OLUMIDE SEGUN v. THE STATE
(2018) LCN/4749(SC)
In The Supreme Court of Nigeria
On Friday, the 1st day of June, 2018
SC.977/2015
RATIO
POSITION OF THE LAW ON THE CONVICTION OF AN ACCUSED OF A LESSER OFFENCE ESTABLISHED BY THE PROOF OF SOME OF THE SEVERAL PARTICULARS OF THE MAIN OR PRINCIPAL OFFENCE CHARGED WITH
In coming to their concurrent findings in this matter, both the learned trial Judge and the Court of Appeal relied on Section 179(2) of the Criminal Procedure Law of Ogun State, 2006 which is in pari materia with Section 218 of the Criminal Procedure Act. The said section provides:- “179 (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 was not charged with it.” On the applicability of the above provision, this Court made it clear in Okobi v. The State (1984) 7 SC 47, (1984) LPELR-2453 (SC), per Obaseki, JSC at page 22 of the later law report that – “Lesser offence mentioned in Section 179(1) can only, in my view, refer to lesser offence under the law or Act under which the main or composite offence was charged. It cannot properly be interpreted to refer to a lesser offence under another law. Section 179 (2) Criminal Procedure Law has in my view, an independent application which differs from that of Section 179(1) of the Criminal Procedure Law. While Section 179(1) of the Criminal Procedure Law enables conviction to be entered for complete lesser offence established by the proof of some of the several particulars of the main or principal offence, e.g. in the trial for robbery under Section 401, Criminal Code stealing under Section 390 Criminal Code is proved, Section 179 (2) Criminal Procedure Law enables a conviction to be entered for the lesser offence to which the main offence has been reduced by the proof of facts having the effect of reducing the main offence to a lesser offence, e.g. in the trial for murder under Section 316 of the Criminal Code if provocation is proved, the offence is reduced from murder to manslaughter.” Also, in John Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, also reported in (1986) LPELR-2085 (SC), Karibi-Whyte, JSC at pages 16-17 paragraphs D-A, shed some more light on the issue, relying on Torhamba v. Police (1956) NRNLR at Page 94 as follows:- “In Torhamba v. Police (1956) NRNLR at 94, the Court had attempted to give a guide as to the determination of what constitutes lesser offence. It was said – “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 the particulars making up the lesser offences of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen (1953) 2 WLR 965 (1953) A.C. 407.” There are other decisions such as Shoimbo v. State (1974) 10 SC 91; Oyediran v. Republic (1967) NMLR 122; R. v. Tyson (1945) 11 WACA 90; R. v. Adokwu (1952) 20 NLR 103.” On page 17, His Lordships counsels on what should be bourne in mind while considering this issue. He states:- “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 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 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 lest mentioned is ordinary common sense. The greater includes by necessary implication the lesser.” I have taken time to quote in extenso the views of this Court in respect of this matter which has not changed. This Court set aside the conviction and sentence of the Appellant in Okobi v. The State (supra) because the appellant therein was charged under the Robbery and Firearms (Special Provisions) Act but he could not be convicted under that law only to be convicted under the Criminal Code. This Court held that this is not possible as it is against the tenor of Section 179 of the Criminal Procedure Act. In the instant appeal, the Appellant was charged under Section 6(a) of the Robbery and Firearms (Special Provisions) Act but was convicted under Section 5 of the same Act. It was the same facts and evidence led in support of the offence of aiding and abetting that was used to convict the appellant for receiving the stolen car. In his extra judicial statement which was admitted in evidence, though he resiled from it, the appellant gave account of how the offence was hatched and executed. The learned trial Judge refused to convict him for the principal offence because he felt there was nothing to corroborate the contents of the resiled confessional statement. But as was clearly stated by the Court below, PW4 gave evidence of how he found the snatched car behind the house of the appellant without the number plate and the appellant even stated in his statement that they used “super glue” to clean the number written on the car “wheel” (wind) screen. My Lords, I have no doubt in my mind that the Court below was right when it upheld the conviction and sentence of the appellant. The evidence against the appellant is overwhelming and I accept that a lesser offence of receiving the stolen car was proved beyond reasonable doubt. Section 179 (2) of the Criminal Procedure Law was appropriately invoked to convict the appellant of a lesser offence when the appellant received the stolen car which was snatched under gun point, when he removed the number plate and obliterated the Registration number on the wind screen by the use of “super glue”, he knew or ought to have known that the law was waiting for him around the corner. He should not complain but thank God that the two Courts below decided to convict him of a lesser offence than that which carries sentence of death. PER JOHN INYANG OKORO, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
OLUMIDE SEGUN Appellant(s)
AND
THE STATE Respondent(s)
JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ibadan, delivered on 9th June, 2015 wherein the lower Court, by majority of two to one, affirmed the conviction and sentence of the appellant to life imprisonment for the offence of receiving under Section 5 of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria, 2004, though he was actually charged under Section 6 (a) of the said Act for the offence of aiding and abetting the commission of an offence.
Briefly, the facts giving birth to this appeal are that the Appellant and one Jamiu Dairo were tried together for armed robbery and aiding the commission of armed robbery. The evidence of the prosecution at the trial showed that the said Jamiu Dairo went to rob PW1 of his car at gun point somewhere in Igbeba Road, Ijebu Ode. During the operation, PW2 was shot by the said Jamiu Dairo. On the following day, Jamiu took the car to another location and then eventually to the appellant to wash the said car. While the appellant was washing the said car, he was arrested by policemen.
1
Evidence at the trial showed that Jamiu had never known who the appellant was before the said date and all the appellant did was to wash the car before he was arrested. There was no nexus or link between the appellant and the said Jamiu.
In fact, Jamiu in his evidence before the Court stated that he did not know the appellant and all he did was to approach him to wash the car that was stolen. The appellant being a car wash person decided to do the washing and it was during the washing that he was arrested. Despite all these facts to show that there was no nexus or link between the appellant and the crime, the learned trial Judge found the appellant guilty of receiving stolen property and sentenced him to life imprisonment. Against this conviction and sentence, they appealed to the Court of Appeal which after consideration of the issues raised, affirmed the conviction of the appellant by a majority of two with one dissenting. The judgment of the Court below was delivered on 9th June, 2015.
Again, the Appellant was dissatisfied with the judgment of the Court below and filed Notice of Appeal on 7th July,
2
2015 which was deemed properly filed on 8th March, 2018. There are three grounds of appeal out of which the Appellant has distilled two issues for the determination of this appeal thus:-
1. Whether the appellant was rightly convicted of the lesser offence of receiving.
2. Whether the prosecution was able to establish its case beyond reasonable doubt as required by law.
It was however the view of the learned counsel for the Respondent that only one issue is germane for the determination of this appeal which he has couched as follows:-
“Whether from the entirety of the evidence on record as well as material available, the Respondent as prosecution established the offence of Receiving Stolen Property against the Appellant beyond all reasonable doubt to warrant the appellant’s affirmation of conviction and sentence by the Court of Appeal and a dismissal of the Appeal of 7th July, 2015 in its entirety.”
On the issues formulated by the parties for the determination of this appeal, it is crystal clear that although the appellant has distilled two issues, the respondent has fused the two issues into one.
3
I shall determine the two issues of the appellant together as if it was one issue. What this means is that I adopt the sole issue as couched by the Respondent as a guide in determining this appeal.
The learned counsel for the Appellant Oladipo Olasope, Esq., submitted in the main that it was a wrong approach for the learned Trial Judge, as affirmed by the Court below, to convict the appellant of a lesser offence as the principles for conviction for a lesser offence were missing, referring to the case of Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1. According to him, the principal elements of the offence of aiding and abetting are that the person aiding and abetting must be present at the scene of crime and the person must have done something or failed to do something which helped the commission of the crime, relying on Yakubu Mohammed v. State (1980) 3-4 SC 56.
Learned counsel submitted that the ingredients of the offence of receiving are that:-
1. The property in question must have been stolen.
2. The accused received the stolen property.
3. The accused knew or had reason to believe that the property was stolen property, citing the case of
4
Okoroji v. State (2001) All FWLR (Pt. 77) 871 at 889 and Eze v. State (1985) 3 NWLR (Pt. ) Yongo v. C.O.P. (1992) NWLR (Pt. 257) 36. He stressed that it is apparent that the ingredients of both offences are totally different and as such there was no reason why the Court should have substituted the conviction of a lesser offence when the ingredients of both offences are not the same. That the Court below also fell into the same error.
Learned counsel contended that for the lesser offence to be established, the lesser offence must be carved out of the graver offence charged, relying on Okuwura v. State (1964) 1 All NLR 366 at 369-370, Ezeja v. State (2006) All FWLR (Pt. 309) 1539.
On issue of proof beyond reasonable doubt, learned counsel submitted that the facts of this case have shown that proof beyond reasonable doubt has not been established. He argued that the appellant was charged with abetting the commission of a crime but subsequently convicted of receiving when the ingredients of both offences are very different. Also, that the evidence before the Court showed that none of the eye witnesses saw the appellant at the scene of crime and even Jamiu testified
5
that he did not know the appellant. According to learned counsel, evidence shows that appellant was in the business of car wash and that he had no knowledge that the car was stolen. Moreso, that the trial Judge did not rely on the confessional statement of the appellant as there was nothing to corroborate that statement. He contended that the lower Court was wrong in agreeing with the trial Court that the offence of receiving was proved beyond reasonable doubt. He urged the Court to resolve the two issues in favour of the appellant.
In response, the learned Attorney General of Ogun State, Dr. Olumide Ayeni referred to Section 179 (2) of the Criminal Procedure Law of Ogun State, 2006 and submitted that under the said law, although the appellant was charged with, and indicted for conspiring to commit armed robbery and abatement of armed robbery offences contrary to Section 6(a) and (b) and punishable with death under Section 1(2) (a) of the Robbery and Firearms (special Provisions) Act, Cap R 11 Laws of the Federation of Nigeria, 2004, the appellant was convicted on/for a lesser offence in terms of receiving stolen property and punishable with
6
imprisonment for life pursuant to Section 5 as aforesaid. He referred to the cases of Odeh v. Federal Republic of Nigeria (2008) 6 SCM 152 at 166 and Oladipupo v. The State (1993) 6 NWLR (Pt. 298) 14.
Learned counsel submitted, relying on Oladipupo’s case (supra) that where an offence is charged and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. He submitted that this is so since the elements of the charge now substituted would have been fully addressed in the course of the trial as well as established so that no valid or competent issue of fair hearing violation would be raised. Also, the learned counsel for the respondent argued that while the Appellant seems to suggest that the elements of the offences of aiding and abetting were not proved to justify his conviction, he was not convicted of offences of aiding and abetting but of receiving stolen property pursuant to Section 5 of the Robbery and Firearms (Special Provisions) Act (supra).
Finally, the learned Attorney General submitted that there is concurrent judgment of the two Courts below and that
7
this Court does not rightly interfere, relying on Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112 at 135. He urged the Court to resolve this issue against the appellant.
At the trial Court, the appellant herein was charged with offences of aiding and abetting the commission of Armed Robbery under Section 6(a) of the Robbery and Firearms (Special Provisions) Act (supra) which states:-
“6 Any person who:-
(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act:- Whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”
However, at the end of trial, the appellant was not convicted as charged but under Section 5 of the same Act which states:-
“5 Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be guilty of an offence under this Act and shall be liable upon conviction to be sentenced to imprisonment for life.”
8
This is what the learned trial Judge said on page 75 of the record:-
“I am therefore not comfortable finding the 2nd accused guilty as a principal offender as I have doubt in my mind as to whether the act of the 2nd accused person in receiving the car would amount to ‘aiding’, or ‘counseling’ or ‘abetting’ or ‘procuring’ the 1st accused and others now at large to commit the offence of armed robbery as provided under Section 6(a) of the Robbery and Firearms (Special Provisions) Act. The view I have just expressed however does not mean that 2nd accused cannot be guilty of an offence under the said Act As earlier stated, there is abundant evidence that the 2nd accused ‘received’ the said car snatched from PW1 at gun point and during which operation PW2 was shot and wounded. The 2nd accused himself did not deny receiving the said car In the circumstances and from the evidence before the Court, I hold that the 2nd accused is not guilty of the offence charged in count 111 in this case. I however find the 2nd accused guilty of receiving the Mazda 626 car Registration No. LA 631 KJA which was snatched from PW1 at gun point on the 24th day of
9
September, 2006 which offence is created by and punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R 11, Laws of the Federation of Nigeria, 2004.”
Affirming the judgment of the learned Trial Judge, the Court below on page 144 of the record made the following findings and conclusions;
“The Appellant as said for the repeated time did not deny receiving a vehicle in a rather clandestine situation. The procedure adopted by the learned trial Judge is not strange in law. The records also show that the Appellant sought to conceal his true identity to the police. Such is not the conduct of an untainted mind. It is equally instructive that the PW4 stated in his testimony that his team did not find the Appellant washing the red Mazda car but that the said vehicle was parked behind the house and had no vehicle registration on. The Appellant admitted receiving the vehicle therefore; a guilty knowledge is apparent and imputable to the Appellant.
The prosecution as found by the learned trial Judge, established a case against the Appellant. The extra Judicial statements of the Appellant and the fact of
10
finding the stolen car in his possession and bearing features which are not totally normal take away the acclaimed innocence of the Appellant.
I have equally perused the statement of the Appellant as an accused person and the testimony before the trail Court. Although the Appellant resiled from his statement, there were some details which exposed a guilty knowledge in the Appellant. The Appellant was not entirely a stranger to the bearer of the vehicle which he was washing. The Appellant also took custody of the car and kept it overnight under his custody. The incidence of robbery would not be that rampant if there are no willing receivers. I find no justification to upset the decision of the learned trial Judge.”
In coming to their concurrent findings in this matter, both the learned trial Judge and the Court of Appeal relied on Section 179(2) of the Criminal Procedure Law of Ogun State, 2006 which is in pari materia with Section 218 of the Criminal Procedure Act. The said section provides:-
“179 (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 was not charged with it.”
11
On the applicability of the above provision, this Court made it clear in Okobi v. The State (1984) 7 SC 47, (1984) LPELR-2453 (SC), per Obaseki, JSC at page 22 of the later law report that –
“Lesser offence mentioned in Section 179(1) can only, in my view, refer to lesser offence under the law or Act under which the main or composite offence was charged. It cannot properly be interpreted to refer to a lesser offence under another law. Section 179 (2) Criminal Procedure Law has in my view, an independent application which differs from that of Section 179(1) of the Criminal Procedure Law. While Section 179(1) of the Criminal Procedure Law enables conviction to be entered for complete lesser offence established by the proof of some of the several particulars of the main or principal offence, e.g. in the trial for robbery under Section 401, Criminal Code stealing under Section 390 Criminal Code is proved, Section 179 (2) Criminal Procedure Law enables a conviction to be entered for the lesser offence to which the main offence has been reduced by the proof of facts having the effect of reducing the main offence to a lesser
12
offence, e.g. in the trial for murder under Section 316 of the Criminal Code if provocation is proved, the offence is reduced from murder to manslaughter.”
Also, in John Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, also reported in (1986) LPELR-2085 (SC), Karibi-Whyte, JSC at pages 16-17 paragraphs D-A, shed some more light on the issue, relying on Torhamba v. Police (1956) NRNLR at Page 94 as follows:-
“In Torhamba v. Police (1956) NRNLR at 94, the Court had attempted to give a guide as to the determination of what constitutes lesser offence. It was said – “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 the particulars making up the lesser offences of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen
13
(1953) 2 WLR 965 (1953) A.C. 407.” There are other decisions such as Shoimbo v. State (1974) 10 SC 91; Oyediran v. Republic (1967) NMLR 122; R. v. Tyson (1945) 11 WACA 90; R. v. Adokwu (1952) 20 NLR 103.”
On page 17, His Lordships counsels on what should be bourne in mind while considering this issue. He states:-
“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 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 the judicial decisions and the provisions that for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed.
14
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 lest mentioned is ordinary common sense. The greater includes by necessary implication the lesser.”
I have taken time to quote in extenso the views of this Court in respect of this matter which has not changed. This Court set aside the conviction and sentence of the Appellant in Okobi v. The State (supra) because the appellant therein was charged under the Robbery and Firearms (Special Provisions) Act but he could not be convicted under that law only to be convicted under the Criminal Code. This Court held that this is not possible as it is against the tenor of Section 179 of the Criminal Procedure Act. In the instant appeal, the Appellant was charged under Section 6(a) of the Robbery and
15
Firearms (Special Provisions) Act but was convicted under Section 5 of the same Act. It was the same facts and evidence led in support of the offence of aiding and abetting that was used to convict the appellant for receiving the stolen car.
In his extra judicial statement which was admitted in evidence, though he resiled from it, the appellant gave account of how the offence was hatched and executed. The learned trial Judge refused to convict him for the principal offence because he felt there was nothing to corroborate the contents of the resiled confessional statement. But as was clearly stated by the Court below, PW4 gave evidence of how he found the snatched car behind the house of the appellant without the number plate and the appellant even stated in his statement that they used “super glue” to clean the number written on the car “wheel” (wind) screen.
My Lords, I have no doubt in my mind that the Court below was right when it upheld the conviction and sentence of the appellant. The evidence against the appellant is overwhelming and I accept that a lesser offence of receiving the stolen car was proved beyond reasonable doubt.
16
Section 179 (2) of the Criminal Procedure Law was appropriately invoked to convict the appellant of a lesser offence when the appellant received the stolen car which was snatched under gun point, when he removed the number plate and obliterated the Registration number on the wind screen by the use of “super glue”, he knew or ought to have known that the law was waiting for him around the corner. He should not complain but thank God that the two Courts below decided to convict him of a lesser offence than that which carries sentence of death. In view of all I have said above, I resolve this issue against the appellant.
Based on all I have endeavoured to say above, I am satisfied to hold that this appeal is devoid of merit and is accordingly dismissed. The conviction and sentence of the appellant by the trial Court as affirmed by the lower Court is further affirmed by me.
Appeal Dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the privilege of reading in advance a copy of the leading judgment of my learned brother Okoro, JSC. I agree with his reasoning and conclusion and I adopt same as mine.
17
There is compelling evidence against the appellant which show that the appellant knew that the vehicle was stolen e.g. removing the registration number on the windscreen with super glue. This together with other incriminating evidence is more than sufficient to convict the appellant for receiving stolen car.
For these brief reasons as well as those more fully given by my learned brother, Okoro, JSC. I too would dismiss the appeal.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, John Inyang Okoro, JSC and to register the support I have in the reasonings from which the decision came about, I shall make some comments.
The appellant and one Jamiu Dairo were charged together and while the offence of robbery was for the said Jamiu Dairo, the appellant was charged with aiding and abetting the commission of armed robbery. At the end of the trial, the appellant was sentenced to life imprisonment on appeal to the Court of Appeal or Court below or lower Court, the appeal was dismissed by a majority decision while the dissenting judgment allowed the appeal and set
18
aside the conviction of the appellant. It is against the majority judgment that the appellant has come before the Supreme Court to ventilate his grievance.
The full details of the facts leading to his appeal are well set out in the lead judgment and I shall not repeat them except to make reference to any part thereof as the occasion warrants.
On the 8th day of March, 2018 date of hearing learned counsel for the appellant, Oladipo Olasupo, Esq., of counsel adopted his brief of argument filed on 8th March, 2016 and deemed filed on 8th March,2018. In it were distilled two issues for determination, viz:-
1. Whether the appellant was rightly convicted of the lesser offence of receiving.
2. Whether the prosecution was able to establish its case beyond reasonable doubt as required by law.
The learned Attorney General of Ogun State, Dr. Olumide Ayeni for the respondent adopted its brief of argument filed on 20th June, 2016 and deemed filed on 8th March, 2018. It formulated a sole issue for determination which is as follows:-
Whether from the entirety of the evidence on record as well as material available, the respondent as
19
prosecution established the offence of receiving stolen property against the appellant beyond all reasonable doubts to warrant the appellant’s affirmation of conviction and sentence by the Court of Appeal and a dismissal of the Appeal of 7th July, 2015 in its entirety.
For ease of reference, I shall make use of the issues as crafted by the appellant.
ISSUE 1 & 2
1. Whether the appellant was rightly convicted of the lesser offence of receiving.
2. Whether the prosecution was able to establish its case beyond reasonable doubt as required by law.
Learned counsel for the appellant submitted that the learned trial judge took the wrong approach as the principles for conviction of a lesser offence were missing. That the principal elements of the offence of aiding and abetting are that the person aiding and abetting must be present at the scene of crime and secondly the person must have done something or must have failed to do something which helped the commission of the crime. That it is apparent that the ingredients of both offences are totally different and as such no reason why the Court should have substituted the conviction of a lesser
20
offence when the ingredients of both offences are not the same. He stated further that the Court of Appeal fell into the error by not recognising the distinguishing fact for before the lesser offence can be established, it must be carried out of the graver offence charged. He cited Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1; Yakubu Mohammed v. State (1980) 3-4 SC 56; Okoroji v. State (2001) ALL FWLR (Pt. 77) 871 at 889; Eze v. State (1985) 3 NWLR; Yongo v. C.O.P. (1992) NWLR (Pt. 257) 36; Maja v. State (1980) 1 NLR 212; Torhamba v. Police (1956) NRNLR 94 etc.
It was submitted for the appellant that a critical ingredient in receiving is that the person knew that the property in question was stolen and in the case at hand no evidence showed that appellant had knowledge that the car was stolen as all he did was to wash the car.
Learned counsel for the appellant contended that the guilt of the accused was never established beyond reasonable doubt. That the prosecution did not even show any link of the appellant with the alleged offence and this is a proper case for the interference of the Supreme Court.
21
He cited State v. Gwangwan (2015) 9 SCM 268; Onubogu v. State (1974) 9 SC 1, Yongo v. C.O.P. (1992) 4 SCNJ 113.
Learned Attorney General of Ogun State for the respondent submitted that the trial Court acted properly in convicting the accused/appellant for the lesser offence of receiving stolen property. He cited Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R 11 LFN, 2004; Section 179(2) Criminal Procedure Law of Ogun State, 2006; Odeh v. Federal Republic of Nigeria (2008) 6 SCM 152, 166; Oladipupo v. The State (1993) 6 NWLR (Pt. 298) 14.
That there is no basis for the interference of this Court in the concurrent findings and conclusion of the two Courts below as there was no perversity. He cited Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112 at 135.
In a nutshell, the appellant’s point of view is that the appellant being charged with the offence of abetting the commission of crime while the evidence before the Court did not establish the offence and the trial Court convicted of a lesser offence of receiving, which is a situation that can play out where the ingredients of the lesser offence which are included in the evidence already adduced before the Court which is not what is in existence in the case at hand.
22
On the other hand, the respondent took an opposite stance contending that there is no basis for the appeal as the judgment of the Court below comes from the same concurrent findings as those of the trial Court and well grounded from the evidence adduced and the law guiding. The decision of the Court of Appeal will have the salient part captured hereunder, viz:-
“The argument of the learned counsel if taken in isolation has some force. However, the full picture is that the appellant had been tried for the offence consisting sufficient information of the ingredients of the offence he was convicted for. Sani Buje v. The State (1991) 4 NWLR (Pt. 185) 287. The learned trial judge addressed this point competently in the judgment part of which has been reproduced in this judgment. The requisite elements of the offence of receiving stolen property were eminently reflected duly identified in the decision of the learned trial judge.
The appellant as said for the repeated time did not deny receiving a vehicle in a rather clandestine situation.
23
The procedure adopted by the learned trial judge is not strange in law.
The records also show that the appellant sought to conceal his true identity to the Police. Such is not the conduct of an untainted mind. It is equally instructive that PW4 stated in his testimony that his team did not find the appellant washing the red Mazda but that the said vehicle was parked behind the house and had no vehicle registration number on it. The appellant admitted receiving the vehicle therefore; a guilty knowledge is apparent and imputable to the appellant.
The prosecution as found by the learned trial judge, established a case against the appellant. The extra judicial statements of the appellant and the fact of finding the stolen car in his possession and bearing features which are not totally normal take away the acclaimed innocence of the appellant.
I have equally perused the statement of the appellant as an accused person and his testimony before the trial Court. Although the accused resiled from his statement, there were some details which exposed a guilty knowledge in the appellant. The appellant was not entirely a stranger to the bearer of the vehicle which he was washing.
24
The appellant also took custody of the car and kept it overnight under his custody. The incidence of robbery would not be rampant if there are no willing receivers.
I find no justification to upset the decision of the learned trial judge.
This appeal is without merit and is hereby dismissed. The decision of the Ogun State High Court is hereby affirmed in its entirety.”
Getting back in time, I shall relay the facts that brought about the trial of the appellant and one Jamiu Dairo being tried together for armed robbery and aiding the commission of armed robbery. The evidence of the prosecution at the trial showed that the said Jamiu Dairowent to rob PW1 at gun point somewhere in Igbada Road, Ijebu Ode and in the course of the operation PW2 was shot by the said Jamiu Dairo. The day after, Jamiu took the car to another location and took the car to the appellant to wash the car and while appellant was washing the car, he was arrested by policemen.
After evidence and address of counsel on either side, the learned trial judge held thus:-
“I am therefore not comfortable finding the 2nd accused guilty as a principle offender as I have doubt
25
in my mind as to whether the acts of the 2nd accused person in receiving the car would amount to aiding or counselling or abetting or procuring the 1st accused and others now at large to commit the offence of armed robbery as provided under Section 6(a) of the Robbery and Firearms (Special Provisions) Act.”
I refer to the provisions of the Robbery and Firearms (Special Provisions) Act Cap R 11 LFN, 2004 with specific attention to Section 5 thereof which would show the stipulation as follows:-
“Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be guilty of an offence under this Act and shall be liable upon conviction to be sentenced to imprisonment for life.
Now, by Section 179(2) Criminal Procedure Law of Ogun State, 2006 it is stipulated viz:-
“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 was not charged with it.”
The law is now well settled that where an offence is charged and facts are proved which reduce it to a lesser
26
offence, the accused may be convicted of a lesser offence although he was not charged with it. This is because the Criminal Procedure Code Section 179(1) has provided for the trial Court or appeal Court to substitute a conviction for a lesser offence on a charge for an offence containing several particulars where only such particulars as made up of the lesser offence were proved. I place reliance on Oladipo v The State (1993) 6 NWLR (Pt. 298) 14 per Ogwuegbu JSC; Odeh v. Federal Republic of Nigeria (2008) 6 SCM 152 at 166.
In this case at hand, the details of the evidence adduced showed that the stolen Mazda car was brought to the appellant without its vehicle number plates and visible was the fact that some substance had been used to erase and obliterate the identification marks on its windscreen and other parts. There was enough to alert the appellant that the car brought to him to wash and which he indeed was washing was a stolen vehicle.
It is not surprising that the trial Court made the finding of receiving stolen property contrary to Section 5 Robbery and Firearms (Special Provisions) Act Cap R 11 LFN, 2004, a position the Court below had no difficulty in going
27
along with by affirming the finding, conviction and sentence thereby creating the concurrent findings and conclusion which is now before this Court. In such situations, this Court has an attitude that has held out for some time and still remains what obtains, an example of which is as stated in the case of Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112 at 135 per Ogbuagu, JSC when it held as follows:-
“I note that there are concurrent findings of facts by the two lower Courts, but the attitude of this Court is that when the findings of facts are either erroneous in substance or will lead to a miscarriage of justice as has been shown…. in this judgment among other things, this Court can interfere.”
See also Arabembi & Anor v. Advance Beverages Industries Limited (2005) 19 NWLR (Pt. 959) 1 at 43; AGBI & Ors v. OGBEH (2006) 14 NWLR (Pt. 990) 65 at 116; Agala & 9 Ors v. Okusin & 3 Ors (2010) 10 NWLR (Pt. 1202) 412 at 439; Okonkwo & 4 Ors v. Okonkwo & 5 Ors (2010) 14 NWLR (Pt. 1213) 228 at 246.
To conclude is to state clearly, that there is no basis to upset the majority decision of the Court of Appeal which
28
affirmed the judgment, conviction and sentence of the learned trial judge. In line with the better articulated lead judgment, I too dismiss this appeal as it lacks merit.
I abide by the consequential orders made.
AMIRU SANUSI, J.S.C.: I had the advantage of reading before now the draft Judgment prepared by my learned brother J. I. Okoro, JSC. I entirely agree with his reasoning and conclusion that this appeal lacks merit. I dismiss the appeal and uphold the judgment of the lower Court which had earlier affirmed the Judgment of the trial Court.
Appeal is dismissed by me.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother John Inyang Okoro, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal is without merit and it is hereby dismissed.
29
Appearances:
Oladipo Olasope, Esq. For Appellant(s)
Dr. Olumide Ayeni (Attorney General of Ogun State) with him, Deinde Dipe-Olu, Esq. (PSC) For Respondent(s)
Appearances
Oladipo Olasope, Esq. For Appellant
AND
Dr. Olumide Ayeni (Attorney General of Ogun State) with him, Deinde Dipe-Olu, Esq. (PSC) For Respondent
