, yes I know three of the accused persons. I know accused persons No. 2, 4 and 5 herein.

On the 29/8/2015 we went for a meeting at Makurdi we reached Gombe and I and one Kalu and others boarded a starlet 5 of us when we came to Savannah we met a blocked gate and the driver was about reversing but the 2nd Accused person brought gun and wanted to fire so I asked the driver to stop. Then we were directed to lie down. Then we were directed to bring out all we have in our pockets so in my case I gave them the sum of N15,000 and one Motorola handset.

Later on we were directed to lie down again and one of the accused person entered the starlet vehicle and in the process of moving the vehicle matched the hand of my friend Kalu who then stouted and I woke up to find out the 4th Accused person decided to comfort my friend Kalu by pleading that they were sorry for what happened. The 2nd Accused person threatened to shoot us but the 4th Accused person said he should not shoot anybody. We continued to lie there for a period of 3 houses (sic) before we heard noise from the main road.

I was able to recognize the Accused persons because the light of the vehicle was on. My friend Kalu reported to the Police State CID and after 3 days the Accused persons were arrested and we were invited to come to the State C.I.D. we went to the State C.I.D and gave statement. Thereafter the Police brought out several suspects for identification parade. From there I was able to identify the three mentioned Accused persons. Kalu now is late. … It was on the 29/8/2015 that the incident of the robbery happed.

It was around 12 midnight no vehicle passed throughout the 3 house (sic) of our being held by the armed robbers.” The PW2 (Fadama Baba) part of the vigilante group that arrested the Appellant and some of his colleagues, in the process recovered a single barrel gun, locally made pistol, a dagger, bullet proof vest, military boots and uniform. At pages 166 – 167 of the records of Appeal the PW2 testified thus: “I live at Boshikiri village Guyuk LGA I am a driver/hunter. Yes I know the Accused persons. I came to know the Accused persons as I came from Yobe where I went for peace keeping.

I was lying down in my house on the 31/9/2015 some indigenous vigilante members came to my house that armed robbers had blocked the road. I woke up and told the vigilante to go and wait for me at the filling station at Boshikiri. We went to the scene of the incident and met the Accused persons who blocked the road. On reaching we divided ourselves into two groups one group made up of 2 persons each. One of members of the vigilante by name Jibrin Jatau now deceased fired a shot so the Accused persons dispersed into the farmland of guinea corn while we were on the farmland of maize.

The 4th Accused after hearing gun shot came into the farmland of maize and was hiding beside a hole, from my end my partner also fired a shot. His name is Mohammed Idi. I also fired a shot and the 4th Accused person shouted and ran away to join his co-accused persons. I then directed the vigilante members to go back to the village where the Accused persons reside and surround their houses by assigning three persons to each house. On the 1st of October, 2015, we arrested all the Accused persons around 5-6A.M. I came to know the 4th Accused person because of the bullet I fired which injured him.

After arresting them we took them to the Police Station at Boshikiri. We then handed them over to the military men. There was a sign of bullet on the 4th Accused person’s hand. The 2nd Accused person threatened that if they return they would kill me for arresting them. After arresting the Accused persons we recovered a single barrel gun, a locally made pistol, a dagger, there are also bullet proof vest, military boat (sic) and military uniform. … I did tell the Policemen at the State C.I.D. of the items recovered from the Accused persons.

I know the Accused persons before the incident.” The trial Court found that from the evidence of the PW1 an eyewitness and a victim (Chief Uduma) the Appellant was linked to the offences charged in counts 1 – 3 of the charge, page 289 of the printed records of appeal. Also, that the evidence of the PW2 who was part of the vigilante group that arrested the Appellant and some of his colleagues, recovered the arms and other military items used for the operation linked the Appellant to the armed robbery operation. The evidence of the PW2 was not challenged.

The Appellant did not also dislodge the evidence of the PW1. A conviction for the offence of armed robbery can be sustained solely on the evidence of a victim/eyewitness to the commission of the offence. In ETIM ETIM UDO VS. THE STATE (2018) LPELR – 43707 (SC) P. 22, PARAS. A-B his Lordship Rhodes – Vivour, JSC summarized the position of the law thus: “Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.” See BISI VS.

STATE (2021) LPELR – 56680 (SC) PP. 22 – 30, PARAS. E-A. The PW1 testified to what he saw personally. Eye witness account is one of the ways to prove the commission of a crime. The evidence of the PW1 shows that the Appellant took part in the commission of the offence charged in counts 1, 2 and 3. See UDE VS. STATE (2016) 14 NWLR (PT. 1531) 122 and OGU VS. COP (2018) 8 NWLR (PT. 1620) 134.

The law is trite that the prosecution need not call a host of witnesses to prove its case, a single credible witness is enough for a conviction, if believed by the Court. See NJOKU VS. STATE (2021) LPELR – 53076 (SC) P. 33, PARAS. A-C, IGBO VS. STATE (1975) LPELR – 1447 (SC) P.8, PARAS. E-F and ONAFOWOKAN VS. STATE (1987) LPELR – 2666 (SC) PP. 25 – 26, PARAS. F-B. The trial Court was right to have held that the prosecution need not have called a host of witnesses to prove its case.

At pages 290 – 291 of the printed records of Appeal the trial Court rightly held thus: “I wish to state that this submission is lame as the Prosecution is not bound to call host of witnesses. This is because the testimony of a single witness if credible can ground a conviction. It is also learned counsel’s submission that the prosecution’s case is built on suspicion as no evidence to sustain a conviction is led before this Hon. Court. This argument has been countered by the prosecution there is evidence led beyond reasonable doubt.

I agree with learned counsel for the prosecution that it has proved its case beyond reasonable doubt to sustain conviction of the Defendants.” I cannot fault the trial Court’s view. I hold that the prosecution proved its case against the Appellant beyond reasonable doubt in counts 1, 2 and 3 of the charge. The Appellant’s conviction and sentence in respect of counts 1, 2 and 3 of the charge is affirmed. Issue two (2) is resolved against the Appellant.

In the final analysis, having resolved issue one (1) in favour of the Appellant and issue two against the Appellant, the appeal is allowed in part.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. The issues formulated in the lead judgment have been exhaustively dealt with by my learned brother. I agree with the reasoning and conclusion that the appeal should be allowed in part. I also allow the appeal in part with nothing more to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Chidi Nwaoma Uwa JCA, and I entirely agree with his reasons that the appeal is allowed in part. I have nothing more to add.