MOHAMMED v. STATE (2022)

MOHAMMED v. STATE

(2022)LCN/17133(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, March 10, 2022

CA/K/128/C/2021

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

AHMED MOHAMMED APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE A PERSON IS CHARGED WITH AN OFFENCE CONSISTING OF SEVERAL PARTICULARS, A COMBINATION OF SOME WHICH CONSITITUTES A COMPLETE LESSER OFFENCE AND SUCH COMBINATION IS PROVED BUT THE REMAINING PARTICULARS ARE NOT PROVED

I must start by saying that the provision of Section 218(1) and (2) of the Criminal Procedure Code itself is not at large. Its application is circumscribed by conditions to be fulfilled within the statute. It reads:
Section 218(1)
“When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.”

FACTOR THAT MUST BE CONSIDERED BEFORE AN ACCUSED PERSON CAN BE CONVICTED FOR A LESSER OFFENCE

In other words, for the invocation of the provision of Section 218 of the Criminal Procedure Law, the lesser offence must not only be a kindred offence with the actual offence charged, its ingredients must be embedded in the actual charge. See Ezeja v. The State (2008) ALL FWLR (Pt. 428) 256/258 – 269, (2008) 10 NWLR (Pt. 1096) 513.
In Agugua v. The State (2017) LPELR – 4202 (SC) 54 – 55; (2017) 10 NWLR (Pt. 1573) 254, the Supreme Court relying on its earlier decision in The Nigeria Air Force v. Kamaldeen (2007) 2 SC 113; 154-55, (2007) 7 NWLR (Pt. 1032) 164 restated the position that:
“The law is that before an accused can be convicted for a lesser offence/the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged.” PER OWOADE, J.C.A.

INGREDIENTS THAT ESTABLISHES THE CRIMINAL OFFENCE OF ARMED ROBBERY

However, it is trite that to secure a conviction for armed robbery, the prosecution must prove the following: (a) that there was an armed robbery (b) that the accused was armed, and (c) that the accused, while with the arm or arms, participated in the robbery. Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability.
See Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 SC, Okosi v. A-G, Bendel State (1989) 1 NWLR (Pt. 100) 642 SC and Martins v. State (1997) 1 NWLR (Pt. 481) 355 CA. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Katsina State High Court, sitting at Funtua, delivered on the 27th day of February, 2017 by Hon. Justice Ibrahim M. Bako (of blessed memory) whereby the Appellant was convicted and sentenced to 2 weeks imprisonment for the offence of causing grievous hurt, punishable under Section 247 of the Penal Code Law of Katsina State as a lesser offence to the charge of Armed Robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 LFN 2004.

The Appellant was charged alongside one Amadu Abubakar (the 2nd accused) on a one count charge of armed robbery. The Appellant pleaded not guilty to the charge.

At the hearing of the case before the trial Court, five witnesses testified for the Respondent (Prosecution).

The Appellant testified for himself and called one other witness.

The learned trial judge examined the testimony of the witnesses vis-à-vis, the ingredients of the offence of armed robbery as charged. He was not convinced that the Respondent (Prosecution) made out a case against the Appellant and co-accused for the offence of armed robbery. He thereupon convicted the Appellant and his co-accused for the offence of causing grievous hurt punishable by Section 247 of the Penal Code Law, Cap. 96 Laws of Katsina State, 1991.

The reasoning and conclusion of the learned trial judge could be found on pages 59 – 60 of the Record of Appeal thus:
“By and large, while I am not convinced that the charge of armed robbery against the accused persons punishable under Section 1(2)(a) and (b) of the Robbery and Fire-arms (Special Provisions) Act, Chapter R. 11 LFN 2004 is not sustainable in view of the absence of the essential elements of the said offence, which I have identified in the preceding paragraphs, it is my view that the accused persons’ treatment of the witness (i.e. PW 1) whereby they caused him to lose control of his motorcycle and have an accident thereby injuring his face and right hand is wrongful.
From the description given by PW2 of the nature of injuries sustained by PW1, it is clear that it is a type that endangers life just like any injury in the face or somewhere on the head. It is the type of hurt envisaged by Section 240(g) of the Penal Code as being among the types of hurt designated as grievous hurt.
Accordingly, and following the footsteps of the Supreme Court in the application of Section 218(1) of the Criminal Procedure Code in its decision in the case of: Ezeja v. State (2008) 10 NWLR (Pt. 1096) P. 513 at P. 526 paras A – E.
I can quite conveniently discharge the accused persons of the offence of Armed Robbery as aforesaid/charged, but convict them for the lesser offence of intentionally causing grievous hurt without provocation punishable under Section 247 of the Penal Code.
Accordingly, I hereby find you guilty and convict you of the offence of causing grievous hurt punishable under Section 247 of the Penal Code.”

Dissatisfied with the conviction and sentence, the Appellant filed a Notice of Appeal containing three grounds of appeal in this Court on 29-01-2021.

The relevant briefs of argument for the appeal are as follows:
1. Appellant’s brief of argument which was filed on 2-7-2021 but was deemed filed on 12-10-2021. It is settled by A. M. IMAM Esq.
2. Respondent’s brief of argument which was filed on 20-10-2021. It is settled by B. F. Abdullahi Esq. Asst. Director Ministry of Justice, Katsina State.
3. Appellant’s reply brief of argument which was filed on 30-12-2021. It is settled by A. M. Imam Esq.

Learned Counsel for the Appellant nominated three (3) issues for the determination of the appeal. They are:
“1. Whether the learned trial judge was right when he convicted and sentenced the Appellant for the offence under Section 247 of the Penal Code which he was never charged.
2. Whether the learned trial judge was right when he discharged the Appellant of the offence he was charged and convicted him of an offence for which he was neither charged nor pleaded to.
3. Whether the learned trial judge was right when he admitted Exhibits A and A1 made by 2nd accused but credited it to the Appellant and heavily relied upon same in his judgment.”

Learned counsel for the Respondent adopted the three issues nominated by the Appellant in determination of the appeal.

In arguing his issues 1 and 2 together, learned counsel for the Appellant conceded that it is trite principle of law that a trial Court has the power and discretion to find a defendant guilty of a lesser offence when the principal offence has not been satisfactorily proved as it was in the case of Ezeja v. The State (2008) 10 NWLR (Pt. 1096) 513 at 526. However, that in the instant case, the Appellant was charged under Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap. R 11 LFN 2004, which is a separate and distinct law from the Penal Code Law, that the learned trial judge thus erroneously exercised his discretion of sentencing the Appellant for a lesser offence under different law.

He submitted that the provision of Section 240(g) (sic) 247 of the Penal Code relied upon by the learned trial judge in convicting and sentencing the Appellant with its particulars are totally at variance with the particulars required to be proved in the offence of armed robbery being the substantive offence the Appellant and his co-defendant took their respective pleas and charged therefor.

Learned counsel for the Appellant enumerated the ingredients of the offence of armed robbery as-
a) that there was a robbery
b) that the accused person(s) was one of those who took part in the robbery.
c) that the robbery was an armed robbery i.e. the accused person or any other participant was armed at the material time.

In contrast, counsel submitted that the particulars under Section 240(g) (sic) 241(g) and 247 of the Penal Code envisage that the hurt suffered by the victim must be of such which endangers life, or which causes the victim to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.

He submitted that by his plea, the Appellant only had notice and prepared his defence for the offence of armed robbery but did not have notice and could have been taken by surprise by a conviction under Section 247 of the Penal Code Law.

Learned counsel for the Appellant submitted further that these two separate offences emanate from different legislations i.e. Federal and State Laws with distinct particulars and cannot therefore be presumed to be capable of being subsumed into particulars of offence in relation to securing a conviction for a lesser offence, as erroneously conceived by the trial Court.

He submitted that the learned trial judge’s purported exercise of discretion pursuant to Section 218(1) of Criminal Procedure Code by convicting for a lesser offence of grievous hurt under Section 247 of the Penal Code was in breach of the Appellant’s constitutional right to fair hearing under Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria (1999) as amended.

He reproduced the provision of Section 218(1) of the Criminal Procedure Code thus:
“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.”

Appellant’s counsel submitted that the lesser offence for which the Appellant was convicted was not satisfactorily proved. That the learned trial judge fell into an error when, without any attempt to examine the ingredients of the offence created by Section 247 of the Penal Code, held that the offence had been proved.

He submitted that the entire gamut of the testimonies of the Respondent prosecution witnesses are full of speculations and contradictions which ought to be resolved in favour of the Appellant.

Learned counsel for the Appellant faulted the reliance of the trial Court on the case of Ezeja v. State (2008) 10 NWLR (Pt. 1098) 513 at 526 in reaching its conclusion on convicting the Appellant of the lesser offence under Section 247 of the Penal Code. He reasoned that both the offence charged and the lesser offence convicted upon in the Ezeja case are contained in the same enactment, this is the Penal Code Law (applicable in Benue State) that in contrast, the offence charged in the instant case is under a Federal Legislation, that is Robbery and Firearms (Special Provision) Act Cap. R. 11 LFN 2004 which is separate and distinct from the offence under Section 247 of the Penal Code Law.

He referred to the case of Attah v. State (2010) ALL FWLR (Pt. 540) 1224 at 1244 and emphasised that the provision of Section 218(1) of the CPC is expressed as to a single offence, carrying out a single or set of particulars and from a single law/enactment.

Appellant’s counsel concluded his issues 1 and 2 by saying that the concept of convicting for a lesser offence was wrongly applied by the trial Court and not applicable to the instant case. He submitted that the Appellant was misled by the abrupt introduction of the lesser offence principle when in fact he (the Appellant) could have properly conducted his defence against the offence of intentionally causing hurt, and thereby occasioned a miscarriage of justice.

He urged us to resolve issues 1 and 2 in favour of the Appellant.

On the said issues 1 and 2, learned counsel for the Respondent also reproduced the provision of Sections 218(1) and (2) of the Criminal Procedure Code and referred to the cases of Idoko v. State (2018) 6 NWLR (Pt. 1614) 117 at 137, John Etim v. The State (2019) 10 NWLR (Pt. 1681) 401 to restate the principle embodied in the provision of Section 218 of the Criminal Procedure Code that-
“An accused person may be convicted of lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence.”

Learned counsel for the Respondent submitted that it was held by the Supreme Court in the case of John Etim v. The State (supra) that the provision of Section 179 of the Criminal Procedure Act which is in pari materia with Section 218(1) of the Criminal Procedure Code Law of Katsina State, 1991, could be invoked to convict the Appellant of an offence lesser than the one with which he was charged and it does not amount to breach of fair hearing if the Appellant was not afforded the opportunity to address it.

In the instant appeal, counsel added, the Appellant was asked by the trial Court whether he understood his conviction and he answered in the affirmative and went ahead to make allocutus through his counsel.

He submitted that Section 218(1) and (2) did not make it a condition precedent that for the trial Court to exercise his discretion under the Section the principal offence and the lesser offence must be of the same statute. The only guiding principle is whether the evidence adduced by the prosecution and the facts found are insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted.

He submitted that the testimonies of PW1 and PW2, who were eyewitnesses to the incident provided facts that supported the conviction of the Appellant as founded by the trial judge. And, that there were no contradictions in the evidence of the Respondent’s witnesses.

He urged us to resolve issues 1 and 2 in favour of the Respondent.

In his reply brief of argument, learned counsel for the Appellant in anchoring the issue on whether a person charged with a federal offence can be convicted for a State offense he was charged with, referred to the decision of the Court of Appeal in the case of Yakubu Musa v. The State (2021) 12 NWLR (Pt. 1790) 280 – 282 where the question whether a person charged for a federal offence like armed robbery can be convicted for a state offence like dishonestly receiving stolen property was answered in the negative by the Court of Appeal per Ugo J.C.A.

He submitted that the Robbery and Firearms (Special Provisions) Act did not make any provision for a defendant for lesser offence where the main offence cannot be proved. He referred to the cases of Okobi v. State (1984) LPELR – 2453 (SC) (1984) 7 S.C. 47, Mohammed Bello v. State (2020) 3 NWLR (Pt. 1710) 72 and submitted that “… the 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.”
He urged us to allow the appeal.

Resolution of issues 1 and 2
I must start by saying that the provision of Section 218(1) and (2) of the Criminal Procedure Code itself is not at large. Its application is circumscribed by conditions to be fulfilled within the statute. It reads:
Section 218(1)
“When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.”

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it.”
By the above provision, the particulars, fact and circumstances of the original offence charged are the same or similar to the lesser offence. In other words, the lesser offence is a combination of some of the several particulars making up one offence charged, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.
See e.g. Okwuwa v. The State (1964) 1 ALL NLR 366.
In Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, 1986 1 SC 477, (1986) LPELR – 2085 (SC) Karibi-Whyte JSC threw further light on the application of Section 179 of the CPL (in pari materia with Section 218 of the CPC.
His Lordship first cited the decision in Tor hamba v. Police (1956) N.R.N.L.R. at P. 94 (where) the Court had attempted to give a guide as to the determination of what constitutes a lesser offence (thus):
“a lesser offence is a combination of some of the several particulars making up the offence charged, in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged … when one is considering action under Section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of these particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict. An authoritative example is furnished by the case of Zooray v. The Queen (1953) 2 WLR 965; (1953) AC 407.
His Lordship, Karibi-Whyte JSC proceeded thus in the case of Nwachukwu v. The State (supra)
“It must be kept constantly in mind that Section 179 in issue in this appeal is concerned (with) where the lesser (offence) charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious in respect of which . . . . the accused is charged. The operative words are “lesser and not ‘another’ offence”
Thus, where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted.
The assumption which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence. It is therefore important to observe from the judicial decisions and the provisions that, for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed:
Firstly, the 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 included by necessary implication the lesser.”
In other words, for the invocation of the provision of Section 218 of the Criminal Procedure Law, the lesser offence must not only be a kindred offence with the actual offence charged, its ingredients must be embedded in the actual charge. See Ezeja v. The State (2008) ALL FWLR (Pt. 428) 256/258 – 269, (2008) 10 NWLR (Pt. 1096) 513.
In Agugua v. The State (2017) LPELR – 4202 (SC) 54 – 55; (2017) 10 NWLR (Pt. 1573) 254, the Supreme Court relying on its earlier decision in The Nigeria Air Force v. Kamaldeen (2007) 2 SC 113; 154-55, (2007) 7 NWLR (Pt. 1032) 164 restated the position that:
“The law is that before an accused can be convicted for a lesser offence/the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged.”
In the instant case, grievous hurt or causing grievous hurt may possibly be a factual consequence of the offence of armed robbery – causing grievous hurt is however not a lesser offence of the offence of armed robbery. The legal requirements, ingredients for the offence of causing grievous hurt cannot be subsumed in the ingredients of the offence of armed robbery.

The term “Hurt” is defined under Section 240 of the Penal Code – thus:
“Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.”

However, it is trite that to secure a conviction for armed robbery, the prosecution must prove the following: (a) that there was an armed robbery (b) that the accused was armed, and (c) that the accused, while with the arm or arms, participated in the robbery. Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability.
See Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 SC, Okosi v. A-G, Bendel State (1989) 1 NWLR (Pt. 100) 642 SC and Martins v. State (1997) 1 NWLR (Pt. 481) 355 CA.

It seems to me also, that the case of the Respondent in this appeal is further weakened by the decision of the Supreme Court in the case of Okobi v. The State (1984) 7 SC 47, 1984 LPELR – 2453 (SC).
One of the questions that arose for determination in Okobi v. State (supra) was whether a failure to secure a conviction under the Robbery and Firearms (Special Provisions) Act entitled a High Court to proceed to convict, of a lesser offence under the Criminal Code by virtue of Section 179 of the Criminal Procedure Law (in pari materia with Section 218 of the Criminal Procedure Code).
In that case, Obaseki JSC at page 23, made the following pronouncements:
“I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action. It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction. . . . .”
Undoubtedly, it was the above reasoning that led the Supreme Court again in the case of Mohammed Bello v. The State (2020) 3 NWLR (Pt. 1710) 72 at 93 to hold per Eko JSC, that: “I cannot see from the counts alleging criminal conspiracy to commit armed robbery and armed robbery contrary to Robbery and Firearms (Special Provisions) Act that the appellant (1st accused) herein was sufficiently put on notice of the elements constituting the offence under Section 319 A of the Penal Code Law of Kwara State.
I do not think, and I so hold that the conviction for the State offence, in substitution for the Federal offence that the Prosecution failed to prove is proper. The appellant could not in the circumstance, be deemed to have notice of the particulars of the State offence under Section 319 A of the Penal Code or that the particulars of this State offence were carved out of the Federal offence not proved. In the circumstance, I allow the appeal…”
Similarly, one can conclude in respect of the instant appeal, that the High Court of Katsina State lacks the necessary vires, jurisdiction to convict and sentence the Appellant charged under the Robbery and Firearms (Special Provisions) Act for the lesser offence of causing grievous hurt under Section 247 of the Penal Code Law of Katsina State which is a State law with separate and distinct particulars with the Federal law under which the Appellant was charged.

For these reasons, Appellants issues 1 and 2 are resolved in favour of the Appellant.

Having resolved the said issues 1 and 2 in favour of the Appellant, this appeal is meritorious and it is accordingly allowed.

The judgment, conviction and sentence of the Appellant for the offence of intentionally causing grievous hurt without provocation punishable under Section 247 of the Penal Code in Suit No. KTH/FT/12c/2012 are hereby set aside.

In their stead, I enter an order discharging and acquitting the Appellant for the said offence.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, M. A. Owoade, PJCA. My brother in the lead judgment has dexterously waded through provisions of Section 1 (2) (6) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation of Nigeria 2004 vis-a-vis Section 247 of the Penal Code Law of Katsina State and several judicial authorities to resolve the main issue to wit; whether in view of the failure by the prosecution to prove the ingredient of the offence provided in the former federal statute, the lower Court was right when it suo motu resorted to the latter state legislation to convict the appellant of a lesser offence. I agree with and adopt as mine the decision reached by my brother in the lead judgment, supported by plethora of judicial authorities cited and relied upon, that the lower Court has reached a decision that is ultra vires by convicting the appellant of a lesser offence of causing grievous hurt when he was charged with the offence of armed robbery.

For the reasons stated in the lead judgment, I also allow this appeal and set aside the conviction and sentence of the Appellant for the offence of causing grievous hurt punishable under Section 247 of the Penal Code Law of Katsina State. The Appellant is hereby discharged and acquitted.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.