MUSA MUHAMMAD v. THE STATE (2015)

MUSA MUHAMMAD v. THE STATE

(2015)LCN/7755(CA)

In The Court of Appeal of Nigeria

On Thursday, the 29th day of January, 2015

CA/S/63C/2013

RATIO

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL DISTURB THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE

It is settled law that an appellate court will be cautious in disturbing the findings of facts made by the lower court unless the findings are not based on evidence or are perverse and have led to miscarriage of justice. See OMOMEJI & ORS V KOLAWOLE & ORS [2008] 14NWLR (PT 1106) 180; WOLUCHEM V GUDI & ORS (1981) SC. 519; UWAH & ANOT V AKPABIO & ANOR [2014] LPELR – 22311 (SC). per. TUNDE O. AWOTOYE, J.C.A.

APPEAL: WHETHER FINDING OF FACTS BY THE TRIAL JUDGE NOT CHALLENGED IN AN APEAL REMAINS BINDING AND CONCLUSIVE

COURT: POWER OF THE COURT; THE POWER OF THE COURT UNDER S.218 OF THE CRIMINAL PROCEDURE CODE TO CONVICT AN ACCUSED/APPELLANT OF A LESSER OR AN OFFENCE FOR WHICH HE WAS NEITHER CHARGED NOR PLEADED TO

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

M. L. SHUAIBU Justice of The Court of Appeal of Nigeria

Between

MUSA MUHAMMAD Appellant(s)

AND

THE STATE Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the accused/appellant incase No.ZAMS/GS//34C/2009 Musa Muhammad Vs The State, on 12/07/2012.

The Notice of Appeal filed by the appellant contains 4 grounds of appeal.

The grounds of appeal (excluding the particulars) read thus;
“GROUND 1
The decision of the trial court is manifestly unsupportable, unreasonable and unwarranted having regards to the evidence adduced at the trial.
GROUND 2
The learned trial Judge erred in law when he suo motu, raised the issue of attempted robbery as being committed by the Appellant and failed to invite the parties to address him on the same before convincing and sentencing the Appellant thereon.
GROUND 3
The learned Judge erred in law when after finding as a fact that the prosecution has failed to prove the offence of armed robbery as required by law, went ahead to convict and sentence the Appellant for the offence attempted robbery which he was never charged with.
GROUND 4
The learned trial Judge, having rejected Exhibit B (the cutlass) as there was no nexus between the Appellant and the cutlass, erred in law in imposing the sentence of life imprisonment on the Appellant.”

After the transmission of record of appeal which was deemed transmitted on 28/4/2014 each of the parties to this appeal filed their respective briefs of argument.

The appellant’s brief of argument was filed on 14/10/2014. The brief was settled by Pwahomdi Lasco Miwa, appellant’s solicitors.

The Respondent’s brief of argument was filed on 31/10/2014. It was settled by M.S. Suleiman Principal State Counsel, Zamfara State Ministry of Justice.

In the appellant’s brief of argument, learned appellant’s counsel formulated 3 issues for determination as follows: –
“1. Whether the prosecution proved a case of attempted robbery against the appellant beyond reasonable doubt? (covers ground 1 of grounds of appeal)
2. Whether the trial court compiled with the provisions of section 219 of the Criminal Procedure Code in the trial and conviction of the Appellant? (Distilled from grounds 2 and 3 of the grounds of appeal)
3. Whether from the circumstances of this case, the sentence of life imprisonment imposed on the Appellant was not excessive? (Covers ground 4 of the grounds of appeal)”

On issue No.1 learned counsel submitted that in order to sustain the conviction and sentence of the appellant of the offence of attempted robbery, the following ingredients must be proved beyond reasonable doubt.

i. Intention to commit armed robbery
ii. That the appellant was armed with dangerous weapon
iii. That the appellant exercised violence against his victim in the course of fulfilling his intention
iv. That the appellant exercised some overt acts to commit the robbery but was cut short as a result of a timely intervention. He relied on IDEN V THE STATE (1994) 8 NWLR (PT 365) 719 at 727-728 and some other cases

Learned appellant’s counsel submitted further that the act must be immediately connected with the commission of the particular offence charged and must be more than a preparation.
He cited OJIBO V COP (1976) ANLR 109 at 115.
Learned counsel submitted the learned trial Judge fell into error when he convicted the appellant of attempted robbery when no offence was disclosed by the injury inflicted on PW2.

He cited ADEOSUN V STATE [1975] 9-11 SC. 1 at 15 – 16

Learned appellant’s counsel further argued that the learned trial judge relied solely on exhibit C to convict the appellant of the offence of attempted robbery when there were many lingering doubts surrounding the case of the prosecution. He added that the learned trial Judge failed to apply the tests laid down in KANU V R 12 WACA 30 and DAWA V STATE (1980) 8 – 11 SC 236 before relying upon Exhibit C. he relied further on STATE V OLADETOUN (2011) 6SCM 217 and other cases.

He finally urged the court to allow the appeal as the conviction and sentence of the appellant were perverse.

Issue No.2: on this issue, Mr. Pwahomdi for the appellant contended that the conditions to be met for the court to convict for a lesser offence were not met hence the conviction of the appellant was contrary to law. He stated that the following conditions must be met.
a. The offence in respect of which the accused was subsequently convicted must contain words to include both offences.
b. The evidence had and facts found, though insufficient for conviction of the aggravated offence must support the conviction for the lesser offence.
c. It is in all cases not necessary to charge the accused with the lesser offence. He relied on EZEJA V STATE (2008) 50WRN 131 and other cases.

Learned counsel argued that neither the offence of armed robbery nor attempted robbery was proved against the appellant.
On issue No.3 learned counsel submitted that from the circumstances and facts of the case, the sentence imposed by the learned trial Judge was arbitrary and urged this court to reduce the sentence to a lesser term of imprisonment. He referred the court to the following cases.
i. LAWAL V STATE (2011) 25 WRN 138 at 160-161
ii. ADEJOBI V STATE [2007] 22WRN 156 at 187
iii. APAMADIRI V THE STATE (1997) 3NWLR [PT 439] 289

Learned counsel finally urged the court to hold as follows:
i. That the conviction and sentence on the lesser offence was illegal and set aside the said conviction and sentence.
ii. To alter the maximum mandatory life sentence to lesser term under section 2(1) of the Robbery and Firearms (special provisions) Act Cap. 398.

On the side of the Respondent, learned Respondent’s counsel adapted the three issues formulated by the appellant’s counsel.

He submitted, on issue No.1 that the prosecution had adduced cogent evidence to establish a prima facie case of attempted robbery against the appellant. He referred to the evidence adduced by the prosecution. He submitted further that a court could convict on the confessional statement of an accused person once it was satisfied as to its truth and voluntariness. He relied on HARUNA V AGF (2012) 5SCM 176 at 182. He contended further that a court can convict on the retracted confessional statement where it was direct positive and unequivocal as to the accused’s guilt. He relied on LASISI V STATE [2013] 6SCM pg 97 at 100-101 and other cases. He therefore submitted that the learned trial Judge was right to have convicted the appellant of attempted robbery.

On issue No.2 learned Respondent counsel referred to the evidence of PW2 and PW4 adjudged by the lower court to be truthful witnesses and submitted that the learned trial Judge rightly convicted the appellant as all the necessary elements that constitute attempted robbery under section 2(2) of the Robbery and Firearms (special provisions) Act were proved.

He urged the court to therefore resolve issue No.2 in favour of the Respondent.

On issue No.3 learned Respondent’s counsel submitted that the imprisonment of life imposed on the appellant by learned trial judge was not excessive but in line with the provisions of section 2(2b) of the Robbery and Firearms (Special Provision) Act.

He finally urged the court to affirm the decision of the court below and dismiss the appeal.

I have carefully considered the contents of the record of appeal and briefs of argument filed by both parties to this appeal.
I need to first sift the settled facts on which the appeal will turn aside from other things that will not be useful in this appeal.

Now there are findings of facts made by the learned trial Judge which have not been challenged in this appeal. It must be noted that findings of facts against which there is no appeal remains binding and conclusive. See ALAHIJA V ABDULLAHI [1998] 6NWLR (PT 55) 1 at 24; ODIASE V AGHO (1972) ALL NLR PT. 175; NWABUEZE V OKOYE (2002) 10 WRN 123.
On pages 53 – 55 of record of appeal, the learned trial judge accepted the evidence of PW1, PW2 and PW4 as true after seeing them gave evidence in the witness box. The learned trial Judge after seeing the appellant gave evidence also disbelieved him. On page 54 of the record, the learned trial Judge said.

“ASP Bala Elkanas evidence was that he recorded exhibit X the accused extra Judicial statement while the accused who testified as DW1 denied making some of the statements contained therein. I have seen both PW4 and the accused testified before me and I preferred and accepted the evidence of PW4. He was truthful and unshaken in his evidence I believe his testimony as truthful. I disbelieve the accused’s testimony denying making same of the statements in Exhibit C. he strikes me as untruthful and only laboring under ground design to unload liability from his neck.”

Having not challenged the above findings of fact on the ground of being perverse, it is difficult to understand how any argument on retraction of the confessional statement, Exhibit C can stand in this appeal. His retraction was not believed by the learned trial Judge who saw him when he gave evidence.

The learned trial Judge also found the confessional statement to be consistent with other established facts including the credible evidence of PW1, PW2 and PW4. Surely this finding of fact by the learned trial Judge cannot be disturbed by me on appeal. It is right at this juncture for clarity’s sake to refer to the confessional statement of the appellant. It reads thus:
“I am a native of Birnin Tsaba Village Zurmi L.G.A. married and blessed with eight children. I attended National Teacher’s Institute Distance learning programme at Government Arabic Secondary School Zurmi where I obtained a National Certificate in Education in English Social Studies. I am the Headmaster of Mai Tsaba Primary School in Birnin Tsaba District, Zurmi Local Government area under the Universal Basic Education Board Zamfara State. The allegation of armed robbery and causing grievous hurt made against me are true. I could remember on 06/06/2008 at about 2:00 his I boarded a commercial Motorcycle from Central Motor park Gusau to Unguwar Yerima with the intention of robbing him of the said Motorcycle. After I alighted from the motorcycle I gave the cyclist N50 and while he was about to keep the money I used cutlass and inflicted deep cuts on his head and left ear on while he screamed thereby attracting people from the neighborhood who assisted in effecting my arrest while I was trying to escape. My intention is to take the said Motorcycle and locate a proper buyer, but I don’t have any buyer in mind because this is my first time of committing the said crime. I collected three different loans from Local government education authority, Dauran AOC which I am servicing every month on which I am left with less than two thousand Naira (N2,000.00) every month. It was out of frustration that I got myself in this crime that is all know”

I have deeply considered the issues formulated by counsel by both parties. I am of the respectful view that the issues can be condensed into one issue for the determination of this appeal to wit.

Were the conviction and sentence of the appellant lawful and right in view of the evidence adduced before the learned trial Judge.

I shall proceed to determine this appeal in the light of the above sole issue.

I have earlier stated that the finding of fact of the learned trial judge on the retraction of Exhibit C, the confessional statement of the appellant was unimpeachable. I need to further add that the learned trial judge was right to have acted on Exhibit C, in spite of its retraction. See MOHAMMED V STATE 2014 LPELR – 2291 (SC); HARUNA V AGF (2012) 3SC. (PT) 40.

What remains to be considered is whether the accepted facts justify the conviction of the appellant for a lesser offence.

Musdapher JSC (as he then was) in THE NIGERIAN AIR FORCE V KAMALDEEN (2007) 3SC (PT II) 131 had this to say on conviction of an accused for a lesser offence than the offence charged.
“It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence.”

It is pertinent at this stage to refer to original charge against the appellant as per page 4 of the record of appeal.
The charge reads:
“That you Musa Muhammad ‘m’ on or about the 6th day of June, 2008 at about 23:00hrs along Unguwar Yarima area Gusau, within Gusau Judicial Division attacked one Ahmad Garba ‘m’ and robbed him of his motorcycle. You thereby committed an offence punishable under section 1(2) of the robbery and firearms Act Cap 398 LFN 2009.”

After the trial, the appellant was convicted by the learned trial Judge in the following terms;
“In the light of the foregoing (sic) the prosecution having not established are of the essential elements of robbery to wit, snatching of the motorcycle, the accused is entitled to an order of discharge. I accordingly discharge the accused of the offence of robbery. But by virtue of the power conferred on this court by section 219 of CPC Having been satisfied that the evidence adduced by the prosecution proved all the necessary elements that constituted the offence of attempted robbery punishable under section 2(2) of the Robbery and Firearms Act. I hereby find you Musa Mohammed guilty of the offence of attempted robbery punishable under section 2 (2) of the Robbery and Firearms (Special Provision) Act and convict you of that offence.”
Though it was wrong, with due respect to the learned trial Judge to have invoked his powers under s.219 of the CPC to convict. See ANTHONY OKOBI V THE STATE (1984) ALL NLR 356.

However, I do not have any difficulty in agreeing with the learned Respondent’s counsel that the learned trial Judge was right in law to have convicted and sentenced the appellant as he did, after further going through the provision of Section 2 (1 and 2) of the Robbery and Firearms (Special Provisions) Act.
The section reads thus;
“(1) Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threaten to use actual violence to any other person or any property in order to obtain that the thing intended to be stolen shall be upon conviction under this act be sentence to imprisonment for not less than fourteen years but not more than twenty years.
(2) if: (a) Any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed or.
(b) And or immediately before or immediately after the time of the assault the said offender warrants or uses any other personal violence to any person the offender, shall upon conviction under this Act be sentenced to imprisonment for life.”

The appellant was armed with a cutlass with which he assaulted the complainant PW2 with the intention of stealing his motorcycle, in line with section 2 (2) of the Robbery and Firearms (Special Provisions) Act, the sentence of imprisonment of life was rightly imposed by the learned trial Judge.

A court has the power under s.218 of the Criminal Procedure Code to convict an accused/appellant of a lesser or an offence for which he was neither charged nor pleaded to. See EZEJA V STATE (2008) 10 NWLR (Pt.1096) The life sentence imposed by the learned trial Judge is a mandatory sentence. The learned trial Judge could not but impose the sentence. See BALOGUN V A – G. OGUN STATE [2002] 6NWLR (PT 673) 512 SC.
I resolve the sole issue in this appeal in favour of the Respondent.
The judgment and sentence of 30/4/2012 by Hon. Justice Nasir Umar Gummi of High Court II Gusau Zamfara State, case No.ZMS/GS/34C/2009 MUSA MOHAMMED V THE STATE is hereby affirmed.
This appeal is hereby dismissed.

PAUL A. GALINJE, J.C.A.: I agree.

M. L. SHUAIBU, J.C.A.: I have read, in draft, the judgment just delivered by my learned brother, Hon. Tunde O. Awotoye, JCA. I agree with the reasoning and conclusion contained in the judgemnt which I adopt as mine. I only wish to add a few words by way of emphasis.
In the instant case the prosecution have failed to prove the essential elements of robbery against the appellant but having found that a lesser offence was indeed proved, the lower court properly found the appellant guilty and convicted him for the offence of attempted robbery under Section 2(2) of the Robbery and firearms (Special Provision) Act.
The provision section 219 of the Criminal Procedure Code is in pari materia with Section 179 of the Criminal Procedure Act, and for it to apply, the following conditions must be observed:-
(a) The charge or indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences.
(b) The evidence led and facts found though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence.
(c) It is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted.
In Torhamba v. Police (1956) NWRL at P.94, Shosimbo v. State (1974) 10 SC 91, Oyediran v. Republic (1976) NMLR 122 and Nwachukwu v. State (1986) 2 NWLR (Pt.25) 765, it was held that a lesser offence is a combination of some of the several particulars making up the offence charged. Thus, the appellant’s conviction for the offence of attempted robbery in the instant case, arises from the facts and evidence led in support of the offence of robbery of which he was charged.
It is for this reason and for the fuller reasons contained in the lead judgment, which I adopt as mine, that I dismissed the appeal.

Appearances

L. M. Pwahomdi Esq.For Appellant

AND

M. S. Suleiman PSC (MOJ) Gusau Zamfara StateFor Respondent