Olumide Segun V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Ibadan, delivered on 9th June, 2015 wherein the lower Court, by majority of two to one, affirmed the conviction and sentence of the appellant to life imprisonment for the offence of receiving under Section 5 of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria, 2004, though he was actually charged under Section 6 (a) of the said Act for the offence of aiding and abetting the commission of an offence.
Briefly, the facts giving birth to this appeal are that the Appellant and one Jamiu Dairo were tried together for armed robbery and aiding the commission of armed robbery. The evidence of the prosecution at the trial showed that the said Jamiu Dairo went to rob PW1 of his car at gun point somewhere in Igbeba Road, Ijebu Ode. During the operation, PW2 was shot by the said Jamiu Dairo. On the following day, Jamiu took the car to another location and then eventually to the appellant to wash the said car. While the appellant was washing the said car, he was arrested by policemen.
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Evidence at the trial showed that Jamiu had never known who the appellant was before the said date and all the appellant did was to wash the car before he was arrested. There was no nexus or link between the appellant and the said Jamiu.
In fact, Jamiu in his evidence before the Court stated that he did not know the appellant and all he did was to approach him to wash the car that was stolen. The appellant being a car wash person decided to do the washing and it was during the washing that he was arrested. Despite all these facts to show that there was no nexus or link between the appellant and the crime, the learned trial Judge found the appellant guilty of receiving stolen property and sentenced him to life imprisonment. Against this conviction and sentence, they appealed to the Court of Appeal which after consideration of the issues raised, affirmed the conviction of the appellant by a majority of two with one dissenting. The judgment of the Court below was delivered on 9th June, 2015.
Again, the Appellant was dissatisfied with the judgment of the Court below and filed Notice of Appeal on 7th July,
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2015 which was deemed properly filed on 8th March, 2018. There are three grounds of appeal out of which the Appellant has distilled two issues for the determination of this appeal thus:-
- Whether the appellant was rightly convicted of the lesser offence of receiving.
- Whether the prosecution was able to establish its case beyond reasonable doubt as required by law.
It was however the view of the learned counsel for the Respondent that only one issue is germane for the determination of this appeal which he has couched as follows:-
“Whether from the entirety of the evidence on record as well as material available, the Respondent as prosecution established the offence of Receiving Stolen Property against the Appellant beyond all reasonable doubt to warrant the appellant’s affirmation of conviction and sentence by the Court of Appeal and a dismissal of the Appeal of 7th July, 2015 in its entirety.”
On the issues formulated by the parties for the determination of this appeal, it is crystal clear that although the appellant has distilled two issues, the respondent has fused the two issues into one.
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I shall determine the two issues of the appellant together as if it was one issue. What this means is that I adopt the sole issue as couched by the Respondent as a guide in determining this appeal.
The learned counsel for the Appellant Oladipo Olasope, Esq., submitted in the main that it was a wrong approach for the learned Trial Judge, as affirmed by the Court below, to convict the appellant of a lesser offence as the principles for conviction for a lesser offence were missing, referring to the case of Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1. According to him, the principal elements of the offence of aiding and abetting are that the person aiding and abetting must be present at the scene of crime and the person must have done something or failed to do something which helped the commission of the crime, relying on Yakubu Mohammed v. State (1980) 3-4 SC 56.
Learned counsel submitted that the ingredients of the offence of receiving are that:-
- The property in question must have been stolen.
- The accused received the stolen property.
- The accused knew or had reason to believe that the property was stolen property, citing the case of
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Okoroji v. State (2001) All FWLR (Pt. 77) 871 at 889 and Eze v. State (1985) 3 NWLR (Pt. ) Yongo v. C.O.P. (1992) NWLR (Pt. 257) 36. He stressed that it is apparent that the ingredients of both offences are totally different and as such there was no reason why the Court should have substituted the conviction of a lesser offence when the ingredients of both offences are not the same. That the Court below also fell into the same error.
Learned counsel contended that for the lesser offence to be established, the lesser offence must be carved out of the graver offence charged, relying on Okuwura v. State (1964) 1 All NLR 366 at 369-370, Ezeja v. State (2006) All FWLR (Pt. 309) 1539.
On issue of proof beyond reasonable doubt, learned counsel submitted that the facts of this case have shown that proof beyond reasonable doubt has not been established. He argued that the appellant was charged with abetting the commission of a crime but subsequently convicted of receiving when the ingredients of both offences are very different. Also, that the evidence before the Court showed that none of the eye witnesses saw the appellant at the scene of crime and even Jamiu testified
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that he did not know the appellant. According to learned counsel, evidence shows that appellant was in the business of car wash and that he had no knowledge that the car was stolen. Moreso, that the trial Judge did not rely on the confessional statement of the appellant as there was nothing to corroborate that statement. He contended that the lower Court was wrong in agreeing with the trial Court that the offence of receiving was proved beyond reasonable doubt. He urged the Court to resolve the two issues in favour of the appellant.
In response, the learned Attorney General of Ogun State, Dr. Olumide Ayeni referred to Section 179 (2) of the Criminal Procedure Law of Ogun State, 2006 and submitted that under the said law, although the appellant was charged with, and indicted for conspiring to commit armed robbery and abatement of armed robbery offences contrary to Section 6(a) and (b) and punishable with death under Section 1(2) (a) of the Robbery and Firearms (special Provisions) Act, Cap R 11 Laws of the Federation of Nigeria, 2004, the appellant was convicted on/for a lesser offence in terms of receiving stolen property and punishable with
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imprisonment for life pursuant to Section 5 as aforesaid. He referred to the cases of Odeh v. Federal Republic of Nigeria (2008) 6 SCM 152 at 166 and Oladipupo v. The State (1993) 6 NWLR (Pt. 298) 14.
Learned counsel submitted, relying on Oladipupo’s case (supra) that where an offence is charged and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. He submitted that this is so since the elements of the charge now substituted would have been fully addressed in the course of the trial as well as established so that no valid or competent issue of fair hearing violation would be raised. Also, the learned counsel for the respondent argued that while the Appellant seems to suggest that the elements of the offences of aiding and abetting were not proved to justify his conviction, he was not convicted of offences of aiding and abetting but of receiving stolen property pursuant to Section 5 of the Robbery and Firearms (Special Provisions) Act (supra).
Finally, the learned Attorney General submitted that there is concurrent judgment of the two Courts below and that
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this Court does not rightly interfere, relying on Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112 at 135. He urged the Court to resolve this issue against the appellant.
At the trial Court, the appellant herein was charged with offences of aiding and abetting the commission of Armed Robbery under Section 6(a) of the Robbery and Firearms (Special Provisions) Act (supra) which states:-
“6 Any person who:-
(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act:- Whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”
However, at the end of trial, the appellant was not convicted as charged but under Section 5 of the same Act which states:-
“5 Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be guilty of an offence under this Act and shall be liable upon conviction to be sentenced to imprisonment for life.”
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This is what the learned trial Judge said on page 75 of the record:-
“I am therefore not comfortable finding the 2nd accused guilty as a principal offender as I have doubt in my mind as to whether the act of the 2nd accused person in receiving the car would amount to ‘aiding’, or ‘counseling’ or ‘abetting’ or ‘procuring’ the 1st accused and others now at large to commit the offence of armed robbery as provided under Section 6(a) of the Robbery and Firearms (Special Provisions) Act. The view I have just expressed however does not mean that 2nd accused cannot be guilty of an offence under the said Act As earlier stated, there is abundant evidence that the 2nd accused ‘received’ the said car snatched from PW1 at gun point and during which operation PW2 was shot and wounded. The 2nd accused himself did not deny receiving the said car In the circumstances and from the evidence before the Court, I hold that the 2nd accused is not guilty of the offence charged in count 111 in this case. I however find the 2nd accused guilty of receiving the Mazda 626 car Registration No. LA 631 KJA which was snatched from PW1 at gun point on the 24th day of
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September, 2006 which offence is created by and punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R 11, Laws of the Federation of Nigeria, 2004.”
Affirming the judgment of the learned Trial Judge, the Court below on page 144 of the record made the following findings and conclusions;
“The Appellant as said for the repeated time did not deny receiving a vehicle in a rather clandestine situation. The procedure adopted by the learned trial Judge is not strange in law. The records also show that the Appellant sought to conceal his true identity to the police. Such is not the conduct of an untainted mind. It is equally instructive that the PW4 stated in his testimony that his team did not find the Appellant washing the red Mazda car but that the said vehicle was parked behind the house and had no vehicle registration on. The Appellant admitted receiving the vehicle therefore; a guilty knowledge is apparent and imputable to the Appellant.
The prosecution as found by the learned trial Judge, established a case against the Appellant. The extra Judicial statements of the Appellant and the fact of
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finding the stolen car in his possession and bearing features which are not totally normal take away the acclaimed innocence of the Appellant.
I have equally perused the statement of the Appellant as an accused person and the testimony before the trail Court. Although the Appellant resiled from his statement, there were some details which exposed a guilty knowledge in the Appellant. The Appellant was not entirely a stranger to the bearer of the vehicle which he was washing. The Appellant also took custody of the car and kept it overnight under his custody. The incidence of robbery would not be that rampant if there are no willing receivers. I find no justification to upset the decision of the learned trial Judge.”
In coming to their concurrent findings in this matter, both the learned trial Judge and the Court of Appeal relied on Section 179(2) of the Criminal Procedure Law of Ogun State, 2006 which is in pari materia with Section 218 of the Criminal Procedure Act. The said section provides:-
“179 (2) when a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
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On the applicability of the above provision, this Court made it clear in Okobi v. The State (1984) 7 SC 47, (1984) LPELR-2453 (SC), per Obaseki, JSC at page 22 of the later law report that –
“Lesser offence mentioned in Section 179(1) can only, in my view, refer to lesser offence under the law or Act under which the main or composite offence was charged. It cannot properly be interpreted to refer to a lesser offence under another law. Section 179 (2) Criminal Procedure Law has in my view, an independent application which differs from that of Section 179(1) of the Criminal Procedure Law. While Section 179(1) of the Criminal Procedure Law enables conviction to be entered for complete lesser offence established by the proof of some of the several particulars of the main or principal offence, e.g. in the trial for robbery under Section 401, Criminal Code stealing under Section 390 Criminal Code is proved, Section 179 (2) Criminal Procedure Law enables a conviction to be entered for the lesser offence to which the main offence has been reduced by the proof of facts having the effect of reducing the main offence to a lesser
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offence, e.g. in the trial for murder under Section 316 of the Criminal Code if provocation is proved, the offence is reduced from murder to manslaughter.”
Also, in John Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, also reported in (1986) LPELR-2085 (SC), Karibi-Whyte, JSC at pages 16-17 paragraphs D-A, shed some more light on the issue, relying on Torhamba v. Police (1956) NRNLR at Page 94 as follows:-
“In Torhamba v. Police (1956) NRNLR at 94, the Court had attempted to give a guide as to the determination of what constitutes lesser offence. It was said – “a lesser offence is a combination of some of the several particulars making up the offence charged, in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged… when one is considering action under Section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of these particulars and have a residue of the particulars making up the lesser offences of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen
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(1953) 2 WLR 965 (1953) A.C. 407.” There are other decisions such as Shoimbo v. State (1974) 10 SC 91; Oyediran v. Republic (1967) NMLR 122; R. v. Tyson (1945) 11 WACA 90; R. v. Adokwu (1952) 20 NLR 103.”
On page 17, His Lordships counsels on what should be bourne in mind while considering this issue. He states:-
“It must be kept constantly in mind that Section 179 in issue in this appeal is concerned with where the lesser (offence) charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious offence in respect of which the accused is charged. The operative words are lesser and not “another offence.” Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption, which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence.
It is therefore important to observe from the judicial decisions and the provisions that for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed.
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Firstly, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences.
Secondly, the evidence led and facts found, though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence. Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This lest mentioned is ordinary common sense. The greater includes by necessary implication the lesser.”
I have taken time to quote in extenso the views of this Court in respect of this matter which has not changed. This Court set aside the conviction and sentence of the Appellant in Okobi v. The State (supra) because the appellant therein was charged under the Robbery and Firearms (Special Provisions) Act but he could not be convicted under that law only to be convicted under the Criminal Code. This Court held that this is not possible as it is against the tenor of Section 179 of the Criminal Procedure Act. In the instant appeal, the Appellant was charged under Section 6(a) of the Robbery and
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Firearms (Special Provisions) Act but was convicted under Section 5 of the same Act. It was the same facts and evidence led in support of the offence of aiding and abetting that was used to convict the appellant for receiving the stolen car.
In his extra judicial statement which was admitted in evidence, though he resiled from it, the appellant gave account of how the offence was hatched and executed. The learned trial Judge refused to convict him for the principal offence because he felt there was nothing to corroborate the contents of the resiled confessional statement. But as was clearly stated by the Court below, PW4 gave evidence of how he found the snatched car behind the house of the appellant without the number plate and the appellant even stated in his statement that they used “super glue” to clean the number written on the car “wheel” (wind) screen.
My Lords, I have no doubt in my mind that the Court below was right when it upheld the conviction and sentence of the appellant. The evidence against the appellant is overwhelming and I accept that a lesser offence of receiving the stolen car was proved beyond reasonable doubt.
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Section 179 (2) of the Criminal Procedure Law was appropriately invoked to convict the appellant of a lesser offence when the appellant received the stolen car which was snatched under gun point, when he removed the number plate and obliterated the Registration number on the wind screen by the use of “super glue”, he knew or ought to have known that the law was waiting for him around the corner. He should not complain but thank God that the two Courts below decided to convict him of a lesser offence than that which carries sentence of death. In view of all I have said above, I resolve this issue against the appellant.
Based on all I have endeavoured to say above, I am satisfied to hold that this appeal is devoid of merit and is accordingly dismissed. The conviction and sentence of the appellant by the trial Court as affirmed by the lower Court is further affirmed by me.
Appeal Dismissed.
SC.977/2015
