LEGAL IDEAS FORUM

ETIM V. STATE: On whether trial court must take fresh plea of accused person before convicting him of offence established by evidence where offence in original charge not established. An insight into the decision of the Supreme Court therein.

 

Citation: (2019)10 NWLR PT. 1681 AT 489.

Courtesy: Moruff O. Balogun, Esq.

Summary of facts. 
The appellant and two other accused persons were arraigned at the High Court of Imo State on a charge of armed robbery contrary to the provisions of section 1(2)( a) of the Robbery and Firearms (Special Provisions) Act. The appellant and other accused persons pleaded not guilty to the charge.

The respondent’s case was that on 5th August 1999, a band of armed men visited the residence of PW2 at No. 6 Izuogbokwe Close, Federal Housing Estate, Owerri in Imo State between 5pm and 6pm. They arrived at the place in a Peugeot 505 saloon car and met PW2 while she was driving her own car which she went to park in the neighbourhood where she used to park it. On reaching the gate of her residence and when she came out of her car to open the gate, one of the assailants came out of their car and went straight to her, pointed a gun at her and ordered her to drive to her house. She complied with the order and took them to her house where they ordered her to lie down with her head facing the ground.

However, before they commenced the robbery operation, the noise attracted PW2’s children and on seeing them, the assailants asked them of the whereabouts of their father and they replied that he was not around. The gun men took the children to a different direction and while they were doing so, PW2 ran out shouting for help. The gun men pursued her to the neighbouring compound shooting their guns. Thereupon, a police man in the neighbourhood replied the gun shots with his own gun. The gun men then quickly returned to their car in order to escape. While trying to reverse, their car ran into a ditch/gutter hence they abandoned it there and escaped on foot.

The car was recovered and tendered as exhibit at the trial. PW2 identified the appellant as one of her attackers and investigation revealed that the appellant was the owner of the car used in the robbery operation.

At the end of trial, the trial court in its judgment found that the prosecution did not prove the offence of armed robbery but established the case of attempted robbery against the appellant. The trial court invoked section 179 of the Criminal Procedure Act, convicted the appellant of the lesser offence of attempted armed robbery and sentenced him to life imprisonment.

Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal. The Court of Appeal allowed the appeal in part and set aside the conviction of attempted robbery. It also invoked the provision of section 179 of the Criminal Procedure Act, convicted the appellant of the lesser offence of house breaking/burglary under section 411 of the Criminal Code and sentenced him to imprisonment of fourteen years.

Still dissatisfied, the appellant appealed to the Supreme Court.

In determining the appeal, the Supreme Court considered the provisions of section 179(1) and (2) of the Criminal Procedure Act which state thus:

179(1) In addition to the provision hereinbefore specifically made, whenever a person is charged with an offence consisting 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 although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”

Held: Unanimously dismissing the appeal.

The following issues were raised and determined by the Supreme Court:

On whether trial court must take fresh plea of accused before convicting him of offence established by evidence, where offence in original charge not established: 
Where the evidence disclosed at trial did not establish the offence the accused is charged with but has established another offence under that Act, the trial court is free and at liberty to convict the accused of the offence the evidence adduced before the trial court has established, but not to acquit the accused. In such a situation, the accused person is usually not asked to plead freshly to the charge, provided the
Offence he was to be convicted directly arose from the facts disclosed in the evidence adduced in the main charge and was also adequately connected with the original charge with which the accused person was charged and stood trial.

The circumstance or situation does not tantamount to denial of fair hearing, since the accused was taken to have initially pleaded not guilty to the charge prior to the trial. In the instant case, there was no denial of fair hearing. The trial court was right in convicting the appellant of the offence of attempted armed robbery which it had found as duly proved by the evidence presented before it. The court of Appeal was also right in not calling upon the appellant to yet plead to its purported lesser offence of house breaking / burglary.

On when trial court can convict accused person of lesser offence he was not charged with:
A trial court can utilise the provisions of section 179 of the Criminal Procedure Act only if the offence charged is under either a Federal law or a State law. In other words, it is only if the charge was framed under a Federal law or in the alternative, under a State law that section 179 of the Criminal Procedure Act can be justifiably invoked to convict of an offence under the State law. In the instant case the appellant and his co-accused were simply charged with armed robbery, contrary to a Federal Act.

The Robbery and Firearms (Special Provisions) Act has no provision covering the offence of house breaking/burglary for which the Court of Appeal could invoke the provisions of section 179 of Criminal Procedure Act in order to convict him of a lesser offence under a State law. The Robbery and Firearms (Special Provisions) Act did not donate jurisdiction to the Court of Appeal to convict of any offences other than those set out in the Act. In other words, the Court of Appeal had no jurisdiction to apply section 179(1) Criminal Procedure Act in order to convict of an offence which is not specified or contained in the Act.

The respondent did not frame any alternative charge under the Criminal Code, a State law, as would have accommodated the offence of house breaking, burglary or simple stealing as would justify the Court of Appeal to apply or invoke the provisions of section 179 of the Criminal Procedure Act to alternatively convict the appellant of such lesser offence of house breaking/ burglary under the Criminal Code/Law.

On what constitutes lesser offence in section 179(1) of Criminal Procedure Act:
The phrase “lesser offence” in section 179(1) of the Criminal Procedure Act refers to a 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. No court is empowered by section 179 of the Criminal Procedure Act to substitute a conviction pursuant to an offence created by one statute with a conviction for an offence created by another statute.

In the instant case, the main or substantive offence was under the Robbery and
Firearms (Special Provisions) Act without any offence under the Criminal Code. The Court of Appeal could not invoke section 179 of the Criminal Procedure Act to convict the appellant of the purported lesser offence of house breaking/burglary. The two offences were created under two different laws.

On what court should consider in convicting accused of lesser offence under section 179 of Criminal Procedure Act:
When a trial court is considering action under section 179 of the Criminal Procedure Act, it should consider 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 particulars making up the lesser offence of which it is proposed to convict. Section 179 of Criminal Procedure Act is concerned with where the lesser offence for which an 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 word is lesser and not “another” offence. Where an accused person has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption is that the accused would has challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence.

On power of trial court to convict accused of lesser offence to which main offence reduced:
Section 179(2) of the Criminal Procedure Law has an independent application which differs from that of section 179(1) of the 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, such as where in the trial for robbery under section 401 of the Criminal Code, stealing under section 390 of the Criminal Code is proved, section 179(2) of the Criminal Procedure Law enables a conviction to be entered for a lesser offence to which the main offence has been reduced to by the proof of facts having the effect of reducing the main offence to a lesser offence, such as where in the trial for murder under section 316 of the Criminal Code, if provocation is proved, the offence is reduced from murder to manslaughter.

On limit of jurisdiction of High Court in trial of offences under Robbery and Firearms (Special Provisions) Act:
The trial court is not a prosecutor but an adjudicator.  It is the duty of the prosecution to decided under what law to prosecute.  The jurisdiction being exercised by the High Court of a State in the trial of persons for offences under the Robbery and Firearms (Special Provisions) Act is the jurisdiction conferred upon the High Court by the Robbery and Firearms (Special Provisions) Act. Offences under the Act are Federal offences. The Act gives no jurisdiction to convict of offences other than those set out in the Act, the High Court cannot, by the application of section 179(1) of the Criminal Procedure Act, exercise the jurisdiction conferred by the Act to convict of an offence not under the Act. There is no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action. It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.

On when trial court can convict accused person of lesser offence he was not charged with:
By virtue of section 179(1) and (2) of the Criminal Procedure Act, whenever a person is charged with an offence consisting several particular, a combination of some 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 although he was not charged with it. When a person is charged with an offence and facts are proved which reduce to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]

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