ONOKPE v. STATE (2020)

ONOKPE v. STATE

(2020)LCN/15353(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, August 28, 2020

CA/AS/177C/2015

RATIO

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

I will begin the resolution of the issue formulated for the determination of the instant appeal as couched by me, by stating that the position of the law in respect of the elements or ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt to sustain a conviction for the said offence as enunciated by the Supreme Court from time immemorial as it were, till present time are: (i) that there was a robbery or series of robberies; (ii) that the robbery or each of the robberies was an armed robbery; and (iii) that each of the accused persons was part of or had taken part in the armed robbery or robberies. See in this regard the cases of IKEMSON V. STATE (1989) 3 NWLR (Pt. 110) 455 and AJUMOBI V. STATE (2018) LPELR-43854(SC), amongst many others. PER YOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CRIMINAL LAW: BURDEN OF PROOF: WAYS BY WHICH THE PROSECUTION MAY PROVE ITS CASE BEYOND REASONABLE DOOUBTS

Similarly, the position of the law in respect of how the prosecution can successfully prove its case beyond reasonable doubt against an accused person, has been enunciated in relatively old decisions of the Supreme Court as well as new decisions of the said Court. The ways by which the prosecution might do this are: (i) by direct evidence of witnesses; (ii) by circumstantial evidence; and (iii) by reliance on the voluntary confessional statement of the accused. See ONITILO V. STATE (2017) LPELR-42576(SC) and STEPHEN V. THE STATE (2013) VOL. 223 LRCN (Pt. 2) 215 amongst many others. PER YOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

BLESSING ONOKPE APPELANT(S)

And

THE STATE RESPONDENT(S)

YOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 24/11/2014, by the High Court of Delta State, holden at Otor-Udu Judicial Division presided over by Hon. Justice F.N. Azinge (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively). The Appellant and one other – Godwin Emarah (hereafter to be simply referred to as “Appellant’s co-accused”) in an Information preferred 18/7/2011, were charged with the following offences: –
“(i) Conspiracy to commit the offence of armed robbery contrary to Section 6(b) and punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R II Vol. 14 of the Laws of Federation of Nigeria 2004 (hereafter to be simply referred to as “the Robbery and Firearms Act”);
(ii) Armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms Act.”

The offences were alleged to have been committed by the Appellant and his co-accused on or about 27/12/2010. Save for the first count alleging the offence of conspiracy to commit the offence of armed robbery, each of the five other counts relate to named or specified victims of the armed robberies allegedly committed by the Appellant and his co-accused. The pleas of the Appellant and his co-accused were taken on 31/10/2011, and each of them pleaded not guilty to each count of the indictment/Information. The prosecution opened its case on 27/2/2012 and closed same on 3/12/2012. The prosecution fielded two of the victims named in the indictment before the lower Court as witnesses. The witnesses are: (i) PW1 – Mrs. Aniebiet Idim, the victim mentioned in the particulars of offence in count II of the Information; and (ii) Aaron Ugborikoko the victim mentioned in the particulars of offence in count IV of the Information. The particulars of offence in the aforementioned counts II reads: –
“Blessing Onokpe (M) and Godwin Emarah (M) on or about the 27th day of December, 2010 at Orhuwhorun within the Otor-Udu Judicial Division robbed one Aniebiet Idim of her Lexus SUV Jeep, HP laptop, jewelries and cash while armed with gun.”
while the particulars of offence of count IV reads: – “Blessing Onokpe (M) and Godwin Emarah (M) on or about the 27th day of December, 2010 at Orhuwhorun within the Otor-Udu Judicial Division robbed one Aaron Ugborikoko of his handsets, wedding rings and cash while armed with gun.”

The prosecution also called as witnesses, two Policemen who had one thing or the other to do with the arrest and investigation into the case involving the Appellant and his co-accused. Neither of the two victims fielded by the prosecution as witnesses gave a direct account of the involvement of either the Appellant or his co-accused, in the armed robberies in respect of which they were charged. Each of the victims/witnesses however identified some of the items the prosecution established to have been recovered from the Appellant and his co-accused in the vehicle in which the two of them were apprehended, as theirs. The Appellant and his co-accused each testified in his own behalf. Neither of them called any other witness to establish their respective defences which were a complete denial of the commission of the offences they were alleged to have committed. The Appellant and his co-accused respectively, also put up the defence of alibi. The judgment of the lower Court spans pages 74-91 of the records of appeal. The lower Court in its judgment found that the prosecution did not establish the charge of conspiracy to commit the offence of armed robbery preferred against the Appellant and his co-accused person. Similarly, the lower Court found the prosecution not to have established the offence of armed robbery against the Appellant and his co-accused, as charged. In other words, the lower Court found the prosecution not to have established the offences expressly charged in Counts 1-6 of the Information before it. Having initially found that the prosecution did not prove the charge of conspiracy to commit the offence of armed robbery against the Appellant and his co-accused, and having further stated on page 87 of the records that: –
“Consequently, the accused persons are discharged of the offences of armed robbery in counts II, III, IV, V and VI of the information”
the said Court proceeded from the said page 87 to page 91 thus: –
“The PW4 testified that the items which were robbed from the PW1, PW2 and others which included Exhibits ‘A’ and ‘B’ were recovered from the two accused persons in a bus with registration No. XA 724 AFM. They were the only occupants of the bus. That at police stop and search operation at Otokutu junction, he flagged down the said bus and found drinks in one bag, upon his enquiry, the accused person (sic) said they were drinks they got from a burial party. On further search, the PW4 found another bag under the conductor’s seat which contained various items, including among others, Exhibits ‘A’ and ‘B’. When he further enquired from the accused persons, they both could not give satisfactory explanation as to how they came about the items. The PW4 arrested the two accused persons.
The accused persons did not deny that the items were recovered from them however the 1st accused stated in his statement to the police i.e., Exhibit ‘D’ that the two bags were forgotten by a passenger whom he did not know, that he was to take the bags to the National Union of Road Transport Office on the following day, i.e. 28th December, 2014. In his evidence in-chief and under cross-examination, he maintained that he returned the bags to the union office at Enerhen Warri at 8:00 pm on the day of the incident but the office had closed. His evidence was also that he discovered the bags at the close of work at 8:00 pm when he was sweeping his bus.
The 2nd accused person stated in his statement to the police Exhibit ‘C’ that he did not work on the day of the incident. That he was with his mother at Effurun market. I quote him “On 27/12/2010, I did not go to work as a driver or conductor. I went to see my mother at Effurun Market Effurun.”
However, in his oral evidence before the Court, he testified that he went to see his mother who suffered a stroke at her home. In Exhibit ‘F’ which is an application for bail filed on behalf of the 2nd accused in Suit No. OUHC.M/BC/8C/2011: COMMISSIONER OF POLICE VS. BLESSING ONOKPE & ANOR, in the affidavit in support of the application, the 2nd accused stated in paragraph 3 thereof thus and I quote him: –
“3. That on the 27/12/2010 I did not go to work because my mother who stays at Warri/Sapele road opposite MTN Office Effurun was very sick and I went to attend to her till the evening of that day.”

The 2nd accused also testified that he got to Effurun roundabout on that fateful day where he met the 1st accused person at about 7:30 pm. in Exhibit ‘C’ but testifying in-chief, he said he left his mother after eight in the evening.
From the evidence before the Court, it is not in doubt that the recovered items which the victims identified were theirs, were found in possession of the accused persons immediately after the robbery, and the accused persons could not satisfactorily account for how they came in possession of the items.
Although the prosecution did not prove the elements of the offence charged, the evidence before the Court as adduced by the prosecution witnesses particularly the PW4 is positive and unequivocal. It is the position of the law that, 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 other than that for which he was expressly arraigned before the Court. See Section 179(2) of the Criminal Procedure Act. Under Section 15(1)(a) of the Robbery and Firearms Act (Special Provisions) Act (supra), the word stealing was interpreted in the interpretation Section and the word robbery was interpreted to mean stealing anything.
By Section 167(a) of the Evidence Act, a man who is in possession of stolen goods after the theft is either the thief or have received goods knowing them to be stolen unless he can account for his possession. The evidence that the stolen items were found in possession of the accused persons was not rebutted by the defence. There is avalanche of evidence that the stolen items including Exhibits ‘A’ and ‘B’ were found in possession of the two accused persons who did not deny this. Their explanation was that, it was forgotten by a passenger as stated by the 1st accused. Is it not curious that a driver of a commercial bus who found items of a passenger in his bus did not take them immediately to the Transport Union Office? Indeed the 1st accused in his statement stated that, he was going to return them on the following day 28/12/2020 after the incident of 27th December, 2010 whereas he testified in-chief that, he returned the bags to the Transport Union Office at 8:00 pm and that the said office closes between 8:00 pm and 9:00 pm but when he got there on 27th December, 2010 at 8:00 pm, the office was closed.
The evidence before the Court shows that he closed from work at about 8:00 pm when he said he discovered the bags and also took the bags to the union office at 8:00 pm.
The 2nd accused testified that he joined the 1st accused at about 8:00 pm, they were arrested at about 8:00 pm. How is it possible then that the 1st accused closed at 8:00 pm and got to the Transport Union Office at 8:00 pm, as he claimed? This testimony does not jell. Because if he actually went to the Transport Union Office which is in doubt, at about 8:00 pm, how come they were arrested at about 8:00 pm at Otokutu junction as they told the Court? This is very curious. What the Court can deduce from the evidence is that, both accused persons have been economical with the truth.
Another point which agitates the mind of this Honourable Court is the evidence of the 2nd accused person that on the day of the incident, he went to visit his mother at Effurun market. In another breath, he claimed his mother suffered a stroke and he went to visit her where she was staying at Warri/Sapele Road, meaning that is where his mother lived. I cannot reconcile how a woman who suffered a stroke and was very sick according to the 2nd accused, was in the market on 27/12/2010, the day of the incident. And yet the 2nd accused was with her in the market as well as in her house at the same time. It all boils down to the same thing, that the 2nd accused was economical with the truth.
In addition, how come the bags which were recovered from the bus were under the conductor’s seat? The inference to be drawn is that, the bags were hidden under the seat. What in my view accords with the common course of natural events and human conduct is that, having discovered the bags, it (sic) should be on top of the seat and not under the seat as in this present case.
The presumption to be drawn by the Court in the face of the many inconsistent evidence of the accused persons is that, they know more than they have told the Court of the incident of the 27th day of December, 2010.
By virtue of Section 167 of the Evidence Act, 2011, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of event, human conduct and public and private business in their relationship to facts of the particular case, and in particular, the Court may presume that a person who is in possession of stolen goods soon after the theft, is either the thief of (sic) he received the goods knowing them to be stolen, unless he can account for it (sic).
In this case, the two accused persons were found in possession of the stolen items including Exhibits ‘A’ and ‘B’ on the date of the robbery incident 27/12/2010 which the PW1 and PW2 said happened at between 7:00 pm and 7:30 pm at Orhuwhorun area in Udu Local Government Area. The two accused persons could not give satisfactory account of their possession of the stolen items. The logical inference to be drawn from the direct and circumstantial evidence before the Court is that, the 1st and 2nd accused persons were the ones who stole the items including Exhibit ‘A’ and ‘B’. The Court believes the evidence of prosecution witnesses particularly the PW4 that, those items were stolen and that the accused persons could not account how the items came into their possession. See Gbadamosi vs. State (1991) 6 NWLR (Pt. 196) 182 at 194.
From the totality of the evidence before the Court and the finding and reasoning above, the Court has arrived at the irresistible conclusion that the two accused persons cannot be free from guilt and can be convicted with the lesser offence of robbery based on the principle of recent possession of stolen jewelry box, Nokia phone and other items found in their possession in the Mitsubishi bus. The prosecution has succeeded in proving a lesser offence of robbery, against the accused persons.
Consequently, the 1st and 2nd accused persons are hereby found guilty of the lesser offence of robbery and are hereby convicted of same, under Section 1(1) of the Robbery and Firearms (Special Provisions) Act (supra).
ALLOCUTUS
Counsel pleads for leniency as the two accused persons are first offenders. I plead with the Court to be lenient with them, as the Court pleases.
I have considered the allocutus of the learned defence counsel, this is my sentence.
Sentencing
Section 1(1) of the Robbery and Firearms (Special Provisions) Act (supra) provides that any person who commits the offence of robbery shall be upon trial and conviction under the Act, be sentenced to imprisonment not less than 21 years.
Therefore, the Court will be lenient by imposing the minimum sentence. The 1st accused person is sentenced to 21 years imprisonment, to run consecutively. The 2nd accused person is also sentenced to 21 years to run consecutively.
This is the judgment of the Court.”

Being dissatisfied with the judgment of the lower Court convicting him and his co-accused of the lesser offence of robbery and sentencing him to 21 years therefor, the Appellant initiated the instant appeal by lodging at the registry of the lower Court on 22/12/2014, a notice of appeal bearing the same date. An amended notice of appeal was filed in the appeal on 23/2/2018, but it was deemed to have been properly filed on 7/5/2018. The amended notice of appeal contains 6 grounds of appeal. The grounds of appeal with their respective particulars read: –
“GROUND ONE
The learned trial Judge erred in law in relying on the mere fact that the recovered items which were found in the commercial bus driven by the appellant some hours after they were robbed as circumstantial evidence to link the appellant with the commission of the offence.
PARTICULARS OF ERROR
(i) The Appellant gave explanation in his defence that the bags were forgotten in the commercial bus by a passenger whom he did not know.
(ii) The Appellant further gave explanation in his defence that he took the bags to the National Union of Road Transport Office immediately he found out at about 8:00 pm on 27/12/2010.
(iii) The Appellant again gave explanation in his defence that he was to return the next day 28/12/2020 to the National Union of Road Transport Office to return the bags since the office had closed on his first attempt.
(iv) The mere fact that the recovered items were found in the commercial bus driven by the appellant is not a conclusive proof that he was one of the armed robbers who robbed PW1 and PW2.
GROUND TWO
The learned trial Judge erred in law and came to a perverse decision when she held as follows:
The two accused persons could not give satisfactory account of their possession of the stolen items. The logical inference to be drawn from the direct and circumstantial evidence before the Court is that, the 1st and 2nd accused persons were the ones who stole the items including Exhibits ‘A’ and ‘B’.
PARTICULARS OF ERROR
(I) The appellant denied the commission of the offence both in his oral and documented evidence before the Court.
(iii)(sic) PW1 and PW2 did not identify the appellant as one of the robbers who robbed them.
(iv) No gun was recovered from the appellant.
(v) The Police did not properly investigate the defence of alibi raised by the appellant.
(vi) There is no onus on the appellant to establish his innocence.
(vii) The prosecution has the burden to prove the charges against the appellant beyond reasonable doubt.
(viii) There was no eyewitness account fixing the appellant at the scene of crime.
(ix) The Police did not investigate the offence for which the appellant was arraigned, tried and convicted.
GROUND THREE
The learned trial Judge erred in law in convicting the appellant for a lesser offence of robbery based on the principle of recent possession.
PARTICULARS OF ERROR
(i) The appellant denied the commission of the offence both in his oral and documentary evidence before the Court.
(ii) The appellant gave reasonable explanation as to how the two bags containing items such as Exhibits ‘A’ and ‘B’ were forgotten in his commercial bus by unknown passenger.
(iii) PW4 confirmed that he flagged down a commercial bus with the appellant as the driver and a conductor who was were returning home after close of the day about 22:35 hours.
(iv) None of the victims (PW1 and PW2) identified the appellant as one of the armed robbers who robbed them at gun point.
(v) No arm/weapon was recovered from the appellant or the other occupant of the commercial bus.
(vi) There was no proper investigation of this case.
(vii) One of the stolen vehicle (sic) (Lexus Jeep) was recovered at another location by Policemen of Ekpan Division.
GROUND FOUR
The learned trial Judge erred in law in convicting the appellant of the offence of robbery when the particulars of the said offence stated in the charge were not proved to justify conviction.
PARTICULARS OF ERROR
(i) The appellant was charged with robbing PW1, PW2 and three other persons while armed with a gun.

(ii) There was no evidence linking the appellant to the scene of the crime.
(iii) There was no evidence that appellant robbed PW1 and PW2 and the three other persons while armed with a gun and nobody said he saw the appellant robbing any of the victims.
(iv) The law requires that all the particulars of the charge should be proved for conviction to be secured.
(v) The appellant denied the commission of the offence both in his extra judicial statement and his evidence before the Court.
GROUND FIVE
The learned trial Judge erred in law and thereby came to a perverse decision when she rejected the defence of the appellant in holding that:
From the evidence before this Court, it is not in doubt that the recovered items which the victims identified were theirs, were found in possession of the accused persons immediately after the robbery, and the accused persons could not satisfactorily account for how they came into possession of the item.
PARTICULARS OF ERROR
(I) The appellant gave reasonable explanation of how the stolen items were forgotten in his bus by an unknown passenger.
(ii) There was no credible evidence on record to support the conclusion of the trial Court that the appellant was involved in the robbery of the victims.
(iii) The trial Court failed to properly consider the defence of the appellant as borne out from the totality of evidence on record.
(iv) The evidence led by the prosecution did not positively link the appellant with the commission of the offence for which he was convicted.
(v) There is no onus on the appellant to prove his innocence.
(vi) The prosecution has a duty to prove all the ingredients of the offence beyond reasonable doubt.
GROUND SIX
The judgment of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

The appeal was entertained on 10/6/2020 with learned counsel John Smart adopting and relying on the Appellant’s brief of argument dated 14/6/2019 and filed on the same date, and Appellant’s reply brief of argument dated 16/3/2020 and filed on the same date, in urging the Court to allow the appeal. In the same vein, learned Law Officer, E.E. Erebe (Asst. Director) leading two other Law Officers, adopted, and relied on the Respondent’s brief of argument dated 22/7/2019 and filed on 23/7/2019, in urging the Court to dismiss the appeal.

The Appellant formulated a lone issue for the determination of the appeal from the six grounds of appeal contained in the amended notice of appeal. The issue reads: –
“Whether from the totality of the evidence on record, the trial Court was right in convicting and sentencing the appellant for a lesser offence of robbery based on the principle of recent possession of the stolen items found in the Mitsubishi commercial bus.”

The Respondent, like the Appellant formulated a lone issue for the determination of the appeal in its brief of argument. The issue reads: –
“Whether the trial Court was right in convicting the Appellant for a lesser offence of robbery based on the doctrine of recent possession.”

The lone issue as formulated by the parties are the same in purport, I will however couch the issue for the determination of the instant appeal as “whether the decision of the lower Court that is based on the application of the doctrine of recent possession can be sustained having regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession”.

I consider the issue as couched by me more apt for the resolution of the instant appeal, against the backdrop of the position of the law (whether in civil or criminal jurisprudence) that the purpose or essence of an appeal is basically for the appellate Court to determine from the relevant processes before the lower Court, evidence adduced and applicable law, whether the said Court had come to the right decision in respect of the matter before it. See in this regard the civil case of ODOM V. PDP (2015) LPELR-24351(SC) and the criminal case of NDUKWU V. STATE (1999) LPELR-6735(CA) wherein this Court even though recognising some differences between an appeal in civil proceedings vis-a-vis criminal proceedings, stated thus:
“On the first point of objection I observe that all the cases relied on by Mr. Nwofor are civil cases. There is none of them the facts or circumstances of which are anywhere near the facts or circumstances of the one now before us. In many material respects a civil appeal is different from a criminal appeal. One such respect, in my view, is the filing of cross-appeals or the giving of a respondent’s notice. It is easy to find many reasons why a respondent in a civil appeal would want to file a cross-appeal or give a respondent’s notice. The reliefs or benefit that a party hopes to obtain before a Court of civil jurisdiction are far more varied and imprecise than before a criminal Court. The civil Court may give a decision that is unsatisfactory to both sides, either one of them feeling that the decision ought not to have gone the way it has, or has not gone in that direction as far as it ought to have.
In a criminal trial, however, the Court is concerned only with one thing. That is to ascertain whether or not the guilt of the accused has been established as required by law. Where it comes to a decision that it has, then it enters a conviction. If not, it acquits. If it convicts as charged the convict may appeal, but I cannot see any ground for complaint by the prosecutor either by way of a cross-appeal or a respondent’s notice. If it acquits, the prosecutor may appeal.
The trial Court has power to convict for a lesser offence, though not charged, if it is of the view that the facts proved by the prosecution do not establish the offence charged, but constitute the lesser and related offence. See Sections 169 – 179 of the Criminal Procedure Law. Cap. 31, Laws of Eastern Nigeria applicable in Imo State. In such a situation either side could appeal, the later appellant in time being referred to as cross-appellant. In the matter before us the prosecutor pressed for and secured a conviction before the trial Court. On further reflection, however, he came to the conclusion that the conviction of the appellant was not right in law. He now thinks that the conviction should have been for different and lesser offence disclosed by the facts. I do not think that as the law stands he needs to cross-appeal or give a respondent’s notice. He has no ground to cross-appeal on. The trial Court gave him exactly what he asked for i.e., the conviction of the accused as charged. It is true that he has asked us to vary the decision of the trial Court. It is equally true, however, that he is not asking for the varying of the decision in his favour, but in the appellant’s favour. A respondent’s notice would, in my view, therefore, be inappropriate in the circumstances. In any case Order 4 of the Court of Appeal Rules, which deals with criminal appeals, makes no provision for the giving of a respondent’s notice as does Order 3, which deals with civil appeals. xxx”

The Appellant in arguing the lone issue formulated for the determination of the appeal in his brief of argument, in the main submitted that the lower Court was wrong to have found him guilty of the offence of robbery based on the application of the doctrine of recent possession. The Appellant narrated events which went to show that the charges preferred against him and his co-accused were not as a result of any proper investigation but to douse the tension created by the petition written to the office of the Assistant Inspector-General of Police, Zone 5, Benin against PW3 for damaging in an accident the Lexus Jeep recovered at Ekpan and taken to the Ekpan Police Station, while the said PW3 was using the said Jeep. In this regard, the Appellant stated to the effect that he was charged with conspiracy, armed robbery and possession of stolen property in Charge No. MCOR/4C/2011, six months after he had been granted bail in Charge No. MCOR/1C/2011 at the Magistrate’s Court. The Appellant argued to the effect that before a trial Court can properly apply the presumption in respect of stolen property found in possession of an accused person, the following essential elements must co-exist and be proved beyond reasonable doubt. The elements are: (i) it must be established that the good were stolen; (ii) the accused must have been found in possession of the stolen goods; (iii) the possession must have been soon after the theft; and (iv) the accused is unable to account for the possession of the goods recently stolen. Some cases considered relevant including that of The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 541, were cited in aid. It is the stance of the Appellant that while there was evidence before the lower Court establishing elements (i) and (iii) above, elements (ii) and (iv) were however not established by the prosecution as required by law. This is because, (i) he (Appellant) was not in possession of the stolen items but they were simply found in the commercial bus being driven by him; and (ii) that he (Appellant) gave reasonable explanation as to how the two bags were forgotten in his commercial bus by an unknown passenger. It is also the stance of the Appellant that the lower Court did not avert its mind to the position of the law that the said Court need not be convinced of the truth of the explanation before it, in order for the presumption created by the doctrine of recent possession, to be displaced. The case of State v. Nnolim was cited in aid of this position. The Appellant also argued that there was no credible evidence before the lower Court from PW3 and PW4 to warrant the finding of the lower Court that the evidence of the said witnesses, was positive and unequivocal in establishing his guilt. This according to the Appellant is in the light of the material contradictions in the evidence of the two witnesses in question. The Appellant in paragraphs 3.34 – 3.38 of his brief of argument argued to the effect that the lower Court did not accord his defences appropriate consideration. I however cannot but observe that the Appellant never disclosed the defences which were not considered by the said Court or accorded appropriate consideration. The Appellant further dwelled on what he described as “poor investigation by the Police” and in this regard, he brought to the fore that all the Police did regarding his case was taking statements from witnesses. Also dwelling specifically on Exhibits ‘A’ and ‘B’ the Appellant argued to the effect that the procedure of first tendering an item for identification and later tendering it as an exhibit is not known to law. That this procedure is not recognised by the Evidence Act 2011; and the cases of Egwa v. Egwa (2007) 1 NWLR (Pt. 1014) 71 and Macfoy V. UAC (1961) 3 All ER 1169, were cited in aid of this position. In concluding his arguments in the appeal, the Appellant urged this Court to set aside the decision of the lower Court and acquit and discharge him for the following reasons: –
“(i) The Police failed to investigate the case especially as it relates to him;
(ii) The prosecution failed to lead credible evidence linking him with the commission of the crime;
(iii) He gave explanation as to how exhibits A and B were forgotten inside his commercial bus by a passenger and efforts he made to return the two bags to the National Union of Transport Worker’s Office at Enerhen junction;
(iv) The learned trial Judge failed to consider the defence of the appellant from the totality of the evidence;
(v) The stolen items were not in the Appellant’s custody directly but forgotten by a passenger, inside the commercial bus driven by the appellant.”

Dwelling on the lone issue for the determination of the appeal as couched in its brief of argument, the Respondent submitted that it is trite law that a person found in possession of property reported to have been stolen (with or without violence from another person maybe convicted for the theft of the property) and that resort is normally made by the prosecution to the doctrine where direct evidence to establish the guilt of the accused is unavailable. The case of Ehimiyein v. State (2017) All FWLR (Pt. 868) 728 at 735 was cited in aid. It is the position of the Respondent in the main that the lower Court properly invoked the doctrine of recent possession in convicting the Appellant and many cases were cited in aid of the position. The cases cited include that of State v. Nnolim (supra) which the Respondent claimed the Appellant did not quote in details. Having urged the Court to resolve the sole issue it formulated for the determination of the appeal in its favour, the Respondent proceeded to dwell on the submissions of the Appellant in his brief of argument and submitted to the effect that (i) the submission of the Appellant that the stolen items recovered were not in his possession but were only found in the commercial bus driven by him, should be discarded as the Appellant did not dispute the fact that the items in question were found in his possession but that they were left behind by a passenger; (ii) that he (Appellant) was in actual and constructive possession of the stolen items having regard to the manner in which they were discovered and the unchallenged evidence of PW4 as to how the said items were found in the Appellant’s possession; and (iii) that the owner or driver of a vehicle is in constructive possession of all items inside his vehicle.

The Respondent also submitted that there were no material contradictions in the evidence of PW3 and PW4 as any alleged contradiction particularly that in respect of who was the leader of the Police team that apprehended the Appellant, was immaterial. That they are mere discrepancies. On the question that Exhibits ‘A’ and ‘B’ were first tendered as ID before they were admitted as exhibits and that such practice is not recognised by the Evidence Act, 2011, the Respondent submitted that the argument in this regard does not flow from the Notice of Appeal. That it is a fresh issue and should be discountenanced as no leave was obtained to raise and argue the same. The Respondent concluded by urging this Court not to disturb the finding of the lower Court and hold that from the totality of evidence on record, a lesser offence of robbery was proved by the prosecution based on the doctrine of recent possession.

The Appellant in his reply brief of argument responded to submissions of the Respondent in respect of the proper manner of tendering exhibits and the issue of constructive possession.

I have hereinbefore couched the lone issue for determination of the instant appeal to be “whether the decision of the lower Court that is based on the application of the doctrine of recent possession can be sustained having regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession”.

The issue for the determination of the appeal was couched as above, against the backdrop of the specific findings by/of the lower Court made in different portions or parts of its judgment (and against which the prosecution never appealed), that the prosecution did not establish the offence of conspiracy to commit the offence of armed robbery; as well as the counts charging the Appellant and his co-accused with the offence of armed robbery in relation to various victims specified in the Information; and as a result of which findings and application of law, the said Court consequently discharged the Appellant and co-accused of the offences they were specifically charged with.

The position of the lower Court that the prosecution did not prove the charges and or elements of the charges it preferred against the Appellant and his co-accused was again reiterated in the judgment of the said Court prior to the invocation of the doctrine of recent possession when the said Court said: –
“Although the prosecution did not prove the elements of the offence charged, the evidence before the Court as adduced by the prosecution witnesses particularly the PW4 is positive and unequivocal. It is the position of the law that, 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 other than that for which he was expressly arraigned before the Court. See Section 179(2) of the Criminal Procedure Act. Under Section 15(1)(a) of the Robbery and Firearms Act (Special Provisions) Act (supra), the word stealing was interpreted in the interpretation Section and the word robbery was interpreted to mean stealing anything.”

In my considered view, the position which the Appellant has endeavoured to demonstrate in the instant appeal even though not concisely articulated, is that the lower Court having found the prosecution not to have established the essential elements of the offences for which he was charged, was wrong in law to have later on found him guilty of an offence to wit: robbery which is a constituent of the offence of armed robbery for which he was charged and prosecuted. This is particularly so, given his (Appellant’s) explanation regarding the items found in his vehicle.

It would also appear to be an incontrovertible position of the law that the offence of “robbery” is not only a lesser offence vis-a-vis the offence of armed robbery but that a Court can eminently convict an accused person charged with the offence of armed robbery with the said lesser offence of robbery or any other lesser offence created by the Robbery and Firearms (Special Provisions) Act (hereafter to be simply referred to as “Robbery Act”). One of such lesser offences is that of receiving created or punishable under Section 5 of the said Act.

The consideration of the propriety of a conviction for the offence of robbery, in a case of armed robbery by the Courts, is not new. In this regard, see the old case of OKOBI V. THE STATE (1984) All N.L.R 356, wherein the Supreme Court gave a very illuminating exposition on the matter. In dwelling on the said matter, Obaseki, J.S.C.; (as he then was) having earlier stated in his judgment that: –
“If the learned Justices of the Court of Appeal had directed their minds to the fact that Levy Nwonwu was the source of the violence that consummated (sic) the offence of robbery and that without that violence there is no case of robbery made out against the second accused person now appellant before us, they would have most certainly arrived at a different decision on his appeal. xxx”
proceeded to state further that: –
“xxx I have given very anxious consideration and thoughts to the submissions of counsel before us in this matter and I have come to the conclusion that the conviction of the appellant for the offence of robbery under the provisions of Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1970 cannot stand. This is so having regard to the definition and the elements constituting the offence of robbery under the Act which must be proved to secure a conviction for the offence.
Robbery is defined in Section Nine of the Act to mean “stealing anything, and immediately before or after the stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
Stealing is defined in the same Section nine to mean ‘to take or convert to one’s use or the use of any other person anything other than immovable property, with any of the following intents:
“(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx

(f) xxxx”
With the acquittal of Mr. Levy Nwonwu, the evidence of threat of violence or use of violence disappears from the quantum and body of evidence against the appellant. Similarly, the evidence of stealing disappears against the appellant.
xxxx
Stealing is no offence under the Robbery and Firearms (Special Provision) Act 1970, but even then, the evidence does not prove (the elements of) the offence of stealing.
xxxx
Decree 1979 Decree No. 105 of 1979 Section 1(c) Schedule 3, jurisdiction to try offences under the Robbery and Firearms (Special Provisions) Decree was conferred on the State High Court and by Section 239 and 250(b) and (c) of the Constitution of the Federal Republic 1979, the Criminal Procedure Law regulated and governed the trial of offences under the Decree. These sections read:
Section 239 of the 1979 Constitution provides
“xxx”
Section 250: Subject to the provisions of this Constitution –
“(b) xxxx”
Section 250(c) of the 1979 Constitution reads:
“xxxx”
It is to be observed that the Criminal Code, Laws of Lagos State contains robbery as one of the offences recognisable 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.
The question that therefore arises for determination as stated above is whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act 1970 entitles the 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.
It is my view that to enable the Court to utilise its powers under the Criminal Procedure Law to advantage, the offence should and must be charged under the two laws in the alternative.
The Court is not a prosecutor but an adjudicator and it borders on persecution for the Court to invoke its powers under a law under which the prosecutor decided not to proceed or prosecute. The jurisdiction being exercised by the High Court of the State in the trial of persons for offences under the Armed Robbery and Firearms (Special Provisions) Act is the jurisdiction conferred upon the High Court by the Robbery and Firearms (Special Provision) Act. Offences under the Act are Federal offences. As the Act gave no jurisdiction to convict of offences other than those set out in the Act, the High Court cannot by the application of Section 179(1) of the Criminal Procedure Law exercise the jurisdiction conferred by the Act to convict of an offence not under the Act.
In the instant appeal, however, there could be no conviction for the offence of robbery under the Criminal Code. Neither is the offence of stealing under the Criminal Code established. Stealing is the only lesser constituent offence of robbery in respect of which a conviction could be entered by virtue of Section 179(1) of the Criminal Procedure Law. Obtaining by false pretence is not a constituent offence, neither is cheating a constituent of offence robbery although they carry less penalties and punishment.
To appreciate the real force and effect of Section 179(1) and (2) of the Criminal Procedure Law, it is necessary to set out the provisions and I will set them out. They read:
“(1) In addition to the provision herein before specifically made whenever a Person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved, but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although 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 was not charged with it.”
xxx
The High Court of Lagos State cannot, in my view, proceed to convict the appellant who was charged and tried for an offence under the Robbery and Firearms (Special Provisions) Act under the Criminal Code of Lagos State because the Court found that it had committed no offence under the Robbery and Firearms (Special Provisions) Act.
As no offence under the Robbery and Firearms (Special Provisions) was proved, the High Court of Lagos State is not, in my view, entitled to apply the provisions of Section 179(1) of the Criminal Code Law to enter a conviction for an offence under the Criminal Code.
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 Law enables a conviction to be entered for a 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.
None of the subsections of Section 179 of the Criminal Procedure Law is applicable in the circumstances of this case to warrant the conviction of the appellant. I have also considered the provisions of Sections 169 of the Criminal Procedure Law of Lagos State 1973 and find that none of them enables any conviction for an offence under the Criminal Code to be entered against the appellant. 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. xxx”
Nnamani, J.S.C.; in the same case stated thus: –
“xxxx It seems to me too that since the appellant and one Levi Nwonwu had been discharged and acquitted on count one which charged them of conspiracy to commit the offence of robbery and Levi Nwonwu had been discharged and acquitted also in respect of count two – i.e. robbery – there is no way the appellant could be guilty of robbery. By the facts as fully stated by my learned brother he was not guilty of robbery. It was indeed the first accused, Levi Nwonwu, who on the findings of the learned trial judge used violence to prevent P.W.1, P.W.4 and P.W.6 from going out of the appellant’s office to retrieve the N100,000 now missing.
If anything the facts appear to disclose the offence by the appellant of obtaining by false pretences contrary to Section 419 of the Criminal Code but he was never charged with that offence.
It was indeed the question whether the appellant could be convicted of this or any other lesser offence to robbery with violence (under the Robbery and Firearms (Special Provisions) Act 1970) that engaged the attention of this Court. I have also come to the conclusion reluctantly that he cannot. The issues canvassed having been fully dealt with by my learned brother, I would merely agree that the Robbery and Firearms (Special Provisions) Act 1970 contains no express provisions allowing the Court to convict of a lesser offence to robbery; that having regard to the Constitution of the Federal Republic of Nigeria (Consequential Repeals) Act No. 105 of 1979 Schedule 3 Section 1(c) (which made offences under the Robbery and Firearms Special Provisions Act 1970 triable in the High Court of a State) and Section 18 of the Robbery and Firearms Tribunal Procedure) Rules 1975 L.N.56 of 1975, the Criminal Procedure Law of the State (in this case Lagos State) applies to such trials; that Section 179(1) of the Criminal Procedure Law, Cap.32 of Lagos State under which conviction for a lesser offence can in some circumstances be obtained postulates that the lesser offence must be under the Act or Law under which the main offence is charged. In other words, one cannot convict of the lesser offence of obtaining by false pretences under the Criminal Code in respect of a main offence charged under the Robbery and Firearms Special Provisions Act. In any case obtaining by false pretences is not a constituent element of robbery under the Robbery and Firearms Special Provisions Act. xxx”
The case of NWACHUKWU V. STATE (1986) LPELR-2085(SC) is another case in which the Supreme Court gave an incisive exposition of the law in respect of conviction for “lesser offence”. Therein Karibi-Whyte, J.S.C.; said: –
“xxxx I have already set out the facts relied upon by the Court of Appeal earlier in this judgment. I shall now set out the provisions of Section 179 of the Criminal Procedure Act, and the relevant parts of Sections 1 and 9 of Robbery and Firearms (Special Provisions) Decree No.47 of 1970 as amended which are as follows –
Robbery and Firearms (Special Provisions) Decree No.47 of 1970
“Section 1(1) Any person who commits the offence of robbery shall upon trial and conviction under this Decree be sentenced to imprisonment for not less than twenty-one years.
(2) If –
(a) any offender mentioned in sub-section (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds any person, the offender shall upon conviction under this Decree be sentenced to death.”
Section 9 which is the definition section defines inter alia ‘firearms”, “offensive weapon”, “robbery’.
“firearms” includes any canon, gun, rifle, carbine, machine-gun, cap gun, flintlock gun, revolver, pistol or other firearm, whether whole or in detached pieces; “offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon, but does not include a firearm;
“robbery” means stealing anything, and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
Thus, the offence of robbery punishable under S.1(1) of the Decree is defined in Section 9 of the Decree.
Section 179 of the Criminal Procedure Act provides as follows –
(1) In addition to the provisions herein-before specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although 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 was not charged with it.”
A reading together of Sections 1 and 9 of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by Decree No. 8 of 1974 clearly … show that where a person takes away anything from another permanently and with intent to do so, and forcibly, using threat or actual violence at the time of such taking, or using such threat or actual violence to retain or prevent or overcome resistance to the taking of or retention of the thing so taken, the offence of robbery under Section 1(1) of the Decree has been committed and is punishable with imprisonment for twenty-one years. This seems to be the lesser of the aggravated offence of the same kind of offence provided for under Section 1(2)(a)(b) cf (sic) the same decree. The circumstances of aggravation results from the introduction of ‘fire-arms” or “any offensive weapon” by the accused, or merely being in company of a person so armed; or where the accused “immediately before” or immediately after the time of robbery wounds any person. In each case, whether in S.1(1)(2) robbery as defined in Section 9 of the Decree is an essential ingredient of the offence. It follows that where robbery simpliciter is committed, unaccompanied by the use of firearms as defined under Section 9, this is the lesser of the aggravated offence under Section 1(2)(a) of the Decree. I think the analysis of Nnaemeka Agu, J.C.A. of the constituent ingredient of the offences is right and unassailable. Counsel has not sought to contend otherwise.
It is necessary therefore to consider whether on the facts as stated the Court of Appeal exercising the powers under Section 179 of the Criminal Procedure Act, was entitled to convict appellant who was charged under Section 1(2)(a) under the lesser offence under Section 1(1).
Section 179 of the Criminal Procedure Act has been drafted with admirable clarity. There appears to be no aspect of the section or any of the sub-sections which is ambiguous. For instance subsection (1) which speaks of persons charged with an offence consisting of several particulars, provides for the possibility of only a combination of some of these particulars constituting a lesser offence in respect of which the accused was not charged. It goes on to provide that a conviction can lie in respect of such lesser offence either on a trial of the offence charged or by the accused pleading guilty to such lesser offence, although he was not charged with it. – See The Queen v. Nwaugoagwu (1962) 1 All N.L.R. 294.
Sub-section (2) is simpler, although the differences are marginal. Like subsection (1), the lesser offence is part of the greater offence charged, but unlike subsection (1) the greater offence charged does not have to consist of several particulars, a combination only of which constitute the lesser offence. In this case the facts produced merely reduce the offence charged to a lesser offence. Also in this case there is no requirement that the accused so convicted should have been charged with this lesser offence – See Shosimbo v. The State (1974) 10 S.C. 1.
The points of law raised before us in this appeal by Otunba Ajayi Okunnuga is not without precedents in our Court. In Akwule & Ors v. The Queen (1963) 1 All N.L.R. 193, the provision of S.218 of the Criminal Procedure Code, in pari materia with Section 179 in issue was relied upon to substitute the offence under S.312 for the offence of Criminal breach of trust under S.315. The contention of appellant was that 1st appellant not being a Banker the charge laid under Section 315 was a nullity. He was however guilty of the lesser offence under S.312 of criminal breach of trust.
Again in Agumadu v. The Queen (1963) 1 All N.L.R. 203 followed in Okwuwa v. State (1964) 1 All N.L.R. 366 the appellant was charged with the offence of attempted murder under S. 320(1) of the Criminal Code, the evidence before the Court disclosed that appellant wounded the victim, but there was no evidence of intention to kill. In convicting appellant of unlawful wounding, Bren F.J, said;
“A person convicted under S. 300 of the Criminal Code is liable to imprisonment for life, whereas a person convicted under S. 338 is liable at most to imprisonment for three years, and the offence under S. 338 is manifestly a lesser offence.”
I have stated above the two circumstances where Section 179 will be applicable. In Torhamba v. Police (1956) N.R.N.L.R. at p.94, the Court had attempted to give a guide as to the determination of what constitutes a 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 particulars making up the lesser offence of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen (1953) 2 W.L.R.965; (1953) AC. 407.”
xxxxx
It must be kept constantly in mind that S. 179 in issue in this appeal is concerned where the lesser charge 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 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 –
First, 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 includes by necessary implication the lesser. In the appeal before us, the only ingredient in the charge which promoted the offence from one of robbery simpliciter under S.1(1) to aggravated robbery under S.1(2) (a) was the interpretation given to the effect of the toy-gun by the learned trial judge. This having been rejected, and correctly too, by the Court of Appeal, the fact of taking away the bag of money with threat of violence which is sufficient for robbery under S.1(1) was established.
I now turn to the contention that Section 179 which provides that an accused person could be convicted of an offence with which he was not formally charged if it was a lesser offence of an aggravated offence in respect of which he was charged is a denial of his right to fair hearing and accordingly unconstitutional and to that extent void.
xxx
Section 179 in both sub-sections clearly in the expression ‘although he was not charged with it exclude the requirement of a formal charge or of asking the appellant/accused convicted of a lesser offence than that charged to say something before the conviction’. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested. Above all, the lesser offence being implicit in the greater offence accused and in this appeal appellant, cannot feign ignorance of the offence. xxx.”
In the same case, Oputa, J.S.C.; stated thus: –
“xxxx That section stipulates:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“S.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.”
In the trial Court, the appellant and two others were charged on an information with robbery punishable under Section 1(2)(a) of the Robbery and Firearms Special Provisions) Act No. 47 of 1970 as amended.
Robbery is a blanket expression, a genus with so many species. Some species of robbery carry very heavy penalties but in any species the essential constituents of robbery will nevertheless exist. Those essential ingredients form the common foundation of all robberies and the seriousness of each species is reflected by the punishment assigned – the more serious the robbery, the heavier the penalty but still in essentials they are all robberies. Thus the Robbery And Firearms (Special Provisions) Act No. 47 of 1970 in its Section 1(1) provides and stipulates imprisonment for not less than 21 years for ordinary robbery. But if the offender who committed a robbery as defined in sub-section (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, the offender shall upon conviction under this (Decree) now Act be sentenced to death.
In the case now on appeal, the appellant and two others were charged under Section 1(2) (a) of Act No. 47 of 1970 as amended. The trial Court discharged and acquitted his two companions but found the appellant guilty. On appeal, the issue was not whether there was a robbery. No, that was not the issue. Rather the issue was whether or not a toy-gun (which according to the evidence was what the appellant used) could be designated offensive weapon. The Court of Appeal per Nnaemeka-Agu, J.C.A. answered the question, rightly in my view, in the negative. The net result was that the Court of Appeal, on the evidence, found that the appellant committed the offence of robbery as defined in Section 1(1) of Act No. 47 of 1970 as amended but found also that he was not armed with any firearms or offensive weapon as defined in Section 9 of the Act. With the above finding, it naturally follows that the appellant should be convicted of the simple but lesser offence of robbery amply disclosed by the evidence. The only difference between an offence punishable under Section 1(1) and Section 1(2) of the Robbery and Firearms (Special Provisions) Act of 1970 as amended is just the element of aggravation. Thus the offence with which the appellant was charged and tried in the High Court was robbery with an element of aggravation. The Court of Appeal still found him guilty of robbery minus the aggravation and sentenced him accordingly.
This Court has sanctioned and affirmed convictions for lesser offences where Section 179(2) was applicable: see xxxx”
Given the exposition of the law as re-produced in the cases cited above, I cannot but say that it is clear that the offence of robbery simpliciter as created under the Robbery Act, (in contradistinction to the offence of stealing as created under the Criminal Code Act or Criminal Code Laws of various States in Southern Nigeria), is not only a lesser offence in a charge of armed robbery under the said Robbery Act, but that the establishment of the commission of the offence of robbery simpliciter, by an accused person charged with the offence of armed robbery under the Robbery Act, is sine qua non to sustain a conviction for the offence of armed robbery and a fortiori, a conviction for the offence of robbery itself. Suffice, it to say that the lower Court in my considered view, would appear to have misapprehended the interwoven nature of the elements or ingredients of the offence of armed robbery and which have been set out hereinbefore in this judgment, vis-a-vis the offence of robbery, for it to have first held: –
“Consequently, the accused persons are discharged of the offences of armed robbery in counts II, III, IV, V and VI of the information”
and later that: –
“Although the prosecution did not prove the elements of the offence charged, the evidence before the Court as adduced by the prosecution witnesses particularly the PW4 is positive and unequivocal. It is the position of the law that, 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 other than that for which he was expressly arraigned before the Court. See Section 179(2) of the Criminal Procedure Act. Under Section 15(1)(a) of the Robbery and Firearms Act (Special Provisions) Act (supra), the word stealing was interpreted in the interpretation Section and the word robbery was interpreted to mean stealing anything.”
and to have thereafter found the Appellant guilty of the offence of robbery under the Robbery Act. The lower Court in later finding the Appellant guilty for the offence of robbery, by invoking the doctrine of recent possession, in my considered view would appear not to have appreciated that it was talking different things from both sides of the mouth in the same judgment and that this rendered its finding in respect of the offence of robbery to be inconsistent with its earlier findings in respect of the elements of the offences of armed robbery which the prosecution was in law to prove beyond reasonable doubt, in relation to the Appellant. The position of the law is that a trial Judge who is an umpire in a criminal trial cannot approbate and reprobate. See the case of SANNI V. STATE [1993] 4 NWLR (Pt. 285) 99. Indeed, the impression one gets in reading the judgment of the learned trial Judge is that he is of the view that the law is to the effect that where a trial Court is unable to convict an accused of the serious charge with which he is charged, it can routinely, so to say, convict the accused of a lesser offence and in this regard relied on the case of GBADAMOSI V. STATE (1991) 6 NWLR (Pt. 196) 182 at 194. This position, in the case of SANNI V. STATE (supra), I cannot but say, has been held to be plainly erroneous. This is because it is not the law that failure of the prosecution to establish the specific offence with which an accused stood trial, empowers the trial Court to willy-nilly convict for a lesser offence. Furthermore, I cannot but say that the reliance placed by the lower Court on the case of GBADAMOSI V. STATE [1991] 6 NWLR (Pt. 196) 182, a decision of this Court, shows that the said lower Court was unaware of the position of the Supreme Court in the appeal to it, in the said case. The decision of the Supreme Court in the said case is reported as GBADAMOSI AND ANOTHER V. THE STATE [1992] 3 NSCC 439, (1992) LPELR-1313(SC). Therein, the Supreme Court dwelling on the doctrine of recent possession and circumstantial evidence per Kutigi, J.S.C.; (as he then was) stated that: –
“With the view I hold of Exhibits H and J, the question that now arises is: without these two statements was there sufficient evidence to justify the conviction of the appellants for the offence of robbery with violence contrary to Section 402(2)(a) of the Criminal Code of Lagos State? From the evidence of P.W.1, P.W.3 and P.W.6. Sergeant Ekokoje the following facts emerge. A Mercedes-benz saloon car was snatched from the P.W.1 at Anthony Village, Lagos at about 6.30am. on 11/9/81 and found about 9 to 9.30 a.m. at Ajara Village, Badagry, some distance away from Lagos. The two appellants, among others, were with the vehicle when it was seen at Ajara village.
Ordinarily, one would say that there was no sufficient circumstantial evidence to link the appellants with those who snatched the vehicle from P.W.1 earlier that morning, but there is Section 167(a) (formerly 149(a) of the Evidence Act) to consider.
Section 149(a) provides as follows: “149. The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case, and in particular the Court may presume-
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
xxxxx
Generally, the doctrine of recent possession is applicable more to cases of stealing. Robbery with violence obviously has an element of stealing as this is a case of stealing with violence or threat of violence. One has to look more into the facts. xxxxx
Coming now to the appellants, apart from the evidence that they were found with the stolen vehicle a few hours after the theft, there was no evidence that they were among the persons that snatched the car from PW1. PW1 said in evidence that he could not recognise any of the people who attacked him that morning. It is in evidence that none of the people, including the appellants, arrested at Ajara Village, Badagry was found with arms. Could it then be said that mere finding the appellants with the vehicle a few hours after the theft without more would be sufficient evidence to link the appellants with the robbery of Anthony Village, Lagos? Is it not possible that the actual robbers somewhere between Anthony Village Lagos and Ajara Village, Badagry, after snatching the vehicle, gave the same to the appellants, amongst others, to dispose of, which would make them to be receivers of the vehicle knowing same to be stolen? It must be remembered that it is the duty of the prosecution to prove its case beyond all reasonable doubt. And for circumstantial evidence to be sufficient to justify a conviction it must irresistibly and unequivocally point to one direction only and that is, that the appellants were among those who robbed P.W. 1 of the Mercedes Benz car. It Is the law that circumstantial evidence must be so cogent and compelling as to lead to only one rational conclusion which Is the offence with which the accused is charged: Abieke v. The State (1975) 9-11 S.C. 97. As Nnamani, J.S.C., put it at pages 23-24 of the Report in Omogodo v. The State (supra)
“…It seems to me quite inconceivable that an inference of guilt can be drawn from that fact alone. It falls far short of the standard required of circumstantial evidence which is that it must lead irresistibly to the guilt of the accused person. The evidence to be acceptable must be consistent with the prisoner’s guilt and inconsistent with any other rational conclusion. It is also necessary before drawing the inference of accused’s guilt to be sure that there are no other co-existing circumstances which would weaken such inference. xxx”
In my respectful view, I do not think that the evidence available in this case was sufficient to meet the required standard nor to justify applying Section 149(a) in such a way as to make the appellants guilty of robbery with violence. xxx
The learned trial judge accepted the evidence of P.W.6. That evidence taken along with the evidence that a few hours earlier the vehicle in question had been stolen from P.W.1, it could safely be inferred that the 1st appellant received the vehicle knowing same to be stolen and could rightly be convicted accordingly. He denied, in his evidence on oath, being found with the vehicle. The trial judge rejected his evidence. That evidence also ran counter to the account he gave in his other statements to the police which statements were admitted in evidence without objection. In my view, the learned trial judge was justified in rejecting 1st appellants evidence at the trial. He has, therefore, not accounted for his possession of the vehicle. Suffice it to say that on the evidence of PW6, I cannot say the same of the 2nd appellant.
The charge for conspiracy was held proved by the Courts below on the statements, Exhibits H and J of the 1st and 2nd appellants respectively. In view of what I have said in respect of those two statements, I hold that the Court below was in error to have convicted them on the charge of conspiracy. Merely being seen together with the stolen vehicle without more would not be sufficient evidence of conspiracy to rob.
In conclusion, from all I have been saying, I allow the appeal of the 2nd appellant and discharge and acquit him on each of the two counts of conspiracy and robbery. I also allow the appeal of the 1st appellant on the charge for conspiracy but pursuant to Section 179(2) of the Criminal Procedure Law Cap. 32 Laws of Lagos State, I convict him of the offence of receiving stolen property to wit: Mercedes-Benz saloon car Registration No.CA 6768 K knowing same to be stolen contrary to Section 427 of the Criminal Code of Lagos State. I sentence him to ten (10) years imprisonment with hard labour on that count.”
Indeed, the more I read the judgment of the lower Court; (and aside from the inconsistency in its findings in respect of the elements or ingredients of the offence of armed robbery and robbery respectively), the more I am of the view that the said Court simply based its invocation of the doctrine of recent possession in the instant case on the principle of stealing per se and not robbery and that the lower Court did this, without considering the reasonableness (in contradistinction to the truth) of the explanation of the Appellant as to how the items recovered from his (Appellant’s) vehicle including Exhibits ‘A’ and ‘B’ got there, and that this was clearly responsible for the conclusion of the lower Court that the Appellant gave no reasonable explanation for his possession of the said items. If it was not the case, I do not see how the explanation given by the Appellant (a transporter) that the items recovered from his vehicle were forgotten therein by one of the passengers that boarded his vehicle earlier that day could be said to be unreasonable when there was no evidence placed before the lower Court that the Appellant does not ordinarily engage in the carrying of fares. It is as if the lower Court was of the view that passengers have never been known to forget luggages in vehicles or even aircrafts at times. The fact of the arrest of the Appellant with goods suspected to have been stolen having regard to other facts before the lower Court was in my considered view not solely or irresistibly consistent with the participation of the Appellant in any robbery. Having regard to the manner in which the items were hidden from sight, the recovery of the said items including Exhibits ‘A’ and ‘B’ from the possession of the Appellant as the owner of the vehicle in which the items were found, is also consistent with the theft of the said goods by the Appellant after he had discovered them as items forgotten by a passenger.

In other words, the circumstances created by the mere finding of stolen items in the Appellant’s vehicle might be that the Appellant having found a bag containing valuables forgotten by a passenger, decided to steal the same and thereafter hid the same from sight. Lastly, the recovery of the items including Exhibits ‘A’ and ‘B’ from the possession of the Appellant being the owner of the vehicle in which they were found, could easily have irresistibly led to the inference that the Appellant was a receiver of the items contrary to Section 5 of the Robbery Act and which provision in my view does not require proof of lack of scienter as to how the items came to be in his possession. Unfortunately, this inference cannot now be made as the lower Court in its judgment clearly found the prosecution not to have proved beyond necessary doubt any of the element or ingredients of the offence of armed robbery (and there is no appeal against this finding by the prosecution) and which as earlier stated include the offence of robbery.

Flowing from all that has been said, is that the issue formulated by the Court for the determination of the instant appeal to wit: “whether the decision of the lower Court that is based on the application of the doctrine of recent possession can be sustained having regard to the findings of facts and conclusion of law initially made by the lower Court prior to the invocation of the said doctrine of recent possession” is resolved against the Respondent and in favour of the Appellant.

In the final analysis, there is merit in the instant appeal and it succeeds. Accordingly, the appeal is allowed and the judgment of the lower Court convicting the Appellant – BLESSING ONOKPE for the offence of robbery contrary to Section 1 of the Robbery and Firearms (Special Provisions) Act, is set aside. The Appellant – BLESSING ONOKPE is hereby acquitted and discharged in respect of all the counts contained in the Information preferred against him. in the instant case.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree entirely with my Lord AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., in the lead that the trial Court missed the point with respect, when he routinely found the Appellant guilty of the offence of Robbery on the supposition that the want of evidence for armed robbery as the offence charged, brought into focus and existence the reality of the offence of robbery perse and as a lesser offence, for which a Court may convict on the principle under S. 179 (2) of the Criminal Procedure Act.
That stealing is subsumed in robbery as one of its ingredients does not make the offence of “robbery” proved, as a lesser offence; since the inference of theft could not have been validly made in the circumstances of the evidence led at the trial. Even if theft could be inferred” (which is not conceded), I do not see from the evidence how it was such that constituted the offence of robbery, which entails stealing with violence. The permissible lesser offence theory is inapplicable herein, as the ingredient of robbery had been found to be non-existent.
The case of Gbadamosi & Anor vs. The State (1992) NSCC 439; (1992) LPELR 1313 (SC) cited by my Lord in the Lead is apt and applicable in the instant case.
My Lord has impressively proffered the possible inferences that could be drawn from the discovery of the goods in the said commercial vehicle driven by the Appellant, warranting the quashing of the conviction for want of proof of the charges beyond reasonable doubt.
Appeal is allowed as in the Lead Judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., and I am in agreement with the Judgment.
I too join my learned brother in allowing this appeal and judgment of lower Court is set aside.
I also abide by all consequential orders made therein.

Appearances:

John Smart For Appellant(s)

E.E. Erebe (Asst. Director, Appeals, Delta State) with M. U. Dibia (Asst. Chief State Counsel) and O. Eyesio (Senior State Counsel)For Respondent(s)