ONUKWUBE v. STATE
(2020) LCN/4950(SC)
In The Supreme Court
On Friday, December 18, 2020
SC.1214C/2018
Before Our Lordships:
Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Between
ONYEMUCHE ONUKWUBE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
DEFINITION OF THE OFFENCE OF “ROBBERY” AND “STEAL”
The Appellant had no notice of any other offence apart from the alleged armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.
The Interpretation part of the said Act defines, in Section 11 thereof, “robbery” and “steal” as:
“robbery” means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
“steal” means to take or convert to one’s use or the use of any other person anything other than immovable property, with any of the following intents –
(a) an intent to deprive the owner of the thing of it;
(b) an intent permanently to deprive any person who has any special property in the thing of such property, the term “special property” here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person of his benefit;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion.
(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend to repay the amount to the owner.
Armed robbery is an aggravated robbery, which robbery becomes so aggravated, as it is provided in Section 1(2) of the Act-
(2) If –
(a) any offender mentioned in sub-section (1) of this Section is armed with firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person.
Section 5 of the said Act creates the offence of receiving and prescribes punishment therefore in the following terms: That is —
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.
The punishment for the offence of armed robbery under Section 1(2)(b) of the Act is death sentence. For robbery, simpliciter, punishable under Section 1(1) of the Act the penalty is “imprisonment for not less than twenty-one years”. While the offence of armed robbery has as one of its active elements or particulars robbery; the offence of receiving under Section 5 of the Act is not an active particular or element of the offences of either robbery or armed robbery, both of which are aggravated theft. The law espoused in SAMUEL TORHAMBA v. I.G.P (1956) NRNLR 87 at 94, very apposite and persuasive, is that: for the offence of stealing, one cannot produce “the offence of being in possession of something which is reasonably suspected of having been stolen or unlawfully obtained” as a constituent element or particular of the offence of stealing. It is for this reasoning that Bairamian Ag. C.J. and Hurley, J in TORHAMBA v. I.G.P (supra) acquitted the appellant, Torhamba, of the offence of receiving, substituted for the charge of stealing he was charged and tried — reasoning that it should be obvious that it is not possible to convict for the offence of receiving when the charge is stealing. TORHAMBA v. I.G.P. (supra) had since been cited with approval in AGUMADU v. QUEEN (1963) 1 ALL NLR (SC). PER EKO,J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Appellant, as the 2nd accused person, was charged and tried for the offence of armed robbery contrary to 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 111 LFN 2004. The particulars of the offence are that: the Appellant and three others “on or about 18th Day of April, 2014 at No. 1/3 Umu-Anaghara Close Achara Layout, Enugu -, while armed with gun did rob one Ugochukwu Francis Nwaiwu of the following items: two Laptops, four cell phones, one Techno Tab, One Laptop Hard-Disk, a box containing jewelries, two Travelling bags, One National ID Card, Two ATM Cards of Eco Bank and Keystone Bank and a sum of N100,000.00— cash.” The Appellant had no notice of any other offence apart from the alleged armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.
The Interpretation part of the said Act defines, in Section 11 thereof, “robbery” and “steal” as:
“robbery” means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
“steal” means to take or convert to one’s use or the use of any other person anything other than immovable property, with any of the following intents –
(a) an intent to deprive the owner of the thing of it;
(b) an intent permanently to deprive any person who has any special property in the thing of such property, the term “special property” here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person of his benefit;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion.
(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend to repay the amount to the owner.
Armed robbery is an aggravated robbery, which robbery becomes so aggravated, as it is provided in Section 1(2) of the Act-
(2) If –
(a) any offender mentioned in sub-section (1) of this Section is armed with firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person.
Section 5 of the said Act creates the offence of receiving and prescribes punishment therefore in the following terms: That is —
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.
The punishment for the offence of armed robbery under Section 1(2)(b) of the Act is death sentence. For robbery, simpliciter, punishable under Section 1(1) of the Act the penalty is “imprisonment for not less than twenty-one years”. While the offence of armed robbery has as one of its active elements or particulars robbery; the offence of receiving under Section 5 of the Act is not an active particular or element of the offences of either robbery or armed robbery, both of which are aggravated theft. The law espoused in SAMUEL TORHAMBA v. I.G.P (1956) NRNLR 87 at 94, very apposite and persuasive, is that: for the offence of stealing, one cannot produce “the offence of being in possession of something which is reasonably suspected of having been stolen or unlawfully obtained” as a constituent element or particular of the offence of stealing. It is for this reasoning that Bairamian Ag. C.J. and Hurley, J in TORHAMBA v. I.G.P (supra) acquitted the appellant, Torhamba, of the offence of receiving, substituted for the charge of stealing he was charged and tried — reasoning that it should be obvious that it is not possible to convict for the offence of receiving when the charge is stealing. TORHAMBA v. I.G.P. (supra) had since been cited with approval in AGUMADU v. QUEEN (1963) 1 ALL NLR (SC).
In this appeal, the trial Court found that the appellant could not be convicted for the offence of armed robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, he was originally charged and tried – a reasonable doubt having been created that he participated in the alleged armed robbery by reason of the prosecution witnesses not properly identifying and fixing him to the alleged armed robbery. The trial Court nonetheless, at page 113 of the Record, proceeded to hold —
Since the evidence before the Court shows that the 2nd accused person aided or conspired with the accused person and others to commit the offence of armed robbery, the Court finds that he is deemed guilty as a principal offender. Accordingly, the 2 accused persons are found guilty as charged.
The lower Court, finding that this “view is seriously erroneous in law,” held, correctly, that “before an accused is convicted on a charge of conspiracy to commit armed robbery instead of (the) armed robbery for which he was charged and tried, a new charge of conspiracy must be framed”. This dictum notwithstanding, the lower Court proceeded, on the presumption (under Section 167(a) of the Evidence Act, 2011) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen, unless he can give account for his possession; to convict the appellant of “receiving goods obtained by means of armed robbery”. The Court purportedly acted under Section 16 (sic: 15) of the Court of Appeal Act and Section 179 of the Criminal Procedure Act.
The sole issue in this appeal is: whether the lower Court was right in convicting and sentencing the appellant to imprisonment for life for receiving goods which are proceeds of armed robbery?
In defence of the decision appealed, Chief M. E. Eze, the Attorney-General of Enugu State, for the respondent submits —
The punishment for armed robbery is sentence to death. The punishment for being in possession of goods obtained by means of armed robbery is imprisonment for life. Therefore, receiving goods obtained by means of armed robbery is a lesser offence than armed robbery. The greater includes, by necessary implication, the lesser. See SALIU v. THE STATE (2018) LPELR -44064 (SC) per Nweze, JSC.
This line of argument seems to be a cocktail of two propositions — relative proportionality of the prescribed sentences in mutual relationships and the inclusiveness of the lesser in the larger prescribed sentence. The learned Attorney-General subsequently cited NWACHUKWU v. THE STATE (1986) LPELR 2085 (SC) which completely betrays and revokes the previous argument. The case is an authority for the proposition that the accused person must have notice of the lesser offence for the conviction of it to be valid in law.
In the NWACHUKWU case (supra), the accused, though charged with committing the offence of armed robbery, was convicted of robbery simpliciter without framing a separate charge of robbery; that is not only a lesser offence, but is also an element of the larger or aggravated offence of armed robbery. This yardstick excludes the relative proportionality of the sentences for both offences. Karibi-Whyte, JSC in the NWACHUKWU case (supra) was not in any doubt that the lesser offence by necessary implication is a component of the greater offence hence his dictum:
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 is which is legitimate, is that the accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence.
Having knowledge of the lesser offence, which is an element of the greater or aggravated offence, through the fact of the greater or aggravated offence is the sine qua non for the invocation of Section 179 of the Criminal Procedure Act (the equivalent of Section 218 of the Criminal Procedure Code). Contrary to the robust submission of Chief Eze, the respondent’s counsel, in support of his proposition in the case: in SALIU v. THE STATE (supra); this Court, per Nweze, JSC stated inter alia that “the indictment of which the accused is subsequently convicted for the lesser offence must contain words to include both offences”. It was on this ground that His Lordship, Nweze, JSC, concluded that “the greater includes by necessary implication the lesser”. The learned counsel, Chief Eze, has thus, unfortunately, read the dictum of Nweze, JSC in the SALIU case (supra) clearly out of context.
Consistent with this proposition that through the greater offence charged the accused is reasonably taken to have notice of the lesser offence, constituting an element of the greater or aggravated offence, that is: “that the greater includes by necessary implication the lesser”; this Court affirmed the invocation of Section 218 of the CPC in EZEJA v. THE STATE (2008) 10 NWLR (pt. 1096) 513. Onnoghen, JSC (as he then was) stated –
It is settled law that the Courts, including this Court, have the power under Section 218 of the Criminal Procedure Code to convict an accused/appellant for a lesser offence or an offence for which he was neither charged nor pleaded to. The Appellant in this case, was 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. I hold the view that the lower Court was right in affirming the said conviction and in correcting the error made by the trial Judge in referring to Section 218 of the Penal Code instead of Section 218 of the Criminal Procedure Code as his authority for substituting a conviction for a lesser offence (sic) for charged.
In this EZEJA case, ADAVA v. THE STATE (2006) 9 NWLR (pt. 984) 152 at 169 was cited with approval on this principle: that for conviction for the lesser offence to be valid, when the larger offence was not proved, through the charge of the larger offence the accused must have notice of the lesser offence.
The sine qua non, for the invocation of Section 179 of the CPA (substantially in pari materia with Section 218 of the CPC and Section 236 of the Administration of Criminal Justice Act, 2015), is the accused/appellant having sufficient notice of the offence he is convicted for to facilitate his defence consistent with Section 36(6)(a) of the 1999 Constitution. I agree with the Appellants’ Counsel that in the absence of sufficient notice of any lesser offence or if the lesser offence is not a constituent element of the larger or aggravated offence a conviction for the lesser offence, on the ground only that the substituted offence carries lesser punishment of penalty violates the spirit and substance of Section 36(6)(a) of the Constitution.
In the much earlier case of AGUMADU v. THE QUEEN (1963) (supra) the Federal Supreme Court, espousing the law on this subject stated that the particulars constituting the lesser offence are to be carved out of the offence charged. Accordingly, it held that it was wrong of the trial Judge, having found that the accused person could not be convicted for attempted murder contrary to Section 320(1) of the Criminal Code on the “particulars of offence” which merely stated: unlawfully attempted to murder NWOJI Agumadu by giving him matchet cut”, to invoke Section 179 of the CPA to convict the same accused person for unlawful wounding without provocation.
The Court reasoned thus:
The information alleged an offence consisting of three particulars; the inflicting of matchet cuts; unlawfulness (i.e, an absence of authority, justification or excuse: see Section 306 of the Criminal Code); and an intent to kill. The offence of which the Appellant was convicted is constituted by the first two of these particulars, that is, the infliction of matchet cuts and the absence of authority, justification or excuse: see Section 253 of the Criminal Code. In the circumstances of this case, anything that would be authority, justification or excuse for the acts held to constitute unlawful wounding, and there is nothing in the submission that Section 284 of the Criminal Code would make a lesser degree of provocation a defence to charge of unlawful wounding than would be a defence to charge of attempted murder.
In other words, where the accused is acquitted on the successful plea of a statutory defence for the offence charged; it would be wrong to convict him for the lesser offence having the same statutory defence. Therefore, since the accused person can, on the same fact or defence, plead autrefois acquit, to convict him on the same fact of the lesser offence would be wrong in law. That is the implication of Section 36 (9) of the Constitution viz-a-viz AGUMADU v. THE QUEEN (supra).
The lower Court, in convicting the Appellant for receiving goods which he knew were obtained by means of armed robbery, was no doubt influenced by the provisions of Section 167(a) of the Evidence Act, which entitles the Court to presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The trial Court, at page 112 of the Record, convicted the appellant on the grounds that he admitted in Exhibit 7 that he participated in planning the robbery and receiving some of the items robbed. He was earlier acquitted of the offence of armed robbery charged. The lower Court, at page 195 of the Record, expressly set aside that conviction of conspiracy. By that holding the first presumption under Section 167(a) that the Appellant was the robber no longer availed the prosecution. That leaves them with only the second tranche of the presumption: that is a receiver of goods knowing them to be stolen.
And that is the catch. Being in possession of, or receiving goods knowing them to be stolen is not a constituent element of the offence of armed robbery charged. The charge having not sufficiently given the Appellant the notice of that offence, consistent with Section 36(6) of the Constitution, the lower Court had wrongly invoked Section 179 CPA in convicting the Appellant of the offence of receiving contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act. That offence of receiving is not a necessary constituent element of either theft, robbery or armed robbery:
In sum total, I allow this appeal. The conviction of and sentence to life imprisonment imposed on, the Appellant for “receiving goods which he knew were obtained by means of armed robbery” are hereby set aside and the Appellant is hereby acquitted and discharged.
Appeal allowed.
OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading a draft copy of the leading judgment delivered by my learned brother EKO JSC. For the reasons given, I am satisfied that the Appellant ought to have been acquitted and discharged. I too allow the Appeal.
MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother EJEMBI EKO JSC had obliged me a preview of his lead judgment just delivered. I agree with him that the appeal has merit. I join him in allowing the appeal.
The facts of the case that brought about the appeal are as stated in the lead judgment. I rely on the facts captured in the lead judgment to express my view regarding the merit of the appeal purely for the sake of emphasis.
Appellant was arraigned at the Enugu State High Court on a single count of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.
The trial Court found that the prosecution did not prove its case of armed robbery against the appellant. Notwithstanding the profound finding of the Court, all the same, held the appellant liable for armed robbery since he had aided his co-accused to commit the offence.
Dissatisfied, the appellant appealed to the Court of Appeal, the lower Court. Proceeding under Section 167(a) of the Evidence Act, 2011, Section 179 of the Criminal Procedure Act and Section 15 of the Court of Appeal Act the Court, set aside the finding of the trial Court for the offence of robbery and, instead, sentenced the appellant for receiving stolen property which, in the Court’s view, is a lesser offence to the armed robbery the trial Court sentenced the appellant for.
Section 179(1) and (2) provides:-
“(1) In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of same only of which constitutes lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although 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 was not charged with it”.
Appellant’s grouse in the appeal is that the lower Court has wrongly invoked the foregoing section. The respondent, on the other hand, argues that since conviction for receiving stolen property the lower Court substituted is lesser than the armed robbery the appellant was formally charged with, the Court has rightly invoked Section 179 of the Criminal Procedure Act. Learned respondent’s counsel submits that since armed robbery is greater than being in possession of goods obtained by means of armed robbery, the lower Court has acted rightly in substituting the punishment for the lesser offence in place of that for the greater offence.
I am unable to agree with the learned Attorney General of Enugu State for the respondent. In OKOBI V. STATE (1984) LPELR – 2453 (SC), at page 22 of the law report, this Court per Obaseki JSC explained the procedure Section 179(1) and (2) envisage thus:-
“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 import 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 lesser offence established by proof of some of the several particulars of the main or principal offence eg in the trial for robbery under Section 401 of the Criminal Codestealing under Section 390 Criminal Code is proved, Section 179(2) of the Criminal Procedure Law enables a conviction to be entered for a 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 eg in the trial for murder under Section 316 of the Criminal Code if provocation is proved, the offence is reduced from murder to manslaughter”. (Underlining supplied for emphasis) From TORHANBA V. POLICE (1956) NRNLR at 94 through to SHOYMBO V. STATE (1974) 10 SC 91, OYEDIRAN V. REPUBLIC (1967) NMLR 122, OKOBI V. STATE (supra) and thence to JOHN NWACHUKWU V. STATE (1986) LPELR – 2085 (SC), the Court persisted on the import of the procedure it propounded under Section 179 of the Criminal Procedure Code Act. In all these cases the Court insists that “the lesser offence” Section 179 allows a Court to convict an accused rather than the greater offence he was formally charged for is a combination of some of the several particulars of the offence charged. The ‘operative’ word is “lesser” and not “another” offence. To justify the conviction of the accused for the lesser offence he must be seen to have had notice for the lesser offence by virtue of the notice of the greater offence he was given by the formal charge. The evidence on which the accused is convicted though short of proving the greater offence, it is such that it establishes the lesser offence. See OLUMIDE SEGUN V. THE STATE (2018) LPELR – 44693 (SC) and SALIU V. STATE (2018) LPELR – 44060 (SC). Was what the lower Court did in the instant case in conformity with what this Court outlined in all its decisions pertaining the procedure under Section 179 (1) and (2) of the Criminal Procedure Code Act? Certainly not.
I agree with learned appellant’s counsel that the lower Court is off the mark in its purported invocation of the section in convicting and sentencing the appellant for the offence it did in place of the offence he was charged. The offence of receiving stolen property with the knowledge that same was stolen cannot be carved out of the offence of armed robbery the appellant was charged with. In convicting the appellant for the offence that is not a constituent part of the offence the appellant was charged with, the Court stands in breach of Section 36 of the 1999 Constitution (as amended) which makes it mandatory for the appellant to be informed in detail the nature of the offence with which he was tried. There cannot be a better example of a perverse decision than the lower Court’s as herein before demonstrated.
It is for the foregoing and the further reasons adumbrated in the lead judgment that I also find merit in the appeal and allow same. The judgment of the lower Court is resultantly hereby set aside and the appellant acquitted and discharged.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant in this appeal was charged before the trial Court for the offence of armed contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004. He was charged along with one other. The 1st accused was found guilty as charged and sentenced to death. The appellant, as 2nd accused, was found guilty of the charge for conspiracy to commit armed robbery and sentenced to death. On appeal to lower Court, it invoked its powers under Section 15 of the Court of Appeal Act and Section 179 of the Criminal Procedure Act and convicted him for receiving goods being proceeds of armed robbery pursuant to Section 5 of the Robbery, and Firearms (Special Provisions) Act. He was sentenced to life imprisonment.
The sole issue in this appeal is whether the lower Court was right in convicting and sentencing the appellant for the said “lesser” offence. My learned brother, Ejembi Eko, JSC has eloquently resolved the issue in the appellant’s favour. I agree with his reasoning and conclusions. My brief comments are to express my support and for emphasis.
There is no doubt that the law, by virtue of Section 179 of the Criminal Procedure Act [Section 217 of the Criminal Procedure Code], permits the Court to convict an accused person of a lesser offence than the principal offence he was charged with where there is insufficient evidence to justify a conviction for the principal offence. It provides as follows:
“179 (1). In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some of which constitute a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence although he was not charged with it.”
This power cannot be exercised at large. It is subject to certain limitations. Before an accused person can be convicted of a lesser offence, the ingredients of the lesser offence must be subsumed or embedded in the original offence charged and the circumstances in which the lesser offence was committed must be similar to those contained in the offence charged. See: The Nigerian Airforce vs Kamaldeen (2007) 2 SC 113: (2007) 7 NWLR (Pt. 1032) 164: Saliu Vs The State (2018) 10 NWLR (Pt. 1627) 346; Agugua vs The State (2017) LPELR 4202 (SC).
Where the ingredients of the lesser offence cannot be extracted from the ingredients of the principal offence, it would amount to a breach of ‘the appellant’s fundamental right to fair hearing guaranteed by Section 36 (6) (a) of the 1999 Constitution, as amended, for him to be convicted of a lesser offence of which he had no notice and with which he was not charged. Section 36 (6) (a) of the Constitution requires that a formal charge must be framed and read to him in the language he understands and he must be given adequate time and facilities to prepare his defence. See: Ugboji Vs The State (2018) 6 NWLR (Pt. 1627) 346 @ 367 A-D; 375a 380. A-E.
My Lord, Ejembi Eko, JSC has, in the lead judgment shown that the ingredients of the offence of receiving goods known to be the proceeds of an armed robbery or robbery contrary to Section 5 of the Robbery & Firearms (Special Provisions) Act, cannot be subsumed in the offence of armed robbery or robbery as provided for in Section 1 (2) (a) of the Act or Section 1(1) of the Act respectively. I share the same view. The lower Court therefore erred in convicting the appellant of the offence of receiving the proceeds of armed robbery under Section 5 of the Act.
For this and the more detailed reasoning in the lead judgment, I also find this appeal to be meritorious, it is hereby allowed. The appellant’s conviction and sentence by the lower Court are hereby set aside. He is accordingly acquitted and discharged.
Appeal allowed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Ejembi Eko, JSC, and I agree with his reasoning and conclusion in its entirety.
A lesser offence carries a lighter punishment than the offence charged, and in substance, the lesser offence is a slice carved out of the particulars of the graver offence charged — see Okwuwa V. State (1964) LPELR-25195(SC) and Nwachukwu V. State (1986) 2 NWLR (Pt. 25) 765 SC wherein this Court adopted its observation in Torhamba V. Police (1956) NRNLR 95, as follows:
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 – 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.
In this case, the trial Court found that the Appellant could not be convicted for the offence of armed robbery, with which he was charged, but it held that since he aided and conspired with others to commit the offence of armed robbery, “he is deemed guilty as a principal offender.” The Court of Appeal held that the trial Court’s “view is seriously erroneous in law,” but all the same, it proceeded to convict him for “receiving goods obtained by means of armed robber.
But elements of the offence of receiving goods known to be the proceeds of armed robbery cannot be subsumed in the offence of armed robbery. Thus, the issue of whether the Court of Appeal was right in convicting the Appellant for what it considered a lesser offence, must be resolved in Appellant’s favour. No doubt, the Court of Appeal fell into serious error when it convicted him for an offence for which he was not charged and was not given notice of.
So, I allow this Appeal and set aside the decision of the Court of Appeal. The Appellant is acquitted and discharged.
Appearances:
Tochukwu Maduka, Esq., with him, E. Ehiani, Esq. For Appellant(s)
Chief M. E. Eze, A. G. Enugu State, with him,T. A Ngene, Esq., Deputy Director (Legal), I. U. Umeobika, Esq., Principal Legal Officer and R. K. Odugu, Esq„ Legal Officer For Respondent(s)
