LEGAL IDEAS FORUM

CONVICTION ON LESSER OFFENCE IN NIGERIAN CRIMINAL JUSTICE

Offence (evil act) is not an offence until defined by law as an offence and the punishment for that offence is equally defined, one can be convicted for committing same. See section 36(8) of the 1999 Constitution of The Federal Republic Of Nigeria(as amended).  For this, each and every offence in Nigeria have it’s distinctive defined features and ingredients for it’s establishment and pari posu have it’s defined sanctions, defined by the law. On this line one can not be convicted on offence of stealing for an act by law fails under the definition of robbery and vice versa. He can only be convicted when the ingredients of the former established in the process of establishing the later. Nigerian criminal justice have settled certain principle by which an accused can be convicted on the lesser offence he had allegedly charged with.
In this article, we are heading to seek refuges for the following questions;
  • Mr A is charged with two counts of arm robbery and conspiracy. In the circumstances the ingredients established failed to convict him on same. Can he be convicted on conspiracy alone and without being convicted on offence of arm robbery notwithstanding?
  • Can he be convicted on robbery (the lesser offence) he didn’t charged with when robbery ingredients established notwithstanding?
  • Can Mr A after being discharged and acquitted by trial court be convicted on the lesser offence he didn’t charged (in the trial court) by appellate court?
  • Can Mr A conviction on the first count charges by trial court be reduced to a lesser offence he didn’t charged with by appellate court?
Sections 216, 217, 218 and 219 of the Criminal procedure Code (hereinafter to be referred to as C.P.C) empower courts to convict an accused person with an offence though not charged with as follows;
216- If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed someone or other of the said offences.
217– If in the case mentioned in section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.
218– When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence through he was not charged with it.
219– When a person is charged with an offence he may be convicted of an attempt to commit such an offence although the attempt is not separately charged.
  
Similarly Section 179(1) and (2) of the criminal procedure Act (hereinafter to be referred as C.P.A) reads;
179 (1) In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
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.
On the applicability of the above provisions, the Supreme Court made it clear in Okobi v The State (1984) 7 Sc 47, (1984) Lpelr-2453 (Sc)  per Obaseki, J.S.C (of blessed memory) that;
Lesser offence mentioned in Section 179(1) (which is in pari materia with sections 217 and 218 of C.P.C) 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 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. (words in brackets are mine)
 
For a long while Supreme court In Agumadu v Queen (1963) LPELR-15440 (SC), while considering Section 179 of the  C.P.A that is in pari materia with Sections 217 and 218 of the C.P.C relied upon by the two court in convicting the appellant for the lesser offence, inter-alia held:-
When one is considering action under Section 179 one should write out particulars of which the offence charged consists and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict.”_
Also In Nwachukwu v The State  (1986) 4 SC 378  also reported in (1986) LPELR-2085 (SC), while interpreting the provisions of Section 179 of the C.P.A, the Supreme Court through Karibi-Whyte J.S.C held:
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.
In Segun v State (2018) LPELR-44693(SC) the accused in the trial court was convicted and sentenced 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. He  appealed to the Court of Appeal which after consideration of the issues raised, affirmed the conviction of the appellant by majority of two with one dissenting, being dissatisfied appealed to the Supreme Court which there and then unanimously dismissed the appeal and affirmed his conviction.
In Danjuma v State (2019) LPELR-47037(SC) the appellant was charged for conspiracy and culpable homicide punishable with death under sections 97 (now 59) and 221 (now 191)of penal law Kaduna state (as it was then applied) but the trial court convicted him with culpable homicide not  punishable with death under section 225 (now 194) of the penal law (which contents are in pari posu with sections 97, 221 and 225 of the Penal Act respectively), and was subsequently convicted 1 year term imprisonment and 5 years term imprisonment for the first and second counts respectively. The  appellant was not satisfied with his conviction by the trial court appealed to the court of appeal which have affirmed his conviction being dissatisfied appealed to the supreme court, the supreme court also dismissed the appeal and affirmed the conviction. See also Court of Appeal decision in  Mamman v State   (2018) LPELR-44370(CA)

    In respect to conspiracy, it is settled law that one can be convicted with the offence of conspiracy if it was duly established, without able to establish the substantive offence notwithstanding. In view of this The Supreme Court in Adoba v State  (2018) LPELR-44065(SC) clearly states through Ariwoola  J.S.C thus;

“Generally, conspiracy is an agreement between two or more persons to do an unlawful act, or to carry out a lawful act by unlawful means. This is however, a matter of inference to be deduced from certain criminal acts of the parties accused, which were done in pursuance of an apparent criminal purpose in common between them which are hardly ever confined to one place. Therefore, being a separate and distinct offence in itself, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. It is independent of the actual offence conspired to commit”


When prosecution fails to prove his case beyond reasonable doubt for the main offence charged, conviction on the lesser offence is not automatic. It is pertinent to note at this point that the appellate courts do interfere with the trial court decision in a circumstance  an appellant convicted on the lesser offence but didn’t ought to, or when he have to be convicted on the lesser offence but acquitted by the trial court and vice versa

The Supreme Court, in Odeh  v FRN 2008) 13 NWLR Part 1103, per Musdapher J.S.C (as he then was) held:


It is now settled law that an appellate Court such as the Supreme Court or the Court of Appeal may, where an Appellant has been charged and convicted for an offence and the Court that tried could on the information or charge have found him guilty of some other offence …the appellate Court may instead of allowing or dismissing the appeal, substitute for the verdict found by such Court, a verdict of guilty of such other offence and pass the sentence in substitution for the offence passed at the trial (sic) as may be warranted in law. It is also settled that an appellate Court in determining an appeal before it possesses all the powers of the Court of trial. See Section 16 of the Court of Appeal Act.”

In the case of Adebayo  Adeyemi  v The  State (1991) 6 NWLR (Pt.195) 1; also reported in (1991) 7 SC (Pt.11); and in (1991) 7 SCNJ 131. the Supreme Court explained the position of the law in this way, that;

“It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled. First, the element in the offence charged and those in the lesser offence for which the accused is convicted must be the same; secondly, the evidence adduced and the facts found must be insufficient for a conviction in respect of the offence charged but at the same time support the lesser offence in respect of which the accused is convicted”.

In  Hudu v State  (2018) LPELR-44259(CA) The Appellant pleaded not guilty to the charge. The learned trial judge, after hearing from six prosecution witnesses, 3 defence witnesses that included the Appellant and considering the three Exhibits tendered and admitted in evidence, found that all the three ingredients of the offence of culpable homicide punishable with death, except one, were proved by the prosecution. In other words, the learned trial judge found that there was a death of a human being, and that the death was caused by the Appellant. He however did not find that the prosecution proved the third element which is that the act of the accused (the Appellant) which caused the death of the deceased was done with the intention of causing death or that the accused (the Appellant) knew that death would be the probable consequence of his act. The learned trial judge considered the defence of self-defence put up by the Appellant and rejected it. He then concluded his judgment , thus;

“… the totality of the resolution reached is to the fact that the prosecution has proved the offence of culpable homicide not punishable with death under Section 222 (1) and punishable under Section 224 of the Penal Code, Laws of Jigawa State, 2012 (as amended). The accused person is therefore hereby found guilty of the offence of culpable homicide not punishable with death under Section 224 and accordingly convicted.”

But when it goes to appeal the Court of appeal after evaluating the issues allowed the appeal and acquitted the appellant as held par Daniel-kalio, J.C.A. In His Leading Judgement sic;

“The lower Court having found that the Appellant did not intend the consequences of his action, it ought to have returned a verdict of “not guilty” and therefore, discharged and acquitted him. In view of the finding of the lower Court that the Appellant did not intend the consequences of his action, I consider it perverse to have convicted and sentenced him to life imprisonment”.

In State v Rabiu  (2018) LPELR-44740(CA) The respondent was acquitted for the charge of culpable homicide punishable with death under section 221 of penal code but on appeal the court of appeal allowed the appeal and interfered with the discharge and acquittal of the Respondent by the lower Court. And subsequently, substituted a conviction for the lesser offence of culpable homicide not punishable with death pursuant to Section 222 of the Penal Code and punishable under Section 224 of the said Code.The Respondent was sentenced to a term of imprisonment of 5 years by the Court of Appeal.

Apropos to above summations, the Nigerian criminal Justice have justifiably designed in a way that an accused can only be convicted when a prosecution have successfully discharge his burden of proving all the required ingredients for the alleged offence and not only that the prosecution must linked the ingredients with the accused before securing conviction see  Al-mustapha v The State  (2013) LPELR-20995(CA) and also Ogbaga v State (2016) LPELR-40950(CA)* .This legal position is so to avoid unlawful and unjustifiable convictions. In this sense any doubt likely arise  in cause of the trial is resolves in the dependent’s favour and can subsequently leads to his acquittal or conviction on the lesser offence, not the original offence initially charged which may attracts to severe  punishments.
About the author 
Alkasim Abubakar (A.A.M.G) is a student of law at  Ahmadu Bello University, Zaria, Kaduna
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