CHUKWUIGWE v. STATE
(2022)LCN/16277(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Tuesday, July 19, 2022
CA/OW/187/2019
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
PRINCE NICHOLAS CHUKWUIGWE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE PARTICULARS OF A LESSER OFFENCE MUST RELATE FROM THE SUBSTANTIVE OR PRIMARY OFFENCE
The law is elementary that when a Court is convicting for a lesser offence, it is imperative that the particulars of the lesser offence must relate to, and be carved out from the substantive or primary offence. SALIU V. STATE (2018) LPELR 44064 (SC).
Decidedly, when the Court is convicting the accused for a lesser offence, it behooves on the Court to write out the particulars of the offence charged, and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it purposes to convict. DANJUMA V. STATE (2019) LPELR – 47037 (S.C). RITA NOSAKHARE PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Imo State, Owerri Judicial Division, delivered on the 29th of March 2018 in Suit No: HOW/70C/2011.
FACTS OF THE CASE
The Appellant was convicted for the offence of obtaining/receiving stolen property under Section 427 of the Criminal Code and sentenced to ten (10) years imprisonment with hard labour, without option of fine.
The Appellant dissatisfied with the judgment, filed a Notice of Appeal on the 27th of June 2018. Pages 156 – 160 of the Record of Appeal.
At the Court below, the Appellant had pleaded not guilty to the charge and the prosecution called two witnesses and tendered twelve exhibits. Appellant testified in his behalf but called no witness.
The Appellant filed his brief of argument on the 25th of June, 2020. It is settled by Chidi Henry Nwuke, Esq.
The Respondent’s brief of argument was filed on the 13th of October, 2020. Same is settled by V.E. Ekemgba (Mrs) Chief State Counsel, Ministry of Justice, Imo State.
The Appellant proffered two (2) issues for determination which are:
ISSUES FOR DETERMINATION
(1) “Whether from the evidence adduced at trial, the ingredients of the offence obtaining/receiving stolen Toyota Corolla under Sec 427 of the Criminal Code as well as the actus reus and the mens rea had been proved beyond reasonable doubt considering the position of the law as applicable. (Grounds 1,2 and 4).
(2) Whether from the position of extant laws and the principles of justice and equity, the sentence of the Appellant ought to start running from the date of judgment as decided by the learned trial Court (Grounds 2).”
The Respondent proffered three (3) issues for determination which are:
ISSUE NO. ONE
Whether the learned trial judge was right in finding the appellant guilty of the offence of obtaining /receiving stolen Toyota corolla contrary to Section 427 of the Criminal Code Cap 30 Vol. 11 Laws of the Eastern Nigeria 1963 as applicable to Imo state (distilled from ground one of the grounds of appeal).
ISSUE TWO:
Whether the prosecution proved the ingredients of offence of receiving stolen property contrary to Section 427 of the Criminal Code beyond reasonable doubt against the appellant (distilled form grounds 2 and 4).
ISSUE THREE:
Whether the sentence of ten years imprisonment with hard labour and no option fine imposed on the appellant is excessive in view of the circumstance of the case (distilled from grounds 3).
On the 11th day of May, 2022 the parties adopted their respective briefs of argument.
ISSUE NO. 1
It is the contention of the Appellant that the prosecution failed to prove the commission of the offence of obtaining/receiving stolen goods by the Appellant, that the Court below was therefore in error when it convicted the Appellant for the offence.
Submits that it is imperative that the prosecution proves all the ingredients of the offence charged. That in the present case, the prosecution failed to establish the ingredients of the offence of obtaining/receiving stolen goods. That at the Court below, the Appellant was charged with the offence of hostage taking, contrary to the provisions of Section 4 of Law No. 4 of 2009 applicable in Imo State but was convicted of the lower offence of obtaining/receiving stolen goods.
That there is evidence adduced by the Appellant, that he bought a Toyota Corolla Car from one Chijioke and paid N1Million Naira for it. That he was on his way to Enugu, when he was arrested, this evidence was not challenged by the prosecution.
The Court did declare that the offence of hostage taking was not established, but sentenced the Appellant to a lesser offence.
That where the Court holds that the Appellant is guilty of a lesser offence. The ingredients of that lesser offence must be proved. Submits that this was not so in this present appeal.
The Appellant submits that the offence charged has not been linked to the Appellant.
That the prosecution alleged that the Appellant in the cause of kidnapping the victim, he and his group allegedly made away with a Toyota Corolla Car with Registration Number AE883GGu.
But none of the prosecution witness gave evidence linking the Appellant to the offence charged. That while cross-examining the Appellant as DW1, the prosecuting counsel had stated that the Toyota Corolla vehicle recovered from the Appellant has the registration No. EDO DK 6 25 BEN.
The Appellant had replied that that registration number belongs to his vehicle and not the car allegedly stolen at the kidnapping incident. That no evidence was led in respect of the Toyota Corolla car recovered from the Appellant in connection with the offence charged or any other offence. That there is no where in the entire evidence where it is shown that the car recovered from the Appellant was stolen.
He submits that the Court below should have discharged and acquitted the Appellant for the offence charged and stopped there, instead of proceeding to convict him for an offence for which he is not linked to.
He submits that the Court below relied solely on the extra judicial statement made by the Appellant which was admitted as Exhibits A and C, where the Appellant seemed to have admitted that the car was the one stolen at the kidnapping incident for which he and the others were charged to Court.
That the Appellant testified that he bought the car that was recovered from him from one Chijioke and paid N1 Million Naira for it, which evidence was not challenged by the Respondent.
That the Court below relied solely on the extra judicial statements of the Appellant as a confession of the crime of receiving stolen property.
The Court paid no attention to the evidence on record; which contradicted the contents of the extra judicial statements. This is because where evidence led at trial contradicts an earlier statement made by the accused person, the trial Court cannot pick and choose.
He submits that it is trite that while an accused person can be convicted on his confession alone, such confession must be direct, positive, duly made and satisfactorily proved – YESUFU V. THE STATE (1976) 6 SC 167.
But decidedly, it is desirable to have outside the confessional statement of an accused person, some other evidence of circumstances, no matter how slight which makes it probable that the confession was true` – HASSAN V. STATE (2001) 15 NWLR (Pt. 757) 184 at 200.
That the Court below only used a piece of evidence that has no basis in reality to convict the Appellant.
He submits that the Court convicted the Appellant for receiving a property that the prosecution could not prove was stolen.
That the conviction of the Appellant was perverse and same should be set aside.
Issue No. 2
The Appellant submits that the sentence on the Appellant was excessive. That in all, the Appellant was incarcerated for almost eight years.
The trial judge initially found the Appellant liable to imprisonment for 14 years for receiving stolen property, but after the allocutus plea, he was sentenced to ten years with hard labour, without an option of fine, which sentence commenced on the date of conviction.
The maximum term of imprisonment for the offence of receiving stolen property is 14 years. But in effect, the Appellant would spend a total of eighteen years in confinement because he had already been in prison for eight years, and on conviction he was sentenced to ten years. In total he would be in prison for eighteen years, which is more than the 14 years imprisonment for the maximum offence.
Submits that where the Appellant is made to spend more time in confinement than the maximum time prescribed by law for the offence of which he was convicted, that has occasioned a miscarriage of justice.
That the matter of sentencing is discretionary, but such discretion must be exercised judicially and judiciously.
RESOLUTION
ISSUE NO. 1
The bane of the Appellant’s appeal is hinged on the fact that the Court below erred in convicting him for receiving stolen property.
The law is elementary that when a Court is convicting for a lesser offence, it is imperative that the particulars of the lesser offence must relate to, and be carved out from the substantive or primary offence. SALIU V. STATE (2018) LPELR 44064 (SC).
Decidedly, when the Court is convicting the accused for a lesser offence, it behooves on the Court to write out the particulars of the offence charged, and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it purposes to convict. DANJUMA V. STATE (2019) LPELR – 47037 (S.C).
It seems to me that the Court below erred, when in the face of the Appellant having been charged with the offence of hostage taking contrary to Section 4 of the Imo State Position of Hostage taking and Solvent Offences Law No. 0.4 of 2009, (An offence which smacks of kidnapping) it transgressed completely into an offence under the Criminal Code Law, to convict the Appellant.
A Court of Law, cannot convict for an offence not charged or proved.
In the present appeal, the Appellant was not charged with the offence of receiving stolen property. To convict and sentence him for such an offence of receiving stolen property was not proper and I so hold. This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2:
A cursory look at the sentence of the Court below, it seems to me that same is excessive. There is evidence that the Appellant had spent eight years in detention.
The offence for which he was convicted carries a maximum of fourteen years. It would be foolhardy to have sentenced him to 10 years imprisonment which would make him spend a total of eighteen years imprisonment, much more than the maximum years imprisonment for the said offence.
I am of the view that the sentence is utterly excessive and should not have been made. I had held that the conviction for a lesser offence was erroneous. To consider this issue amounts to an academic exercise and is indeed an exercise in futility.
This issue is resolved in favour of the Appellant and against the Respondent.
The result is that the Appeal succeeds, and the judgment of the High Court of Imo State, Owerri judicial Division delivered on the 29th of March, 2018 in Charge No. HOW/70C/2011, wherein the Appellant was convicted for the offence of Obtaining/Receiving Stolen property and sentenced to 10 years imprisonment, without option of fine is hereby set aside.
Accordingly, Prince Nicholas Chukwuigwe is hereby discharged and acquitted.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts and issues in contention have been amply stated
I am in agreement that this appeal is deserving of merit and I also allow it.
I also set aside the conviction and sentence of the Appellant by the lower Court.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Rita N. Pemu, (PJ) JCA and I am in total agreement with the reasoning and conclusion that the appeal is meritorious and ought to be allowed. I hereby allow same.
I abide by the order made therein.
Appearances:
Nwike C.H., Esq, with him, J. I. Aguocha, Esq, For Appellant(s)
N. Akowundu, Solicitor General and Permanent Secretary Ministry of Justice, Imo State, Owerri, with him, M. C. Ijezie, Esq, Deputy Director Civil Litigation, Ministry of Justice, Imo State, Owerri For Respondent(s)
