MOHAMMED v. STATE
(2022)LCN/5015(SC)
In The Supreme Court
On Friday, March 25, 2022
SC.1308C/2018
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
AHMED MOHAMMED APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
AN ACCUSED PERSON CAN ONLY BE FOUND GUILTY IN RESPECT OF THE OFFENCE FOR WHICH HE IS CHARGED
The point has to be made that as a general rule, an accused person can only be found guilty in respect of the offence for which he is charged as it is that offence he had pleaded not guilty to and in regard of which the onus is on the prosecution to establish the charge beyond reasonable doubt. See Babalola v State (1989) LPELR-695 (SC). MARY UKAEGO PETER-ODILI, J.S.C
A CONVICTION UNDER A WRONG LAW IS NOT FATAL IF THERE IS A PROVISION UNDER THE LAW ON WHICH THE CONVICTION CAN STAND
In Ogbomor v. The State (1985)1 N.S.C.C 224; (1985)1 NWLR (Pt.2)223 this Court made it clear that a mere misdescription of the law under which charge has been brought does not necessarily render the offence charged one not known to the law at the time of its commission, and that as long as the charge discloses an offence in a written law and such law exists at the time of the commission; or omission of the act alleged in the charge to be an offence such information, though merely defective, is valid. Only recently Okoro JSC, in Boniface Adonike v. The State (2015) L.P.E.L.R – 24281 (SC) page 22, (2015) 7 NWLR (Pt.1458) 237 I, the same refrain, had stated that a conviction under a wrong law is not fatal if there is a provision under the law on which the conviction can stand unless the appellant establishes that he was in fact misled by such error or that a miscarriage of justice has been occasioned by the reason of some error. Such error, it is settled, cannot be held to fundamentally vitiate the judicial act. Equity, it is said, looks at the substance and not the form. It needs only be stressed that not every error committed in a case by the lower Court will result in the appeal being allowed. Only such error(s) that occasion miscarriage of justice, which are regarded as fundamental will be the basis of disturbing the decision appealed. See Ojengbede v. Esan (2001) 18 NWLR (Pt.746) 771 (SC). MARY UKAEGO PETER-ODILI, J.S.C
MIS-DESCRIPTION OF THE OFFENCE
Mis-description of the offence of Robbery as Armed Robbery upon conviction and sentencing is a slip, a mere technicality that has not occasioned any miscarriage of justice to the Appellant. See Akinola Olatunbosun v. State (2013) 17 NWLR (Pt.1382) 167 @ 191, where Rhodes- Vivour JSC held thus:
“An appeal Court judge should not quash a conviction on a mere technicality which had caused no embarrassment or prejudice. They should bear in mind that justice must be done even if the decision is wrong. They must not interfere once satisfied that there had been no substantial miscarriage of justice. That is to say the substance of the case must at all times be carefully examined bearing in mind that reliance on technicalities ends up in injustice. This is the principle on which appeals should be decided.” MARY UKAEGO PETER-ODILI, J.S.C
THERE IS NO PRINCIPLE OF LAW REQUIRING THE TENDERING OF THE WEAPON IN AN ALLEGED ROBBERY
there is no principle of law requiring the tendering of the weapon in an alleged robbery as a pre-requisite to establishing guilt of an accused person where there is direct evidence of the commission of the offence and the weapon that was used. MARY UKAEGO PETER-ODILI, J.S.C
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Jos Division or lower Court or Court below delivered on the 16th of July, 2018, Coram: H.A.O. Abiru, U. Onyemenam and E.O. Williams-Dawodu JJCA. The lower Court set aside the judgment of the trial Court which had acquitted and discharged the appellant and in its place the Court below found appellant guilty of the offence of armed robbery and criminal conspiracy.
The appellant was one of the three accused persons arraigned and tried before the High Court of Justice, Bauchi State for the offences of conspiracy to commit robbery and robbery contrary to Sections 97 and 298 (b) of the Penal Code, Cap 108, Laws of Bauchi State, 1999. The fourth accused person was only charged with instigating the three accused persons to commit robbery contrary to Section 85 of the Penal Code, Cap, 108, Laws of Bauchi State, 1999.
FACTS RELEVANT TO THE APPEAL
The charges preferred against the appellant are as detailed below:
COUNT ONE
That you Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi all of Nasarawa Jahun Ward, Bauchi Local Government, Bauchi on the 4th day of October, 2013 or thereabout conspired among yourselves to commit the offence of Criminal Conspiracy contrary to Section 97 of the Penal Code Laws of Bauchi State and triable by this Court.
COUNT TWO
That you Abudlhamid Musa, Ahmed Muhammed and Suleiman Abdullahi of Nasarawa Jahun Ward, Bauchi LGA, Bauchi on the 4th day of October, 2013 while armed with dangerous instruments, to wit a knife robbed one Idris Wakil of Jahun Ward, Bauchj Local Government, Bauchi of his Keke Napep tricycle yellow in colour with reg.no.QW 056 Bau valued at N380,000 and a three sim handset valued N2,500.00 and the sum of N1,500 after stabbing him with a knife near Polo Club along Bauchi-kano Road, in the Bauchi Judicial Division, thereby committed the offence of Robbery contrary to Section 298(b) of the Penal Code, Cap.108, Laws of Bauchi State, 1991.
COUNT THREE
That you Adamu Suleiman of Nasarawa Jahun Ward Bauchi on the 4th October, 2013 or thereabout instigated Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi all of Nasarawa Jahun Ward, Bauchi to commit the offence of robbery and in consequence, they committed the robbery against one Idris Wakili, in the Bauchi Judicial Division, thereby committed the offence of abetment contrary to Section 85 of the Penal Code, Cap 108, Laws of Bauchi State, 1991.
Upon arraignment, the appellant and his co-accused persons pleaded not guilty to the charges and the case proceeded to trial. The prosecution called eight witnesses and tendered ten exhibits which were marked Exhibits A, B, C, ,D, E, F, G, H, I AND J. The appellant testified on his own behalf and called no other witness.
BACKGROUND FACTS
It was the case of the prosecution that the appellant and his co-accused persons on 4th October, 2013 robbed one Idris Wakil of his Keke Napep tricycle yellow in colour with registration number QW056BAU valued at N380,000 and one 3-sim handset valued at N2,500 and the sum of N1,500 after stabbing him with a knife.
The PW1 was Abdullahi Ishaq who was the owner of the tricycle who gave the vehicle to Idris Wakil to work with. His testimony was that he was informed by PW3 that Idris Wakil was robbed by the accused persons and he took Idris Wakil to hospital upon discovering that he had been injured in his left hand. Upon cross-examination, he admitted that he was not there when the Keke Napep was robbed and that his testimony was gotten from PW2, PW3, and the accused persons.
PW2 was Idris Wakil and he testified that the Appellant and the 2nd and 4th accused person stopped him along Muda Lawal and requested him to take them to Kano Road along Polo Site. It was his case that after they got to the agreed destination, the appellant and the co-accused requested him to follow them into the bush in order to help them bring out some maize to which he agreed. He however changed his mind upon realizing that something was wrong and he thereafter rushed back to where his Keke Napep was parked. He claimed that the three accused persons thereafter attacked him with a knife in the course of which the Keke fell down and he was stabbed.
Gloria Abner, a police officer, was the PW3 whose testimony was that she took the complaint of PW2 and took him to the hospital where he was treated and discharged. She testified that she took the statement of PW2 when the matter was reported at the police station. She testified that she went with two other police officers to Ningi when she was informed that the 2nd and 4th accused persons had been arrested. She further testified that the Appellant was arrested at Ningi but escaped and was later rearrested at Ningi near a sugar cane seller.
Under cross-examination, she admitted that a knife with a brown handle was found in the possession of the appellant at the time he was arrested but did not know whether the knife belonged to the sugar cane seller or the Appellant.
The PW4 was Thomas Kwabilan, the Exhibit Keeper. Two Exhibits: a 3-sim handset and kitchen knife was tendered through him and admitted.
Sergeant Usman Ibrahim was PW8 and he was the one who recorded the statement of the appellant which admitted in evidence as Exhibit J. Under cross-examination, he stated that: “Apart from taking the statement of the 3rd accused person (the appellant herein) I don’t know anything about the case.
“Synopsis of the appellant’s defence at the trial Court.
The appellant testified in own in defence and did not call any other witness. He stated that he was with a sugar cane seller holding a knife when he was arrested by PW3. He testified that he had never seen PW2 who was the victim of the robbery and he denied knowledge of any robbery. He stated that he was made to sign a statement on the day he signed the statement. He was cross-examined and under cross-examination, he denied knowing the 1st, 2nd, and 4th Respondents who were charged along with him.
JUDGMENT OF THE TRIAL COURT
The trial Court on 7th September, 2015 delivered its judgment wherein the appellant and the three other accused persons were discharged and acquitted of the three count charges preferred against them. In acquitting the appellant, the trial Court held at page 172 of the Record of Appeal:
“I am quite satisfied that the prosecution has failed to prove the ingredients of the offence of robbery under Section 298(b) of the Penal Code Law Cap.108 Laws of Bauchi State, 1991.
I hereby discharge and acquit Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi on the 2nd count charge, in the result, the 2nd count charge robbery under Section 298(b) of the Penal Code Law Cap 108 Law of Bauchi State 1991 against Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi are hereby discharged and acquitted.”
JUDGMENT OF THE COURT OF APPEAL
The State was dissatisfied with the decision of the trial Court and appealed to the Court of Appeal, Jos Division. The lower Court on 16th July, 2018 delivered its judgment in the appeal. By its said judgment, the lower Court set aside the decision of the trial Court and proceeded to convict the appellant as charged. In convicting and sentencing the appellant, the Court below held at page 272 of the Record of Appeal.
“i. The second, third and fourth Respondents are sentenced to a term of imprisonment of fourteen years each for the offence of conspiracy to commit armed robbery committed contrary to the provisions of Section 97 of the Penal Code Law.
ii. The second, third and fourth Respondents are also sentenced to a term of imprisonment of fourteen years each for the offence of armed robbery committed contrary to the provisions of Section 298 of the Penal Code Law.”
It is against the judgment of the lower Court that the Appellant has appealed to this Court.
On the 24/2/2022 date of hearing learned counsel for the appellant, Olarenwaju Akinsola adopted the brief of argument filed on 31/3/2021 and deemed filed on 19/1/2022 and in it distilled two issues for determination, viz:
i. Whether the Court below was justified in convicting the Appellant for an offence unknown to the Penal Code Law, Cap.108 Law of Bauchi State 1991 and for which he was not charged, tried or given fair hearing (Distilled from Ground One); and
ii. Whether or not there was cogent and convincing evidence to warrant the conviction of the Appellant (Distilled from Ground Two)
Learned counsel for the respondent, Inam Wilson Esq., adopted the brief of argument filed on 17/12/2021 and deemed filed on 19/1/2022 and formulated two issues for determination, which are as follows:-
i. Whether the lower Court did not convict the appellant for an offence unknown to the Penal Code Law, Cap. 108 Law of Bauchi State 1991 in breach the Appellant’s right to fair hearing; and
ii. Whether there was cogent and convincing evidence to warrant the conviction of the appellant.
The issues raised on either side are similar in content and I shall utilise the ones distilled by the appellant for ease of reference.
ISSUES 1 & 2
1. Whether the Court below was justified in convicting the appellant for an offence unknown to the Penal Code Law, Cap, 108 Laws of Bauchi State 1991 and for which he was not charged, tried or given fair hearing.
2. Whether or not there was cogent and and convincing evidence to warrant the conviction of the appellant.
Advancing the position of the appellant, learned counsel contended that the appellant was sentenced for an offence he was not charged with and an offence unknown to the Penal Code.
That the fundamental right to fair hearing of the appellant was breached thereby. He cited Babalola v State (1989) LPELR-695(SC), Oyediran & Ors v The Republic (1967) NMI-R 122 at 125 etc.
Learned counsel for the appellant stated further, that armed robbery as an offence is not provided in the Penal Code under which the appellant was charged and so he could not have rightly been sentenced for the offence. That the lower Court wrongly exercised its power and jurisdiction under Section 16 of the Court of Appeal Act and Section 223 of the Administration of Criminal Justice Act. He cited Anthony Okobi v State (1984) LPELR-24533, Saliu v The State (2018) LPELR-44064 (SC).
For the appellant, it was submitted that there was no cogent and convincing evidence to warrant the conviction of the appellant as done by the Court below in this case as a result of the contradictions and inconsistences in the case of the prosecution. The case of Ibrahim v The State (1991) LPELR-1404 was cited.
Learned counsel for the respondent submitted that the respondent at the trial Court discharged the onus placed on it beyond reasonable doubt with the establishment of the ingredients of the offence under Section 298 (b) of the Penal Code.
He stated that the prescription of the Federal Republic of Nigeria 1999 (as amended), (CFRN) is that an accused is to be convicted for an offence known to a written law and that was the case in this instance when the appellant was convicted under Section 298 (b) of the Penal Code. That it is wrong for the appellant to suggest that the offence is unknown to law. He cited Yabugbe v Commissioner of Police (1992) 4 NWLR (pt.234) 152 at 172.
Learned counsel contended further that the fact that the lower Court rightly set out Section 298 (b) of the Penal Code in its judgment but mistakenly at conviction and sentencing referred to the offence as “armed robbery” and not “robbery” did not occasion a miscarriage of justice nor vitiate the conviction. He cited Christopher David v Commissioner of Police, Plateau State Command (2019) 2 NWLR (pt. 1655) 178 at 188-189 etc.
It was contended for the respondent that the contradictions on which appellant anchored his arguments were not of a substantial nature and would not rock the case established by the prosecution. He cited Ehimien Esene v The State (2017) LPELR-41912 (SC) etc.
For the respondent, it was submitted that the eye witness identification of the appellant by the PW2 was credible and sufficient to be relied upon by the Court. This was buttressed by the confessional statement of the appellant who identified himself and so there was no need for an identification parade. He cited Saleh David v The State (2017) LPELR-41912 (SC) etc.
RESOLUTION
In a nutshell, the stance of the appellant is that he was charged before the trial Court for the offences of conspiracy to commit robbery and robbery under Sections 97 and 298 (b) of the Penal Code Laws of Bauchi State respectively and while the appellant was acquitted and discharged at the Court of trial, the Court below reversed that position and convicted and sentenced the appellant for the offence of armed robbery. That the implication of what the appellate Court did was a sentencing for an offence unknown to the Penal Code Law.
Taking an opposing angle, the respondent contends that the lower Court rightly set out Section 298 (b) of the Penal Code but mistakenly referred the offence as “armed robbery” and not robbery. That the error is a mere technical one which ought not to vitiate the conviction and sentence as no miscarriage of justice had ensued.
The point has to be made that as a general rule, an accused person can only be found guilty in respect of the offence for which he is charged as it is that offence he had pleaded not guilty to and in regard of which the onus is on the prosecution to establish the charge beyond reasonable doubt. See Babalola v State (1989) LPELR-695 (SC).
The requirement of the Constitution is that an accused is to be convicted of an offence known to a written law. Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
The charge that is the foundation upon which the appellant was convicted and sentence by the lower Court is stated thus:
“That you Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi, all of Nasarawa Jahun Ward, Bauchi L.G.A, Bauchi on the 4th October 2013, while armed with dangerous instruments, to wit a knife robbed one Idris Wakil of Jahun Ward, Bauchi Local Government, Bauchi of his keke Napep tricycle yellow in colour with reg. no QW 056 Bau valued at N380,000.00 and a three-sim handset valued at N2,500.00 and the sum of N1,500 after stabbing him with a knife near Polo club along Bauchi/Kano Road, in the Bauchi Judicial Division, thereby committed the offence of Robbery contrary to Section 298(b) of the Penal Code, Cap 108, Laws of Bauchi State, 1991.” What is expected is that the onus on the Respondent at the trial Court, which onus was to be discharged beyond reasonable doubt, was to establish the ingredients of the offence under Section 298 (b) of the Penal Code i.e. that the appellant committed robbery “armed with any dangerous or offensive weapon or instrument”.
There is no gainsaying that the ingredients of Section 298 (b) of the Penal Code is similar to the ingredients of armed robbery and both treated interchangeably by the Court. This is seen in the approach applied by the Supreme Court in the case of Peter Ogu v Commission of Police (2018) 8 NWLR (pt. 1620) 134 at 156 per Kekere-Ekun JSC as follows:-
“As rightly submitted by learned counsel on both sides, in order to secure a conviction for a criminal offence, the prosecution must prove all the ingredients of each offence beyond reasonable doubt. Section 298 of the Penal Code, which is relevant to this appeal, provides as follows: “298. Whoever commits robbery shall be punished – (c) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument to imprisonment for life or any less term and shall also be liable to fine,” The ingredients of the offence of armed robbery have been stated in a plethora of decisions of this Court They are: (a) That there was a robbery or series of robberies; (b) That each of the robberies was an armed robbery; (c) That the accused person was the robber or one of those who participated in the armed robbery. See Bozin v The State (1985)2 NWLR (Pt 8) 465 @ 469 H, Bello v. The State (2007)10 NWLR (Pt,1043) 564 @ 588-589 H-A, Agboola v, The State (2013) 11 NWLR (Pt,1366) 619 @ 641 F-G.” See also Aliyu Yahaya V. The State (2018) 16 NWLR (pt.1644) 96 @ 115, Fabian Nwaturuocha V. The State (2011) 6 NWLR (Pt,1242) 170 @ 187, Atto Maba V. The State (2021) 1 NWLR (Pt.1757)1 and Haruna v The State (2019) 8 NWLR (Pt.1674) 317. ”
In Obinna Ukpamazi v. State (2020) 18 NWLR (Pt.1755) 157 @ 174-176, the Appellant therein was charged with robbery simpliciter but convicted of the offence of armed robbery. The argument of the appellant was that since the charge was robbery simply, his conviction for armed robbery was perverse. The apex Court per Muhammed JSC discountenanced that position holding thus:-
“By the foregoing, any omission in a charge will only be fatal if, by it, an accused person is not put on proper and sufficient notice of the case against him to enable him prepare adequately for his defence. If in spite of the omission in the charge, the accused sufficiently knows why he is being tried, an eventual conviction on the charge is sustainable on appeal. In Ogbomor v. State (1985) LPELR-247 (SC); (1985) 1 NWLR (Pt.2) 223 this Court, while interpreting Section 151 of Criminal Procedure Act, Cap. 43, 1958 a section similar to the sections under reference herein, held on the point thus:- “The important thing about “the charge” in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence … The charge must not therefore have defects or errors which could mislead the accused. The emphasis is not, on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects errors or omission could and did in fact misled the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known offence. See R. V. ijioma & Ors (1962) ALL N.L.R 402. Mgbemene V. I.G. of Police (1963) 1 ALL N.L.R. 321, Omisade & Ors v R. (1964) 1 All N.L.R- 233.” (Italics supplied for emphasis). In the case at hand, it does not lie in the mouth of the appellant to contend that given the defects in the charge for which he is convicted he is not given sufficient notice of the offence and for that reason unable to prepare his defence adequately. The appellant is being represented by the same counsel from the trial Court through to this Court. Neither the appellant nor his counsel raised any complaint as is done now on the particulars of the charge for which appellant is tried as being incompetent and misleading. It is belated at this stage for them to raise any complaint against the charge. In Francis Durwode v. State (2000) 15 NWLR (Pt.691) 467 this Court posits thus:- “In the realm of criminal justice, it is the cardinal principle of our counsel acting on his behalf to bring to the notice of the Court the fact that he does not understand the language in which the trial is conducted otherwise it will be assumed that he has no cause of complaint. “(Italics supplied for emphasis), See also Mallam Madu v. The State (1997) 1 NWLR (Pt.482)386 at 402 and Sabina Chikaodi Madu v. The State (2012) LPELR-7867 (SC); (2012) 15 NWLR (Pt.1324) 405. Again, there is nothing on record which suggests that the appellant and indeed his counsel had not been fully put on notice and for that reason unable to fully defend the charge on which the appellant is convicted. Their grudge on the particulars of the charge must and is accordingly hereby discountenanced.”
The stipulation of Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is that an accused is to be convicted for an offence known to a written law. In the instant appeal, the offence of which the Appellant was convicted is prescribed in Section 298 (b) of the Penal Code. Therefore, it is wrong for the appellant to suggest that the offence is unknown to law. Any mistake in sentencing or conviction is incapable of having the conviction set aside. In Paul Yabugbe v. Commissioner of Police (1992) 4 NWLR (Pt.234) 152 @ 172, Akpata JSC stated as follows:-
“I do not agree with learned counsel that the conviction of the appellant is null and void. Section 22(10) of the 1963 Constitution was not breached. The section states that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law. The offence for which the appellant was convicted is defined and the penalty therefore is prescribed in a written law. The written law at the time of trial was either the 1959 Law or the Law. The wording of Section 355 of the 1978 Law is ipsissimis verbis with that of Section 296 of the 1959 Law. There was no error stated in the charge. An offence of a person doing unlawful grievous harm to another.
The only particular which appears erroneous, that is granted that the Oyo State Criminal Code law was already in operation at the time the appellant was arraigned, is as to the law on which the charge was based. The appellant was represented by the counsel, Chief Olisa Chukwura, SAN. Neither he nor his counsel was misled. In the case of Oruwari v. The State (1985) 3 NWLR (Pt.13) 486, Kutigi, JCA. (as he then was) in agreeing with the trial judge, held that the conviction and sentence of the appellant in that case was proper and not unconstitutional in that since the offence committed by the appellant was known to Section 98(1)(a) of the Criminal Code Cap,31, Laws of Lagos, the fact that the charge was brought under Section 114(2) of the Criminal Code Cap. 31 Laws of Lagos State, which had been repealed did not infringe on Section 22(10) of the 1963 Constitution. I agree with him. Admittedly, in that case, the correct section of the law was inserted before judgment was delivered.”
Also in Bassey Okpa v State (2017) NWLR (pt. 1587) 1 at 20 per Muhammed JSC held thus:
“it is in the application of the foregoing clear and unambiguous adjectival provisions that this Court has in a plethora of its decisions, maintained that it does not matter under which section of the law, the definition or the penal section, an appellant is convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the appellant or in the course of the trial, been rectified by the trial Court. See Alhaji Mujahid Dokubo-Asari v Federal Republic of Nigeria (2007) 5-6SC (2007) 12 NWLR (Pt.1048) 320 and Akinola Olatunbosun v. State (2013) LPELR-20939 (SC) (2013) 17 NWLR (Pt.1382)167 and Boniface Adonike v. State (2015) LPELR-24281 (SC); (2015) 7 NWLR (Pt.1458) 237. In the case at hand where appellant’s contention in relation to the charge under which he is convicted is wholly unfounded, the contention is hereby entirely discountenanced…”
It is crucial to note the lower Court, rightly set out Section 298 (b) of the Penal Code in its judgment, but mistakenly at conviction and sentencing referred to the offence as “armed robbery” and not “robbery”. This is at best a slip and it will amount to undue technicality to hold otherwise as no miscarriage of justice was occasioned by such a slip. This Court has consistently struck down undue technicality in favour of doing substantial justice. In Christopher David v. Commissioner of Police, Plateau State Command (2019) 2 NWLR (Pt.1655) 178 @ 188-189, Ejembi Eko JSC reiterated the need to keep the focus on substantial justice and not allow the Court be clouded by the seducing colouring of technicality, hence he stated as follows:
“Now, apart from merely “standing on the pedestal of technicality to knock justice on its face” what miscarriage of justice has the appellant suffered by the mere fact that the appellant was sentenced under Section 222(1) of the Penal Code instead of Section 224(1) of the same Penal Code for the offence created by Section 222(1) of the Penal Code? The same appellant has, in paragraph 6.06 of his brief, urges us my Lords, to set aside the sentence or the appellant to life imprisonment under Section 222(1) of the Penal Code and in its lace sentence the appellant under Section 224 of the Penal Code – This is a clear admission that the error of the lower Court stating that the sentence was under Section 222(1) of the Penal Code, instead of Section 224 of the same Penal Code, was an innocuous slip that has actually not occasioned any miscarriage of justice to the appellant. In Ogbomor v. The State (1985)1 N.S.C.C 224; (1985)1 NWLR (Pt.2)223 this Court made it clear that a mere misdescription of the law under which charge has been brought does not necessarily render the offence charged one not known to the law at the time of its commission, and that as long as the charge discloses an offence in a written law and such law exists at the time of the commission; or omission of the act alleged in the charge to be an offence such information, though merely defective, is valid. Only recently Okoro JSC, in Boniface Adonike v. The State (2015) L.P.E.L.R – 24281 (SC) page 22, (2015) 7 NWLR (Pt.1458) 237 I, the same refrain, had stated that a conviction under a wrong law is not fatal if there is a provision under the law on which the conviction can stand unless the appellant establishes that he was in fact misled by such error or that a miscarriage of justice has been occasioned by the reason of some error. Such error, it is settled, cannot be held to fundamentally vitiate the judicial act. Equity, it is said, looks at the substance and not the form. It needs only be stressed that not every error committed in a case by the lower Court will result in the appeal being allowed. Only such error(s) that occasion miscarriage of justice, which are regarded as fundamental will be the basis of disturbing the decision appealed. See Ojengbede v. Esan (2001) 18 NWLR (Pt.746) 771 (SC). Buoyed by these authorities I will, and do hereby, invoke Section 168(1) of the Evidence Act, 2011 to presume the validity of the sentence imposed on the appellant, the decision appealed having been done in a manner substantially regular.” (Underlining mine).
Mis-description of the offence of Robbery as Armed Robbery upon conviction and sentencing is a slip, a mere technicality that has not occasioned any miscarriage of justice to the Appellant. See Akinola Olatunbosun v. State (2013) 17 NWLR (Pt.1382) 167 @ 191, where Rhodes- Vivour JSC held thus:
“An appeal Court judge should not quash a conviction on a mere technicality which had caused no embarrassment or prejudice. They should bear in mind that justice must be done even if the decision is wrong. They must not interfere once satisfied that there had been no substantial miscarriage of justice. That is to say the substance of the case must at all times be carefully examined bearing in mind that reliance on technicalities ends up in injustice. This is the principle on which appeals should be decided.”
I have cited and quoted copiously the guiding principles clearly and unambiguously put across by my learned brothers which guides left no doubt as to what a Court faced with what clearly is a slip should do. This is especially so where the accused/appellant has not been misguided as to what he had been brought to Court for and what he is defending. In this instance the appellant in his words had stated thus:
“I know why I am in Court, I am before the Court to defend myself in respect of the offence I am being charged. I am being charged for the offence of armed robbery of Keke Napep.”
The situation on ground is that Appellant knew of the offence for which he and some others were charged and used the words “armed robbery” and “robbery’ interchangeably. It is posited that the use of the word “armed robbery” did not prejudice the Appellant in the defence of his case as the appellant led evidence to disprove that he did not rob PW2 with a knife. Therefore, the appellant cannot be allowed to approbate and reprobate on the issue of “armed robbery”. It will amount to setting up a different case before this Court, which practice is frowned upon by this Court as exemplified in Salawu Ajide V. Kelani (1985)3 NWLR (Pt.12) 248 @ 269, Chief Olabode George V. Federal Republic of Nigeria (2014) 5 NWLR (Pt.1399) 1 @ 24-25. See Duke Orji V. Federal Republic of Nigeria (2019) 4 NWLR (Pt. 1663) 480 @ 489.
The appellant cited the authority of Ugboji v State (2017) LPELR- 43427 out of context. In that case, the appellant was discharged and acquitted on the first count of conspiracy to commit armed robbery on his no case submission but called to enter his defence in respect of the other 2 charges against him. The two remaining counts related to allegations of armed robberies and not conspiracy to commit armed robbery. However, the Court proceeded to convict him of conspiracy to commit armed robbery and on that basis, convicted the appellant of the offence of armed robbery under Section 298 (b) of the Penal Code.
It is erroneous to expect to have Sections 223 ACJA and 217 of the Criminal Procedure Code apply to the case in hand. This is because the offence of armed robbery on which the appellant was convicted comes within the contemplation of Section 298(b) of the Penal Code and so there was no need for the application of Section 217 of the Criminal Procedure Code.
The appellant misapplied the authorities of Ugboji v State (supra) and Mathias Garuba Idoko V. The State (2017) LPELR-48002(SC) on the issue of Section 217 of CPC. Section 217 of the CPC was not interpreted to apply to only lesser offences. The correct interpretation is that “the Court may, however, apply Section 217 to convict of an offence with which the accused is not charged provided: (1) it had been doubtful which of several different offences the facts which could be proved would constitute and (2) such doubt applied only to the law and not to the facts; that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. See Mathias Garuba Idoko V. The State (supra). Therefore, nothing stops a Court from convicting for any offence (higher or lesser) where the above conditions are met. Clearly, appellant’s arguments on the lesser offence do not apply to this case. The law is that a trial Court can convict an accused for a lesser offence, where the principal offence cannot be proved. Whereas, in this instant case, the Respondent proved the principal offence of robbery committed by the appellant while armed with a knife under Section 298(b) of the Penal Code. Accordingly, no circumstance exists which reduces the principal offence to a lesser offence.
It is to be noted that the lower Court did not invoke the provision of Section 228 of ACJA in convicting the appellant. Also, the appellant’s arguments on higher offence under Section 228 of ACJA does not apply for the singular reason that the principal offence for which the appellant was charged under Section 298(b) of the Penal Code was proved beyond reasonable doubt.
Contrary to the appellant’s argument at paragraph 43 of his brief, that the appellant’s conviction for the offence of armed robbery cannot endure on appeal once it is found by this Court that the respondent established the ingredients for conviction of the appellant for the offence of robbery under Section 298(b) of the Penal Code. See Chukwudi Oyem v. Federal Republic of Nigeria (2019) 11 NWLR (pt.1683)333 @ 347-348, Abba Aji Jsc stated thus:
“Nevertheless, without the risk of superfluity, the law is settled that it does not matter under which section of the law, the definition or the penal section, an appellant is charged and convicted. The conviction endures on appeal once it is shown that the facts for which the appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction.”
It needs no saying that the Court of Appeal was on firm ground and rightly convicted the appellant for the offence for which he was charged under Section 298 (b) of the Penal Code.
On the second leg of submissions in this appeal, learned counsel for the appellant raised the issue of contradictions in the evidence of the prosecution which made it difficult for the burden of proof beyond reasonable doubt to be discharged by it. The learned trial judge took that angle of argument and held thus:
“It is on record that there are some contradictions in the evidence of PW3 and that of the accused persons, PW3 stated that 2nd – 3rd accused persons were arrested at Ningi on 4/10/2015 while 3rd accused person said he escaped and was arrested at Nasarawa on 9/10/2013, DW1 also said he was arrested on 8/10/2013 while PW3 stated that she recorded the statement of the accused on 4/10/2013 2nd – 4th accused persons made mention of the number of the 1st accused person in their statement…”
And on page 170, the trial Court further found that:
“As I have earlier quoted the evidence of PW3 and the 3rd (sic) accused persons as to their arrest and that of the 1st accused person are contradictory.”
The learned counsel for the respondent contended forcefully against the assertion put across by the appellant on the inconsistencies in the evidence of the prosecution.
In respect to the ingredients of the offence of armed robbery, I shall recast them thus:
a. That there was a robbery or series of robberies.
b. That the robbery or each robbery was an armed robbery.
c. That the appellant took part in the robbery.
The lower Court in reversing the judgment of the trial Court rightly considered the first ingredient of the offence of robbery under Section 298(b) of the Penal Code – “that there was robbery” and held that (see page 251 of the Record of Appeal):
“It was not in contest in this case that on the 4th of October, 2013, the second prosecution witness, Idris Wakil, was attacked and robbed of his yellow coloured Keke Napep tricycle with registration No. QW 056 Bauchi valued at N380,000.00 as well as his three sim telephone handset valued at N2,500.00 and the sum of N1,500.00 and that he was injured with a knife in the process. The fact of the robbery was led by the 1st, 2nd 3rd, 5th 6th 7th and 8th prosecution witnesses and there evidence thereon was not challenged, discredited, countermanded or controverted either under cross-examination or by any contrary evidence from the 2nd-4th Respondents. The first ingredient of the charge against the 2nd-4th respondents was thus accepted as proved and established. ” (See page 251 of the record of appeal).
The records show that the appellant did not appeal against the first ingredient of the offence of robbery. Thus, the appellant is deemed to have conceded to the finding of the lower Court. See Saleh Dawai v. The State (2017) LPELR-43835 (SC).
That the robbery or each robbery was an armed robbery.
The appellant in paragraphs 52-53 of his Brief of Argument argued that the knife recovered from the accused person was not the same knife that was tendered and that the inconsistency in the evidence of PW3 and PW4 as to the identity of the knife ought to be resolved in favour of the appellant.
The arguments of the appellant stems from a wrong application of the law and I say so because of the following reasons:
Firstly, it is trite that an issue flowing from a ground of appeal must be founded on or rooted in the judgment of the Court appealed against, touching on the ratio decidendi or live issue in the said judgment, to be valid or competent to invoke the jurisdiction of the appellate Court.
It is not correct to say that the Court below decided on the evidence of PW3 and PW4, neither did it rely on the evidence of PW3 and PW4 when it found that the robbery was an armed robbery. From the Record of appeal at page 251-267, it is clear that the lower Court relied on the direct eyewitness account of PW2 and the confessional statement of the appellant. Therefore, the appellant’s complaint as to the evidence of PW3 and PW4 did not arise from the judgment of the lower Court. See Kamaru Yusuf v. The State and Adebisi Adesakin V. The State (2019) 10 NWLR (Pt.1680) 269 @ 285, where Eko JSC held thus:
“The appellants’ counsel made so much fuss about the lower Court placing so much reliance on the confession of the 2nd accused person in Exhibit P8 to affirm the conviction of the 1st accused person, and on the confession of the 1st accused in Exhibit P11 to affirm the conviction of the 2nd accused person. The complaint, assault on and/or the criticism of the undoubted intellectual abilities of the judex of the lower Court are not only completely misdirected; they are recklessly mischievous and unfounded. There is no ratio decidendi in the lead judgment of the lower Court (per Obande Ogbuinya, JCA) from where this guile phantom could be said to have arisen. A ground of appeal, from which an issue for the determination of the appeal is formulated, must flow directly from the decision appealed. It must relate directly to the decision appealed. See Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590. A purported ground of appeal, and issue for determination formulated, from a phantom decision or ratio decidendi is not only incompetent; it is reckless and mischievous, and a complete abuse of the Court’s process. This Court, indeed every Court, takes serious exception to frivolous and reckless exercise of the right of appeal, particularly those contrived as assault on the integrity of judicial officers.”
Secondly, there is no principle of law requiring the tendering of the weapon in an alleged robbery as a pre-requisite to establishing guilt of an accused person where there is direct evidence of the commission of the offence and the weapon that was used. The testimony of PW2 at pages 21- of the record of appeal was that:
“My name is Idris Wakil and driver of keke napep and a farmer. I live at Nasarawa jahun. I know all the accused persons. I know why I am before the Court. I came to give evidence in respect of the robbery that was done to me. On Friday, I collected a keke napep from my brother Abdullahi Ishak and started working around 2.00pm after I have done my Juma’at prayer at Mida Lawal. The 2nd, 3rd & 4th accused persons stopped me and said do I know Polo field and I said no then they asked me whether I know Sabon Layi and I said yes I know it. I asked where specifically at Sabon Layi and they said the Polo field after the Sabon Layi. When we were going they showed me a signboard of the polo club and as we reached polo signboard we proceeded to polo ground, as we are going I asked them did we reach the place. They said we should go further and I told them I am tired. They asked me to stop. As we stay there they said that we should go there and bring out maize as they are three in number. They told me that there was a scale they cannot able to bring and they need my assistance, I followed them but I realised that something was not good. Then I told them that I forgot my handset on the keke napep and wanted to go back and get same. They told me that nobody was going to take your phone. I insisted that I will go and get my phone. As I was coming towards my keke napep I turned back out of fear and saw that three accused persons, 2nd, 3rd and 4th were after me. I noticed that they were not carrying any maize and I rushed and enter my keke napep and started the keke napep in motion and I saw the 3rd accused person were after me. One of the accused person the 3rd accused person entered my keke napep and put a cable and at that material time we fell down together with the keke napep. At the material time the windscreen of the keke napep and fell out from its place. The keke Napep fell down on the 3rd accused. I managed to come out from the windscreen place that was removed. And as I was out running someone hit my leg and could not know who was the person and they pinned me down at that material time. One of them hold my nose and mouth one then hold my legs while on the ground and one of them brought a knife. He stabbed me with a knife on my neck stomach and somewhere in between my thighs. The knife did not injure me on all the place but only injured me on my left thumb as he was trying to put the knife on my neck. Then at that material time some Fulani boys came. The Fulani boys shouted on them kai kai’ the one who was holding the knife went to the Fulani boys and removed the knife and told them that he will cut them with the knife and the Fulani boys took to their heels and leave us there. The three accused persons lift me up and searched my body and took away my money and handset and also asked me about the key to the keke napep, I told them did not remove the key as it is with the keke Napep. The drag me to the place where the keke Napep was. They searched the fallen keke Napep and made it up and found the key to it there. As they lifted the keke Napep, I hold the keke Napep with my wounded finger and blood was gushing out. It was the 2nd accused person who used the knife to cut me. It was the 4th accused person who pushed me while I was holding the keke Napep and holds a knife on me. They started the keke Napep and moved away and the 4th accused was holding a knife on me and he ran and followed them. I later followed them. When I came out to the main road looking for lift to town, I met one person who assisted me after I have explained everything to him and brought me to Tafawa Balewa Housing Estate police station and I reported the matter at that station. I was attended by woman police officer Gloria and she collected my report and I gave her my information of what happened. The information gave to the Court is the same as I gave to her. We went to central market Bauchi and looked for my relatives and when she met my relation, I was taken to Tashan Babiye hospital. My hands were healed and we went home and we started looking for keke Napep.” (Underlining mine).
Under cross-examination, PW2 testified that:
“It was after I was trying to move out of the keke Napep that they injured me. It was all the accused persons that are holding knife, the one holding my legs. I can say all of them that injured me.”
By the testimony of PW2, it was glaring that the appellant indeed participated in the armed robbery and wielded a weapon. See The State v. Michael Omo Fadezi (2018) LEER-44731 (SC), where Peter-Odili JSC held thus:
“Also, that even if the gun used for the offence was not tendered before the trial Court would not exonerate the accused persons in the light of the cogent eyewitness evidence adduced. See Fatai Olayinka v The State (2007) ALL FWLR (pt.373) 163, Abiodun v The State (2013) ALL FWLR (Pt.700) 1257 at 1269, Babarinde v State (2014) ALL FWRL (pt. 717) 600 at 632, Alor v State (1996) 4 NWLR (Pt.445) 762, Dibie v State (2004) 14 NWLR (Pt.893) 257.”
Thirdly, the appellant failed to contradict the direct evidence of PW2 on the nature of the knife that was used to commit the offence during cross-examination. The appellant accordingly is deemed to have accepted the evidence of PW2 and is estopped from raising such arguments at this Court. See Esene V. The State (2017) LPELR-41912(SC), where Ogunbiyi JSC held thus:
“The appellant, who had the opportunity never deemed it important to cross-examine PW1 on the nature of the knife and how she was able to see the weapon at the time and place in question. He was also represented by counsel all through the trial. He must be deemed to have admitted that indeed he employed the knife in robbing PW1 on 23/12/2006. See the case of Amadi V. Nwosu (1992) 5 NWLR (Pt.241) 273 at 248 where this Court held:- “where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either, a Court can take his silence as an acceptance that the party does not dispute the fact.”
The fourth factor is that it is now well settled in law that the contradictions upon which an earlier judgment of a lower Court would be set aside or upset must be contradictions of a substantial nature or a material posture of a witness that has been discredited thus rendering the veracity of that witness of no effect. Therefore, minor contradictions of little or no substance or which merely touch on the periphery of the case would not suffice.
In the instant case, there was no contradiction as to the type of weapon used in the robbery. The alleged contradiction in the evidence of PW3 and PW4 was a minor discrepancy when viewed against the material issue of whether the robbery was an armed robbery.
I place reliance on the dictum of my learned brother, Adamu Augie JSC in Olasehinde v The State (2019) 1 NWLR (pt. 1654) 555 at 573 when he stated:
“If contradiction in the evidence of the prosecution goes to the root of the case, that is to say, the substance of the case, as to raise doubt in the mind of the Court, the Court should not convict. It is clear that if there is contradiction in evidence as to a material fact, that then goes to the root of the prosecution’s case as to raise doubt, the benefit of which must be given to the accused person…ln the case where the contradictions are not as to material facts to the charge against the accused person, such contradictions should not disturb the finding of guilt, if sufficient evidence has been led on the material facts to the charge.” See also Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57 SC page 88, paras. F-H, wherein Tobi JSC, explained the rationale behind this principle: “Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncracies.”
To buttress the point on the inconsistencies or contradictions that would shake the foundation of a case or not, a recourse to the narration of the appellant in his confessional statement would throw more light on what is material or not. Excerpts of that statement are thus:-
“…the 4-10-2013 at about 0700hrs, I and Abdulhamid went and met Adamu Teacher and he gave us a phone number and if we get the Keke Napep and if we reach Babaidu we should call him. Then we went to Suleiman house and we told him our intention and the three of us went to Muda Lawan Market Bauchi. We saw a Keke Napep then we stopped him and asked him to take as to a farm at Polo Road. On reaching the place, we stopped him and started entering a farm then he told us that he forgot his phone inside the keke Napep. As he turned back to go to the keke Napep, he entered the keke Napep, then Abdulhamid rushed and entered the keke Napep and held his neck and they fell down with the keke Napep. He came out and ran, Suleiman and Abdulhamid followed him and catching him. Abdulhamid held a knife trying to slaughter him with the knife, then he held the knife with his hand and Abdulhamid was trying to draw the knife in his hand and the knife cut his finger and he sustained injury…”
I rely on the case of Simeon Lalapu V. Commissioner of Police (2019) 16 MWLR (Pt. 1699) 476 @ 496, where Galinje JSC held thus:
“The decision of the trial Court, as affirmed by the lower Court that the confessional statement of the defendant, Exhibit D, is sufficient to sustain the conviction and the sentence passed on the appellant remains unchallenged. For where there is contradiction, and the man accused of the crime steps in and admits the commission of the offence, the contradiction in the prosecution’s case is rendered irrelevant. The contradictions in the evidence of PW2 has not affected the concurrent findings of facts by the trial Court and the lower Court. I therefore find no merit in this appeal.”
Clearly, the discrepancy as to the colour of the knife was only peripheral and does not detract from the fact the evidence of PW2 and the contents of the confessional statement of the appellant which had established the 2nd element of the offence.
C. That the Appellant took part in the robbery.
The appellant at paragraphs 53(c), 53(d) of his Brief of Argument argued that the identity of the appellant was not proved beyond reasonable doubt. That submission does not hold water for the reasons hereunder stated.
Firstly, the law is settled that the best identification of an accused person is the evidence given by the victim of the crime with which the accused is charged. See Sani Lawali V. The State (2019) LPELR-46405(SC).
PW2, the victim of the crime at pages 21-23 of the record of appeal testified that:
“On Friday, I collected a keke Napep from my brother Abdullahi Ishak and started working around 2.00pm after I have done my Juma’at prayer at Mida Lawal. The 2nd, 3rd & 4th accused persons stopped me and said do I know Polo field and I said no then they asked me whether I know Sabon Layi I and I said yes, I know it. I asked where specifically at Sabon Layi and they said the Polo field after the Sabon Layi. When we were going, they showed me a sign board of the Polo club and as we reached polo sing board we proceeded to polo ground, as we are going I asked them did we reach the place. They said we should go further and I told them I am tired. They asked me to stop. As we stay there they said that we should go there and bring out maize as they are three in numbers. They told me that there was a scale they cannot able to bring and they need my assistance, I followed them but I realised that something was not good. Then I told them that I forgot my handset on the keke napep and wanted to go back and get same. They told me that nobody was going to take your phone. I insisted that I will go and get my phone. As I was coming towards my keke Napep I turned back out of fear and saw that three accused persons 2nd, 3rd & 4th was after me. I noticed that they were not carrying any maize and I rushed and enter my keke Napep and started the keke napep in motion and I saw the 3 accused persons were after me.. I was asked whether I recognise the people that carried the said keke napep and I said yes, and I can recognise them and I can describe them. Then two people were brought to me and I was told that one of them has run away. The 2nd and the 4th Accused were the ones i saw at Ningi Area Command.”
In respect to the matter of identification of the culprit the following parametres are helpful thus:
(i) Circumstances in which the eye witness saw the suspect – was it in difficult conditions;
(ii) The length of time the witness saw the suspect or defendant a glance or longer observation;
(iii) The opportunity of close observation;
(iv) Previous contact between the two parties; and
(v) The lighting conditions. See Emmanuel Ochiba V. The State (2011) LPELR-8245(SC).
The Court below certainly utilised the above parametres and made the decision that the eye witness identification of the appellant was credible. These are factors which abound in the record. PW2 saw the appellant and the co-accused in the afternoon around 2.00pm; the length of time it took PW2 to take the appellant and the co-accused from Muda Lawal to Polo field was sufficient to give the appellant an opportunity to observe; the opportunity of close observation was not in doubt as PW2 helped, they did not carry the scale eventually because PW2 ran back to his Keke Napep and PW2 also struggled face to face with the appellant and the co-accused when they tried to steal the keke napep. Athough, Pw2 saw the appellant and the co-accused for the first time on the day of robbery, the fact that the robbery occurred in the afternoon at 2.00pm in broad day light obviated the need for identification parade as the identification evidence was cogent and credible.
In Abiodun Adekoya V. The State (2017) LPELR-41564(SC), Peter-Odilj JSC held thus:
“In the guide as reiterated in Ndidi v State (2007) 5 SCNJ 274 at 286-287 the Supreme Court had stated that in proving identity of an accused, the following must be taken into consideration.
a. Circumstances in which the eye-witness saw the accused.
b. The length of time the witness saw the accused.
c. The light conditions.
d. The opportunity of close observation.
e. The previous contact between the parties.”
Having that roadmap in mind and taken along what occurred in the matter in hand, it was barely 48 hours after the incident of the accused/appellant that PW4 positively identified him for arrest and had stated that the assailants took their time during the robbery and had spent over one and half hours. Also, in the matter of the light conditions, it was daytime and around 2pm in the afternoon. Secondly, the appellant did not make the identity of the Appellant an issue during the appeal at the lower Court. This is premised on the fact that the identification evidence of PW2 was not challenged under cross-examination. See Joel Ighalo V. The State (2016) LPELR-40840(SC), where Akaahs JSC held that:-
“I agree with the trial judge when he held that this point raised by the counsel was extremely untenable. He rightly believed and accepted the evidence of PW3 that the appellant was one of the persons who invaded his house with various offensive weapons and robbed him and members of his household and fatally injured one of his sons. The Court below on the other hand considered the issue and held that the identification of the appellant by PW3 was not challenged under cross-examination. The Court thus concluded that the trial judge carefully evaluated the evidence of PW3 and also concluded that the prosecution did establish the offence of armed robbery against the appellant beyond reasonable doubt.
The Court also properly addressed the issue of the probative value of PW3’s evidence on the sour relationship that existed between him and appellant when it stated at page 128 of the record inter alia, that:
“In its judgment, the lower Court having noted that the identification of the appellant was not challenged under cross-examination also noted that the fact that PW3 and the appellant are father and son underscores the fact that the appellant’s identification was not in doubt but also moved a step further to say that it made the identification of the appellant by PW3 much easier.”
The third reason comes from an area now trite in law and that is that the appellant as accused person by his confessional statement had identified himself, thus rendering of no use the need of an identification parade. It needs at this point to state that the finding of the Court below on the confessional statement of the appellant was not appealed against, the implication coming to the fact that he accepted the identification evidence in his confessional statement as correct. This was the crux in the decision of this Court per Okoro JSC in Saleh Dawai v The State (2017) LPELR-43835 (SC).
In reiteration, an identification parade is conducted when the identity of the suspect is doubted. In the case at hand where the appellant confessed to the commission of the offence of which he is charged and even the evidence proffered had placed him firmly at the scene of the robbery, then the requirement for an identification parade is dispensed with. See Nnamdi Osuagwu v The State (2013) 5 NWLR (Pt.1347)360, Patrick Ikemson & Ors v The State (1989) LPELR – 1473 (SC) per Oputa JSC.
On another point raised by the appellant which is that the evidence of PW2 was inconsistent as to the particular accused person who injured him during the robbery. That argument falls flat on its face in the light of the overwhelming evidence of PW2 which showed what is material and that is that appellant participated in the armed robbery as a principal offender. A similar presentation occurred in the case of State V Michael Omo Fadesi (supra) and Peter-Odili JSC stated thus:-
“It is salient that the two accused persons each carried a gun at the time of the violent robbery incident even though it is not material who of the participating robbers had a gun so long as they were together acting in concert. I place reliance on Iregbu v The State (2013) 12 NWLR (Pt.1367) 92; Jimmy v The State (2013) 18 NWLR (Pt.1386) 229.”
The fact that the appellant denies wielding the knife does not absolve him from guilt of the offence. It is in fact not necessary to prove that an accused was armed. It will suffice if it is shown that he is a member of an armed gang. See Emmanuel Okpulor v. The State (1990) 7 NWLR (pt.164) 581 @ 590, where Belgore Jsc held thus:
“The contention that if there was robbery, the Court should hold the appellant was not armed will take the appellant’s case nowhere. Once it was established by the prosecution that the appellant was among the robbers and they were armed with offensive weapons, e.g firearms, by common design the appellant is guilty of armed robbery. The trial Court, on the evidence found the appellant participated in the robbery. In law, it matters not that the appellant does not carry weapons, even though in this case he was found to have carried a gun. Once it is established that the appellant was among the robbers not as a casual onlooker, but a full participant and his accomplices now at large not only carried firearms but actually engaged the police, who challenged them in cross fire, the appellant was guilty of the offence of armed robbery. (Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455. The most important aspect of the appellant’s part in the crime is the principle of common object, the intention to violently rob and that intention being executed. The presence of the appellant at the locus criminis was supported by overwhelming evidence that he was in concert with others now at large to violently commit robbery, the mere presence of the appellant with others armed- even if only one was armed – with offensive weapon was enough to find him guilty of the offence under the Act. See Okosun & Ors v. Attorney-General, Bendel State (1985) 3 NWLR (Pt,12) 283.”
In addition, the alleged inconsistencies in the evidence of PW2 are rendered irrelevant by the confessional statement of the appellant. See Simeon Lalapu v. Commissioner of Police (supra).
Therefore, there were no material inconsistencies in the evidence of PW2 to warrant the reversal of the decision of the lower Court. See Freeborn Okiemute V. The State (2016) LPELR-40639(SC), where Galadima JSC held thus:
“Inconsistency rule does not apply to render the evidence of PW3 incredible and unreliable and to be discountenanced. See UWAGBOE V. THE STATE (2008) 12 NWLR (Pt. 1102) Page 621 particularly when such inconsistency is a minor nature that does not affect the live issue. See BASIL v. THE STATE (2008) 4 SCNJ 250, THE STATE v. FA AZEEZ 4 SCNJ 325, AYO GABRIEL v. THE STATE (1989) 5 NWLR (pt.122) 457. I do not find both aforementioned statements inconsistent, capable of affecting her credibility. The Court below on this point lucidly stated at page 179 of the record thus: “I do not regard both statements as seriously inconsistent statements capable of affecting her credibility and regards the evidence she gave on oath and her extra judicial statement regarding the salient ingredients of the offence. That is to say that even if it is conceded that there was inconsistency on that point, PW3 at the earliest opportunity on 14th November, 2006, after the robbery while in hospital gave a good description of the appellant and mentioned him by name. There was no challenge by the defence regarding the description she gave of him in her earlier statement on 14h November, 2006 which she referred to on oath. Neither was there a challenge in that said statement referred to by her under cross-examination where she specifically mentioned the appellant by name as one of the robbers. The question of whether or not he was the leader of the armed robbery gang pales into insignificance when the totality of her evidence on oath and Exhibit C is considered.”
I have had to copiously quote earlier decisions of this Court, the reason is to show that all the angles of the submission of the learned counsel for the appellant had been effectively covered in those guiding principles enunciated in the judicial authorities recast. The issues raised had been well settled in law and repositioned by this Court as if those jurists had the present instance in mind when they adjudicated on those respective appeals.
The conclusion from the foregoing is that the Court of Appeal rightly held that the respondent had proved the offences of criminal conspiracy and robbery against the appellant beyond reasonable doubt and the trial Court wrong in holding otherwise.
The appeal therefore fails and is dismissed. I affirm the decision, conviction and sentence of the Court of Appeal which had set aside the judgment, acquittal and discharge of the appellant.
Appeal is Dismissed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the comprehensive and well considered judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered. I agree entirely with the reasoning and conclusion that the appeal lacks merit and deserves to be dismissed I shall make a few remarks to show my support.
The facts giving rise to this appeal have been adequately summarized in the lead judgment. I need not repeat the exercise. In the appellant’s first issue, it is contended that the lower Court, in reversing the judgment of the trial Court, was wrong to have convicted him for an offence unknown to the Penal Code Law, Cap 108 Laws of Bauchi State 1991 and for which he was not charged. Reliance was placed, inter alia, on Section 36(12) of the 1999 Constitution, as amended, which provides thus:
“36 (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in written law; and in this sub-section, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
The first question to be answered is whether the appellant was convicted for an offence in a written law and for which there is a prescribed penalty? The charge against the appellant reads as follows:
“That you Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi, all of Nasarawa Jahun Ward, Bauchi L. G.A. Bauchi on the 4th October, 2013, while armed with dangerous instruments, to wit: knife, robbed one Idris Wakili of Jahun Local Government, Bauchi of his Keke Napep tricycle yellow in colour with Reg. No. QW 0 56 Bau valued at and three sim handset valued at N2,500.00 and the sum of N1,500 after stabbing him with a knife near Polo Club along Bauchi/Kano Road, in the Bauchi Judicial Division, thereby committed the offence of Robbery contrary to Section 298(b) of the Pena/ Code Cap. 108, Laws of Bauchi State, 1991.”
Section 298(b) of the Penal Code, provides:
“298. Whoever commits robbery shall be punished:-
(b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment for life with or without caning.”
The offence of robbery is defined in Section 296 of the Penal Code, while the punishment for robbery committed while armed with any dangerous instrument is provided for in Section 298(b) of the Penal Code, as reproduced above.
It is not in dispute that in setting aside his acquittal by the trial Court, the Court below convicted the appellant for conspiracy to commit armed robbery and armed robbery and sentenced him to a term of 14 years imprisonment on each count. It is the appellant’s contention that the offence of “armed robbery” is unknown to the Penal Code. The question that one must ask is: what is armed robbery? Armed robbery is the act of stealing with violence used or threatened. See Aminu Tanko Vs The State (2009) 1 – 2 SC (Pt. 1) 198 @ 223, Eke vs The State (2011) 1 – 2 SC (Pt. 11) 219; (2011) LPELR- 1133 (SC) @ 15 D – E, Agboola vs The State (2013) 11 NWLR (Pt. 1366) 619. In Black’s Law Dictionary, 8th Edition, “Robbery” is defined as:
“The illegal taking of property from the person of another, the person presence by or intimidation.”
“Armed Robbery” is defined therein as:
“Robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.”
By the charge reproduced earlier, the appellant was alleged to have robbed one Idris Wakili, along with two others, of a Keke Napep tricycle, while armed with a knife. Section 298(b) provides for the punishment to be meted out to a person who commits the offence of robbery while so armed.
In determining a charge of robbery punishable under Section 298(b) of the Penal Code, the principles and decisions relating to the offence of armed robbery as provided for under the Robbery and Firearms (Special Provisions) Act serve as a useful guide. See Peter Ogu Vs C.O.P. (2018) 8 NWLR (Pt.1620) 134 @ 156. The substance of the offence for which the appellant was charged is armed robbery. The conviction of the appellant for armed robbery rather than robbery as contained in Section 298(b) of the Penal Code is a mere slip that cannot vitiate the conviction. What is important, as held by His Lordship Muhammad, JSC in Bassey Okpa Vs The State (2017) 15 NWLR (Pt. 1587) 1 @ 20, as cited by learned counsel for the respondent, is that the offence for which the appellant was convicted is defined and the penalty therefore prescribed in a written law.
Furthermore, the appellant was in no way misled by the particulars of the charge as to the nature of the compliant against him.
At page 98 of the record, the appellant, testifying as DW3, stated inter alia:
“I know why I am in Court, I am before the Court to defend myself in respect of the offence am being charged. I am being charged for the offence of armed robbery of keke Napep.”
Similarly, in the 2nd, 3rd and 4th respondents’ brief of argument at the Court below, whereat the appellant was the 3rd respondent, learned counsel submitted at page 10 paragraph 34 as follows:
“Consequently, no judex worth his(sic) salt will convict anybody for a weighty offence as armed robbery on such a scanty evidence. Thus the trial Court was right when it made the finding on page 170 to 172 of the record as follows:
“In a charge of armed robbery, the following vital witnesses are to give evidence for the prosecution and where the prosecution fails in that regard very serious doubt arises as to whether the accused person really committed the offence: they are
a) The victim of the armed robbery, if still alive;
b) The police officers who arrested the accused persons;
c) Evidence of the circumstances in which the accused persons were arrested;
d) Eye witnesses or any witnesses who should give credible evidence of the armed robbery;
e) If reliance is placed on circumstantial evidence, it must be compelling and lead to only one conclusion and that is that the accused persons were responsible for the armed robbery.”
(Emphasis mine)
It is quite evident therefore, that learned counsel for the appellant himself argued the appeal as if the charge was a charge for armed robbery. It has been held severally by this Court that a conviction under a wrong law is not fatal if there is a provision under the law on which the conviction can stand unless the appellant is able to establish that he was misled or that he has suffered a miscarriage of justice. See Okpa vs The State (2017) 15 NWLR (Supra), Adonike vs The State (2015) LPELR – 24281 (SC) @ 20 – 22 A – D, Yabugbe vs C.O.P. (1992) 4 NWLR (Pt. 234) 152. In the instant case, the only slip made by the Court below was the use of the words “armed robbery” in convicting the appellant.
The error, as I have stated earlier cannot vitiate the conviction. The Court is always admonished to look at the substance rather than the form. It would amount to placing undue emphasis on technicality if the conviction were to be set aside on this ground.
This brings me to the second issue for determination, which is whether there was cogent and convincing evidence to warrant the appellant’s conviction. Having read the well considered and erudite judgment of the lower Court, I am in full agreement with the very sound reasoning and conclusions reached. I am not persuaded to interfere with the findings, which have been thoroughly examined and affirmed in the lead judgment of my learned brother, Mary Ukaego Peter-Odili, JSC.
In the final analysis, I find this appeal to be devoid of merit. It is hereby dismissed. The judgment of the lower Court is affirmed.
Appeal dismissed.
ABDU ABOKI, J.S.C.: I have read before now the judgment written by My Lord MARY UKAEGO PETER-ODILI, JSC just delivered with which I entirely agree. In support of my stance, I will however advance a few words.
This appeal is against the judgment of the Court of Appeal Jos Division, delivered on the 16th of July, 2018.
The Appellant (who was the 3rd Defendant in the trial Court and the 3rd Respondent at the Court below), and others, were charged with conspiracy to commit the offence of robbery and for robbing one Idris Wakili of Jahun Ward in Bauchi Local Government, Bauchi, while armed with dangerous instrument to wit a knife, of his Keke Napep tricycle, a three sim handset and the sum of N1,500.00 after stabbing him with the knife, contrary to Sections 97 and 298 (b) of the Penal Code Laws of Bauchi State, 1991.
The charge reads as follows:
COUNT ONE
That you, Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdyllahi, all of Nasarawa Jahun Ward, Bauchi Local Government, Bauchi, on 4th day of October, 2013, or thereabout conspired among yourself to commit the offence of Robbery, in the Bauchi judicial Division, thereby committed the offence of Criminal Conspiracy contrary to Section 97 of the Penal Code Laws of Bauchi State and triable by this Court.
COUNT TWO
That you, Abdulhamid Musa, Ahmed Muhammed and Suleiman Abdullahi, all of Nasarawa Jahun ward, Bauchi Local Government Bauchi, on 04th day of October, 2013, while armed with dangerous instruments, to wit a knife, robbed one of Idris Wakill of Jahun Ward, Bauchi Local Government, Bauchi of his kekeNapep tricycle yellow in colour with Reg. No. QW 056 Bau valued at N380,000.00 and a three sim handset at N2,500.00 and the N1,500 after stabbing him with a knife near Polo club along Bauchi-Kano Road, in bauchi Judicial Division, thereby committed the offence of Robbery contrary to Section 98(b) of the Penal Code CAP 108 Laws of Bauchi State 1991.
COUNT THREE
That you, Adamu Suceiman, of Nasaræse Jahun Ward, Bauchi Local Government, Bauchi, on 4th day of October, 2013 or thereabout, instigated Abduihamid Musa, Ahmed Muhammed and Suleiman Abduillahi, all of NasarawaJahun Ward, Bauchi Local Government, Bauchi to commit the offence of robbery and in consequence they committed the robbery against one Idris Wakiki in the Bauchi Judicial Division, thereby committed the offence of abetment, contrary to Section 85 of the Penal Code CAP 108 Laws of Bauchi State, 1991.
They all pleaded “Not Guilty” to the Charges and the matter proceeded to trial. In proof of its case, the Respondent called eight witnesses and tendered several exhibits while the four Defendants testified in their defence and called no other witness.
At the conclusion of trial, the trial Court entered judgment discharging and acquitting the Appellant and the other Defendants.
The trial Court, in coming to its decision to discharge and acquit the Appellant and the other Defendants, noted that:
“To sustain a charge of armed robbery, the Prosecution was obligated to call as witnesses, whom the Court termed as vital the victim of the robbery, the Police officer who arrested the accused defendants and eye witnesses who saw the commission of the robbery and must also give evidence of the circumstances of the arrest of the accused defendants as well circumstantial evidence which is compelling and pointing to one conclusion, if circumstantial evidence is relied upon, and that in the instant case the Prosecution called only the victim of the robbery as a witness, and not the others and did not lead evidence of the circumstances of the arrest of the Defendants or of cogent circumstantial evidence and it found therefrom that there was no proper Police investigation into the case and that this was fatal as it caused doubt in the mind of the Court. According to the trial Court, the confessional statements of the Defendants tendered as Exhibits A, B, C, D, H, I and J were retracted by them and were not corroborated by any evidence outside the confessional statements to point to the truth of their contents in that it was not established that the Defendants committed the offences as the police officer who arrested them was not called as a witness and that the confession was not possible because it was retracted by the Defendants and that the contents of the confessional statements were not consistent with the evidence led by the prosecution witnesses. On the offence of conspiracy, the trial Court held that since it had found that the substantive charge of robbery was not proved, consideration of the charge of conspiracy had become an academic exercise and did not arise for consideration by the Court.”
The Respondent, aggrieved by judgment of the trial Court, appealed to the Court below. After a consideration of the evidence on record, the Court below allowed the appeal, and set aside the judgment of the trial Court. The Appellant and the other Defendants were thereafter sentence as follows:
i. The 2nd, 3rd and 4th Respondents are sentenced to a term of imprisonment of fourteen years each for the offence of conspiracy to commit armed robbery committed contrary to the provisions of Section 97 of the Penal Code Law.
ii. The 2nd, 3rd and 4th Respondents are also sentenced to a term of imprisonment of fourteen years each for the offence of armed robbery committed contrary to the provisions of Section 298 of the Penal Code Law.
iii. The 1st Respondent is similarly sentenced a term of imprisonment of fourteen years for the offence of abetment committed contrary to the provisions of Section 85 of the Penal Code Law.
iv. The terms of imprisonment of the 2nd, 3rd and 4th for the offences of conspiracy and armed robbery shall run concurrently and the terms of imprisonment of the four Respondents shall commence from the date of their apprehension and transfer to the prisons by the relevant authorities.
These shall be the orders of Court.”
The Appellant was aggrieved by this decision and appealed to this Court. In his brief of argument, Counsel for the Appellant distilled these issues as relevant to this appeal. They are:
1. Whether the Court below was justified in convicting the Appellant for an offence unknown to the Penal Code Law, Cap 108 Law of Bauchi State 1991 and for which he was not charged, tried or even given fair hearing?
2. Whether or not there was cogent and convincing evidence to warrant the conviction of the Appellant?
The Respondent also distilled two issues as follows:
1. Whether the lower Court did not convict the Appellant for an offence unknown to the Penal Code Law, Cap 108 Law of Bauchi State 1991, in breach of the Appellant’s right to fair hearing?
2. Whether there was cogent and convicting evidence to warrant the conviction of the Appellant?
My Lord Peter-Odili, JSC, has adroitly summarized the submissions of Counsel on both sides, on the issues calling or determination, which are the same in purport, though couched differently; so I need not repeat them. I adopt the summary of the issues, and add a few words in expatiation of the first issue raised by the Appellant, which is “Whether the Court below was justified in convicting the Appellant for an offence unknown to the Penal Code Law, Cap 108 Law of Bauchi State 1991 and for which he was not charged, tried or even given fair hearing?”
It was not in contest in this case that on the 4th of October, 2013, the PW2, Idris Wakili, was attacked and robbed of his yellow colored Keke Napep tricycle with registration No QW 056 Bauchi valued at N380, 000.00 as well as of his three sim telephone handset valued at N2,500.00 and sum of N1,500.00 and that he was injured with a knife in the process. The fact of the robbery was led in evidence by the first, second, third, fifth, sixth, seventh and eight Prosecution witnesses and their evidence thereon was not challenged, discredited, countermanded or controverted either under cross-examination or by any contrary evidence from the 2nd – 4th Respondents.
A read through the records shows that in proving the other ingredients of the offence of armed robbery, the Prosecution relied on direct eye witness account and on the confessional 2nd – 4th Respondents. The eye witness account was rendered by the victim of the robbery Idris Wakili, the PW2. The summary of testimony of the witness goes thus:
“On the day of the incident, which was a Friday he collected the Keke Napep from his brother, the first prosecution witness, and he started work with it around 2pm, after saying his Jumaat prayers at MudaLawan. The second, third and fourth Defendants stopped him and requested that he should take to a place called the Polo field after Sabon Layi and he agreed. On the way, the second, third and fourth Defendants showed him the sign board of the Polo field and asked to drive inside and he did and he was asked to stop at a point. The second, third and fourth Defendant then requested him to assist them in carrying the maize they wanted to transport as well as a scale which they could not carry on their own and that he agreed. He followed them and on the way he become uncomfortable that something was not right and that be informed the second, third and fourth Defendants that he wanted to go back to his Keke Napep to collect his telephone handset and that they tried to dissuade him but he insisted and turned back. On his way towards the Keke Napep, he looked back and saw the second, third and fourth Defendants coming in his direction without carrying any maize and he quickly entered the Keke Napep, started same but that the 3rd Defendant jumped into the Keke Napep and used a cable to hold his neck. In course of the struggle with the 3rd Defendant, the keke Napep fell and the windscreen came off and whereupon he came out of the tricycle through the space of the windscreen and tried to run away, but he was hit on his leg and he fell. He was pinned down with one of them holding his nose and mouth and the other his legs and that the 2nd Defendant took out a knife to stab him on his stomach, neck and thigh and only succeeded in injuring him on his finger which he used to protect his neck.
The 2nd – 4th Defendants thereafter lifted him up and searched his person and took his money and handset and asked him for the key of the Keke Napep and he told them that he did not remove the key from the tricycle. They dragged him to where the fallen kekenapep was and searched and found the key and fitted same up while he was holding on to it with his injured hand. The 4th Defendant pushed of the Keke Napep and held a knife at him while the others started the Keke Napep, and they drove off. He thereafter came to the main road and met a good Samaritan who, after hearing his story, took him to the Tafawa Balewa Housing Estate Police Station where he made a report. He went home and he and the PW1 started looking for the KeKe Napep and that on the next day they received information that the Keke Napep had been recovered and was at Ningi Area Command. He and the PW2 then went to notify the Police at the Tafawa Balewa Housing Estate Police Station and that they went to the Ningi Area Command in the company of the Police and whereat he identified the Keke Napep and that the police asked him if he could identify the persons who attack him and he confirmed he could and he proceeded to describe them. The Police then brought two persons and informed him that one person had run away and he identified the two persons as part of his assailants and the two persons are the second and fourth Respondents. The Keke Napep was released to him and his brother and police person from the Tafawa Balewa Housing Estate Police Station who accompanied them and that he later learnt that Defendants were later arrested.”
Under cross-examination, the witness confirmed that it was the Appellant and the other Defendants that attacked and injured him.
The record of appeal shows that the PW2 was not cross-examined at all on his rendition of the events of the armed robbery. It is settled that the testimony of the witness will be believed in such circumstances and that subsequent attempt by the accused defendant to contradict the evidence is to be treated as an afterthought.
In Oforlete v. State (2000) 12 NWLR (Pt…81) 415 at 436 C-E, it was held thus:
“Where an adversary fails to cross-examine a witness upon a particular matter the implication is that he accepts the truth of the matter as led in evidence. After all, the noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory, if not suicidal but practice, for counsel to neglect to cross-examine a witness after evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchalleged evidence.”
In considering the evidence of PW2, the Court below held thus:
“A read through the above summary of the evidence of the second prosecution witness shows that the alleged inconsistencies were not real and existed only in the imagination of the Counsel to the second to the fourth Respondents. There are no such inconsistencies in evidence of the witness. The second prosecution witness was not an accomplice whose evidence required corroboration. As stated earlier, the evidence of the second prosecution witness was not challenged or discredited. The law is that evidence that is neither challenged nor debunked remains good and credible evidence which should be relied upon by a trial Judge and accorded probative value. This Court finds that the unchallenged eye witness account of the second prosecution witness and the contents of the confessional statements, Exhibits B, C, D, H, I and J, constituted credible and cogent evidence establishing the ingredients of the offence of armed robbery brought against the second, third and fourth Respondents. The decision of the lower Court discharging and acquitting the second, third and fourth Respondents of the charge of armed robbery is thus liable to be set aside and to be replaced with a finding of guilty.”
I agree with the decision of the Court below. It is also on record that the Appellant was charged under Section 298(b) of the Penal Code Law, Cap 108 Law of Bauchi State 1991, which provides that:
“Whoever commits robbery shall be punished –
(b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment, for life with or without caning.”
From the above reproduced provision of the Penal Code, it is obvious that the substance for which the Appellant was charged and convicted is armed robbery. That much was acknowledged by the Appellant himself when at page 98 of the Record, he testified that he was being charged for the of armed robbery of kekenapep. He was therefore not misled by the particulars of the charge as to the nature of the complaint against him.
In Adonike v. The State (2015) LPELR 24 231 SC, this Court held inter alia that:
“Where an offence known to law to prescribe in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.”
I therefore find the submissions of the Appellant’s counsel, that the Appellant was convicted for an offence unknown to the Penal Code Law, Cap 108 Law of Bauchi State 1991 untenable.
It is for these reasons and the fuller reasons proffered in the lead judgment written by my learned brother, MARY UKAEGO PETER-ODILI, JSC, that I too find this appeal to be wholly devoid of merit. I accordingly dismiss it.
I abide by the consequential order(s), if any, contained in the lead judgment.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having had the privilege of reading, before now, the judgment just delivered by my learned brother the Hon. Justice M.U. Peter-Odili, JSC, I cannot but concur with the eloquent reasoning and conclusion reached therein, to the effect that the instant appeal is grossly devoid of merits.
Hence, I too hereby dismiss the appeal and abide by the consequential order made therein.
Appeal dismissed.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, MARY PETER-ODILI, JSC granted me the privilege of reading in draft the elaborate leading judgment prepared and rendered in this appeal. I endorse the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add.
I also endorse all consequential orders including the order on costs.
Appearances:
Olarewaju Akinsola with him is C.N. Onyia (Miss) For Appellant(s)
Imam Wilson For Respondent(s)
