It is the law that an appellate court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial court if from the circumstances of the case; the latter conviction should have been the proper one.
Odeh v. F.R.N. LGC(4/4/2008) E
It is settled law, that Courts including this apex Court have the power under Section 218 of the Criminal Procedure Code to convict an accused person or appellant of a lesser offence for which he was neither charged nor pleaded to.
I agree with learned appellant's counsel that by virtue of a chain of decisions of this Court, see R V Sykes (supra) Dawa v. State (supra) and Ikpasa v. State (supra), it is desirable to base the appellant's conviction on further evidence outside his confession, the requirement for such corroborative evidence is however not mandatory. The principle still is that the Court, where the confession is direct, positive and unequivocal and is properly proved, may convict an accused solely on such a confession. As learned respondent's counsel rightly submitted, there is no evidence stronger than a person's admission of the state of affairs: See Stephen V. State (supra), Oguonze v. State (supra) and Ogoala v. State (1991) 2 NWLR (Pt.175) 523.
"In Torhamba v. Police (1956) NRNLR at 94, the Court had attempted to give a guide as to the determination of what constitutes lesser offence. It was said – "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 the particulars making up the lesser offences of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen (1953) 2 WLR 965 (1953) A.C. 407." There are other decisions such as Shoimbo v. State (1974) 10 SC 91; Oyediran v. Republic (1967) NMLR 122; R. v. Tyson (1945) 11 WACA 90; R. v. Adokwu (1952) 20 NLR 103." On page 17, His Lordships counsels on what should be bourne in mind while considering this issue. He states:- "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 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 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...
Now, by Section 179(2) Criminal Procedure Law of Ogun State, 2006 it is stipulated viz:-
"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 was not charged with it."
The law is now well settled that where an offence is charged and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. This is because the Criminal Procedure Code Section 179(1) has provided for the trial Court or appeal Court to substitute a conviction for a lesser offence on a charge for an offence containing several particulars where only such particulars as made up of the lesser offence were proved. I place reliance on Oladipo v The State (1993) 6 NWLR (Pt. 298) 14 per Ogwuegbu JSC; Odeh v. Federal Republic of Nigeria (2008) 6 SCM 152 at 166.
In coming to their concurrent findings in this matter, both the learned trial Judge and the Court of Appeal relied on Section 179(2) of the Criminal Procedure Law of Ogun State, 2006 which is in pari materia with Section 218 of the Criminal Procedure Act. The said section provides:- "179 (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 was not charged with it." On the applicability of the above provision, this Court made it clear in Okobi v. The State (1984) 7 SC 47, (1984) LPELR-2453 (SC), per Obaseki, JSC at page 22 of the later law report that – "Lesser offence mentioned in Section 179(1) can only, in my view, refer to lesser offence under the law or Act under which the main or composite offence was charged. It cannot properly be interpreted to refer to a lesser offence under another law. Section 179 (2) Criminal Procedure Law has in my view, an independent application which differs from that of Section 179(1) of the Criminal Procedure Law. While Section 179(1) of the Criminal Procedure Law enables conviction to be entered for complete lesser offence established by the proof of some of the several particulars of the main or principal offence, e.g. in the trial for robbery under Section 401, Criminal Code stealing under Section 390 Criminal Code is proved, Section 179 (2) Criminal Procedure Lawenables a conviction to be entered for the lesser offence to which the main offence has been reduced by the proof of facts having the effect of reducing the main offence to a lesser offence, e.g. in the trial for murder under Section 316 of the Criminal Code if provocation is proved, the offence is reduced from murder to manslaughter." Also, in John Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, also reported in (1986) LPELR-2085 (SC), Karibi-Whyte, JSC at pages 16-17 paragraphs D-A, shed some more light on the issue, relying...
It is equally trite that the evidence of a single witness if direct, cogent and credible is sufficient to secure a conviction.
It is pertinent to state here that the 2nd accused at the trial Court, Mathias Garuba Idoko was convicted solely for the offence of conspiracy, with which he was never charged, based on his alleged confessional statement, Exhibit B. His appeal to the Court of Appeal was unsuccessful. However on further appeal, this Court it was held that the invocation of the provisions of Section 216 and 217 of the Criminal Code by the learned trial Judge in the circumstances of the case amounted to a breach of his fundamental right to fair hearing. In that case: Mathias Garuba Idoko Vs The State: SC. 594/2014delivered on 9th June, 2017, I held inter alia, as follows: "It is settled law that an accused person may be convicted of a lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence. See: Ahmed Sule (alias Eza) Vs The State (2001) 12 SCNJ 1; Adeyemi Vs The State (1991) 6 NWLR (Pt 195) 1; Nwachukwu Vs The State (1986) 2 NWLR (Pt 25) 765. Section 216 of the Criminal Procedure Code (CPC) seeks to address a situation where several offences might have been committed and the prosecution is in doubt as to which of the possible offences the available facts, if proved, could constitute. It permits the prosecution to charge the accused with all or any one or more of such offences. He may also be charged in the alternative. By Section 217 of the CPC, where the scenario in Section 216 occurs and the accused is charged with one of several possible offences but from the evidence the accused is shown to have committed a different offence, with which he could have been charged but was not, he may be convicted of that other offence although not charged with it. In Ezechukwu Vs C.O.P (1996) NWLR 96 @ 101, the Court of Appeal held that where Section 217 is to be relied upon in convicting an accused person of an offence with which he was not charged it must be apparent (1) that it had been doubtful which of...
By virtue of Section 131(1) of the Evidence Act, 2004 (now Section 128(1) of the 2011 Act) the fact of any conviction by any Court of law, unless the conviction is admitted, cannot be proved by any other evidence, oral or otherwise, except by the production of the certificate of conviction duly authenticated by the registrar or the officer of the Court in whose custody is the record of the said conviction. The appellant did not produce any evidence required by Section 131(1) and 224(1) of the 2004 Evidence Act (which now respectively are Sections 128(1) and 248(1) of the 2011 Act).
PML (NIGERIA)
Proof of previous conviction under the Evidence Act (Section 248(1) of the 2011 Act and 224(1) of the 2004 Act) is by the production of a certificate of conviction containing the substance and effect of the conviction. The certificate shall have been signed by the registrar or the officer of the Court in whose custody is the record of the said conviction. The only exception to this is when the conviction has been admitted. In that situation the rule is: facts admitted need no further proof. In the instant case the alleged conviction has been denied. The appellant who asserts it is, thus, put to prove its assertion.
PML (NIGERIA)
Proof of previous conviction under the Evidence Act (Section 248(1) of the 2011 Act and 224(1) of the 2004 Act) is by the production of a certificate of conviction containing the substance and effect of the conviction. The certificate shall have been signed by the registrar or the officer of the Court in whose custody is the record of the said conviction. The only exception to this is when the conviction has been admitted. In that situation the rule is: facts admitted need no further proof. In the instant case the alleged conviction has been denied. The appellant who asserts it is, thus, put to prove its assertion.
PML (NIGERIA)
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.
The error committed by the trial Court in convicting and sentencing the accused for the offence of attempt to escape from lawful custody which the accused was not previously charged for or forming part of the elements of the offences he was charged with is just the same error the Magistrate committed in RAPHEL EKECHUKWU v. C.O.P. (1966) NWLR 96. The High Court of Kano State on appeal (Reed Ag. CJ and Holden J) in correcting the Magistrate stated the law correctly that Sections 216 and 217 of the CPC empower a Court to convict for an offence not charged only when the facts charged have given the accused notice of the facts of the offence of which he is convicted. Sections 216 and 217 of the CPC do not empower Courts to flout the provisions of Section 36(1) & (6) of the Constitution. Nor do they empower Courts to flout the injunction that they must be independent and impartial in criminal proceedings.
The operation of Sections 216 and 217 of the CPC is all about facts. Thus, Indian Courts hold, on provisions in pari materia with Sections 216 and 217 CPC, that the true test is whether the facts charged give the accused notice of the offence for which he is going to be convicted, though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge. See DHUM SINGH v. EMPEROR A1925, A.448; RACHUNATH KANDU v. EMPEROR A1926, A.227; BALUCHAMI v. EMPEROR A1933, A.843.
THE STATE V. MASIGA (TSOLO):LGC(15/12/2017)I
From the foregoing, the Respondent was never charged with the offence of attempting to escape from lawful custody.
Although under Section 217 of the Criminal Procedure Code, a person charged with one offence may be convicted of another offence which he is shown to have committed even though he was not charged with it, the Court has to be satisfied that it had been doubtful which of several different offences the facts which could be proved would constitute or such doubt applied only to the law and to the facts, that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. See EKECHUKWU VS COP 1966 NNLR 96.
I agree with the lower Court in its judgment at page 157 of the record. When it held that:
"It is very clear that the lower Court misconceived the proper application of Section 217 of the Criminal Procedure Code.
The position of the law is that in order to invoke the provision of Section 217 of the Criminal Procedure Code to convict for an offence not charged, the facts proved in establishing the offence charged must also have disclosed other offences which include the offence not charged and that an accused can be convicted, on the same facts proved.
It is trite that before a Court can invoke the provisions of Section 217 of the Criminal Procedure Code to substitute a conviction there should have been doubt as to which of the several offences the facts constitute or disclose.
In the instant case neither the ingredients of the offence of rape nor that of abduction can be used to prove the offence of attempt to escape from lawful custody under Section 95 of the Penal Code.
The facts of the offence of attempt to escape from lawful custody are new facts and the offence was not based upon a different legal interpretation of the law on rape or abduction. which he was previously charged."
THE STATE V. MASIGA (TSOLO):LGC(15/12/2017)F
However, it must be understood that for the Court to convict an accused for a lesser offence than the charge, the following conditions must be fulfilled. Firstly, the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same. Secondly, the evidence adduced and the facts found must be insufficient for the conviction in respect of the offence charged but at the same time support the lesser offence. See; Adebayo Adeyemi Vs The State (1991) 6 NWLR (Pt.195) 1; (1991) 7 SC (Pt.11); (1991) 7 SCNJ 131. In other words, it is trite law that before an accused can be convicted for a lesser offence than the one charged, the ingredients or elements of the offences charged and the lesser offence must be similar. Where there is no similarities in their elements or ingredients or circumstances of their commission, the Court may not be right in convicting for a lesser offence. And where it is done, such conviction will be liable to setting aside on appeal. See; The Nigerian Airforce Vs. Kamaldeen (2007) 7 NWLR (Pt.1032) 164; (2007) 164; (2007) 3 SCM 190; (2007) 3 SC (Pt.11) 131.
The trial Courts should also take their time to appreciate and digest the jurisprudence when exercising their power to convict for the lesser offence upon the failure of prosecution to establish the substantive offence charged. The particulars constituting the lesser offence must be carved out of the particulars of the substantive offence charged: OKWUWA v. THE STATE (1964) 1 ALL N.L.R. 365. In other words, 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: NIGERIAN AIR FORCE v. KAMALDEEN (2007) 2 S.C. 113.
It should also be borne in mind that resort to the conviction for the lesser offence should not be pretext for, or an artful scheme of capriciously, avoiding the harsher sentence for substantive offence originally charged. That is a clear abuse of power and abdication of judicial responsibility.
It is also pertinent to note that where it is intended to convict for a lesser offence, that lesser offence must have been created by the same law governing the substantive office. The position was illustrated very clearly in Okobi v. The State (1984) 7 SC 47; (1984) LPELR 2453 (SC) 1 @ 23 A-C where the appellant was charged with offences under the Robbery and Firearms (Special Provisions) Act. The trial High Court found the offences not proved but invoked Section 179 (1) of the Criminal Code to convict him of obtaining by false pretences under the Criminal Code.
His Lordship Obaseki, JSC stated thus:
"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 cause 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."
The power of a Court to convict an accused person for a lesser offence than the one charged is exercised based on certain guidelines. Where the Court exercises this power, the evidence in support of the lesser offence must consist of a combination of some of the essential elements of the original offence charged. The particulars of the lesser offence must be capable of being subsumed in the original charge such that it is possible to carve out the particulars of the lesser offence from the particulars of the original charge. See: N.A.F. Vs Kamaldeen (2007) 7 NWLR (Pt.1032) 164 @ 190 D F; Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1; Agugua v. The State (2017) 2 SC 113; Nwachukwu v. The State (1986) 2 NWLR (Pt.250 765. In Nwachukwu's case (supra), His Lordship Karibi-Whyte, JSC, gave a useful guide on how to determine whether a lesser offence is made out. He suggested that the particulars (or ingredients) of the offence should be set out and the Court (or counsel) should consider whether it is possible to delete some words from the particulars of the offence charged leaving a residue of particulars making up the lesser offence e.g. a person charged with wounding with intent to do grievous harm may be convicted of unlawful wounding where the intent to do grievous harm is not proved. Similarly, a person charged with armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 LFN 2004 may be convicted of robbery simpliciter where there is no evidence that the accused was armed.
With respect, I take the humble view that the appellants counsel was right in his submission that "the lesser offence must not only be a kindred offence with the actual offence charge, its ingredients must be embedded in the actual charge." Ezeja v. The State [2008] All FWLR (Pt.428) 256, 268 – 269.
This much is clearly evident in the decisions considered above, TheNig Air Force v Kamaldeen (supra); Agugua v The State (supra); Okobi v The State (supra); Nwachukwu v The State [supra]. Indeed, only recently, this Court in Agugua v The State (2017) LPELR – 4202 (SC) 54 -55; E -A, relying on The Nig Air Force v Kamaldeen (supra), 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. See, The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113; 154-55; E – A.
An accused person charged for an offence can only be charged under the law that creates the offence. Such a law must be in force at the time the offence was committed.
There is no provision in our Constitution to charge an accused person under a law that was not in existence at the time the conduct complained of manifested, or to create an offence to crirnimalise a conduct after the act.
A trial conducted under a law that has been repealed, no matter how well conducted and decided is a nullity. See Ogbomor v. State (1985) 1 NWLR (Pt.2) p.223.
In RABIU V. STATE (2004) FWLR (Pt. 238) 521 – it was held that a Court of law has a duty to warn itself of the danger of convicting solely on a plea of guilty. Submits that a plea of guilty is not and cannot be conclusive proof of guilty in law. It is my view that in a situation such as the present one, it was incumbent on the Court below to warn itself of the danger of convicting an accused solely on his plea of guilty. This is because a plea of guilty is not and cannot be a conclusive proof of guilt with regards to capital offence in law. PER PEMU, J.C.A.
In RABIU V. STATE (2004) FWLR (Pt. 238) 521 – it was held that a Court of law has a duty to warn itself of the danger of convicting solely on a plea of guilty. Submits that a plea of guilty is not and cannot be conclusive proof of guilty in law. It is my view that in a situation such as the present one, it was incumbent on the Court below to warn itself of the danger of convicting an accused solely on his plea of guilty. This is because a plea of guilty is not and cannot be a conclusive proof of guilt with regards to capital offence in law. PER PEMU, J.C.A.
It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt.1029) 1; Nkie v FRN (2014) LPELR-22877. In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty. Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is.
See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt.144) 475; Adeyemi v The state (2013) 14 NWLR (pt.1373) 129. MARY UKAEGO PETER-ODILI, J.S.C.
When found to have been voluntarily made, a confessional statement is enough to ground the conviction of an accused person. See FULANI M. V. STATE (2018) LPELR – 45195 (SC); KAMILA V. STATE (2018) LPELR – 43603 (SC); JOHN V. STATE (2017) LPELR - 48039 (SC). PER ADAMU JAURO, J.S.C
Therefore, for the conviction of the lesser offence to be valid, the accused must have sufficient notice of the lesser offence as in Section 218 CPC. In the absence of sufficient notice of any lesser offence or if the lesser offence was not a constituent element of the larger offence, a conviction on the lesser offence just because the substituted offence conveys lesser punishment, shall not be sustained. See the case of ONUKWUBE V STATE 2021 NWLR PT.1767 pg 558 at 577/578.
However, for Section 218 (2) to be properly invoked as done in this appeal, the following must be observed, namely; (i) The indictment in respect of which the accused is subsequently found guilty of; i.e the lesser offence must; a. Contain words to include both offence such that the evidence led and facts found, though insufficient for conviction of grave or aggravated offence. b. Must support the conviction of lesser offence.
It is trite to note here that the law does not insist nor is it necessary to charge the accused formally with the lesser offence with which he is convicted in that the great/aggravated offence include by necessary implication the lesser offence with which he was charged and convicted.
I rely on the case of Amadi v State (2019) NWLR (pt.1677) 366 at 378. A lesser offence has been described as a combination of some of the several particulars making up the offence with which the accused was charged with, as such the particulars constituting the lesser offence are carved out of the offence charged. The lesser offence with which the accused is convicted arises out of the facts and evidence led in support of the aggravated charge.
This therefore has been established over the years that when an accused had notice of the aggravated charge, he is deemed also to have notice of the lesser charge for which he could be convicted, though he was not formally charged with same. I refer to the case of: (i) RABIU V STATE 2010 10 NWLR PT.1201 at 148/149; (ii) NWACHUKWU V STATE 862 NWLR PT 25 pg.765 at 778/782. MARY UKAEGO PETER-ODILI, J.S.C.
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). PER OTISI, J.CA.
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” PER OWOADE, J.C.A.
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.” PER OWOADE, J.C.A.
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.” PER MBABA, J.C.A.
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). ADAMU JAURO, J.S.C.
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” . PER NDUKWE-ANYANWU, J.C.A.
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. PER UWA, J.C.A.