MURTALA v. STATE
(2022)LCN/17162(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, November 18, 2022
CA/KN/51A/C/2021
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ABDULFATAH MURTALA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE RULES OF LAW CONCERNING CONVICTION FOR A LESSER OFFENCE
The rules concerning conviction for a lesser offence are well established and entrenched in our criminal jurisprudence, where the particulars or ingredients of the lesser offence are also integrated in the main offence, and so the evidence led, to establish the said main offence is subsumed in what is required to establish the lesser offence, enabling the trial Court to convict on the lesser offence, straight away, without any need to amend the charge for the accused to take plea on the said lesser offence. See the case of Galadima Vs State (2013) LPELR-20402 CA:
“To the question whether the appellants, who were not charged with this offence, could be convicted of it, the Court returned an affirmative answer. It explained its reason thus: By Section 218 of the Criminal Procedure Code Cap. 30 of Laws of Northern Nigeria 1963 applicable to Kogi State, an accused person can be convicted of a lesser offence if proven even though he is not charged with it. See Okwuwa v. State (1964) 1 All NLR 366. The offence of voluntarily causing hurt without provocation is proved in this case against the appellants contrary to Section 246 of the Penal Code. [Italics supplied for emphasis] In Ezeja v The State (supra), the appellant was originally charged with causing grievous hurt to Cyprian Okpala by shooting and wounding him with his service pistol but the evidence at the trial disclosed a lesser offence of causing hurt without provocation hence, the conviction of the appellant by the trial Court under Section 246 of the Penal Code. These decisions have to be contrasted with The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, where this Court held that: 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. See Okwuwa v. The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence, the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law. [Italics supplied for emphasis] In Agugua v The State (2017) LPELR-42021 (SC) 54 -55; E- A, this Court explained that: … the offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove. 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. See The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113. [Italics supplied for emphasis] In Okobi v The State [1984] 7 SC 47; (1984) LPELR -2453 (SC), one of the questions that arose for determination was whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act entitled a 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 [in pari materia with Section 218 of the Criminal Procedure Code]. Speaking for this Court, Obaseki, JSC, at page 23; A – C, made the following enduring 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.” PER MBABA, J.C.A.
WHETHER OR NOT A CONFESSIONAL STATEMENT IS SUFFICIENT TO LIE A CONVICTION OF AN ACCUSED PERSON
See the recent case of Sule Vs Kano State (2022) LPELR-57542 (CA), where we held:
“By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion. See the case of Husseini Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.” PER MBABA, JC.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Kano State High Court in Charge No. K/197C/2017, delivered on 9th October, 2020 by Hon. Justice A.R.D. Mohammed, who found the Appellant (and 2 other accused persons) guilty of the offence of attempted armed robbery, under Section 299 of the Penal Code of Kano State, and punished under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990, and sentenced him to 14 years imprisonment.
Appellant was the 2nd Accused Person, charged with two other accused persons, for armed robbery contrary to Section 298 of the Penal Code, Cap 105 Laws of Kano State. Appellant had pleaded not guilty to the charge. The prosecution called 2 witnesses and tendered Exhibit A2 – confessional statement of the Appellant. Appellant testified in his defense. At the end of the trial, and after considering the evidence and addresses of counsel, the trial Court convicted the Appellant and sentenced him to 14 years, imprisonment, saying:
“The evidence of the 2nd accused as DW2 above clearly clears the defence of not making a statement to the Police. He admitted giving his statement by admitting that he gave the IPO his bio data. I therefore discountenance the argument that the 2nd accused did not give any statement to the Police at SARS office. Exhibit A2 is his statement which was admitted without objection. At the time of the tendering of Exhibit A2, counsel to the 2nd accused did not object to its admissibility nor did he allege the statement was obtained by torture or involuntarily. The raising of this issue at the time of his evidence in chief is definitely an afterthought. The DW2 is definitely not a witness of truth. Even the allegation of torture can not be supported by any evidence. He alleged he was hanged, beaten and refused food and water everyday for 24 days. Yet he survived without any medical condition. I believe no human being can survive for 24 days without food and water. I find the 2nd accused is only raising it as an afterthought.
Exhibit A2 is a confessional statement. The 2nd accused admitted being with the 1st & 3rd accused persons at the time of the commission of the offence. He also admitted conspiring with them and one other person Umar Snake (now at large) to rob the PW1 of his money. He further admitted attacking the PW1 and one of them stabbing PW1 with a knife. However, as I stated earlier in this judgment, the 2nd accused person retracted his statement in Exhibit A2. However, the retraction was not made at the time of tendering Exhibit A2 in fact Exhibit A2 was admitted without objection by the 2nd accused person; it is trite law that a confessional statement is proved to have been made voluntarily, when at the time of tendering it into evidence, there is no objection from the accused person or his counsel. See the case of AHMAD V. STATE (2018) LPELR: 46550. The statement in Exhibit A2 remain admissible and binding. See the case, of AKPAN V. STATE [1992] LPELR 381 SC per Kariba Whyte, JSC.
I therefore find the 2nd accused actually participated in the attempted armed robbery. He has also failed to defend the case against him, and I so hold.
The 2nd accused was charged jointly with the 1st & 3rd accused under S. 299 of the Penal Code for the offence of armed robbery. However, the evidence adduced by the prosecution shows that the PW1 did not handover the money or his phone to the 1st, 2nd & 3rd accused person (sic) which resulted in their attack on him and stabbing him. Thus, there was no theft committed which is one of the essential element of armed robbery. However, there is enough evidence of attempted armed robbery proved in this Case. I therefore find the 2nd accused actually participated in attempted robbery together with the 1st & 3rd accused persons sequel to this finding, I find no defence offered by the 2nd accused in his defence. I therefore in compliance with the Provision of S. 217 of the Criminal Procedure Code (under which the. charge was brought) now S. 231 of the Kano State Administration of Criminal Justice Kano 2019, hereby find the 2nd accused guilty of attempted armed robbery under Robbery & Firearms (Special Provisions). Act Cap 398 LFN 1990. I Aisha R. D. Muhammad High Court Judge hereby convict you Abdulfatah Murtala for the offence of attempted armed robbery under S. 2 (1) of the Robbery & Firearms (Special Provisions) Cap 398 LFN 1990.”
That is the decision Appellant appealed against, as per his Notice and Grounds of Appeal, on pages 130-137 of the Records of Appeal, dated 29/12/2020. (Appellant had alleged in paragraph 4 of his Brief that he filed Amended Notice of Appeal, but there is no such Amended Notice of Appeal, in this Appeal).
Appellant filed his brief on 25/6/21 and distilled three issues for the determination of the appeal, as follows:
1) Whether or not the learned trial Judge was right to have convicted the Appellant of offence under Section 2(1) of the Robbery and Firearms (Special Provision) Act Cap 398, when he was charged under Section 298 of the Penal Code Cap 105 Laws of Kano State 1991? (Ground 1 of the Notice of Appeal).
2) Whether or not the learned trial Judge was right to have relied on the confessional statement of the Appellant tendered as Exhibit A and accord probative value to it in convicting the Appellant? (Grounds 3, 4, 5, 6, 8, 9, 10 and 11).
3) Whether or not the prosecution has proved its case against the Appellant beyond reasonable doubt? (Grounds 2, 7, 12, 13 and 14)
The Respondent filed its brief on 13/5/2022 and it was deemed duly filed on 24/5/2022. The Respondent adopted the issues and distilled by the Appellant, for the determination of the appeal.
When the appeal was heard on 18/10/2022, the Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.
Arguing the appeal, Counsel for the Appellant A. S. Abdulkadir, Esq., on Issue 1, said the trial Court convicted the Appellant under a different law other than the one with which he was charged, and so was in error; that Appellant was convicted under the Armed Robbery and Firearms (Special Provisions) Cap 398, LFN 1990, whereas, he was charged under the Penal Code Cap 105 Laws of Kano State, 1991. Counsel said that the two laws are separate, one being a State Law and the other, Federal Law. Counsel relied on the case of Mohammed Bello Vs State (2019) 77 Part 2 NSCQR 594 at 612, where the Supreme Court, Per Eko JSC, said:
“I cannot see from the counts alleging criminal conspiracy to commit armed robber and armed robbery contrary to Robbery and Firearms (Special Provision) Act that the Appellant (1st Accused) herein was sufficiently put on Notice of the elements constituting the offence under Section 319A of the Penal Code Law of Kwara State. I do not think so, and I so hold, that the conviction for a 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 319A 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.”
Counsel also relied on the case of Okobi Vs State (1984) 7 SC 47; (1984) LPELR-2453, where it was held:
“It is to be observed that the Criminal Code, Laws of Lagos State contains robbery as one of the offences cognizable 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. It is my view that to enable the Court to utilize its power under the criminal procedure law to its advantage, the offence should and must be charged under the two laws in the alternative. The Court is not a persecutor but an adjudicator and its borders on Persecution, for the Court to invoke its powers under a law under which the prosecutor decided not to proceed, or prosecute … it will amount to a denial of justice, to the appellant to convict him of an offence under a law different from that which he was tried, for the sole purpose of securing conviction” Per Obaseki, JSC.
Counsel drew strength from the above decisions, to say that the learned trial Judge was in error to have convicted the Appellant under the Robbery and Firearms (Special Provision) Act Cap 398 LFN, 1990. He further placed reliance on FRN Vs Adeniyi & Ors (2019) 2 SC (Pt 111) 66; Etim Vs The State (2019) 3 SC (Pt II) 143 at 156-157.
Counsel said that the trial Court, having found that the prosecution had proved an offence under Section 299 which is equally attempted robbery, ought not to have resorted to conviction under the Robbery and Firearms (Special Provision) Act; that, the Penal Code has enough provisions under which Appellant could have been convicted, without necessarily relying on the Robbery and Firearms, Act.
Counsel added that Section 217 of the Criminal Procedure Code, relied upon by the trial Court, is not applicable to the facts of this case, as the section is only applicable in cases mentioned in Section 216 of the Act. He argued that, Appellant was never charged of having committed all of the offences charged in the alternative, and so it was wrong for the trial Court to have relied on Section 217 of the Criminal Procedure Code, in convicting the Appellant under Robbery and Firearms Act. He relied on the case of Okabachi & Ors Vs The State (1995) 3 SC 141, Ogu Vs The State (1963) 1 ALL NLR 234; Oyebade Vs The Queen (1967) NMLR 71.
Counsel admitted that a Court can convict an accused person for a lesser offence and relied on the case of Okabachi & Ors Vs The State (supra) and State VS Usman (2004) ALL FWLR (Pt 226) 231 at 271-272. But he said that, in this case, Appellant was convicted for a more severe offence; that Section 298 of the Penal Code provides for imprisonment for a term that may extend to ten years, or for one who commits robbery and Section 299 provides for attempted robbery, to be punished with imprisonment term that may extend to 7 years or fine, but that the trial Court in this case opted for a more severe punishment under the Federal Act. He relied on the case of Babalola Vs State (1989) 7 SC (Pt 1) 94 at 112, to the effect that the accused person can only be found guilty in respect of the offence for which he is charged, being the offence, he pleaded to.
Counsel added that the charge, dated 2/7/18, was not competent and valid, because it was substituted with the charge filed on 29/11/2017, that would have provided the basis for the substituted offence; thus, he said the charge dated 2/7/2018 cannot stand in place of a non-existing process and does not equally have the stamina to stand on its own, having not been birthed with a life of its own, but to draw strength from the earlier one.
On Issue 2, Counsel said the trial Court was wrong to rely on Exhibit A (confessional statement) to convict Appellant, in view of the fact the Hausa version of it was not tendered. He said that PW2 (IPO) had said that he recorded the Appellant’s statement in Hausa and in English languages. Counsel relied on Adamu VS State (2019) 8 NWLR (Pt 1675) 478 at 493-494, to say that both the Hausa and English versions ought to have been tendered; that issue of fair hearing would arise where the Appellant did not understand the English language used in trying him. He relied on Olanipekun Vs State (2016) 13 NWLR (Pt 1528) 100 (among other cases), and added that, having admitted to recording the statement in Hausa language, PW2 cannot just tender the translated copy in English language, without the original made in Hausa language. He relied on the case of Adeyemi Vs State (2013) 3 NWLR (Pt 1340) 78.
Counsel further said that Exhibit A2 (reproduced on pages 103-104 of the Records) was not actually a confessional statement as claimed at the lower Court. Counsel also said that the offence alleged (armed robbery) against Appellant, meant robbery with violence (FRN Vs Usman (2012) LPELR-7818 SC). He said that before there can be robbery, something must be stolen; he said that, in this case, nothing was stolen; that Exhibit A2, clearly stated that nothing was stolen – when Appellant said: “We both ran away… we did not collect anything from him.”
Counsel said that, since nothing was stolen, Appellant could not have committed or confessed to a crime of armed robbery, which did not happen. Counsel relied on Ikemson Vs State (1989) 3 NWLR (Pt 11); The State Vs Yahaya (2019) 13 NWLR (Pt 1690) 297, to say that, for extra-judicial statement to constitute confession, the maker must admit or acknowledge that he committed the offence for which he was arrested and charged. He said that the trial Court did not make any finding against Appellant, that he admitted committing the offence; rather that the Court found on page 121 of the Records, that Exhibit A2 was a confessional statement; that he admitted being with 1st and 3rd Accused persons at the time of commission of the offence and admitted conspiracy with them to rob PW1, and one of them stabbing PW1 with a knife. Counsel said that, with the above, Appellant could only be charged with offence of conspiracy!
Counsel further relied on the cases of Ajiboye Vs FRN (2018) 13 NWLR (Pt 1657) 430 and Olaoye Vs State (2018) 8 NWLR (Pt 1621) 281, on the requirements of a confessional statement, that it must meet the requirements to be so called, including words of caution. He said that Exhibit A2 was not a confessional statement; especially as the said Exhibit was extracted, under duress-torture.
For Issue 3, Counsel answered in the negative, saying that the offence was not established beyond reasonable doubt, as the evidence of prosecution was riddled with inconsistencies and contradictions. He referred us to pages 24, 25 of the Records, to highlight on the evidence of PW1, which he said were in conflict. He also relied on the case of Aiguokhian Vs The State (2004) 3 SCM 56, on the effect of inconsistent and contradictory evidence.
Counsel stressed that PW1 could not have identified Appellant, as he (PW1) said some of the people who attacked him in his house were masked (covered their faces) and it was in the night! That PW1 said 1st accused mentioned their names – 2nd and 3rd Accused, but the 1st Accused denied this (Page 37 of the Records). Counsel said PW2 had told the Court that the community members told them (police) one Abdulfata Abdullahi and Umar (i.e. 2nd Accused and a person, now at large) were the people who conspired and attacked a sugarcane seller.
Counsel said the people who gave that information to PW2 did not give evidence. Moreover, that Appellant’s name was not Abdulfata Abdullahi, but Abdulfata Murtala! He also said that the evidence of Appellant on page 37 of the Records was not discredited, when he said that, on 14/2/2017, he returned from school at 3pm; went to his tailoring shop; returned home from work, prayed and then the police came in from their van and arrested him, in front of his house and took him away. Counsel said it was doubtful whether Appellant was at the scene of crime, at all; that the alleged persons who mentioned him to the police was not called as a witness; he said that was fatal to the case of the prosecution. He relied on Adamu Vs State (2019) 8 NWLR (Pt 1657) 478; Imhanria Vs Nigeria Army (2007) 14 NWLR (Pt 1053) 76 at 94; State VS Nnolim (1994) 5 NWLR (Pt 345) 394 17.
Counsel urged us to resolve the lingering doubts for Appellant, and urged us not to depend on the confessional statement. He urged us to resolve the issues for Appellant.
Responding, the Counsel for the Respondent Muhammad Nasir Faruk, Esq., (SSC Kano State), on Issue 1, said that the Prosecution had proved the case against Appellant, beyond reasonable doubt. He relied on the three ways of proving commission of offence – namely (1) by eye witness(es) account; (2) by confessional statement or admission voluntarily made; (3) by circumstantial evidence. He relied on Ilodigwe Vs State (2012) 5 CM 134; Yakubu Vs State (2014) 35 CM 254. He also relied on the case of Dibia Vs The State (2017) 12 NWLR (Pt 1597) 196, on the ingredients of armed robbery and attempted armed robbery, that:
“The offence of attempted robbery is committed when any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault uses or threatened to use actual violence to any other person or any property in order to obtain the thing intended to be stolen”
Counsel said it was further held in the case of Dibia Vs State (supra):
“The act or conduct of the accused in furtherance to his intention to commit the offence and in relation to the principal offence, must be something more than mere preparation for the commission of the principal offence. The act or conduct of the accused must be such that, but for intervening circumstance, the principal offence would have been completed or executed.”
Counsel for the Respondent then referred us to the evidence of DW2 (Appellant) on pages 103-104 of the Records, when he said in Exhibit A2:
“…I know (sic) Abdul Umar and Abba about two years ago, I knew them at our joint were (sic) we used to smoke Indian hemp. I could remember on the 14th February, 2007, I met with them (sic) behind Hajiya Maria house; while moving towards our house one Abba (the 1st accused) among us told us that he don’t (sic) have money, he also advised us to go and attack one sugarcane seller along the same street that he has money. Myself, Umar and Abdullahi went straight and attacked him and said Abdullahi used knife and subdued him. We both runaway (sic) after that, we did not collect anything from him.”
Counsel said that evidence was corroborated by the 3rd accused in Exhibit A3. (See page 104 of the Records of Appeal).
Counsel referred us to the evidence of PW1 on page 25 of the Records, and recounted how he was attacked by the robbers and stabbed by the accused, in the course of robbing him; that they ran away when he shouted and a neighbor came out, that he was able to identify them.
PW1 had stated, under cross-examination, that the Appellant was with the 1st accused at the time of the attack and also beat him up. See page 25 of the Records, where he said:
“…The 2nd accused was together with the 1st accused and he also beat me up. Yes, I did not know the 2nd accused before this incident. Yes, 5 of them came. Yes, 2 covered their faces. It was the 1st accused person that mentioned their names. I still insisted that the 2nd accused had covered their faces, with Hirami, so I did not see his face… yes, the 2nd accused was one of these who covered their faces I can’t recognize him…”
Counsel said that the testimony of the Appellant in Exhibit A2 corroborated the evidence of PW1 and PW2; and that when Exhibit A2 was tendered, the Appellant raised no objection to the admission of same, and so it was admitted, without any objection. He said that the trial Court was entitled to convict even on the basis of the confessional statement of Appellant alone, and relied on Ada Vs State (2008) 7 MJSC 46: Azabada Vs State (2014) 6-7 MJSC (Pt 1) 55; Saliu Vs State (2014) 5-6 SC (Pt 1) 26.
Again, Counsel said the evidence of PW1, PW2, DW2 (Appellant) and Exhibit A3 corroborated the veracity of the confession; that no shred of evidence was adduced to suggest that the confession was not free and voluntary. He also said that the evidence of the prosecution was consistent and there was no contradiction.
He urged to resolve the issue for Respondent, and relied on Shurumo Vs State (2010) Vol. 12 MJSC 52, to say that only material condition can affect evidence.
On Issue 2, whether the trial Court was right to rely on the confessional statement to convict Appellant, Counsel answered in the affirmative, and said that even where the confessional statement is retracted, the Court can still rely on it, where it is adjudged credible. He relied on Abdullahi Vs State (2013) 11 NWLR (Pt 1366) 435. Counsel repeated the arguments made under issue one, relating to the confessional statement (Exhibit A2) and relied on the cases earlier stated.
On Issue 3, whether the trial Court was right to convict Appellant of offence under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, when he was charged under Section 298 of the Penal Code, Cap 105, Laws of Kano State, Counsel answered in the affirmative. He relied on the cases of Okabichi Vs The State (1975) 3 SC 141 and Ogu Vs Queen (1963) 1 ALL NLR 234, which he said had to do with substituted convictions. He also relied on Sections 216 and 217 of the Criminal Procedure Code which he said empowers the Court to substitute charge, against accused person, if the main charge has not been proved. Counsel also relied on Salisu Vs State (2019) ALL FWLR (Pt 972) 260, where it was held that an accused person can be convicted for lesser offence, disclosed, if the principal offence is not proved.
Counsel also relied on Agugua Vs State (2017) ALL FWLR (Pt 888) 355, where it was held:
“…The offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove, the law is that before an accused person can be convicted for a lesser offence, the ingredient of lesser offence charged is subsumed in the original offence charged, and the circumstance the lesser offence was committed must be similar to those contained in the offence, charged.” See Nigerian Airforce Vs Kamaldeen (2007) ALL FWLR (Pt 361) 1676.
Counsel also relied on Section 231 of the Administration of Criminal Justice Law of Kano State, 2019 to the effect that:
“Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be, convicted of having attempted to commit that offence although the attempt is not separately charged”
Counsel urged us to resolve the issues against the Appellant to dismiss the appeal.
RESOLUTION OF THE ISSUES
I shall consider this appeal on the three issues donated by Appellant, which I shall take together, but summarized into 2, as follows:
(1) Was the trial Court right to convict the Appellant of a lesser offence of attempted armed robbery under the State law, but punished under Section 2(1) of the Robbery & Firearms (Special Provision) Act, Cap 398 LFN, when Appellant was charged under Section 298 of the Penal Code Cap 105, Laws of Kano State 1991?
(2) Did the prosecution establish the commission of the lesser offence of Attempted Armed Robbery, as per the evidence, including the confessional statement of the Appellant – Exhibit A2?
A brief fact of this case, at the lower Court, showed that Appellant and three other persons (one could not be arraigned, being at large) went to the house of the PW1 to rob him. At the house of the PW1, they attacked him and threatened him to surrender his money and other valuables, but PW1 resisted them, and was beaten and stabbed, severally. He (PW1) raised alarm which attracted neighbours and the assailant ran away, without taking anything.
Three of them, including the Appellant, were arrested. Appellant was the 2nd Accused person. The 1st Accused was the first to be arrested, at the scene and he gave the names of the others, who took part in the robbery attempt. The accused persons made confessional statements to the Police, which were admitted, without objection. Appellant’s confessional statement was Exhibit A2, which he retracted at the trial.
The trial Court found the three accused persons guilty of attempted armed Robbery, instead of armed robbery since they did not take anything from the PW1, as they ran away in fear.
Appellant’s main argument in this appeal, is that the trial Court was wrong to convict him under a Federal Law, Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN, when he was charged under the State Law, Section 298 of the Penal Code, Cap 105, of the Kano State, 1991. He also argued that the trial Court was wrong to convict him of attempt to commit the armed robbery, relying on the Confessional Statement (Exhibit A2, the English version), when the Hausa version of the confessional statement was not tendered as Exhibit.
Appellant’s Counsel stated that Section 298 of the Penal Code provides for the punishment for robbery that:
“Whoever commits robbery shall be punishable with imprisonment for a term which may extend to ten years and shall be liable to fine.”
He also said that, by Section 299 of Penal Code, “Whoever attempts to commit robbery shall be punished with imprisonment for a term which extend to seven years and shall be liable to a fine.”
Appellant’s Counsel also submitted that the Court has power under Sections 217 and 218 of Criminal Procedure Code to convict an accused person of a lesser offence, and relied on the case of State Vs Usman (2004) ALL FWLR (Pt.226) 231.
Counsel said that Section 217 of the Criminal Procedure Code is only applicable in cases mentioned in Section 216 of the Law, which says:
“… If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved, will constitute, the accused may be charged with having committed all or anyone or more of such offences and any number of such charges may be tried together, or he may be charged in the alternative with having committed someone or other of the said offences.”
Counsel argued that Appellant was never charged of having committed all the offences or charged in the alternative and so it was wrong to have relied on Section 217 of the Criminal Procedure Code, to convict the Appellant under the Robbery and Firearms (Special Provision) Act, a Federal Law, contravening armed robbery and related offences.
Counsel, however, admitted that there are equivalent provisions in the Kano State Law, for the offence of attempted armed robbery
The charge at the lower Court against Appellant, and the other accused, was:
“That you Abba Nuhu, Abdulfatah Murtala and Abdullahi Musa, on or about 14th February, 2017 at about 1930 hours or thereabout at Ramin Gaza, Sharada Quarters, Municipal Local Government, Kano within Kano Judicial Division while armed with a dangerous weapon i.e. a knife did commit the offence of Armed Robbery by doing an act to wit: you stabbed one Musa Mukhtar Umar thereby instilling fear with the intention of collecting money and other valuables from the said Musa… thereby committed the offence of Armed Robbery punishable under Section 298 of the Penal Code, Cap 105 Laws of Kano State…”
Appellant and his colleagues were, therefore, tried for armed robbery under the relevant State Law – Section 298 of the Penal Code, Cap 105, Laws of Kano State 1991. But at the end of the trial, the Learned trial Court found that the evidence rather established a lesser offence of attempt to commit armed robbery, since the accused persons did not take away anything from their victim, after stabbing and beating him, as they ran away in fear, upon the victim raising alarm. Of course, the intention to rob was established, as well as the use of threat and arms, to do so.
The decision to convict the Appellant and his co-accused for an attempt to commit armed robbery, appears well founded, in the circumstances, in my opinion. And I think Appellant should be thankful that he was convicted of a lesser offence of attempted armed robbery. It was not because Appellant and his gang were not about to rob the PW1 of his valuables, but were only prevented from taking away the valuables by the alarm raised by PW1, which brought people to the scene, causing them (robbers) to bolt away, in fear.
I do not, however, know why the Learned trial Judge elected to predicate the punishment of Appellant (and the other accused persons) under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN 1990, when it was clear that Appellant (and the other accused person) was charged under Section 298 of the Penal Code of Kano State – Cap 105 Laws of Kano State.
The resort by the learned trial Court to Section 2(1) of the Robbery and Firearms (Special Provision) Act, was wrong, in my opinion, and I think that was a slip, which, alone cannot defeat or nullify the trial and conviction of the Appellant for a lesser offence of attempt to commit armed robbery, especially as the learned trial Court had stated how she arrived at the decision to convict Appellant of the lesser offence, when she said:
“However, there is enough evidence of attempted armed robbery proved in this case. I therefore find the 2nd accused actually participated in the attempted robbery together with 1st and 3rd accused person (sic); sequel to this finding I find no defence offered by the 2nd accused in his defence. I therefore in compliance with the provision of S. 17 of the Criminal Procedure Code (under which the charge was bought) now S. 231 of the Kano State Administration of Criminal Justice (Law) Kano, 2019, hereby find the 2nd accused guilty of attempted armed robbery, under Robbery & Firearms (Special Provision) Act…” (See pages 122-123 of the Records of Appeal).
It is clear that Appellant was tried and found guilty under the State law – Criminal Procedure Law of Kano State, and Penal Code, Cap 105 Laws of Kano State, and so the conviction stands, despite the slip by the Court to resort to the section, with which Appellant was punished – Section 2(1) of the Robbery and Firearms Act, Cap 398 LFN, which was imported, strangely, into the case, instead of the relevant State Law- Section 299 of the Penal Code, Cap 105 Law of Kano State, which the Court kept referring to and which had made provisions for punishment in respect of attempted armed robbery. I think the trial Court had a duty to abide by that provision, in determining the punishment of Appellant. But because the State law also allows for a term up to 14 years imprisonment, and a fine for a convict, (not 7 years as wrongly stated by Appellant’s Counsel), that sentence should not be disturbed, in my opinion.
Sections 298 and 299 of the Penal Code of Kano State provide as follows:
“298. Whoever commits robbery shall be punished: –
(a) with imprisonment for twenty-one years with or without fine and canning; and
(b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment for life, with or without caning.
299. Whoever attempts to commit robbery shall be punished with imprisonment for a term of fourteen years, with or without fine and caning.”
The rules concerning conviction for a lesser offence are well established and entrenched in our criminal jurisprudence, where the particulars or ingredients of the lesser offence are also integrated in the main offence, and so the evidence led, to establish the said main offence is subsumed in what is required to establish the lesser offence, enabling the trial Court to convict on the lesser offence, straight away, without any need to amend the charge for the accused to take plea on the said lesser offence. See the case of Galadima Vs State (2013) LPELR-20402 CA:
“To the question whether the appellants, who were not charged with this offence, could be convicted of it, the Court returned an affirmative answer. It explained its reason thus: By Section 218 of the Criminal Procedure Code Cap. 30 of Laws of Northern Nigeria 1963 applicable to Kogi State, an accused person can be convicted of a lesser offence if proven even though he is not charged with it. See Okwuwa v. State (1964) 1 All NLR 366. The offence of voluntarily causing hurt without provocation is proved in this case against the appellants contrary to Section 246 of the Penal Code. [Italics supplied for emphasis] In Ezeja v The State (supra), the appellant was originally charged with causing grievous hurt to Cyprian Okpala by shooting and wounding him with his service pistol but the evidence at the trial disclosed a lesser offence of causing hurt without provocation hence, the conviction of the appellant by the trial Court under Section 246 of the Penal Code. These decisions have to be contrasted with The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, where this Court held that: 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. See Okwuwa v. The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence, the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law. [Italics supplied for emphasis] In Agugua v The State (2017) LPELR-42021 (SC) 54 -55; E- A, this Court explained that: … the offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove. 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. See The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113. [Italics supplied for emphasis] In Okobi v The State [1984] 7 SC 47; (1984) LPELR -2453 (SC), one of the questions that arose for determination was whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act entitled a 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 [in pari materia with Section 218 of the Criminal Procedure Code]. Speaking for this Court, Obaseki, JSC, at page 23; A – C, made the following enduring 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.”
In the case of Saliu Vs State (2018) LPELR-44064 (SC), my Lord Nweze, JSC, said:
“…there is no way the Appellate Court can substitute or abandon the findings of the trial Court, with another, arbitrarily, or substitute the sentence, which is the terminal of the charge and evidence led to prove it. See the case of SOLOLA V. THE STATE (2005) 2 NWLR (Pt. 937) 460 at 488; ADENIYI v. FRN (2012) ALL FWLR (Pt, 646) 575 at 589 where this Court held: “By the provisions of Section 179 (1) and (2) of Criminal Procedure Act, the Court can convict an accused person on a lesser offence disclosed by evidence at the end of trial, if the main charge fails. But that can only apply where the offence proved is part or element of the offence charged, or related to it. The offences should be related, having the same or common means of proof, or similar/related ingredients for establishing commission, but the lesser offence, being so called, because the severity of it is less than the main offence, and the punishment thereof is, accordingly, reduced…”
That case of Saliu Vs State (supra), it was further held:
“THE JURISPRUDENCE OF THE SUBSTITUTION OF LESSER OFFENCES Now, Section 218 of the Criminal Procedure Code provided thus: (1)Where 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. [Italics supplied for emphasis] The lower Court placed reliance on Adava v The State (supra) as authority for its decision in affirming the trial Court’s conviction of the appellant on the “lesser offence.”
The Section 231 of the Administration of Criminal Justice Law of Kano State, 2019, says: “Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be convicted of having attempted to commit that offence, although the attempt is not separately charged”
As earlier stated in this judgment, I cannot fault the decision of the trial Court, convicting Appellant on the said lesser offence of attempted armed robbery, which was clearly established by the evidence led, short of proving the main offence of armed robbery. But the trial Court should have sentenced Appellant under the Penal Code, Cap 105 of Kano State, whereof Section 299, prescribes punishment for attempted robbery, being prison terms of up to 14 years, and a fine.
I think the trial Judge should have confined herself to the Penal Code, which also prescribed the 14 years imprisonment, for attempted armed robbery, (not the Robbery and Firearms (Special Provision) Act, Cap 398, LFN, 1990).
The Argument of Appellant’s Counsel against the conviction of the Appellant on the basis of his confessional statement (Exhibit A2) does not require the waste of judicial time to consider, in full, as the law has become trite, that Appellant can be convicted, even on his confessional statement alone, where the same is adjudged relevant and voluntarily made, and properly before the Court, having been admitted without objection at the trial. See the recent case of Sule Vs Kano State (2022) LPELR-57542 (CA), where we held:
“By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion. See the case of Husseini Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”
Of course, Appellant, who did not challenge the admission of his confessional statement, at the point of tendering same, at the trial, cannot rise up, on appeal, to oppose or challenge the reliance on the same by the trial Court, and seeking the striking down of the confessional statement. See the case of Yusuf Vs The State (2022) LPELR-56760 (CA), where we held:
“Party who did not object to the tendering of a confessional statement, when it was put in evidence, cannot protest against the statement, on appeal, or seek to deny making the statement, voluntarily. A confessional statement can only be challenged, when it is tendered (and at that time possibly call for trial-within-trial on its voluntariness), not on appeal. See Sunday Vs FRN (2018) LPELR – 46357 (SC)”
The argument that the Hausa version of the Appellant’s Statement was not tendered, cannot be true, as it is clear from the Records that both the Hausa and English versions were admitted, together, as Exhibit A2. See Page 29 of the Records of Appeal.
I therefore see no merit in this appeal, except in respect of the resort to Section 2(1) of the Robbery and Firearms (Special Provision) Act, for the punishment of Appellant, instead of Section 299 of the Penal Code of Kano State, which I do not think can invalidate the trial and conviction.
I do not think the cases of Bello Vs State (2019) 77 part 2 NSCQR 5941; Okobi Vs State (1984) 7 SC 47, (1984) LPELR-2453 (SC) and FRN Vs Adeniyi & Ors (2019) 2 SC (Pt 111) 66 are applicable to this case, as they had to do with conviction of accused person under a law different from that which they were charged and tried.
Appellant in this case was convicted on a lesser offence under the law with which he was charged, but erroneously sentenced on a different law, which has been corrected in this judgment.
The appeal is dismissed for lacking in merit as the 14 years imprisonment is also what the Penal Code of Kano State provides for attempted armed robbery. The error in sentencing Appellant under Section 2(1) of the Armed Robbery & Firearms Act does not affect the merit of the decision of the lower Court, in my view.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft form, the leading judgment of my learned brother ITA G. MBABA, J. C. A. I am in complete agreement with his Lordship that the appeal is devoid of merit; accordingly, I also dismiss it.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the judgment by my learned brother ITA G. MBABA, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine. I too found the appeal unmeritorious. The appeal is equally dismissed by me and I abide by the consequential orders made therein.
Appearances:
A. S. ABDULKADIR, ESQ. For Appellant(s)
MUHAMMAD NASIR FARUK, ESQ. (S.S.C. Kano State MOJ) For Respondent(s)