KAMALU v. STATE
(2022)LCN/16978CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/186C/2019
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
PRECIOUS KAMALU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW WHEN A COURT IS CONVICTING FOR A LESSER OFFENCE
The law is elementary that when a Court is convicting for a lesser offence, it is imperative that the particulars of the lesser offence must relate to, and be carved out from the substantive or primary offence. SALIU V. STATE (2018) LPELR- 44064 (SC).
Decidedly, when the Court is convicting the accused for a lesser offence, it behoves on the Court to write out the particulars of the offence charged, and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it purposes to convict. DANJUMA V. STATE (2019) LPELR – 47037 (S.C). PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Imo State, holden in Owerri Judicial Division, delivered on the 29th of March, 2018, wherein the Appellant was convicted for the offence of obtaining/Receiving a stolen Toyota Corolla vehicle, an offence punishable under Section 427 of the Criminal Code, and sentenced to 10 years imprisonment without the option of fine.
STATEMENT OF FACTS:
On the 25th day of May, 2010, at about 1 pm, one George Isiedu lodged a Report at the Commissioner of Police Office Owerri, that at about 8.30 am, three of their oil workers namely: Julius Ezedigbo, Nicholas Otolo and Gilbert Amadi, a driver, were driving their official car, a Toyota Corolla with Registration No AG88 3GU Lagos.
They were on their way to work. At a point along Egbeada Adapalm Ohaji Road, the workers were double crossed by unknown armed men in a vehicle, who robbed them of the vehicle “Three of the oil workers were taken hostage and held at an unknown destination.”
On the 25th of May 2010, a Joint Military Patrol Team, while on duty at Okigwe, spotted the vehicle driven by one Nicholas Chukwu Igwe in company of one Precious Kamalu, the Appellant, who is a serving Police Officer in his full Police Uniform.
The Appellant was arrested by the Military Joint Task Force. The other person was also arrested. They were subsequently handed over to the police for further investigation.
As investigation was ongoing, the company where the victim worked viz Water Smith Oil Patro Men’s Company located at Ohaji-Egbema, fearing for the lives of their three workers, coupled with the incessant threats by the kidnappers, paid a ransom of ten million naira to secure their release.
However, while bringing out the three victim using a Jetta Volkswagen Salon car, the abductors ran into an Armed Patrol Team of Security Operatives. In the process, they abandoned the Jetta Salon car. The second Accused person was arrested inside the vehicle, while others escaped.
After police investigation, the Appellant and two others were charged to Court for the offence of HOSTAGE TAKING. At the trial Court, the Prosecution called two witnesses and closed its case.
The Appellant gave evidence in his defence and called no witness.
On the 29th of March, 2018, the Court below convicted the Appellant and the 1st accused person with the offence of receiving robbed property contrary to Section 427 of the Criminal Code.
The Appellant desirous of appealing the judgment, and pursuant to the Practice Direction of this Honourable Court, filed a Notice of Appeal on the 27th of June, 2018, with four (4) Grounds of Appeal – pages 161 – 164 of the Record of Appeal.
The Appellant filed an amended Appellant’s brief on the 1st of February, 2022, but was deemed filed on the 10th of February, 2022. It was settled by C.C. Odo Michael, Esq.
The Respondent’s brief was filed on the 25th of September, 2020, and was deemed filed on the 28th of September, 2020. Further deemed filed on the 10th of February, 2022, it is settled by V. E. Ekemgba (Mrs.) Chief State Counsel Ministry of Justice Owerri, Imo State. A Reply brief was filed by the Appellant on the 1st of February, 2022, but same was deemed filed on the 10th February, 2022.
On the 10th day of February, 2022, the parties adopted their respective briefs of argument.
The Appellants proffered three (3) issues for determination from the Grounds of Appeal which are:
“1. Whether the trial Court was right when it found the Appellant guilty of the offence of obtaining/receiving stolen Toyota Corolla under Section 427 of the Criminal Code and sentenced the Appellant to 10 years imprisonment (distilled from grounds 1 and 2 of the Notice of Appeal).
2. Whether the trial Court was right in sentencing the Appellant to 10 years imprisonment, and also holding that the sentence was to commence from the date of its judgment and not the date of arrest and detention of the appellant (distilled from ground 3 of the Notice of Appeal.
3. Whether the decision of the trial Court can be supported having regard to the weight of evidence (distilled from ground 4 of the Notice of Appeal).
The Respondents proffered three (3) issues for determination from the Grounds of Appeal which are:
ISSUE NO. ONE:
“Whether the learned trial Judge was right in finding the Appellant guilty of the offence of obtaining/receiving stolen Toyota Corolla contrary to Section 427 of the Criminal Code Cap 30 Vol. 11 Laws of the Eastern Nigeria 1963 as Applicable to Imo State (Distilled from Ground one of the Grounds of Appeal).
ISSUE NO. TWO:
Whether the prosecution proved the ingredients of offence of receiving stolen property contrary to Section 427 of the Criminal Code beyond reasonable doubt against the Appellant (Distilled from Grounds 2 and 4).
ISSUE NO. THREE:
Whether the sentence of ten years imprisonment with hard labour and no option of fine imposed on the appellant is excessive in view of the circumstance of the case (distilled from grounds 3).
The Respondent seems to adopt the issues for determination distilled by the Appellant, and I shall consider this Appeal based on the Appellant’s issues for determination.
Issue No 1:
Submits that the Court below was wrong to have convicted the Appellant for an offence with which he was not charged. That the evidence adduced by the prosecution focused mainly on the Charge of hostage taking. That the Appellant was convicted of receiving stolen property without evidence to support same. That the Appellant should have been discharged and acquitted citing SHEKETE V. NAF (2000) 16 WRN 56 (AT 69).
That it is the duty of the prosecution to prove the guilt of the appellant beyond reasonable doubt. Citing STATE V. NNOLIM (1994) 5 NWLR (Pt. 345); OMOGODO V. STATE (1981) 5 (S.C)
Submits that the Appellant was only a passenger. That the Appellant gave sufficient explanation on how he came in contact with the 1st Accused person who was the driver and in control of the said Toyota vehicle REG NO. EDO DK 625 BEN, which was recovered by the police.
That the prosecution failed to prove the elements of the offence of hostage taking charge against the Appellant under the Imo State Hostage Taking and Prohibition Law No. 4, 2009.
He argues that for a Court to convict under the Provisions of Section 179 CPL, the lesser offence convicted of must be of the same particulars of the offence originally charged.
That the offence of receiving under Section 427 of the Criminal Code does not form part of the particulars of the offence of hostage taking originally charged. That there was no oral or documentary evidence put forward or supplied by the Respondent or the Respondent’s witness to warrant the decision arrived at by the Court below. He urges the Court to discharge and acquit the Appellant as the prosecution failed to discharge the onus placed on him by law.
It is the Respondent’s submission that the Appellant had during the investigation of the matter, admitted being in possession of the Toyota Corolla car that was robbed, in company of one Nicholas Chukwu Igwe (the 1st accused) – pages 35 – 36 of the Record of Appeal. According to the Appellant, he was dressed in his full mobile police uniform. Refers to Exhibit “C”. That his admission is consistent with the earlier statement of 1st accused dated the 7/5/2010 – Exhibit “D” – page 45 of the Record of Appeal.
That PW1 testified that when the joint Military Patrol Team accosted the vehicle being driven by the 1st accused person in company of the 3rd accused person, the Appellant abandoned the vehicle and ran inside the bush – pages 71 – 72 of the Record.
Submits that though the Appellant and others were charged with the offence of Hostage taking, there is sufficient evidence led in the cause of the trial that the Appellant was in possession of a Toyota Corolla car that was stolen – pages 30, 31, 34 and 39 of the Record of Appeal (statement of Appellant dated 26/5/2010, 27/5/2010, 5/7/2010). That Exhibits “A” and “B” were tendered at the trial Court without objection – pages 34 – 39 of the Record of Appeal. That in both extra judicial statements, the Appellant admitted to the police of being in possession of the said Toyota Corolla vehicle knowing same to have been robbed. He cites ISIBOR V. STATE (2002) 9 NSCQR 248. At 263 – 264 (on recent possession of stolen goods)
That the Court below was right to have convicted the Appellant for being in possession of the vehicle recently stolen under the Provisions of Section 427 of the Criminal Code.
Submits that the prosecution proved all the ingredients of the offence as stipulated under Section 427 of the Criminal Code. Urges the Court not to interfere with the findings made by the Court below.
ISSUE NO. 2
The Appellant submits that the decision of the Court below in sentencing the Appellant to a term of 10 years imprisonment without an option of fine is perverse and unjustifiable. That the Court below did not consider the eight (8) years that the Appellant had spent in custody before sentencing him. That the sentence of ten years was excessive, because the Appellant had spent eight years in custody, and with the additional 10 years would make it 18 years. That this is excessive. That the maximum years of imprisonment under Section 427 of the Criminal Code is 14 years.
ISSUE NO. 3
The Appellant submits that the evidence of the prosecution did not sufficiently prove the commission of the offence of obtaining/receiving stolen goods by the Appellant. That therefore, the Court below convicted the Appellant in error, that the prosecution failed to prove the ingredients of the offence of obtaining/receiving stolen goods he was convicted of.
That by virtue of Section 427 of the Criminal Code, in establishing the case of receiving stolen property, the prosecution must prove the following ingredients viz;
(a) That the goods were stolen
(b) That the goods were found in the accused’s possession; and
(c) That the Appellant knew them to have been stolen.
That in the instant case, ingredients (b) and (c) were not proved beyond reasonable doubt by the prosecution.
Submits that the Appellant’s conviction was based on suspicion citing IAN HAZIETT MILLAR V. THE STATE AND ONAH V. STATE 1985 3 NWLR (Pt. 12) 236.
RESOLUTION:
ISSUE NO. 1
The bone of the Appellant’s appeal is hinged on the fact that the Court below erred in convicting him for receiving stolen property.
The law is elementary that when a Court is convicting for a lesser offence, it is imperative that the particulars of the lesser offence must relate to, and be carved out from the substantive or primary offence. SALIU V. STATE (2018) LPELR- 44064 (SC).
Decidedly, when the Court is convicting the accused for a lesser offence, it behoves on the Court to write out the particulars of the offence charged, and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it purposes to convict. DANJUMA V. STATE (2019) LPELR – 47037 (S.C).
It seems to me that the Court below erred, when in the face of it, the Appellant having been charged with the offence of hostage taking contrary to Section 4 of the Imo State Position of Hostage taking and Solvent Offences Law No. 0.4 of 2009, (An offence which smacks of kidnapping) it transgressed completely into an offence under the Criminal Code Law, to convict the Appellant.
A Court of law, cannot convict for an offence not charged or proved. In the present appeal, the Appellant was not charged with the offence of receiving stolen property. To convict and sentence him for such an offence of receiving stolen property was not proper and I so hold. This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2:
A cursory look at the sentence of the Court below, it seems to me that same is excessive. There is evidence that the Appellant had spent eight years in detention.
The offence for which he was convicted carries a maximum of fourteen years. It would be foolhardy to have sentenced him to 10 years imprisonment which would make him spend a total of eighteen years imprisonment, much more than the maximum years of imprisonment for the said offence.
I am of the view that the sentence is utterly excessive and should not have been made. I had held that the conviction for a lesser offence was erroneous. To consider this issue amounts to academic exercise and is indeed, an exercise in futility.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 3:
In view of my opinion, in respect of Issues 1 and 2, I do not consider it appropriate to consider this issue, as same would amount to embarking on an academic exercise. The Court below obviously shuts its eyes to the fact and issues inherent in this case and this made it arrive at an erroneous conclusion.
This issue is resolved in favour of the Appellant and against the Respondent.
The result is that the Appeal succeeds, and the judgment of the High Court of Imo State, Owerri judicial Division delivered on the 29th of March, 2018 in Charge No. HOW/70C/2011, wherein the Appellant was convicted for the offence of Obtaining/Receiving Stolen property and sentenced to 10 years imprisonment, without option of fine is hereby set aside.
Accordingly, Precious Kamalu is hereby discharged and acquitted.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in advance the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts leading to the appeal have been aptly set out.
I agree with my learned brother’s resolution of the settled issues and also allow this appeal; in consequence, discharging and acquitting the Appellant.
IBRAHIM WAKILI JAURO, J.C.A.: Having read in draft before now, the judgment of my learned brother RITA N. PEMU, JCA (presiding Justice), I fully subscribe to the reasoning and conclusions of his Lordship that the appeal is meritorious and therefore allowed. The judgment of the lower Court is set aside.
Appearances:
C.C. Odo Michael, Esq., with him, Chiebula O. Nwosu, Esq. For Appellant(s)
C.N. Akowundu, Esq., with him, G. Egwuagu, Esq., J.U. Iwuagwu, Esq. and V. E. Ekemgba, Esq. For Respondent(s)
