- 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?
“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
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.”
“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”.
“… 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.”
“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.
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