WALE BANJO v. THE STATE
(2011)LCN/4580(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of May, 2011
CA/I/137/2004
RATIO
CIRCUMSTANTIAL EVIDENCE: WHETHER A COURT CAN CONVICT AN ACCUSED PERSON FOR STOLEN PROPERTY BASED ON CIRCUMSTANTIAL EVIDENCE
The apt English case of R. v’ Fuschillo (1940) 27 Cr. App R. 193 illustrates it that the article stolen or robbed must not or need not be proved to the hilt: There, appellant was found in possession of a quantity of granulated sugar in sacks believed to be stolen, but there was no actual direct proof with regard to the ownership of the goods or the fact that they had been stolen, yet his conviction was affirmed by the Court of Criminal Appeal (Hawke, Charles and Hilbery JJ) based on circumstantial evidence or on the circumstances in which the prisoner was found in possession of the goods. See also by analogy R. v. Boateng (1941) 7 WACA 109, where the appellant was found in possession of a tin of sardines discovered on a window sill where many books were kept, and in affirming his conviction on appeal,, the then West African Court of Appeal held inter alia that: “It is not essential to prove the identity of the property with property the proceeds of a particular theft, and that the necessary guilty knowledge may be inferred from all the circumstances of the case.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PRESUMPTION OF FACT: WHETHER THE COURT MAY CONVICT AN ACCUSED PERSON, WHO WAS FOUND IN POSSESSION OFA PROPERTY RECENTLY STONLEN AND HE CAN NOT ACCOUNT FOR HIS POSSESSION
…section 148(a) (now section 149(a), of the Evidence Act by the court below against appellant, which for convenience, I copy below: “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume – (a) That a man who is in the 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.” (My emphasis). The above quoted section of the Evidence Act has been applied in some robbery cases of which the following are examples. In Eze vs. The State (1985) 3 NWLR (Pt. 13) 429, the appellant was found in possession of a robbed motor-cycle a couple of hours after the robbery, as in the case on appeal, and it was held by the Supreme Court that his failure to account for his possession of the motor-cycle brought him within the web of section 148(a) (now 149(a)) of the Evidence Act, and his conviction for robbery of the motor-cycle was affirmed by the Supreme Court. Again, in Idowu Salami vs. The State (1988) 3 NWLR (Pt. 85) 570, the appellant was caught in possession of a robbed motor vehicle – Datsun 120Y panel van – some hours after the robbery without accounting for his possession and the Supreme Court affirmed his conviction for robbery of the motor-vehicle using the presumption under section 148(a) of the Evidence Act (supra) that he was the robber. Then, in Madagwa vs. The State (1988) 5 NWLR (pt.92) 60, 72 the appellant was found in possession of a robbed taxi-cab a few hours after the owner was robbed of the motor-vehicle and his conviction for robbery was affirmed by the Supreme Court applying the same presumption thus: “However, when the matter got to the Court of Appeal, that court observed, as it was entitled to do, that the facts of the case raised a presumption of guilt against the accused, that is, that the appellant was in possession of a stolen car, a few hours after it was stolen, and could be presumed to have been the thief. That is a presumption of law – it is an inference which section 148 of the Evidence Act allows the court to make and in this instant case, I am satisfied that that presumption could validly be made. Indeed, that same type of presumption has been made in similar cases In R. v. Kwashie (1950) 13 WACA 86, it was held that an accused that was found in possession of property stolen some 90 minutes earlier could be presumed to be the thief. Similar presumptions were made in: R. v. Sunday Jumbo (1960) L.L.R. 192; R. v. Michael Opara (1961) WNLR 127; M. Kolade vs. Commissioner of Police (1971) NMLR 10”. Based on the above established facts, the court below was right to invoke section 148(a) [now section 149(a)] of the Evidence Act to reach the presumption that the appellant was one of the robbers that robbed the
P.W. 2 and the P.W. 3 of assorted items in the early morning hours of 15. 2.2000; all the moreso appellant did not offer any probable explanation or account of his possession of the goods to shake off the said presumption. Having successfully proved beyond reasonable doubt that appellant was presumed to be one of the robbers under section 149(a) of the Evidence Act, identification parade was no longer necessary, as the recently robbed goods found in his possession without his accounting for them on the balance of probability provided the nexus between the appellant and the robberies and gave him out as one of the robbers… PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
WALE BANJO Appellant(s)
AND
THE STATE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The High court of Justice of Ogun State holden at Ijebu-Ode, in the Ijebu-Ode Judicial Division, convicted and sentenced the appellant to death by hanging for the offences of conspiracy and armed robbery contrary to sections 5(b) and 1(2) (a) respectively of the Robbery and Firearms (Special Provisions) Act 1990, as amended; upon which the appellant felt aggrieved and appealed to this Court.
The case in the court below disclosed series of armed robberies were committed on 31.1.2000 and 15.2.2000 at the neighbourhood of Ayegbami Quarters, Ago-Iwoye, in Ijebu-Igbo of Ogun State. The first armed robbery incident of 31.1.2000 was about 12.55am. It directly hit the P.W.1, one Gilbert Deinde Iferajimi. He lost three cars and some assorted items to the robb6rs. Towards the end of February, 2000, the police invited him to the Ogun State Police Headquarters, Eleweran, where he identified his travelling bag, video player, one complete native dress, one video rewind and rewinder/cleaner among the goods recovered from the arrested persons.
In respect of the P.W.2 and the P.W.3, students of the Ogun State University, now Olabisi Onabanjo University, Aiyegbami, Ago-Iwoye, the armed robbers ‘struck at their various residences about 3.00 a.m and 2.30am respectively on 15.2.2000. They robbed the P.W.2 of N200, a rechargeable lamp with an audio cassette and a chair at gun-point and cutlass-point respectively. They also robbed the P.W.3 of his table alarm clock, brown pair of trousers of English wool, a black pair of jeans trousers/cash of about N500 kept inside a Redeemed Christian Church of God envelope, a black HAC travelling bag containing his driver’s license, two polo shirts, food items and five pairs of iro and buba apparel.
The P.W.2 reported the robbery attack to the police at about 4.30a.m of the same day. A search for the robbers ensued in the morning of the same day. In the course of the search, information reached them of the arrest of some robbers by the police. P.W.2 proceeded to the scene at Iperin junction. He arrived there at about 7.00 a.m. He met the police searching the robbers. In the process of the search, the audio cassette of P.W.2 was found in the back pocket of the appellant. Two rechargeable lamps and a locally made pistol were also recovered from the appellant and his companion.
The P.W.3 also learnt of the arrest of some of the robbers. He went to the police station where the robbers were taken, He arrived there between 8.30a.m – 9.00a.m of the same day. There he spotted the appellant with the native dress, salami noodles and sardine robbed of him in the early morning hours of 15.2.2000.
Appellant’s statement to the police, Exhibit B, was tendered by the respondent in support of its case in the court below. Appellant denied on oath that he made Exhibit B. His denial extended to his complicity or culpabability in the offences charged. The court below resolved in its judgment that appellant was guilty as charged. It convicted and sentenced him accordingly.
The original notice of appeal with one ground of appeal signed by appellant was filed on 15.4.2003. Eight grounds of appeal were, by the leave of Court, added to the notice of appeal. Appellant’s learned counsel, Mr. Olusola O. Idowu, extracted three issues for determination from the grounds of appeal in appellant’s brief of argument deemed filed on 27.10.2010, as follows:
“1. whether the learned trial Judge was right to have invoked the provisions of section 149(a) of the Evidence Act and applied the doctrine of recent possession in convicting the 1st appellant of armed robbery.
2. Whether generally there is any legally admissible evidence upon which the learned trial Judge could have convicted the 1st Appellant.
3. Whether the prosecution proves its case against 1st Appellant beyond reasonable doubt.”
Issue (1) (supra) was predicated on ground 5 of the notice of appeal. It was argued first to this inclination: The appellant denied possession of the stolen goods shifting the burden of proof to respondent to establish by credible evidence the discovery of the stolen goods in appellant’s possession; the P.W.4, the police investigator of the case, testified to the collection of the items from the Divisional Police Officer (D.P.O.) at Ago-Iwoye, not on the discovery of the stolen items with the appellant in respect of case reported to the police by the P.W.1, one Gilbert Iferajimi, whose testimony did not implicate appellant with the stolen goods; the respondent did not establish the person that arrested the appellant or recovered the stolen goods from him, and persons through whom the stolen goods passed before they were brought to court, which left the said links or gaps to speculation contrary to the decisions in Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552 at 561 and A. C. B. PLC v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501 at 517; the failure of respondent to call the material witnesses to fill the said gap cast doubt on the guilt of appellant vide Ogunsi vs. The State (1994) 1 NWLR (Pt. 322) 582 at 1592; therefore section 149(d) of the Evidence Act should be invoked against the respondent.
It was submitted further on issue (1) that Salami vs. The State (1988) 3 NWLR (Pt. 85) 670 applied by the court below is distinguishable as in that case appellant was caught driving the stolen vehicle and the person that arrested him with the stolen vehicle gave evidence to that effect which was not the case here; and as the evidence of P.W.2, P.W.3, P.W.4 and P.W.5 was hearsay, it was “perverse” for the court below to hold that appellant did not rebut the presumption in section 149(a) of the Evidence Act which occasioned a miscarriage of justice vide The State v. Ajie (2000) 11 NWLR (Pt. 678) 434 at 449, Nwamuo v. Okoro (2005) 11 NWLR (Pt. 990) 40, and Oju Local Government v. INEC (2007) 14 NWLR (Pt. 1054) 242 at 273.
Issues (2) and (3) (supra) hinged on grounds 2, 3, 4, 6, 7, 8 and 9 of the appeal were argued together in appellant’s brief to this effect: There was no credible and legally admissible evidence from respondent’s witnesses in proof of the offences of conspiracy and armed robbery against appellant, In the case of P.W.1, there was no shred of evidence from him against appellant while P.W.2 admitted the alleged incident happened in the dark with one of the robbers pointing a lit torchlight at his face indicating he could not have identified the robbers let alone state with precision appellant’s identity as one of the robbers; moreso P.W.2 did not disclose the physical features of appellant, save the vague reference to him as the “short one” in his evidence which conveyed little or nothing of substance; the P.W.2 having not complained of the robbery of an audio cassette but of a rechargeable lamp with audio cassette, the alleged discovery of an audio cassette with appellant could not have assisted respondent’s case and reliance upon it by the court below to convict the appellant should be held perverse by the Court vide State v. Ajie (supra). Nwamuo v. Okoro (supra) and Oju Local Government v. INEC (supra). The same analysis should be extended to P.W.3’s evidence also, ‘as he was not in a position to identify the robbers but conceded suspecting appellant as one of the robbers and suspicion no matter how strong should not take the place of legal proof vide Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31 at 47, 55 and Iko vs. The State (2001) 14 NWLR (Pt. 732) 221- at 253.
Still on issues (2) and (3) (supra), appellant’s brief argued that his evidence in the trial-within-trial on the alleged coerced confessional statement in Exhibit B was unshaken under cross-examination which the respondent failed to rebut by omitting to call the vital police witness in the Statement Room where appellant’s statement in Exhibit B was obtained by torture for him to testify at the trial-within-trial, therefore Exhibit B should be expunged from the case vide Usufu v. The State (supra) and Omogodo v. The State (supra): and the conviction and sentence of appellant should be quashed vide Okoro v. The State (1998) 14 NWLR (Pt. 584) 181 at 216, and Waziri v. The State (1997) 3 NWLR (Pt. 495) 689 at 721.
Respondent’s brief of argument dated and filed on 7.12.2010, but deemed properly filed on 17.2.2011, was settled by Mrs. Oduniyi, learned Director of Public Prosecutions (D.P.P.), of Ogun State.
Respondent’s contentions in the brief concentrated on the confessional statement of the appellant in Exhibit B and evidence from the P.W.2 and the P.W.3 showing armed robberies occurred at about 3.00a.m of 15.2.2000, in the course of which they were robbed of assorted items by some persons and some of the robbed items were later found in the possession of appellant a couple of hours after the robberies took place, which taken together proved beyond reasonable doubt the offences charged and the appeal should be dismissed vide the cases of Bolanle vs. The State (2005) 7 NWLR (Pt. 925) 431 at 541; Stephen vs. The State (1986) 12 S.C, 450 at 47O; Ekpo v, Federal Republic of Nigeria (1982) 1 ALL NLR (Pt. 135); Ukorah v. The State (1977) 4 S.C. 167; Olayinka vs. The State (2007) 3 C.A.C. 290; and sections 148 (a) and 179 (1) of the Evidence Act.
Appellant’s reply brief dated 25.2.2011, but filed on 1.3.2011, contended that an identification parade was necessary as the P.W.2 and the P.W.3 did not know appellant before the incident vide the cases of Bolanle vs. The State (2005) 7 NWLR (Pt. 925( 431 at 488 Archibong v. The State (2004) 1 NWLR 855; R v. Turnball (1976) 3 ALL ER 549; Ndukwe vs. The State (2009) 7 NWLR (Pt. 1139) 43 at 78; Ani v. The State (2009) 16 NWLR (Pt. 1168) 433 at 460; and Afolabi vs. The State (2009) 3 NWLR (Pt. 1127) 160 at 189.
The reply brief also argued that the evidence of torture given by appellant was not cross-examined upon by respondent, which the court below glossed over by its admission of the confessional statement in Exhibit B contrary to the decision in the case of Ogunsi vs. The State (91994) 1 NWLR (Pt. 322) 583 at 592.
The issues formulated by appellant’s learned counsel (supra) are apt and shall be followed in the determination of the appeal; but in reverse order. The confessional statement in Exhibit B was admitted in evidence after a trial-within-trial was conducted in the court below. At the trial-within-trial, the police investigator testified inter-alia that:
“In the statement room on the day in question, I was not alone with the 1st accused. There were other officers who were obtaining statements from other suspects.”
The appellant’s evidence-in-chief at the trial-within-trial stated inter alia that two police officers – one Hausa man and one Asumo – suspended him in the air on a hanger and beat him with sticks, cutlass and wire urging him to confess the crime to which he eventually capitulated. The cross-examination of appellant on the said pieces of evidence was weak. Earlier in the course of the cross-examination of the recorder of the statement at the trial-within-trial, appellant had asked questions foreshadowing the participation of other police officers in beating and torturing him to force the confessional statement from him.
Appellant went ahead to testify in the trial-within-trial that:
“I was in fetter both on the hands and on the legs…Asumo brought in one small stool, they lifted me up and hooked my hands with the handcuffs to the ceiling fan hook on the ceiling of the small room. They removed the drum from under my feet and I was hanging. They started beating me with the stick, the cutlass and wire urging me to confess… They later brought me down forcefully and I hit my head on wall…” (My emphasis)
The appellant was not cross-examined on the “fetters both on the hands and on the legs” (supra) at the time he made the statement in Exhibit B. Appellant’s cross-examination at the trial-within-trial revealed rather that he sustained injuries on his head, left arm and left leg from the alleged torture.
In admitting the statement in evidence, the court below did not advert to the fetters and chains under which the appellant was subjected to at the time he made the confessional statement; also, the court below did not comment on the injuries appellant asserted he sustained from the alleged torture, nor did the court below make any observation on the failure of respondent to call the other two police officers as witnesses to clear the accusation by appellant that they participated in torturing him to give the confessional statement in Exhibit B.
The above identified lapses were not revisited or redressed by the court below in its final judgment. I am therefore in agreement with Mr. Idowu, of learned counsel for appellant, that the admissibility in evidence of the confessional statement in Exhibit B was fraught with death wounds. A somewhat similar situation occurred in the case of Major Amachree v. Nigeria Army (2003) 3 NWLR (Pt. 807) 256 at 279 to 280, where this Court (powerfully constituted by Oguntade, Aderemi and Chukwuma- Eneh J J.CA) held inter alia that:
”I must also observe that failure to call Lt. Col Frank as a witness at the trial-within-trial or at all as he was heavily implicated by the appellant in this regard must greatly affect the case of the prosecution. Why he was not called at all in this matter has to be rationalized within the con of section 149(d) of the Evidence Act that he might not have been favourably disposed to the prosecution’s case. It is no moment that the appellant wrote exhibit “A2” himself or that Lt. Col. Frank was not physically present at the material time of making of exhibit “A2’. It is enough that the inducement he exerted operated on the appellant at the making of exhibit “A2” and the appellant so responded. The complaint by the appellant that, the statement was given point by point showed teleguiding of the appellant and it was also not refuted. The clamping of chains around the appellant legs at the interrogation and to making exhibit “A2” if anything were to strike fear and to intimidate the appellant and it was not denied nor that exhibit “A” was made under a friendly atmosphere… as alleged by the prosecution as answer to these acts.
The facts that the appellant was tortured came out vividly during the trial-within-trial.” (My emphasis).
It is on the above score that I hold Exhibit B suspect. It should not have been admitted in evidence in the first instance on account of the above highlighted vitiating factors. I expunge it accordingly.
The P.W.2 and the P.W.3 gave unshaken evidence of robberies in their respective residences in the early morning hours of 15.2.2000, where they were robbed of various personal effects and some food items. The court below believed their pieces of evidence in respect of the robberies were not given any good cause on the appeal to doubt the said finding. I affirm it accordingly. The P.W.2 and the P.W.3 testified that the robberies took place in darkness and that; one of the robbers pointed a lit torchlight at the face of the P.W.2. According to P.W.2, one of the robbers was short in stature. And he identified appellant as the “short one” at the police station. The P.W.2 and the P.W.3 also stated that the robbers were armed with a gun, cutlass, dagger and baton. It is hard to accept the evidence of the P.W.2 and P.W.3 on the arms or weapons carried by the robbers when they admitted the incidents happened in the dark and the two witnessed were not shown to be endowed with the feline gift or quality of seeing in darkness. Their evidence that the robbers were armed is therefore questionable. The court below should have been slow in accepting it, in my view.
The P.W.2 and the P.W.3 discovered some of the robbed items with the appellant after his arrest some few hours after the robberies, and both of them laid open claim of ownership of the items in the presence and to the hearing of the appellant at the earliest opportunity. In the case of P.W.2, it was his robbed audio cassette that was discovered in the back pocket of appellant, while P.W.3’s robbed native attire and some food items sardines and salami noodles – were found with appellant a few hours after the robbery incident.
The appellant did not challenge the assertion of ownership of the above mentioned items by the P.W.2 and the P.W.3. He did not also allege the items were planted on him to incriminate him. He made a bare denial of the discovery of the said items on him. No satisfactory explanation on the civil balance of probability was proffered by appellant to justify his possession of the goods in question and displace the respondent’s case that they were recently robbed from the P.W.2 and the P.W.3, students of Olabisi Onabanjo University, Ago-Iwoye, Ogun state.
Objection was raised on whether the audio cassette found with appellant was the one P.W.2 had stated was robbed from him. I do not think, with respects, that there was doubt on the robbed article: It was an audio cassette all the same, and P.W.2 had openly laid claim of ownership to it without a scrap of protest from appellant. The apt English case of R. v’ Fuschillo (1940) 27 Cr. App R. 193 illustrates it that the article stolen or robbed must not or need not be proved to the hilt: There, appellant was found in possession of a quantity of granulated sugar in sacks believed to be stolen, but there was no actual direct proof with regard to the ownership of the goods or the fact that they had been stolen, yet his conviction was affirmed by the Court of Criminal Appeal (Hawke, Charles and Hilbery JJ) based on circumstantial evidence or on the circumstances in which the prisoner was found in possession of the goods.
See also by analogy R. v. Boateng (1941) 7 WACA 109, where the appellant was found in possession of a tin of sardines discovered on a window sill where many books were kept, and in affirming his conviction on appeal,, the then West African Court of Appeal held inter alia that:
“It is not essential to prove the identity of the property with property the proceeds of a particular theft, and that the necessary guilty knowledge may be inferred from all the circumstances of the case.”
Besides, the food items – sardines and salami noodles – robbed from P.W.3 were also found with appellant which was not traversed on the appeal which served as solid foothold to justify the invocation of the presumption under section 148(a) (now section 149(a), of the Evidence Act by the court below against appellant, which for convenience, I copy below:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –
(a) That a man who is in the 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.” (My emphasis).
The above quoted section of the Evidence Act has been applied in some robbery cases of which the following are examples. In Eze vs. The State (1985) 3 NWLR (Pt. 13) 429, the appellant was found in possession of a robbed motor-cycle a couple of hours after the robbery, as in the case on appeal, and it was held by the Supreme Court that his failure to account for his possession of the motor-cycle brought him within the web of section 148(a) (now 149(a)) of the Evidence Act, and his conviction for robbery of the motor-cycle was affirmed by the Supreme Court.
Again, in Idowu Salami vs. The State (1988) 3 NWLR (Pt. 85) 570, the appellant was caught in possession of a robbed motor vehicle – Datsun 120Y panel van – some hours after the robbery without accounting for his possession and the Supreme Court affirmed his conviction for robbery of the motor-vehicle using the presumption under section 148(a) of the Evidence Act (supra) that he was the robber.
Then, in Madagwa vs. The State (1988) 5 NWLR (pt.92) 60, 72 the appellant was found in possession of a robbed taxi-cab a few hours after the owner was robbed of the motor-vehicle and his conviction for robbery was affirmed by the Supreme Court applying the same presumption thus:
“However, when the matter got to the Court of Appeal, that court observed, as it was entitled to do, that the facts of the case raised a presumption of guilt against the accused, that is, that the appellant was in possession of a stolen car, a few hours after it was stolen, and could be presumed to have been the thief. That is a presumption of law – it is an inference which section 148 of the Evidence Act allows the court to make and in this instant case, I am satisfied that that presumption could validly be made.
Indeed, that same type of presumption has been made in similar cases
In R. v. Kwashie (1950) 13 WACA 86, it was held that an accused that was found in possession of property stolen some 90 minutes earlier could be presumed to be the thief. Similar presumptions were made in:
R. v. Sunday Jumbo (1960) L.L.R. 192;
R. v. Michael Opara (1961) WNLR 127;
M. Kolade vs. Commissioner of Police (1971) NMLR 10”
Based on the above established facts, the court below was right to invoke section 148(a) [now section 149(a)] of the Evidence Act to reach the presumption that the appellant was one of the robbers that robbed the
P.W. 2 and the P.W. 3 of assorted items in the early morning hours of 15. 2.2000; all the moreso appellant did not offer any probable explanation or account of his possession of the goods to shake off the said presumption.
Having successfully proved beyond reasonable doubt that appellant was presumed to be one of the robbers under section 149(a) of the Evidence Act, identification parade was no longer necessary, as the recently robbed goods found in his possession without his accounting for them on the balance of probability provided the nexus between the appellant and the robberies and gave him out as one of the robbers, in my view.
The appeal is allowed in part. The conviction and sentence of appellant are altered from armed robbery under section 1(2) of the Robbery and firearms (Special Provisions) Act (cap.398) Laws of the Federation of Nigeria (1990 Edition), as amended, to the lesser offence of robbery without firearms or offensive weapon under section 1(1) of the same Act see John Nwachukwu vs. The State (1986) 2 NWLR (Pt. 25) 765, as there was no clear-cut evidence showing appellant was armed or was in the company of an armed person at the time of the commission of the robberies. The appellant is sentenced to twenty-one (21) years imprisonment mandatorily fixed by section 1(1) of the said Act. The sentence is back-dated to 15.2.2000, when the appellant lost his liberty on account of the case.
SIDI DAUDA BAGE. J.C.A.: I read in draft the eloquent judgment of my learned brother, J.S. IKYEGH J.C.A. I am in total agreement with the entire reasoning’s and the conclusion reached at by the lead judgment. I only want to add a voice on the power of the Appellate Court to convict an accused for an offence different from the one charged or impose a sentence on an Appellant for a Lesser Offence. It is the Law that an Appellate Court can convict and impose a sentence on an Appellant for lesser offence that that for which he was convicted by the trial court if from the circumstances of the case the latter conviction should have been the proper one. See: – Odeh vs. Federal Republic of Nigeria (2008) 3-4 S.C. 147; Maja vs. State (1980) 1 NCR 212; Akibu Hassan vs. State (2001) 8 MJSC 105; Karrem vs. The Federal Republic of Nigeria (2003) 16 WRN 114; Mohammed Sani Abacha vs. The State (2002) 9 MJSC 7,
Finally I am in agreement with all the consequential orders contained in the lead judgment
MODUPE FASANMI, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother J. S. Ikyegh J.C.A.
The facts of the case and all the issues raised in the appeal are fully set out and painstakingly discussed therein. I agree entirely with the conclusion reached that the appeal is allowed in part. I also abide by the consequential order made in the lead judgment.
Appearances
MR OLUSOLA O. IDOWUFor Appellant
AND
MRS. P.F. ODUNIYI (DPP)For Respondent
