Onukwube V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C. 

The Appellant, as the 2nd accused person, was charged and tried for the offence of armed robbery contrary to 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 111 LFN 2004. The particulars of the offence are that: the Appellant and three others “on or about 18th Day of April, 2014 at No. 1/3 Umu-Anaghara Close Achara Layout, Enugu -, while armed with gun did rob one Ugochukwu Francis Nwaiwu of the following items: two Laptops, four cell phones, one Techno Tab, One Laptop Hard-Disk, a box containing jewelries, two Travelling bags, One National ID Card, Two ATM Cards of Eco Bank and Keystone Bank and a sum of N100,000.00— cash.” The Appellant had no notice of any other offence apart from the alleged armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.

The Interpretation part of the said Act defines, in Section 11 thereof, “robbery” and “steal” as:

“robbery” means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

“steal” means to take or convert to one’s use or the use of any other person anything other than immovable property, with any of the following intents –

(a) an intent to deprive the owner of the thing of it;

(b) an intent permanently to deprive any person who has any special property in the thing of such property, the term “special property” here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person of his benefit;

(c) an intent to use the thing as a pledge or security;

(d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion.

(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend to repay the amount to the owner.

Armed robbery is an aggravated robbery, which robbery becomes so aggravated, as it is provided in Section 1(2) of the Act-

(2) If –

(a) any offender mentioned in sub-section (1) of this Section is armed with firearms or any offensive weapon or is in company with any person so armed; or

(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person.

Section 5 of the said Act creates the offence of receiving and prescribes punishment therefore in the following terms: That is —

Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be guilty of an offence under this Act and shall be liable upon conviction to be sentenced to imprisonment for life.

The punishment for the offence of armed robbery under Section 1(2)(b) of the Act is death sentence. For robbery, simpliciter, punishable under Section 1(1) of the Act the penalty is “imprisonment for not less than twenty-one years”. While the offence of armed robbery has as one of its active elements or particulars robbery; the offence of receiving under Section 5 of the Act is not an active particular or element of the offences of either robbery or armed robbery, both of which are aggravated theft. The law espoused in SAMUEL TORHAMBA v. I.G.P (1956) NRNLR 87 at 94, very apposite and persuasive, is that: for the offence of stealing, one cannot produce “the offence of being in possession of something which is reasonably suspected of having been stolen or unlawfully obtained” as a constituent element or particular of the offence of stealing. It is for this reasoning that Bairamian Ag. C.J. and Hurley, J in TORHAMBA v. I.G.P (supra) acquitted the appellant, Torhamba, of the offence of receiving, substituted for the charge of stealing he was charged and tried — reasoning that it should be obvious that it is not possible to convict for the offence of receiving when the charge is stealing. TORHAMBA v. I.G.P. (supra) had since been cited with approval in AGUMADU v. QUEEN (1963) 1 ALL NLR (SC).

​In this appeal, the trial Court found that the appellant could not be convicted for the offence of armed robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, he was originally charged and tried – a reasonable doubt having been created that he participated in the alleged armed robbery by reason of the prosecution witnesses not properly identifying and fixing him to the alleged armed robbery. The trial Court nonetheless, at page 113 of the Record, proceeded to hold —

Since the evidence before the Court shows that the 2nd accused person aided or conspired with the accused person and others to commit the offence of armed robbery, the Court finds that he is deemed guilty as a principal offender. Accordingly, the 2 accused persons are found guilty as charged.

The lower Court, finding that this “view is seriously erroneous in law,” held, correctly, that “before an accused is convicted on a charge of conspiracy to commit armed robbery instead of (the) armed robbery for which he was charged and tried, a new charge of conspiracy must be framed”. This dictum notwithstanding, the lower Court proceeded, on the presumption (under Section 167(a) of the Evidence Act, 2011) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen, unless he can give account for his possession; to convict the appellant of “receiving goods obtained by means of armed robbery”. The Court purportedly acted under Section 16 (sic: 15) of the Court of Appeal Act and Section 179 of the Criminal Procedure Act.

The sole issue in this appeal is: whether the lower Court was right in convicting and sentencing the appellant to imprisonment for life for receiving goods which are proceeds of armed robbery?

In defence of the decision appealed, Chief M. E. Eze, the Attorney-General of Enugu State, for the respondent submits —

The punishment for armed robbery is sentence to death. The punishment for being in possession of goods obtained by means of armed robbery is imprisonment for life. Therefore, receiving goods obtained by means of armed robbery is a lesser offence than armed robbery. The greater includes, by necessary implication, the lesser. See SALIU v. THE STATE (2018) LPELR -44064 (SC) per Nweze, JSC.

This line of argument seems to be a cocktail of two propositions — relative proportionality of the prescribed sentences in mutual relationships and the inclusiveness of the lesser in the larger prescribed sentence. The learned Attorney-General subsequently cited NWACHUKWU v. THE STATE (1986) LPELR 2085 (SC) which completely betrays and revokes the previous argument. The case is an authority for the proposition that the accused person must have notice of the lesser offence for the conviction of it to be valid in law.

In the NWACHUKWU case (supra), the accused, though charged with committing the offence of armed robbery, was convicted of robbery simpliciter without framing a separate charge of robbery; that is not only a lesser offence, but is also an element of the larger or aggravated offence of armed robbery. This yardstick excludes the relative proportionality of the sentences for both offences. Karibi-Whyte, JSC in the NWACHUKWU case (supra) was not in any doubt that the lesser offence by necessary implication is a component of the greater offence hence his dictum:

Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption is which is legitimate, is that the accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence.

Having knowledge of the lesser offence, which is an element of the greater or aggravated offence, through the fact of the greater or aggravated offence is the sine qua non for the invocation of Section 179 of the Criminal Procedure Act (the equivalent of Section 218 of the Criminal Procedure Code). Contrary to the robust submission of Chief Eze, the respondent’s counsel, in support of his proposition in the case: in SALIU v. THE STATE (supra); this Court, per Nweze, JSC stated inter alia that “the indictment of which the accused is subsequently convicted for the lesser offence must contain words to include both offences”. It was on this ground that His Lordship, Nweze, JSC, concluded that “the greater includes by necessary implication the lesser”. The learned counsel, Chief Eze, has thus, unfortunately, read the dictum of Nweze, JSC in the SALIU case (supra) clearly out of context.

Consistent with this proposition that through the greater offence charged the accused is reasonably taken to have notice of the lesser offence, constituting an element of the greater or aggravated offence, that is: “that the greater includes by necessary implication the lesser”; this Court affirmed the invocation of Section 218 of the CPC in EZEJA v. THE STATE (2008) 10 NWLR (pt. 1096) 513. Onnoghen, JSC (as he then was) stated –

It is settled law that the Courts, including this Court, have the power under Section 218 of the Criminal Procedure Code to convict an accused/appellant for a lesser offence or an offence for which he was neither charged nor pleaded to. The Appellant in this case, was charged with causing grievous hurt to Cyprian Okpala by shooting and wounding him with his service pistol, but the evidence, at the trial, disclosed a lesser offence of causing hurt without provocation hence the conviction of the Appellant by the trial Court under Section 246 of the Penal Code. I hold the view that the lower Court was right in affirming the said conviction and in correcting the error made by the trial Judge in referring to Section 218 of the Penal Code instead of Section 218 of the Criminal Procedure Code as his authority for substituting a conviction for a lesser offence (sic) for charged.

In this EZEJA case, ADAVA v. THE STATE (2006) 9 NWLR (pt. 984) 152 at 169 was cited with approval on this principle: that for conviction for the lesser offence to be valid, when the larger offence was not proved, through the charge of the larger offence the accused must have notice of the lesser offence.

The sine qua non, for the invocation of Section 179 of the CPA (substantially in pari materia with Section 218 of the CPC and Section 236 of the Administration of Criminal Justice Act, 2015), is the accused/appellant having sufficient notice of the offence he is convicted for to facilitate his defence consistent with Section 36(6)(a) of the 1999 Constitution. I agree with the Appellants’ Counsel that in the absence of sufficient notice of any lesser offence or if the lesser offence is not a constituent element of the larger or aggravated offence a conviction for the lesser offence, on the ground only that the substituted offence carries lesser punishment of penalty violates the spirit and substance of Section 36(6)(a) of the Constitution.

In the much earlier case of AGUMADU v. THE QUEEN (1963) (supra) the Federal Supreme Court, espousing the law on this subject stated that the particulars constituting the lesser offence are to be carved out of the offence charged. Accordingly, it held that it was wrong of the trial Judge, having found that the accused person could not be convicted for attempted murder contrary to Section 320(1) of the Criminal Code on the “particulars of offence” which merely stated: unlawfully attempted to murder NWOJI Agumadu by giving him matchet cut”, to invoke Section 179 of the CPA to convict the same accused person for unlawful wounding without provocation.

The Court reasoned thus:

The information alleged an offence consisting of three particulars; the inflicting of matchet cuts; unlawfulness (i.e, an absence of authority, justification or excuse: see Section 306 of the Criminal Code); and an intent to kill. The offence of which the Appellant was convicted is constituted by the first two of these particulars, that is, the infliction of matchet cuts and the absence of authority, justification or excuse: see Section 253 of the Criminal Code. In the circumstances of this case, anything that would be authority, justification or excuse for the acts held to constitute unlawful wounding, and there is nothing in the submission that Section 284 of the Criminal Code would make a lesser degree of provocation a defence to charge of unlawful wounding than would be a defence to charge of attempted murder.

In other words, where the accused is acquitted on the successful plea of a statutory defence for the offence charged; it would be wrong to convict him for the lesser offence having the same statutory defence. Therefore, since the accused person can, on the same fact or defence, plead autrefois acquit, to convict him on the same fact of the lesser offence would be wrong in law. That is the implication of Section 36 (9) of the Constitution viz-a-viz AGUMADU v. THE QUEEN (supra).

The lower Court, in convicting the Appellant for receiving goods which he knew were obtained by means of armed robbery, was no doubt influenced by the provisions of Section 167(a) of the Evidence Act, which entitles the Court to presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The trial Court, at page 112 of the Record, convicted the appellant on the grounds that he admitted in Exhibit 7 that he participated in planning the robbery and receiving some of the items robbed. He was earlier acquitted of the offence of armed robbery charged. The lower Court, at page 195 of the Record, expressly set aside that conviction of conspiracy. By that holding the first presumption under Section 167(a) that the Appellant was the robber no longer availed the prosecution. That leaves them with only the second tranche of the presumption: that is a receiver of goods knowing them to be stolen.

And that is the catch. Being in possession of, or receiving goods knowing them to be stolen is not a constituent element of the offence of armed robbery charged. The charge having not sufficiently given the Appellant the notice of that offence, consistent with Section 36(6) of the Constitution, the lower Court had wrongly invoked Section 179 CPA in convicting the Appellant of the offence of receiving contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act. That offence of receiving is not a necessary constituent element of either theft, robbery or armed robbery:

In sum total, I allow this appeal. The conviction of and sentence to life imprisonment imposed on, the Appellant for “receiving goods which he knew were obtained by means of armed robbery” are hereby set aside and the Appellant is hereby acquitted and discharged.

Appeal allowed.

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SC.1214C/2018