GANA v. STATE
(2022)LCN/16712(CA)
In The Court Of Appeal
(ILORIN JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/IL/50C/2021
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
MOHAMMED GANA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPELLANT CAN BE CONVICTED FOR A LESSER OFFENCE THAN THAT WHICH HE WAS CONVICTED FOR
It is settled Law that:
“the Appellant can be convicted for a lesser offence by virtue of the Provisions of S.218 of the CPC CAP 30 Laws of Northern Nigeria, 1953 which states that:
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it. See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152, Per ABA-AJI, JCA (as he then was) in MUSA VS. THE STATE (2014) LPELR 24026. Also, S.179 of the CPA allows a Judge to convict for a lesser offence in cases like this where Armed Robbery is not proved. The Accused Person may be convicted of a lesser offence like robbery. See OGBODU VS. THE STATE (2017) LPELR 43402; OLATAWURA, JSC in KADA VS. THE STATE (1991) LPELR 1641, held that “When we talk of conviction for a lesser offence, the evidence to be relied upon for such a conviction must relate to and be cogent enough to warrant a conviction for the lesser offence SALIU VS. THE STATE (2018) LPELR 44064”.In the case of COORAY VS. THE QUEEN (1953) 2 WLR 965, (1953) AC PG 407 where the Court held: “It must be kept constantly in mind that S.179 in issue in this appeal is concerned with where the lesser offence charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious offence in respect of which the accused is charged. The operative words are “lesser and not “another” offence. Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption, which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence” PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered on 10th February, 2021 by I. A. YUSUF, J.
The brief facts of this case is that the Appellant with seven (7) others on the night of 27th April, 2018, breached the peace and attacked people coming back from the market and other places. They were plenty in number that attacked people destroying motorcycles and vehicles.
A Report by one of the victims to the Police alerted the Police who swung into action. Peace was restored to the vicinity and arrests were made. After the investigations, eight (8) people were arrested and arraigned in Court on a Four (4) Count Charge.
After, the Prosecution closed its case, the Defendants made a no case submission. This was overruled and the Accused Persons were made to enter their defence. After which, the Counsel on both sides filed and adopted their Written Addresses. The learned trial Judge thereafter, delivered his considered judgment convicting and sentencing seven (7) of the eight (8) Accused Persons.
The Appellant was irked by this judgment hence, this appeal.
The Appellant filed his Notice of Appeal with Four (4) Grounds of Appeal on 10th March, 2021.
The Appellant’s Brief of Argument was filed on 25th October, 2021 and deemed properly filed and served on 1st December, 2021.
The Appellant’s Reply Brief was filed on 14th January, 2022. Counsel adopted both Briefs. The Appellant articulated three (3) Issues for determination in its Brief. It is as follows:-
“1. Whether the trial Judge was right to have convicted and sentenced the appellant for the offence of causing hurt by act endangering life of personal safety of others contrary to Section 253 (1) of the Penal Code Law notwithstanding the dearth of evidence to that effect. (GROUND 1).
2. Whether the headlamp of motorcycles could suffice as means of identifying the appellant by the prosecution witnesses on the night of 27th April, 2018 between the hours of 8.30pm and 9.00pm at the scene of the crime notwithstanding the absence of lighting in the feat of being attacked. (GROUND 2).
3. Whether the trial Judge was right to have inputted that the appellant attacked PW1, PW2, PW6 and PW7 reprisally in the absence of evidence to that effect. (GROUND 3)”.
The Respondent’s Brief was filed on 31st December, 2021 and it articulated three (3) Issues for determination. They are as follows:-
i. Whether the trial Judge was right to have convicted and sentenced the appellant for the offence of causing hurts by act endangering life or personal safety of others contrary to Section 253 (1) of the Penal Code Law. (GROUND 1).
ii. Whether the head lamp of motor cycles could suffice as means of identifying the appellant by the prosecution witnesses on the night of 27th April, 2018 between the hours of 8.30 and 9pm at the scene of the crime. (GROUND 2).
iii. Whether the trial judge erred in law by coming to the conclusion that the attack on PW1, PW2, PW5, PW6 and PW7 by the appellants and his co-defendants was neither a retaliatory nor mob act, in view of the evidence adduced by the prosecution witnesses. (Ground 3).
The two sets of Issues articulated by both parties are almost the same. However, I will articulate one issue that would adequately cover all the Issues and lead to a meaningful determination of this appeal. The sole Issue is this:
“Whether the learned trial Judge adequately evaluated the material evidence set before it before he found the Appellant guilty on a lesser offence and convicted him accordingly”
ISSUES:
The Appellant with seven (7) others were charged on a Four (4) Count Charge as follows:-
COUNT ONE:
That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) while armed with cutlass and other dangerous weapons, conspired to rob one Saliu and 14 others. You thereby committed an offence punishable under Section 6(8) of the Robbery and Firearms (Special Provision) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
COUNT TWO:
That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) while armed with cutlass and other dangerous weapons, attacked and rob one Saliu and 14 others. You thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (Special Provision) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
COUNT THREE:
That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) attacked and wounded one Saliu and 14 others. You thereby committed an offence punishable under Section 248 of the Penal Code Law.
COUNT FOUR:
That you Ahmed Audu, Babji Liman, Haruna Dipolo Jibril, Mohammed Gana, Mohammed Shaba Adamu, Mohammed Kolo, Abdullahi Mohammed and Ndaji Shaaba on or about 27/04/2018, at about 2000 hours at along Kpataringi (Hausa Settlement) caused mischief in Kpataringi area of Shonga Emirate. You thereby committed an offence punishable under Section 337 of the Penal Code Law.
In proof of the Charge, the Prosecution called Eleven (11) Prosecution Witnesses and tendered several Exhibits ranging from D–D7 and E–E13. Statements of PW5, PW6, PW7 and PW9 were tendered as Exhibits A, B, C, D8.
The Prosecution proved that there was a type of disquiet between Chigi and Kusogi people on the night of 27th April, 2018 at Kpataringi. The incident was reported to the Police and the Emir of Shonga.
The learned trial Judge convicted the Appellant for causing hurt by act endangering life or personal safety of others contrary to S.253 (1) of the Penal Code Law.
The grouse of the Appellant is that the Prosecution could not establish any of the ingredients of this crime to attract conviction. The learned trial Judge ought to have discharged and acquitted the Appellant.
Counsel submitted that the Appellant was alleged to have attacked and wounded one Saliu and fourteen (14) others on 27th April, 2018 under S.248 of the Penal Code Law, which provides as follows:-
1. Whoever, except in the case provided for by Section 244, voluntarily cause hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used (sic) as a weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of electricity or by means of any corrosive or explosive substance or by administration of any poisonous of deleterious substance or by means of any animal, shall be punished with imprisonment for a term which may extend to three years or with fine.
2. Whoever except in the case provided for by Section 245, voluntarily causes grievous hurt by any of the means mentioned in Subsection (1) shall be punished with imprisonment for a term which may extend to fourteen year and shall also be liable to fine.
To establish that the Appellant committed the offence, the Prosecution would have to prove that:
“(a) The Defendant caused hurt.
(b) They committed the hurt voluntarily
(c) The hurt was caused by means of any instrument for shooting, stabbing or cutting or any instrument which may cause death or by means of fire or heated substance e.t.c.
Counsel argued that all these ingredients must exist and proved by the Prosecution against the Accused Person before a conviction can be sustained under S.248 of the Penal Code Law. Counsel argued that there was no evidence to show that the Appellant committed hurt by means of any instrument for shooting, stabbing or cutting or any instrument which can cause death or by means of fire or heated substance, etc. Counsel stated that the Prosecution did not establish the offence of causing hurt or grievous hurt by dangerous means under S.248 of the Penal Code Law.
Counsel argued further that the Appellant did not employ the use of any lethal weapon or object capable of causing bodily pain or infirmity on the persons of PW1, PW2, PW6 and PW7 to warrant conviction under S.253 (1) of the Penal Code Law.
Counsel also argued that the Prosecution Witnesses could not identify the Defendants as there was no street light to illuminate the area. Also that the headlight of motorcycles cannot be enough to illuminate the vicinity to facilitate the Prosecution Witnesses in identifying the Defendants.
Counsel submitted that the trial Judge was wrong in holding that the incident was a retaliatory act by the Defendants. Counsel therefore, urged the Court to resolve these issues and allow the appeal.
In response, the Respondent’s Counsel submitted that the learned trial Judge can convict the Appellant for a lesser offence which was not contained in the Charge. See AKPAN VS. THE STATE (2019) LPELR 48170. He argued that the Courts are empowered to convict an Accused Person of an offence than the one with which he is expressly charged. See BABALOLA VS. THE STATE (1989) 7 SC PT. 7, PG. 94.
There was overwhelming evidence to convince the trial Judge that the Appellant and others charged with him were guilty for the offence of causing hurt by acts endangering life or personal safety of others contrary to S. 253 (1) of the Penal Code Law. This was achieved through the evidence of PW1, PW2, PW6 and PW7 who positively identified 1st, 2nd–8th Defendants as the persons who attacked them. Counsel also submitted that the Court held that the three other Counts were not adequately proved but the fourth was partially proved. See BELLO VS. THE STATE (Supra). The lesser offence proved was of a kindred nature.
Counsel submitted that the light from the motorcycle headlamps was sufficient to see their assailants. The Prosecution Witnesses knew their assailants prior to the attack. Also, that the attack by the Appellant and others was an intentional act of the Defendants. There was no previous attack on the Appellant and the other Defendants as there was no report to the Police or the EMIR.
Counsel re-iterated that the Complainants i.e. the Prosecution Witnesses reported their attacks to the Police. Counsel argued that even reprisal or mob attack is unlawful and it amounts to taking laws into one’s own hands. Counsel stated that it was a simple premeditated criminal wrong in contravention of S. 253 (1) of the Penal Code Law.
Counsel finally submitted and urged the Court to resolve all the issues in favour of the Respondent and dismiss this appeal.
RESOLUTION:
The Appellant’s Counsel submitted that the learned trial Judge was wrong to have convicted the Appellant of a lesser offence. Counsel argued that even that lesser offence was not proved. Counsel argued further that the learned trial Judge ought not to have convicted the Appellant at all.
I have earlier recapped the Four (4) Counts of the Charge. The learned trial Judge dismissed the Count of conspiracy, to rob under S. 6 (B) of the Robbery and Firearms (Special 2004 Provision) Act Cap R11 LFN. 2) Armed Robbery and punishable under S.1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004 Count three (3) is an offence punishable under S.248 of the Penal Code Law. Count Four (4) is punishable under S.337 of the Penal Code Law.
The learned trial Judge discharged the Appellant on Counts 1, 2 and 4 but found that the Prosecution did not also prove all the ingredients of the offence. However, the learned trial Judge found that the ingredients proved could sustain a Charge under S.253 of the Penal Code Law.
It is settled Law that:
“the Appellant can be convicted for a lesser offence by virtue of the Provisions of S.218 of the CPC CAP 30 Laws of Northern Nigeria, 1953 which states that:
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it. See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152, Per ABA-AJI, JCA (as he then was) in MUSA VS. THE STATE (2014) LPELR 24026. Also, S.179 of the CPA allows a Judge to convict for a lesser offence in cases like this where Armed Robbery is not proved. The Accused Person may be convicted of a lesser offence like robbery. See OGBODU VS. THE STATE (2017) LPELR 43402; OLATAWURA, JSC in KADA VS. THE STATE (1991) LPELR 1641, held that “When we talk of conviction for a lesser offence, the evidence to be relied upon for such a conviction must relate to and be cogent enough to warrant a conviction for the lesser offence SALIU VS. THE STATE (2018) LPELR 44064”.In the case of COORAY VS. THE QUEEN (1953) 2 WLR 965, (1953) AC PG 407 where the Court held: “It must be kept constantly in mind that S.179 in issue in this appeal is concerned with where the lesser offence charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious offence in respect of which the accused is charged. The operative words are “lesser and not “another” offence. Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption, which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence”. It is therefore, important to observe from judicial decisions and the provisions that for S.179 of the Criminal Procedure Act to apply, the following conditions must be observed: (1) The indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences.(2) The evidence led and facts found though insufficient for conviction of the aggravated offence charged must support the conviction for the lesser offence.(3) It is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted”. The offence is that charged under S.248 of the Penal Code Law. The lesser offence is that charged under S.253 of the Penal Code. S.248 (1) provides as follows:(1) Whoever, except in the case provided for by Section 244, voluntarily cause hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used (sic) as a weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of electricity or by means of any corrosive or explosive substance or by administration of any poisonous of deleterious substance or by means of any animal, shall be punished with imprisonment for a term which may extend to three years of with fine.
(2) Whoever except in the case provided for by Section 245, voluntarily causes grievous hurt by any of the means mentioned in Subsection (1) shall be punished with imprisonment for a term which may extend to fourteen year and shall also be liable to fine.
S.253 (1) provides as follows:
(1) Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment for a term which may extend to one year or with fine or with both. Section 240 of the penal code law says that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. The ingredients of the offence of causing hurt by act endangering life or personal safety of others under Section 253 (1) of the Penal Code Law are that:
a. The defendant by their act caused bodily pain, disease or infirmity to the complainants, and
b. The defendant cause bodily pain, disease or infirmity by a rashly act or by act of negligence which endangers human life or the personal safety of others”
The differences in these two provisions are narrow. The harm done or the pain or disease inflicted in S.248 must be inflicted by or caused by the use of any instrument for shooting, stabbing or cutting or any instrument which may cause death or by means of fire or heated substance.
In both Sections 248 and 253 body pain or hurt is inflicted. I dare say that the offence of S.253 is subsumed in S.248. If the Accused Person in S.253 was proved to have inflicted the injuries sustained with the instruments mentioned above, he would be convicted under S.248.
The Appellant and the other Accused Persons laid siege on the road that night attacking people, disrupting people from their lawful business. It was proved that Salihu Abubakar, PW1 was attacked and wounded. He reported this attack to the Emir first who saw his injury and advised him to report to the Police as well. This, he did, hence, the intervention of the Police.
I believe, the lower Court was right when he convicted the Appellant of the lesser offence under S.253 of the Penal Code Law. It is a kindred offence with the actual offence charged under S.248 of the Penal Code Law. See AMADI VS. THE STATE (2019) LPELR 4704; EZEGA VS. THE STATE (2008) ALL FWLR PT. 428, PG. 256; AGUGUA VS. THE STATE (2017) LPELR 4202; NIGERIA AIR FORCE VS. KAMALDEEN (2007) LPELR 2010.
The Appellant’s Counsel in his brief submitted that the environment was dark as there were no street lights. It was gathered in evidence that the Appellant and the co-accused had torchlights. Also, that the victims were mostly on motorcycles. They relied on their headlights to see. More importantly, the victims knew the Appellant and the other Accused Persons. They could identify each other. They were not strangers to themselves.
The Prosecution Witnesses had not given any evidence as to a previous attack by them that would engender this attack as retaliatory. However, what happen can best be described as a mob attack which the law frowns at seriously.
The Appellant and his co-accused breached the peace and they deserved to be punished. They inflicted pain and suffering to their fellow men.
The Respondent proved a lesser offence of kindred spirit in S.253 of the Penal Code Law. Therefore, the learned trial Judge was right in the conviction and sentence of the Appellant.
This appeal is without merit. It is hereby dismissed. I affirm the judgment of the lower Court in convicting and sentencing the Appellant.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, UZO I. NDUKWE-ANYANWU, JCA, gave me the privilege of reading the draft of the lead judgment. I agree with the reasoning of my learned brother and the conclusion that the appeal is without merit. Consequently, I dismiss the appeal and abide by the consequential order.
KENNETH IKECHUKWU AMADI, J.C.A.: I have read in advance, the draft of the lead judgment of my learned brother UZO I. NDUKWE-ANYANWU, JCA. I adopt his lordship’s reasoning and conclusion that this appeal has no merit. I too dismiss the appeal and affirm the judgment of the lower Court delivered on 10/2/2021 in this matter.
Appearances:
T. ABDULAZEEZ, ESQ. For Appellant(s)
OLAITAN OPOOLA, ESQ., ASSISTANT CHIEF STATE COUNSEL, (ACSC) MINISTRY OF JUSTICE, KWARA STATE For Respondent(s)