MBAONU v.

STATE

CITATION: (2018) LPELR-46058(CA)

In the Court of Appeal

In the Enugu Judicial Division
Holden at Enugu

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ON FRIDAY, 16TH NOVEMBER, 2018
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Suit No: CA/E/74C/2017
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Before Their Lordships:

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MONICA BOLNA'AN DONGBAN-MENSEM Justice, Court of Appeal

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MISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal

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ABUBAKAR SADIQ UMAR Justice, Court of Appeal

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Between
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EBUKA MBAONU - Appellant(s)

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And
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THE STATE - Respondent(s)

RATIO DECIDENDI
1. COURT - DUTY OF JUDGE: Duty of a Judge to be impartial
"As rightly alluded to in the lead judgment, the evidence placed before the learned trial Court was not cogent and compelling enough to send a man to the gallows for armed robbery. The
evidence adduced against the Appellant lacked the character of consistency as the narration got more dramatic with the break of each new day.
The confessional statement of the accused admitted as Exh P7 disclosed the Appellant as a petty thief. Why the prosecution was bent on executing him as an armed robber is
incomprehensible. The Appellant was arrested on the 31/07/2011 and was convicted and sentenced on the 27/03/2017. He would have served and concluded a sentence for theft or house
breaking. Alas, for the reasons stated in the lead judgment, housebreaking shares no elements or ingredients with the offence robbery.
The Appellant stated clearly that he knew the house he went to was not actually occupied - that there was no one inside. By the decision of the Apex Court in IBRAHIM V THE STATE (2013)
LPELR) - Cited in the lead judgment, intimidation and violence to a person whose property is stolen are essential elements of robbery. These essential elements were missing since the
occupant of the house was said to be in Benin city. So intent was the prosecution for the conviction of the appellant for robbery that even the Court was caught off guard, mesmerized by
the embellished evidence of the Prosecution. His Lordship also sought to improve the evidence of the Prosecution by an addition of its own at page 53 of the record for this appeal which
was transmitted to this Court on the 08/11/17.
Not even learned counsel can be tolerated to manufacture evidence to help his client least of all an umpire, the Court.
This clearly is perverse and constitutes miscarriage of justice. I find edification in the case of JOSEPH UGWU V THE STATE (1998) 7 NWLR pt PAGE 392 ET 408 where this Court per Tobi JCA
(as he then was, OBM) held that the professional duties of a lawyer do not take him as far as manufacturing evidence for the client. The judge has only the role to listen to both sides and
decide. It is dangerous for the judge to participate in a judicial process by the addition of a piece of evidence which was not legally received in evidence by due process.
In the case of MR. IDOWU LAMINA V. IKEJA LOCAL GOVERNMENT (1993) CMC/171/90 NWLR (Pt. 314) p. 75@, Tobi, JCA (AHTW now OBM) put this issue pungently in these terms:
"...By our adversary system of jurisprudence a Judge plays the role which can lazily be likened to an independent umpire of a game. He is expected to hold the balance between the
parties in the litigation process. He is expected not to take sides. His only interest should be the interpretation of the law to the facts before him He cannot do more. He cannot do less too.
The position is as stringent as that."
Similarly, in the case of OWENA BANK (NIG.) PLC V. YUSUF MUHAMMED (1998) NWLR (Pt. 533) p 301, this Court held that a Judge should remain an umpire and allow the parties to fight
their own battle.
see the case of YAKUBU V. CHIEF OF NAVAL STAFF & 2 ORS. (2004) NWLR (Pt. 853) p 94, especially per Istifanus Thomas, JCA (OBM) where this Court held that the act of descending into
the arena by a Judge constitutes a breach Of the rule of fair hearing.
The Apex Court emphasized the need for the Court to remain an unbiased arbiter in the case of BAYOL V. AHEMBA (1999) NWLR (623) 381 @ p. 391-392 when it held thus:
"The law remains inviolate that the judgment of a Court must confine its inquiry to the determination of issues properly raised and canvassed before it. The Court be it trial or appellate
Court , must be wary to enter into the arena in the controversy between the parties by projecting the case of one of the parties rather than maintaining the equilibrium of impartiality as
arbiter. Such an appearance in the arena by the Court is a direct signal and invitation to miscarriage of justice." (Underlining mine, for emphasis).
In the case of CHIEF MUYIWA O. J. AINA V. IREPODUN IFO C.T.C.U SOCIETY LIMITED (Unreported, this Court per Dongban- Mensem, JCA in a dissenting opinion stated as follows;
"I am unable to accede to that little extra effort to help a party. Such is not the responsibility of the Court, Counsel ought to diligently pursue their cases on behalf of their clients as it is
their responsibility and brief. I am unable in good conscience to encourage the manipulation of processes irregularly filed in order to give Judgment to a party, to do this would open
judicial offices to uncontrollable abuse. We must always be guided by the sacred role of the Judiciary which is best demonstrated in the application of the law and rules to the facts
presented to the Court totally unadulterated. The Judge must steer clear of the arena which is the exclusive domain of the parties and their learned counsel." Even on this point alone, this
appeal succeeds."Per DONGBAN-MENSEM, J.C.A. (Pp. 32-36, Paras. A-B) - read in context

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2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Ingredients of the offence of armed robbery; standard of proof required of the prosecution
"The law is trite that for the prosecution to secure a conviction for an offence of armed robbery under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, the following
ingredients of the offence must be proved beyond reasonable doubt by cogent and credible evidence (1) That there was a robbery;
(2) That the robbery was an armed robbery;
(3) That the accused was the one who committed the robbery or that he participated in the armed robbery.
In its bid to establish the ingredients of armed robbery, the prosecution called PW1 and PW2 who testified that
PW1: "I know the defendant. On 31/7/2011, I returned from the church. I was the person in charge of the compound of Sylvester Okeke on that day as he does not ordinarily reside at
home. When I returned from the church on that day, I observed that the door to the house was broken. I saw some of the properties that were packed by the side. I heard noise inside. I
then looked inside and saw the defendant. He wanted to deal a machete blow on me and I ran outside and started shouting. As I was shouting he ran away with some stolen items. I have
always known the defendant as Ebuka Igbo. I made statement to the police.
Cross - Examination:
When I saw the broken door, I suspected thieves because I was the person who had locked the door earlier in the day. I entered the house I wanted to know who broke into the house. I
told the police that he threatened me with the machete. I have known the defendant in the village for more than 4 years."
PW2: "I know the defendant. On 31/7/2011, I was hunting when I heard people shouting. As I was running out of the bush, I ran into the defendant as he was carrying some of the stolen
items and with the aid of my gun, I ordered him to stop. I was about to catch him when he aimed a machete blow on me. I however waged the blow with the pipe of my gun. The machete
having therefore missed my head, landed on my left shoulder. Witness shows the wound to the Court. As he was running away I managed to shoot him on the legs but he ran away with
the gunshot wound. He ran into the father's compound. He was later arrested where he was hiding in the compound of the father. We handed him over to the police.
CROSS-EXAMINATION:
"I saw the defendant at about 9 a.m. I had a gun with which I was hunting. I was alone then. I told the police that the defendant dealt a machete cut on me. I had my gun with me at that
time. Some of the stolen items were recovered from the defendant. Before the day of the incident, I knew the defendant. He is a notorious criminal in our place. It is not true that I was
blamed for shooting the defendant.''
PW3 was the investigating police officer who investigated the case when it was transferred to the Special Anti Robbery Squad. He tendered the statements of the appellant made on
1/8/2011 and 31/7/2011 as Exhibits P1 and P7 respectively. The Court below considered the evidence of PW1 and PW2 and the statements of the appellant. At page 53 of the record of
appeal, the Court held as follows: "Exhibits P1 and P7 are confessional statements and were admitted in evidence without any objection. Furthermore, in their respective testimonies
before the Court, PW1 and PW2 both gave account of how the defendant threatened them, and indeed attacked PW2, with the long knife which clearly is an offensive weapon. Although in
his testimony in Court, the defendant denied his said confessional statement as not being his will, the law is since settled that where an accused person resiles or denies his confessional
statement, it is his duty to explain to the Court, as part of his defence, the reason for the inconsistency."
At pages 54 - 55 of the record, the Court concluded its finding as follows:
"Since the said confessional statements of the defendant were admitted in evidence without any objection, it does not lie in the mouth of the defendant to deny them as not being his will.
There is, therefore, no doubt that the defendant willingly volunteered the said confessional statements. Consequently, they remain eloquent testimonies of the guilt of the defendant.
When, therefore, the said confessional statements of the defendant are considered together with the unimpeachable testimonies of PW1 and PW2, the guilt of the defendant becomes
proven beyond reasonable doubts. Consequently, the defendant is hereby pronounced guilty as charged."
The Court relied on the statements of the appellant to find him guilty of armed robbery. I reproduce below the relevant portions of the statements which the Court below found to be a
confession to armed robbery:

A)
Exhibit P1:
"On 31/07/2011 at about 0900hrs, I was very hungry and nothing I can do than to search for food. That made me to break into one Mr. Sylvester Okeke's house where I stole 16 cans of
star beer, three bottles of seamans hot drinks, three pairs of window curtains, one bottle of red wine, some quantity of foreign rice and one pair of bathroom slippers with intent to go and
sell them. I have discovered that there is nobody in the compound that is my reason of going there and steal. The owner of the building stays in Edo State and he is my uncle. But when I
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wanted to escape with the stolen items eventually the complainant met me and started shouting before people came out and got me arrested. The complainant later identified himself as
a cousin sister to Mr. Okeke Sylvester. I alone went and broke into the compound with a cutlass without anybody's knowledge neither a friend. I never acted this way before, but the fact is
that I was very hungry that day. I don't have anything incriminating with me except the cutlass found on me. However, when I was intercepted by the local vigilante men I did not make
any attempt to run but I was surprised when vigilante leader shot me with a gun and later handed me over to the police at Ajali Division.''
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Exhibit P7:
It was today 31/7/2011 at about 08 am I went to Mr, Sylvester Okeke's house and I found out that there was nobody in the compound. I then picked one iron rod and broke the front door,
entered inside the rooms and stole some quantity of uncooked rice, 16 cans of star beer, 4 bottles of seamans hot drinks, three window curtains, a pair of slippers and other things. I did
the breaking into the house alone. I know it is an offence to break into another person's house. Those items that I stole I had wanted to consume some and give some of the items to other
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people to use. When the chairman of Ndiokolo vigilante outfit saw me with all the stolen items I was carrying he then stopped me and I stopped. It is not true that I threatened to cut the
vigilante chairman with machete before he opened fire on me and I did not make any attempt to escape."
Section 28 of the Evidence Act, 2011 defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting that he committed the crime. A
confession must be direct, clear, unambiguous and positive. See AZABADA V. THE STATE (2014) LPELR - 23017 (SC) AT 33 (A-C), NKIE V. FRN (2014) LPELR - 22877 (SC) AT 29 (D-F),
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SALAWU V. STATE (2011) LPELR - 9351 (SC) AT 36 (E-G). In OSUAGWU V. THE STATE (2013) LPELR - 19823 (SC) AT 26 (B-F) the Supreme Court stated the nature of a confessional
statement as follows:
Section 27(1) of the Evidence Act States that:"A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that
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crime.
See Igbinovia v. State 1981 2 SC p. 5 Yusufu v. The State 1976 6 SC p.167. A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a
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confession when in some way it amounts to an acknowledgment of guilt. A confession must either admit the elements of the offence or all the facts which constitute the offence. Once the
Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an appellate Court. See Sykes 8 C.A.R. p.
23, R. v. Ajayi Onokoro 7 WACA p.146."
I have carefully perused the above statements. I do not agree with the Court below that any of the statements amount to a confession to the offence of armed robbery as charged. Though
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a combined reading of the two statements confirmed the fact that the appellant was in possession of a machete when he broke into the house of Sylvester Okeke, in Exhibit P1, he stated
that he went into the house because he knew that nobody was in the house. Definitely, he had the intention to steal but he did not have the intention to attack or use violence on
anybody. In IBRAHIM V. THE STATE (2013) LPELR - 21883 (SC) AT 41 (D-E), the Supreme Court per ARIWOOLA JSC held that:
Generally, robbery means the illegal taking of property from the person of another or in the person's presence by violence or intimidation. While armed robbery is robbery committed by a
person carrying a dangerous weapon regardless of whether the weapon is revealed or used."
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The evidence of PW1 confirmed the fact that there was no one in the house when the appellant broke into the house and the appellant had already parked the items stolen when she went
into the house. It is therefore clear that the appellant did not take the items stolen from the person of Sylvester Okeke or in his presence by violence and intimidation. Armed robbery is
not committed on an empty space, it is a crime committed on a person. Since the evidence on record established the fact that Sylvester Okeke on whom the appellant was alleged to have
committed the offence of armed robbery was far away in Benin City. His conviction for armed robbery as contained in the charge is a serious error which has occasioned a miscarriage of
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justice.
The learned respondent's counsel argued that the offence of robbery metamorphosed into armed robbery because the appellant threatened to harm PW1 with machete and did harm PW2
with machete. Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act on which the learned counsel predicated his submission reads:
"1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
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(2) If-
(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, the offender shall be liable upon
conviction under this Act to be sentenced to death."
It is the duty of the trial Court to scrutinize and evaluate the evidence led and ensure that the elements of the offence with which the accused has been charged are established beyond
reasonable doubt before finding the accused person guilty. The appellant never admitted in his statements that he wounded or harmed any person with machete at or immediately after
the robbery. What the evidence of PW1 and PW2 portrayed was that the appellant attempted to harm PW1 and she ran away while he harmed PW2 on his shoulder. A careful and critical
consideration of the evidence of PW1 would reveal some lapses which ought to have created reasonable doubt in the mind of the trial Court. PW1 had already seen the stolen items
packed on one side. She said she suspected that thieves packed the items because she was hearing noise inside the house. Yet she had the courage to enter the house. According to her
she wanted to know who broke into the house. I do not believe that PW1 having seen that thieves had broken into the house and hearing noise inside the house still had the courage to go
inside the house before she started shouting. My view is that the appellant had no opportunity to threaten PW1 with machete and still had the time to pick up some of the stolen items
before attempting to run away from the scene. PW2 said the appellant wanted to hit him on his head but the machete landed on his shoulder. According to the Court below, the scar from
the wound was shown to the Court. First, it is incredible that the appellant on seeing PW1 with a gun still had the courage to attack him with a machete. Secondly, a person who had been
attacked and wounded on his shoulder was still able to pull the trigger and shot the appellant in the legs. Thirdly, there is no credible evidence upon which the trial could have safely
concluded that the scar on PW2's soldier was as a result of the alleged machete attack by the appellant. If the Court had considered the content of Exhibit P6, the police interim report
made on 31/7/2011 and Exhibit P3 the report made on 1/8/2011, the Court would have found that the story that the appellant harmed PW2 on his shoulder is an afterthought which the
Court should have treated with caution. The relevant part of exhibit 3 reads:
"The suspect was arrested and brought to the charge room by a team of Ndiokolo vigilante outfit. The chairman of the outfit allegedly stated that when they heard alarm shouting for help,
the team came out and saw the suspect carrying some load. When they ordered him to stop he threatened to kill a member of the vigilante group with a machete he was holding. As
suspect was escaping from the scene, the chairman of Ndiokolo vigilante outfit fired him on his right legs which caused him harm. The team of vigilante group brought the suspect to the
station with wound all over his body."
Exhibits P6 reads:
"During the course of my investigation I found out that the suspect is a native of Ndiokolo. (2) Investigation also revealed that the suspect has no means of survival. (3) I also found out
that the suspect actually committed the offence, (4) Investigation revealed that it was one Miss Felicia Nwankwo that met the suspect inside the building where he was committing the act
and also armed himself with machete. I also found out that when in the process of arresting the suspect he attempted to escape and the chairman Ndiokolo vigilante outfit fire his right leg
which made him to slow down."
Exhibit P6 was made on the day the crime was alleged to have been committed. Exhibit P3 was made the next day. It is not stated anywhere in Exhibits P3 and P6 that the appellant
harmed PW2 with machete. It is only in Exhibit P5 made on 17/8/13 that the police stated that the appellant used the machete to break into the house and used the same machete to
threaten PW1. It is not stated even in Exhibit P5 that the appellant "attacked PW2 with the long knife" as stated by the Court below on page 53 of the record of appeal. The evidence upon
which a man is sent to the gallows must be cogent, credible, compelling and free from reasonable doubts. It must not be evidence which is concocted purposely to secure conviction for
the offence charged. The police report stated that the appellant arrived at the police station with wounds all over his body and gunshot wounds. Obviously the vigilante men had to cover
their own excesses. The prosecution in my view failed to prove beyond reasonable doubt that the appellant at or immediately before or immediately after the time of the robbery
threatened or used any personal violence on PW1 or PW2 or any other person. The argument of the respondent's counsel that the offence of armed robbery under Section 1(2) (b) of the
Act was proved beyond reasonable doubt is not sustainable. The evidence upon which the appellant was convicted and sentenced to death is not free from reasonable doubt."Per BOLAJI-
YUSUFF, J.C.A. (Pp. 8-21, Paras. C-F) - read in context
3. CRIMINAL LAW AND PROCEDURE - CONVICTION FOR LESSER OFFENCE: Conditions to be fulfilled before an accused can be convicted for a lesser offence
"The appellant confessed to an offence of burglary and house breaking cognizable under Section 411 of the Criminal Code Act, Cap.C38, Volume 4, LFN, 2004. Though, Section 179 of the
Criminal Procedure Act, Cap. C41, LFN, 2004 provides that:
"(1) In addition to the provisions hereinbefore specially made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of the 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 charge with it".
(1) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he can be convicted of the lesser offence although he was not charged with it."
Section 236 of the Administration of Criminal Justice Act, 2015 also provides that:
236:- (1) "Where a defendant is charged with an offence consisting of several particulars, a combination of some of which constitutes a lesser offence in itself and the combination is
proved but the remaining particulars are not proved, he may be convicted of, or plead guilty to the lesser offence although he was not charged with it.
(2) Where a defendant 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."
It is settled that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged. It must be shown that the
particulars, facts and circumstances of the lesser offence are the same as those contained in the offence charged. See AGUGU V. STATE (2017) LPELR- 42021 (SC) AT 54-55 (E-A), THE
NIGERIAN AIR FORCE v. KAMALDEEN (2007) 2 LPELR - 2010. ADEYEMI V. THE STATE (1991) LPELR - 172 (SC). It is clear from the Provisions of Section 411 of the Criminal Code Act that the
ingredients of the offence of housebreaking and burglary are not the same as armed robbery. Secondly, the Supreme Court is emphatic that the Court cannot convict an accused person
charged for an offence of armed robbery under the Robbery and Firearms (Special Provisions) Act for a lesser offence under the Criminal Code Act. See OKOBI V. THE STATE (1984) LPELR -
2453 (SC) AT 18 - 23 (F-C) where the Supreme Court considered the Court's power to convict an accused for a lesser offence under Section 179 of the Criminal Procedure Law of Lagos
State which is inpari material with Section 179 of the Criminal Procedure Act and held that:
"It is to be observed that the Criminal Code, Laws of Lagos State contains robbery as one of the offences recognizable under that law but less severe penalty prescribed for it. There is
therefore available a choice between the two laws which the prosecutor can make. The question that therefore arises for determination as stated above is whether a failure to secure a
conviction under the Robbery and Firearms (Special Provision) Act 1970 entitles the High Court judge to proceed to convict of a lesser offence under the Criminal Code by virtue of Section
179 of the Criminal Procedure Law. It is my view that to enable the Court to utilize its powers under the Criminal Procedure Law to advantage, the offence should and must be charged
under the two laws in the alternative. The Court is not a prosecutor but an adjudicator and. It borders on persecution for the Court to invoke its powers under a law under which the
prosecutor decided not to proceed or prosecute. The jurisdiction being exercised by the High Court of the State in the trial of persons for offences under the Armed Robbery and Firearms
(Special Provisions) Act is the jurisdiction conferred upon the High Court by the Robbery and Firearms (Special Provision) Act. Offences under the Act are Federal offences. As the Act gave
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 Law exercise the jurisdiction
conferred by the Act to convict of an offence not under the Act. In the instant appeal, however, there could be no conviction for the offence of robbery under the Criminal Code. Neither is
the offence of stealing under the Criminal Code established. Stealing is the only lesser constituent offence of robbery in respect of which a conviction could be entered by virtue of Section
179(1) of the Criminal Procedure Law. Obtaining by false pretence is not a constituent offence neither is cheating a constituent offence of robbery although they carry less penalties and
punishment. To appreciate the real force and effect of Section 179(1) and (2) of the Criminal Procedure Law, it is necessary to set out the provisions and I will set them out. They read: "(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. (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."

A)
By virtue of Section 236(1) of the 1979 Constitution of the Federal Republic of Nigeria and Section 274(1), the High Court of Lagos State is invested with jurisdiction to administer the
Criminal Code Law of Lagos State Cap 31 Laws of Lagos State but unless a person is charged and prosecuted under the express provision of the Code the Court is not entitled to convict
and punish him under the Criminal Code. See Section 4 of the Criminal Code Law which reads: "Subject to the provisions of any Federal law, no person shall be liable to be tried or
punished in any Court in the Lagos State except under the express Provisions of the Code of same Act, law, decree or edict or of some order in council made by Her Majesty for Nigeria
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which is in force in, or forms part of the law of the Lagos State or under the express Provisions some statute of the Imperial Parliament which remains in force in or forms part of the law of
the Lagos State. Provided that in the case of an offence committed before the commencement of this Law the offender may be tried and punished either under the law in force when the
offence was committed or under the Code, provided that the offender shall not be punished to any greater extent than was authorized by the former laws." The High Court of Lagos State
cannot, in my view, proceed to convict the appellant who was charged and tried for an offence under the Robbery and Firearms (Special Provisions) Act under the Criminal Code of Lagos
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State because the Court found that it had committed no offence under the Robbery and Firearms (Special Provisions) Act. As no offence under the Robbery and Firearms (Special
Provisions) was proved, the High Court of Lagos State is not, in my view, entitled to apply the provisions of Section 179(1) of the Criminal Code Law to enter a conviction for an offence
under the Criminal Code. 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
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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 a 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
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manslaughter. None of the Subsections of Section 179 of the Criminal Procedure Law is applicable in the circumstances of this case to warrant the conviction of the appellant. I have also
considered the provision of Sections 169 of the Criminal Procedure Law of Lagos State 1973 and find that none of them enables any conviction for an offence under the Criminal Code to
be entered against the appellant. I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal
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Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under the Robbery
and Firearms (Special Provisions) Act permitting such a cause 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
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under which he was tried for the sole purpose of securing his conviction."
I have deliberately quoted the pronouncement of the Supreme Court in extensor to show the reasoning and clear position of the Court. The position of the Court is that where the Court
finds that the prosecution has failed to prove the offence with which the accused was charged under the Robbery And Firearms (Special Provisions) Act, the Court can only exercise its
power under Section 179 of the Criminal Procedure Act if the lesser offence proved is one of the offences cognizable under the Robbery And Firearms (Special Provisions) Act. The Court
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cannot exercise that power to convict the accused for a lesser offence cognizable under a different law. Thus if an accused is charged for armed robbery under the Robbery And Firearms
(Special Provisions) Act, he cannot be convicted for burglary and house breaking under the Criminal Code Act or Criminal Code Law of the state. The prosecution had a choice to charge
the appellant for armed robbery under the Criminal Code Law of Anambra State or burglary and house breaking in the alternative but they chose to charge him under the Robbery and
Firearms (Special Provisions) Act. The Court cannot in the exercise of its jurisdiction under Robbery and Firearms (Special Provisions) Act revert to the criminal code to convict the
appellant for burglary and house breaking. The prosecution having failed to prove the offence of armed robbery or any other lesser offence under the Robbery and Firearms (Special
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Provisions) Act against the appellant beyond reasonable doubt, this appeal succeeds. The judgment of the High Court of Justice, Anambra State delivered in charge no. AG/5C/2012 on
27/3/2017 is hereby set aside. The conviction and sentence of death for armed robbery passed on the appellant by the Court below are hereby set aside. The appellant is hereby
discharged and acquitted."Per BOLAJI-YUSUFF, J.C.A. (Pp. 22-31, Paras. A-E) - read in context
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4. CRIMINAL LAW AND PROCEDURE - CONVICTION FOR LESSER OFFENCE: Conditions to be fulfilled before an accused can be convicted for a lesser offence
"The Appellant's counsel urged the Court to reverse the finding of the trial Court and accordingly discharge and acquit the Appellant and submitted further that in the unlikely event of this
Court not being disposed to discharging and acquitting the Appellant, that it is clear from the totality of the evidence on record that the offences of house-breaking and stealing could at
best be said to have been established. Counsel referred to the Sections 383(1) and 411 of the Criminal Code.
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However, after this Court is of the unfettered opinion that from the totality of the evidence adduced at the Court below, an offence of armed robbery cannot be said to have been
sufficiently established against the Appellant, this Court would only fall into grave error in law if it goes ahead to convict the Appellant for a lesser offence which was not provided for
under the Robbery and Firearms (Special Provisions) Act. The Act gave no jurisdiction to convict of offences other than those set out in the Act. To convict an accused person for a lesser
offence, both the grave offence for which the accused is charged and the lesser offence for which he is eventually convicted must be prescribed and punished under the same law.
Convicting the accused person for a lesser offence under a law he was not charged with is tantamount to converting the Court of justice into a Court of persecution. See OKOBI V THE
STATE (1984) 7 SC."Per UMAR, J.C.A. (Pp. 38-39, Paras. D-E) - read in context

5. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in an armed robbery charge
"I agree that the evidence upon which a man is sent to gallows must be cogent, credible, compelling and free from reasonable doubts. The charge of armed robbery is a serious one and
the trial Court should not have left anything to chance considering the fact that the penalty is the highest known to our law, which is death. That is why it is said that the prosecution must
at all times prove its case beyond reasonable doubt and every doubt in prosecution's case shall be resolved in favour of the defendant. BOTU V. The STATE (2018) 3 NWLR Part 1607
@430.
After a close perusal at the contents of Exhibits P1 and P7 which are the alleged confessional statements of the Appellant upon which his conviction was predicated by the trial Court, I
agree with the submission of the Appellant counsel that the Appellant never admitted the offence of armed robbery but admitted to house breaking and stealing. It is mind disturbing that
the trial Court held that the confessional statements when considered together with the said unimpeachable testimonies of PW1 and PW2, the guilt of the Appellant becomes proven
beyond reasonable doubt. I am of the unreserved opinion that if the Court had paid attention to the contents of Exhibits P6 and P3 which were the police interim report made 31/7/2011
and 1/8/2011 respectively before placing heavy reliance on testimonies of PWI and PW2, maybe the Court would have been persuaded in holding that the guilt of Appellant was not proved
beyond reasonable doubt to warrant his conviction.?
This is premised on the fact that Exhibits P6 and P3 were made on the day the crime was allegedly committed and the following day respectively and it was not stated in both statements
that the Appellant armed PW2 with a machete. The omission of this vital information in both reports is not accidental neither is it coincidental. I am of the opinion that the said reports
contained a true account Of what transpired on that fateful day. The evidence of PW2 that the Appellant injured him with a machete is only an afterthought in a calculated attempt to
covering the excesses of the vigilante group for shooting the Appellant on his leg, as rightly pointed by my learned brother. The extensive judgment delivered by my learned brother has
only buttressed the fact that it is the duty of the Court to know the law."Per UMAR, J.C.A. (Pp. 36-38, Paras. D-D) - read in context
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

(Delivering the Leading Judgment): This is an appeal

against the High Court of Anambra State delivered on

27/3/2017 wherein the appellant was found guilty of armed

robbery. The appellant was tried and convicted on a one

count charge which reads:

STATEMENT OF OFFENCE

“ARMED ROBBERY, contrary to Section 1 (2) (a) of the

Robbery and Firearms (Special Provisions) Act CAP. 398

Laws of the Federation Of Nigeria, 1990 as amended by Act

No 62 of 1999. A)
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8(

PARTICULARS OF OFFENCE
05

EBUKA MBAONU on the 31st day of July 2011, at about

6
-4

0900 hrs at Okpara – Obutere Village in the Aguata Judicial

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division, while armed with matchet robbed one Sylvester

EL

Okeke of one bottle of red wine, 16 cans of star beer, 3

LP

pairs of window curtain, 3 bottles of seaman aromatic

8)

schnapps, some quality of rice and pair of rubber slippers.”

01
(2

Three witnesses testified for the prosecution. The appellant

gave evidence in his own defence but did not call any other

witness. Seven exhibits were tendered. The prosecution’s

case was that the appellant broke into the

1
house of Sylvester Okeke on 31/7/2011 and stole one bottle

of red wine, sixteen cans of star beer, three pairs of window

curtain, three bottles of seaman aromatic schnapps, some

quantity of rice and a pair of rubber slippers. He was

packing the items when Felicia Nwankwo entered the

house and found the appellant with the items. According to

her evidence in Court, she ran outside and started

shouting. As she was shouting, the appellant ran away with

some of the items. The appellant was later apprehended by

vigilante men and handed over to the police. According to

A)
PW2, Edwin Nzele, he ran into the appellant as he was
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8(

carrying some of the stolen items and he ordered him to

05

stop. The appellant attacked him with machete, cut him on

6
-4

his shoulder and as the appellant was running away he shot

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the appellant in the legs but the appellant ran into his
EL

father’s compound and was later arrested. The

LP

investigating police officer was PW3. The Court below

8)

found the appellant guilty of armed robbery and sentenced

01

him to death.
(2

The appellant is aggrieved by the judgment. He filed a

notice of appeal dated 22/5/2017 and filed on the same day.

The five grounds of appeal

2
contained in the notice of appeal without their particulars

are stated hereunder:

GROUND 1

“The learned trial judge erred in law when he held as

follows: “there is therefore no doubt about it; Exhibits P1

and P7 are confessional statements and were admitted

without any objection.”

GROUND 2

The learned trial judge erred in law when he wrongly

admitted Exhibits P1, P2, P5 and P7 in evidence and while

A)
relying on same, held that the prosecution had proved the
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8(

charge of armed robbery against the appellant beyond

05

reasonable doubt.
6
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GROUND 3
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The learned trial judge erred in law when he wrongly relied

EL

on the inconsistent testimonies of PW1 and PW2 in arriving

LP

at a verdict of guilty against the appellant for the offence of

8)

armed robbery.
01

GROUND 4
(2

The learned trial Court erred in law when he held as

follows: “when therefore, the said confessional statements

of the defendant are considered together with the

unimpeachable testimonies of PW1 and PW2, the guilt of

the defendant becomes proven beyond reasonable doubt.

Consequently, the defendant is hereby pronounced guilty

as charged.”

3
GROUND 5

The learned trial judge erred in law when he failed to

consider a lesser punishment for the defendant, based on

the confessional statement as contained in Exhibit P1, but

went ahead to convict him for the offence of armed

robbery.

In compliance with the rules of this Court the appellant’s

brief was filed on 8/11/17. The respondent’s brief was filed

on 2/3/18. The appellant’s counsel formulated the following

three issues for determination: A)

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8(

(1) “Whether the exclusion of vital evidence by the

05

prosecution at the trial was not prejudicial to the

6
-4

appellant’s case and thus led to a travesty of justice against

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the appellant. (ground 3)

EL

(2) Whether the prosecution successfully discharged the

LP

onus on it to prove the elements of the offence of armed

8)

robbery beyond reasonable doubt, as required by law.

01

(grounds 1, 2 and 3)
(2

(3) Whether from the evidence led at trial and the

circumstances of the case, the trial Court was not wrong to

have convicted the appellant of armed robbery, instead of a

lesser offence of house – breaking and stealing. (ground

4 and 5).”

4
The respondent’s counsel formulated a sole issue for

determination. The issue is:

“Whether the prosecution proved the case of armed

robbery against the appellant beyond reasonable doubt.”

I have considered the grounds of appeal and the issues

formulated by counsel. I find the issue formulated by the

respondent’s counsel to be apt for the determination of this

appeal.

A)
The appellant’s counsel submitted that from the wordings
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8(

of the particulars of the offence for which the accused

05

person was tried, it is clear that the appellant was

6
-4

arraigned and tried for armed robbery committed against

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one Sylvester Okeke on 31/7/2011 but the evidence showed

EL

that the said Sylvester Okeke was in Benin City where he

LP

was living that day. Counsel argued that an offence would

8)

not be armed robbery in the following circumstances:

01

(1) Where there is no direct victim who was robbed.

(2

(2) Where the supposed victim of the crime is not placed at

the venue of the alleged crime at the time of the

occurrence of the robbery.

5
(3) If during the robbery or stealing, there is absent, the

element of threat, or any perceived threat by the accused

person against the victim because armed robbery as an

offence connotes the taking away from the person of the

victim, by the accused person, personal belongings under

the apprehension of threat of violence or actual violence.

He referred to CRIMES, DEFENCES and SENTENCES”

A TEXT BY SONIA AKINBIYI, 2006, FIRST EDITION,

STREAMS COMMUNICATIONS, AT PAGE 172.

SUNDAY V. STATE (2010) ALL FWLR (PT. 548)914 (A-

A)
D), IBRAHIM V. STATE (2015) ALL FWLR (PT. 779)
C
8(

1149 AT 1157 (E-H).

6 05
-4

Counsel submitted that the Court below misdirected itself

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when it held that Exhibits P1 and P7 are confessional

EL

statements as a detailed examination of the contents of

LP

Exhibits P1 and P7 clearly reveal that the appellant never

8)

admitted the offence of armed robbery but admitted to

01

house – breaking and stealing. He further submitted that

(2

Exhibits P1 and P7 are bereft of any of the elements of the

offence of armed robbery and it is clear that it was never

the intention of the appellant to admit the offence of armed

robbery. He urged the Court to reverse the finding the trial

Court and accordingly discharge and acquit the appellant.

6
It is the submission of the appellant’s counsel that in the

unlikely event of the Court not being disposed to discharge

and acquit the appellant on the basis of the forgoing

submissions, it is clear from the totality of the evidence on

record that the offences of house – breaking and stealing

could at best be said to have been established. He referred

to Sections 383(1) and 411 of the Criminal Code. STATE V.

ONWEMUNLO (1967) M.S.N.L.R. 137. OYEBANJI V.

STATE (2015) ALL FWLR (PT. 800)1273 – 1274 (H-A).

A)
In response to the above submissions, the respondent’s
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counsel referred to the evidence of PW1 that the appellant

05

wanted to attack her with machete, the evidence of PW2

6
-4

that the appellant attacked him with machete and cut him
R

on his shoulder. He submitted that once there is evidence

EL

that the accused used violence on the owner of the stolen

LP

goods or any other person immediately after the stealing,

8)

the offence has metamorphosed into armed robbery. He

01

referred to Section 1(2)(a) and (b) of the Robbery and

(2

Firearms Act. OKUDO V. THE STATE (2011) 3 NWLR

(PT. 1234) 209 AT 216.

7
Counsel argued that the fact that the owner of the items

stolen resides in Benin City outside of the place where the

offence was committed is irrelevant to the fact that the

offence committed is armed robbery once there is evidence

that the accused used violence on anybody immediately

after the stealing. He urged the Court to dismiss the

appeal, the prosecution having proved the offence of armed

against the appellant beyond reasonable doubt.

RESOLUTION:
A)
The law is trite that for the prosecution to secure a
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conviction for an offence of armed robbery under Section

05

1(2) (a) of the Robbery and Firearms (Special Provisions)

6
-4

Act, the following ingredients of the offence must be proved

R

beyond reasonable doubt by cogent and credible evidence

EL

(1) That there was a robbery;

LP

(2) That the robbery was an armed robbery;

8)

(3) That the accused was the one who committed the
01

robbery or that he participated in the armed robbery.

(2

In its bid to establish the ingredients of armed robbery, the

prosecution called PW1 and PW2 who testified that

PW1: “I know the defendant. On 31/7/2011, I returned from

the church. I was the person in charge of the compound of

8
Sylvester Okeke on that day as he does not ordinarily

reside at home. When I returned from the church on that

day, I observed that the door to the house was broken. I

saw some of the properties that were packed by the side. I

heard noise inside. I then looked inside and saw the

defendant. He wanted to deal a machete blow on me and I

ran outside and started shouting. As I was shouting he ran

away with some stolen items. I have always known the

defendant as Ebuka Igbo. I made statement to the police.

Cross – Examination:
A)
When I saw the broken door, I suspected thieves because I
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8(

was the person who had locked the door earlier in the day.
05

I entered the house I wanted to know who broke into the

6
-4

house. I told the police that he threatened me with the

R

machete. I have known the defendant in the village for

EL

more than 4 years.”

LP

PW2: “I know the defendant. On 31/7/2011, I was hunting

8)

when I heard people shouting. As I was running out of the

01

bush, I ran into the defendant as he was carrying some of

(2

the stolen items and with the aid of my gun, I ordered him

to stop. I was about to catch him when he aimed a machete

blow on me. I however waged the blow

9
with the pipe of my gun. The machete having therefore

missed my head, landed on my left shoulder. Witness shows

the wound to the Court. As he was running away I managed

to shoot him on the legs but he ran away with the gunshot

wound. He ran into the father’s compound. He was later

arrested where he was hiding in the compound of the

father. We handed him over to the police.

CROSS-EXAMINATION:

“I saw the defendant at about 9 a.m. I had a gun with which

I was hunting. I was alone then. I told the police that the
A)
defendant dealt a machete cut on me. I had my gun with
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me at that time. Some of the stolen items were recovered

05

from the defendant. Before the day of the incident, I knew

6
-4

the defendant. He is a notorious criminal in our place. It is

R

not true that I was blamed for shooting the defendant.’’

EL

PW3 was the investigating police officer who investigated

LP

the case when it was transferred to the Special Anti

8)

Robbery Squad. He tendered the statements of the

01

appellant made on 1/8/2011 and 31/7/2011 as Exhibits P1

(2

and P7 respectively. The Court below considered the

evidence of PW1 and PW2 and the statements of the

appellant. At page 53 of the record of appeal, the Court

held as follows:

10
“Exhibits P1 and P7 are confessional statements and were

admitted in evidence without any objection. Furthermore,

in their respective testimonies before the Court, PW1 and

PW2 both gave account of how the defendant threatened

them, and indeed attacked PW2, with the long knife which

clearly is an offensive weapon. Although in his testimony in

Court, the defendant denied his said confessional statement

as not being his will, the law is since settled that where an

accused person resiles or denies his confessional

statement, it is his duty to explain to the Court, as part of

A)
his defence, the reason for the inconsistency.”
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8(

At pages 54 – 55 of the record, the Court concluded its

05

finding as follows:
6
-4

“Since the said confessional statements of the defendant

R

were admitted in evidence without any objection, it does

EL

not lie in the mouth of the defendant to deny them as not

LP

being his will. There is, therefore, no doubt that the

8)

defendant willingly volunteered the said confessional

01

statements. Consequently, they remain eloquent

(2

testimonies of the guilt of the defendant.

11
When, therefore, the said confessional statements of the

defendant are considered together with the unimpeachable

testimonies of PW1 and PW2, the guilt of the defendant

becomes proven beyond reasonable doubts. Consequently,

the defendant is hereby pronounced guilty as charged.”

The Court relied on the statements of the appellant to find

him guilty of armed robbery. I reproduce below the

relevant portions of the statements which the Court below

found to be a confession to armed robbery:

Exhibit P1:
A)
“On 31/07/2011 at about 0900hrs, I was very hungry and
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nothing I can do than to search for food. That made me to

05

break into one Mr. Sylvester Okeke’s house where I stole

6
-4

16 cans of star beer, three bottles of seamans hot drinks,

R

three pairs of window curtains, one bottle of red wine,

EL

some quantity of foreign rice and one pair of bathroom

LP

slippers with intent to go and sell them. I have discovered

8)

that there is nobody in the compound that is my reason of

01

going there and steal. The owner of the building stays in

(2

Edo State and he is my uncle. But when I wanted to escape

with the stolen items eventually the complainant met me

and started

12
shouting before people came out and got me arrested. The

complainant later identified himself as a cousin sister to

Mr. Okeke Sylvester. I alone went and broke into the

compound with a cutlass without anybody’s knowledge

neither a friend. I never acted this way before, but the fact

is that I was very hungry that day. I don’t have anything

incriminating with me except the cutlass found on me.

However, when I was intercepted by the local vigilante men

I did not make any attempt to run but I was surprised when

vigilante leader shot me with a gun and later handed me

over to the police at Ajali Division.’’ A)

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Exhibit P7:
05

It was today 31/7/2011 at about 08 am I went to Mr,

6
-4

Sylvester Okeke’s house and I found out that there was

R

nobody in the compound. I then picked one iron rod and

EL

broke the front door, entered inside the rooms and stole
LP

some quantity of uncooked rice, 16 cans of star beer, 4

8)

bottles of seamans hot drinks, three window curtains, a

01

pair of slippers and other things. I did the breaking into the
(2

house alone. I know it is an offence to break into another

person’s house.

13
Those items that I stole I had wanted to consume some and

give some of the items to other people to use. When the

chairman of Ndiokolo vigilante outfit saw me with all the

stolen items I was carrying he then stopped me and I

stopped. It is not true that I threatened to cut the vigilante

chairman with machete before he opened fire on me and I

did not make any attempt to escape."

Section 28 of the Evidence Act, 2011 defines a confession

as an admission made at any time by a person charged with

a crime, stating or suggesting that he committed the crime.

A)
A confession must be direct, clear, unambiguous and
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8(

positive. See AZABADA V. THE STATE (2014) LPELR –

05

23017 (SC) AT 33 (A-C), NKIE V. FRN (2014) LPELR –

6
-4

22877 (SC) AT 29 (D-F), SALAWU V. STATE (2011)

R

LPELR – 9351 (SC) AT 36 (E-G). In OSUAGWU V. THE

EL

STATE (2013) LPELR – 19823 (SC) AT 26 (B-F) the

LP

Supreme Court stated the nature of a confessional

8)

statement as follows:
01

Section 27(1) of the Evidence Act States that:"A confession

(2

is an admission made at any time by a person charged with

a crime, stating or suggesting the inference that he

committed that crime.

14
See Igbinovia v. State 1981 2 SC p. 5 Yusufu v. The

State 1976 6 SC p.167. A confession is a voluntary

admission or declaration by a person of his participation in

a crime. It becomes a confession when in some way it

amounts to an acknowledgment of guilt. A confession must

either admit the elements of the offence or all the facts

which constitute the offence. Once the Court is satisfied

with the genuineness of a confession, a conviction can be

based entirely on it and such a conviction would not be

disturbed by an appellate Court. See Sykes 8 C.A.R. p. 23,

R. v. Ajayi Onokoro 7 WACA p.146." A)

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8(

I have carefully perused the above statements. I do not

05

agree with the Court below that any of the statements

6
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amount to a confession to the offence of armed robbery as

R

charged. Though a combined reading of the two statements

EL

confirmed the fact that the appellant was in possession of a

LP

machete when he broke into the house of Sylvester Okeke,

8)

in Exhibit P1, he stated that he went into the house

01

because he knew that nobody was in the house. Definitely,

(2

he had the intention to steal but he did not have the

intention

15
to attack or use violence on anybody. InIBRAHIM V. THE

STATE (2013) LPELR – 21883 (SC) AT 41 (D-E), the

Supreme Court per ARIWOOLA JSC held that:

Generally, robbery means the illegal taking of

property from the person of another or in the person's

presence by violence or intimidation. While armed robbery

is robbery committed by a person carrying a dangerous

weapon regardless of whether the weapon is revealed or

used."

The evidence of PW1 confirmed the fact that there was no

A)
one in the house when the appellant broke into the house
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and the appellant had already parked the items stolen when
05

she went into the house. It is therefore clear that the

6
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appellant did not take the items stolen from the person of
R

Sylvester Okeke or in his presence by violence and

EL

intimidation. Armed robbery is not committed on an empty

LP

space, it is a crime committed on a person. Since the

8)

evidence on record established the fact that Sylvester

01

Okeke on whom the appellant was alleged to have

(2

committed the offence of armed robbery was far away in

Benin City. His conviction for armed robbery as contained

in the charge is a serious error which has occasioned a

miscarriage of justice.

16
The learned respondent’s counsel argued that the offence

of robbery metamorphosed into armed robbery because the

appellant threatened to harm PW1 with machete and did

harm PW2 with machete. Section 1(2) (b) of the Robbery

and Firearms (Special Provisions) Act on which the learned

counsel predicated his submission reads:

“1. (1) Any person who commits the offence of robbery

shall upon trial and conviction under this Act, be sentenced

to imprisonment for not less than 21 years.

(2) If-
A)
(b) at or immediately before or immediately after the time
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of the robbery the said offender wounds or uses any

05

personal violence to any person, the offender shall be liable

6
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upon conviction under this Act to be sentenced to death."

R

It is the duty of the trial Court to scrutinize and evaluate

EL

the evidence led and ensure that the elements of the

LP

offence with which the accused has been charged are

8)

established beyond reasonable doubt before finding the

01

accused person guilty. The appellant never admitted in his

(2

statements that he wounded or harmed any person with

machete at

17
or immediately after the robbery. What the evidence of

PW1 and PW2 portrayed was that the appellant attempted

to harm PW1 and she ran away while he harmed PW2 on

his shoulder. A careful and critical consideration of the

evidence of PW1 would reveal some lapses which ought to

have created reasonable doubt in the mind of the trial

Court. PW1 had already seen the stolen items packed on

one side. She said she suspected that thieves packed the

items because she was hearing noise inside the house. Yet

she had the courage to enter the house. According to her

A)
she wanted to know who broke into the house. I do not
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8(

believe that PW1 having seen that thieves had broken into
05

the house and hearing noise inside the house still had the
6
-4

courage to go inside the house before she started shouting.

R

My view is that the appellant had no opportunity to

EL

threaten PW1 with machete and still had the time to pick
LP

up some of the stolen items before attempting to run away

8)

from the scene. PW2 said the appellant wanted to hit him
01

on his head but the machete landed on his shoulder.

(2

According to the Court below, the scar from the wound was

shown to the Court.

18
First, it is incredible that the appellant on seeing PW1 with

a gun still had the courage to attack him with a machete.

Secondly, a person who had been attacked and wounded on

his shoulder was still able to pull the trigger and shot the

appellant in the legs. Thirdly, there is no credible evidence

upon which the trial could have safely concluded that the

scar on PW2’s soldier was as a result of the alleged

machete attack by the appellant. If the Court had

considered the content of Exhibit P6, the police interim

report made on 31/7/2011 and Exhibit P3 the report made

A)
on 1/8/2011, the Court would have found that the story that
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8(

the appellant harmed PW2 on his shoulder is an

05

afterthought which the Court should have treated with

6
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caution. The relevant part of exhibit 3 reads:

R

“The suspect was arrested and brought to the charge room

EL

by a team of Ndiokolo vigilante outfit. The chairman of the

LP

outfit allegedly stated that when they heard alarm shouting

8)

for help, the team came out and saw the suspect carrying
01

some load. When they ordered him to stop he threatened to

(2

kill a member of the vigilante group with a machete he was

holding. As suspect was escaping from the scene, the

19
chairman of Ndiokolo vigilante outfit fired him on his right

legs which caused him harm. The team of vigilante group

brought the suspect to the station with wound all over his

body.”

Exhibits P6 reads:

“During the course of my investigation I found out that the

suspect is a native of Ndiokolo. (2) Investigation also

revealed that the suspect has no means of survival. (3) I

also found out that the suspect actually committed the

offence, (4) Investigation revealed that it was one Miss

A)
Felicia Nwankwo that met the suspect inside the building
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where he was committing the act and also armed himself

05

with machete. I also found out that when in the process of

6
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arresting the suspect he attempted to escape and the

R

chairman Ndiokolo vigilante outfit fire his right leg which

EL

made him to slow down."

LP

Exhibit P6 was made on the day the crime was alleged to

8)

have been committed. Exhibit P3 was made the next day. It

01

is not stated anywhere in Exhibits P3 and P6 that the

(2

appellant harmed PW2 with machete. It is only in Exhibit

P5 made on 17/8/13 that the police stated that the

appellant used the machete to break into the house and

used the

20
same machete to threaten PW1. It is not stated even in

Exhibit P5 that the appellant “attacked PW2 with the long

knife” as stated by the Court below on page 53 of the

record of appeal. The evidence upon which a man is sent to

the gallows must be cogent, credible, compelling and free

from reasonable doubts. It must not be evidence which is

concocted purposely to secure conviction for the offence

charged. The police report stated that the appellant arrived

at the police station with wounds all over his body and

gunshot wounds. Obviously the vigilante men had to cover

A)
their own excesses. The prosecution in my view failed to
C
8(

prove beyond reasonable doubt that the appellant at or

05

immediately before or immediately after the time of the

6
-4

robbery threatened or used any personal violence on PW1

R

or PW2 or any other person. The argument of the

EL

respondent’s counsel that the offence of armed robbery

LP

under Section 1(2) (b) of the Act was proved beyond

8)

reasonable doubt is not sustainable. The evidence upon

01

which the appellant was convicted and sentenced to death

(2

is not free from reasonable doubt.

21
The appellant confessed to an offence of burglary and

house breaking cognizable under Section 411 of the

Criminal Code Act, Cap.C38, Volume 4, LFN, 2004. Though,

Section 179 of the Criminal Procedure Act, Cap. C41, LFN,

2004 provides that:

“(1) In addition to the provisions hereinbefore specially

made, whenever a person is charged with an offence

consisting of several particulars, a combination of some

only of the which constitutes a complete lesser offence in

itself and such combination is proved but the remaining

A)
particulars are not proved, he may be convicted of such
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lesser offence or may plead guilty thereto although he was

05

not charge with it”.

6
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(1) When a person is charged with an offence and facts are

R

proved which reduce it to a lesser offence, he can be

EL

convicted of the lesser offence although he was not

LP

charged with it.”

8)

Section 236 of the Administration of Criminal Justice Act,

01

2015 also provides that:

(2

236:- (1) “Where a defendant is charged with an offence

consisting of several particulars, a combination of some of

which constitutes a lesser offence in itself and the

combination is proved but the remaining

22
particulars are not proved, he may be convicted of, or plead

guilty to the lesser offence although he was not charged

with it.

(2) Where a defendant 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.”

It is settled that before an accused can be convicted for a

lesser offence, the ingredients of the lesser offence must be

subsumed in the original offence charged. It must be shown

A)
that the particulars, facts and circumstances of the lesser
C
8(

offence are the same as those contained in the offence

05

charged. See AGUGU V. STATE (2017) LPELR- 42021

6
-4

(SC) AT 54-55 (E-A), THE NIGERIAN AIR FORCE v.

R

KAMALDEEN (2007) 2 LPELR - 2010. ADEYEMI V.

EL

THE STATE (1991) LPELR – 172 (SC). It is clear from

LP

the Provisions of Section 411 of the Criminal Code Act

8)

that the ingredients of the offence of housebreaking and

01

burglary are not the same as armed robbery. Secondly, the

(2

Supreme Court is emphatic that the Court cannot convict

an accused person charged for an offence of armed robbery

under the Robbery and Firearms

23
(Special Provisions) Act for a lesser offence under the

Criminal Code Act. See OKOBI V. THE STATE (1984)

LPELR – 2453 (SC) AT 18 – 23 (F-C) where the Supreme

Court considered the Court’s power to convict an accused

for a lesser offence under Section 179 of the Criminal

Procedure Law of Lagos State which is inpari material with

Section 179 of the Criminal Procedure Act and held that:

“It is to be observed that the Criminal Code, Laws of Lagos

State contains robbery as one of the offences recognizable

under that law but less severe penalty prescribed for it.
A)
There is therefore available a choice between the two laws
C
8(

which the prosecutor can make. The question that

05

therefore arises for determination as stated above is

6
-4

whether a failure to secure a conviction under the Robbery

R

and Firearms (Special Provision) Act 1970 entitles the High

EL

Court judge to proceed to convict of a lesser offence under

LP

the Criminal Code by virtue of Section 179 of the Criminal

8)

Procedure Law. It is my view that to enable the Court to

01

utilize its powers under the Criminal Procedure Law to

(2

advantage, the offence should and must be charged

24
under the two laws in the alternative. The Court is not a

prosecutor but an adjudicator and. It borders on

persecution for the Court to invoke its powers under a law

under which the prosecutor decided not to proceed or

prosecute. The jurisdiction being exercised by the High

Court of the State in the trial of persons for offences under

the Armed Robbery and Firearms (Special Provisions) Act is

the jurisdiction conferred upon the High Court by the

Robbery and Firearms (Special Provision) Act. Offences

under the Act are Federal offences. As the Act gave no

A)
jurisdiction to convict of offences other than those set out
C
8(

in the Act, the High Court cannot by the application of

05

Section 179(1) of the Criminal Procedure Law exercise the

6
-4

jurisdiction conferred by the Act to convict of an offence

R

not under the Act. In the instant appeal, however, there

EL

could be no conviction for the offence of robbery under the

LP

Criminal Code. Neither is the offence of stealing under the

8)

Criminal Code established. Stealing is the only lesser

01

constituent offence of robbery in respect of which a

(2

conviction could be entered by virtue of Section 179(1) of

the Criminal Procedure Law.

25
Obtaining by false pretence is not a constituent offence

neither is cheating a constituent offence of robbery

although they carry less penalties and punishment. To

appreciate the real force and effect of Section 179(1) and

(2) of the Criminal Procedure Law, it is necessary to set

out the provisions and I will set them out. They read: "(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

A)
combination is proved, but the remaining particulars are
C
8(

not proved, he may be convicted of such lesser offence or

05

may plead guilty thereto although he was not charged with

6
-4

it. (2) When a person is charged with an offence and facts

R

are proved which reduce it to a lesser offence, he may be

EL

convicted of the lesser offence although he was not

LP

charged with it."

8)

By virtue of Section 236(1) of the 1979 Constitution of the

01

Federal Republic of Nigeria and Section 274(1), the High

(2

Court of Lagos State is invested with jurisdiction to

administer the Criminal Code Law of Lagos State Cap 31

26
Laws of Lagos State but unless a person is charged and

prosecuted under the express provision of the Code the

Court is not entitled to convict and punish him under the

Criminal Code. See Section 4 of the Criminal Code

Law which reads: "Subject to the provisions of any Federal

law, no person shall be liable to be tried or punished in

any Court in the Lagos State except under the express

Provisions of the Code of same Act, law, decree or edict or

of some order in council made by Her Majesty for Nigeria

which is in force in, or forms part of the law of the Lagos

A)
State or under the express Provisions some statute of the
C
8(

Imperial Parliament which remains in force in or forms part

05

of the law of the Lagos State. Provided that in the case of

6
-4

an offence committed before the commencement of this

R

Law the offender may be tried and punished either under

EL

the law in force when the offence was committed or under

LP

the Code, provided that the offender shall not be punished

8)

to any greater extent than was authorized by the former

01

laws." The High Court of Lagos State cannot, in my view,

(2

proceed to convict the appellant who was charged and tried

for an offence under the Robbery and

27
Firearms (Special Provisions) Act under the Criminal Code

of Lagos State because the Court found that it had

committed no offence under the Robbery and Firearms

(Special Provisions) Act. As no offence under the Robbery

and Firearms (Special Provisions) was proved, the High

Court of Lagos State is not, in my view, entitled to apply

the provisions of Section 179(1) of the Criminal Code Law

to enter a conviction for an offence under the Criminal

Code. Lesser offence mentioned in Section 179 (1) can

only, in my view, refer to lesser offence under the law or

A)
Act under which the main or composite offence was
C
8(

charged. It cannot properly be interpreted to refer to a

05

lesser offence under another law. Section 179 (2) Criminal

6
-4

Procedure Law has, in my view, an independent application

R

which differs from that of Section 179(1) of the Criminal

EL

Procedure Law. While Section 179(1) of the Criminal

LP

Procedure Law enables conviction to be entered for

8)

complete lesser offence established by the proof of some of

01

the several particulars of the main or principal offence, e.g.

(2

in the trial for robbery under Section 401, Criminal Code

stealing under Section 390 Criminal Code is proved,

28
Section 179 (2) Criminal Procedure Law enables a

conviction to be entered for a 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. None of the

Subsections of Section 179 of the Criminal Procedure Law

is applicable in the circumstances of this case to warrant

the conviction of the appellant. I have also considered the

A)
provision of Sections 169 of the Criminal Procedure Law of
C
8(

Lagos State 1973 and find that none of them enables any
05

conviction for an offence under the Criminal Code to be

6
-4

entered against the appellant. I am of the settled view that

R

this Court has no jurisdiction to entertain any application to

EL

convict the appellant of a lesser offence under the Criminal

LP

Code at the hearing of an appeal against a conviction for an

8)

offence under the provisions of the Robbery and Firearms

01

(Special Provisions) Act. There being no provision under

(2

the Robbery and Firearms (Special Provisions) Act

permitting such a cause of

29
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.”

I have deliberately quoted the pronouncement of the

Supreme Court in extensor to show the reasoning and clear

position of the Court. The position of the Court is that

where the Court finds that the prosecution has failed to

prove the offence with which the accused was charged

under the Robbery And Firearms (Special Provisions) Act,

A)
the Court can only exercise its power under Section 179 of
C
8(

the Criminal Procedure Act if the lesser offence proved is

05

one of the offences cognizable under the Robbery And

6
-4

Firearms (Special Provisions) Act. The Court cannot

R

exercise that power to convict the accused for a lesser

EL

offence cognizable under a different law. Thus if an

LP

accused is charged for armed robbery under the Robbery

8)

And Firearms (Special Provisions) Act, he cannot be

01

convicted for burglary and house breaking under the

(2

Criminal Code Act or Criminal Code Law of the state.

30
The prosecution had a choice to charge the appellant for

armed robbery under the Criminal Code Law of Anambra

State or burglary and house breaking in the alternative but

they chose to charge him under the Robbery and Firearms

(Special Provisions) Act. The Court cannot in the exercise

of its jurisdiction under Robbery and Firearms (Special

Provisions) Act revert to the criminal code to convict the

appellant for burglary and house breaking. The

prosecution having failed to prove the offence of armed

robbery or any other lesser offence under the Robbery and

A)
Firearms (Special Provisions) Act against the appellant
C
8(

beyond reasonable doubt, this appeal succeeds. The

05

judgment of the High Court of Justice, Anambra State

6
-4

delivered in charge no. AG/5C/2012 on 27/3/2017 is hereby

R

set aside. The conviction and sentence of death for armed

EL

robbery passed on the appellant by the Court below are

LP

hereby set aside. The appellant is hereby discharged and

8)

acquitted.
01
(2

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I

agree with the lead judgment prepared by my learned

brother MISITURA OMODERE BOLAJI-YUSUFF, JCA. I

adopt the said judgment as mine with the following little

addition:

31
As rightly alluded to in the lead judgment, the evidence

placed before the learned trial Court was not cogent and

compelling enough to send a man to the gallows for armed

robbery. The evidence adduced against the Appellant

lacked the character of consistency as the narration got

more dramatic with the break of each new day.

The confessional statement of the accused admitted as Exh

P7 disclosed the Appellant as a petty thief. Why the

prosecution was bent on executing him as an armed robber

is incomprehensible. The Appellant was arrested on the

A)
31/07/2011 and was convicted and sentenced on the
C
8(

27/03/2017. He would have served and concluded a

05

sentence for theft or house breaking. Alas, for the reasons

6
-4

stated in the lead judgment, housebreaking shares no

R

elements or ingredients with the offence robbery.

EL

The Appellant stated clearly that he knew the house he

LP

went to was not actually occupied - that there was no one

8)

inside. By the decision of the Apex Court in IBRAHIM V

01

THE STATE (2013) LPELR) - Cited in the lead judgment,

(2

intimidation and violence to a person whose property is

stolen are

32
essential elements of robbery. These essential elements

were missing since the occupant of the house was said to

be in Benin city. So intent was the prosecution for the

conviction of the appellant for robbery that even the Court

was caught off guard, mesmerized by the embellished

evidence of the Prosecution. His Lordship also sought to

improve the evidence of the Prosecution by an addition of

its own at page 53 of the record for this appeal which was

transmitted to this Court on the 08/11/17.

Not even learned counsel can be tolerated to manufacture

A)
evidence to help his client least of all an umpire, the Court.
C
8(

This clearly is perverse and constitutes miscarriage of

05

justice. I find edification in the case of JOSEPH UGWU V

6
-4

THE STATE (1998) 7 NWLR pt PAGE 392 ET 408

R

where this Court per Tobi JCA (as he then was, OBM) held
EL

that the professional duties of a lawyer do not take him as

LP

far as manufacturing evidence for the client. The judge has

8)

only the role to listen to both sides and decide. It is

01

dangerous for the judge to participate in a judicial process

(2

by the addition of a piece of evidence which was not legally

received in evidence by due process.

33
In the case of MR. IDOWU LAMINA V. IKEJA LOCAL

GOVERNMENT (1993) CMC/171/90 NWLR (Pt. 314) p.

75@, Tobi, JCA (AHTW, now OBM) put this issue

pungently in these terms:

"...By our adversary system of jurisprudence a Judge plays

the role which can lazily be likened to an independent

umpire of a game. He is expected to hold the balance

between the parties in the litigation process. He is

expected not to take sides. His only interest should be the

interpretation of the law to the facts before him He cannot

A)
do more. He cannot do less too. The position is as stringent
C
8(

as that."
05

Similarly, in the case of OWENA BANK (NIG.) PLC V.

6
-4

YUSUF MUHAMMED (1998) NWLR (Pt. 533) p

R

301, this Court held that a Judge should remain an umpire

EL

and allow the parties to fight their own battle.

LP

see the case of YAKUBU V. CHIEF OF NAVAL STAFF &

8)

2 ORS. (2004) NWLR (Pt. 853) p 94, especially per

01

Istifanus Thomas, JCA (OBM) where this Court held that

(2

the act of descending into the arena by a Judge constitutes

a breach Of the rule of fair hearing.

The Apex Court emphasized the need for the Court to

remain an unbiased arbiter in the case of BAYOL V.

AHEMBA (1999) NWLR (623)

34
381 @ p. 391-392 when it held thus:

"The law remains inviolate that the judgment of a Court

must confine its inquiry to the determination of issues

properly raised and canvassed before it. The Court be it

trial or appellate Court , must be wary to enter into the

arena in the controversy between the parties by projecting

the case of one of the parties rather than maintaining the

equilibrium of impartiality as arbiter. Such an appearance

in the arena by the Court is a direct signal and invitation to

miscarriage of justice." (Underlining mine, for emphasis).

A)
In the case of CHIEF MUYIWA O. J. AINA V. IREPODUN
C
8(

IFO C.T.C.U SOCIETY LIMITED (Unreported, this Court

05

per Dongban- Mensem, JCA in a dissenting opinion stated

6
-4

as follows;
R

"I am unable to accede to that little extra effort to help a

EL

party. Such is not the responsibility of the Court, Counsel

LP

ought to diligently pursue their cases on behalf of their

8)

clients as it is their responsibility and brief. I am unable in

01

good conscience to encourage the manipulation of

(2

processes irregularly filed in order to give Judgment to a

party, to do this would open judicial offices to

uncontrollable abuse.

35
We must always be guided by the sacred role of the

Judiciary which is best demonstrated in the application of

the law and rules to the facts presented to the Court totally

unadulterated. The Judge must steer clear of the arena

which is the exclusive domain of the parties and their

learned counsel."

Even on this point alone, this appeal succeeds. I adopt the

consequential orders made in the lead judgment.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity

A)
of reading in advance, the well-considered judgment of my
C
8(

learned brother, MISITURA OMODERE BOLAJI-YUSUFF,

05

JCA, just delivered.

6
-4
R

I agree that the evidence upon which a man is sent to

EL

gallows must be cogent, credible, compelling and free from

LP

reasonable doubts. The charge of armed robbery is a

8)

serious one and the trial Court should not have left
01

anything to chance considering the fact that the penalty is

(2

the highest known to our law, which is death. That is why it

is said that the prosecution must at all times prove its case

beyond reasonable doubt and every doubt

36
in prosecution's case shall be resolved in favour of the

defendant. BOTU V. The STATE (2018) 3 NWLR Part

1607 @430.
After a close perusal at the contents of Exhibits P1 and P7
which are the alleged confessional statements of the

Appellant upon which his conviction was predicated by the

trial Court, I agree with the submission of the Appellant

counsel that the Appellant never admitted the offence of

armed robbery but admitted to house breaking and

stealing.
A)
It is mind disturbing that the trial Court held that the
C
8(

confessional statements when considered together with the

05

said unimpeachable testimonies of PW1 and PW2, the guilt

6
-4

of the Appellant becomes proven beyond reasonable doubt.

R

I am of the unreserved opinion that if the Court had paid

EL

attention to the contents of Exhibits P6 and P3 which were

LP

the police interim report made 31/7/2011 and 1/8/2011

8)

respectively before placing heavy reliance on testimonies of

01

PWI and PW2, maybe the Court would have been

(2

persuaded in holding that the guilt of Appellant was not

proved beyond reasonable doubt to warrant his conviction.​

This is premised on the fact that Exhibits P6 and P3 were

made on the day the crime

37
was allegedly committed and the following day respectively

and it was not stated in both statements that the Appellant

armed PW2 with a machete. The omission of this vital

information in both reports is not accidental neither is it

coincidental. I am of the opinion that the said reports

contained a true account Of what transpired on that fateful

day. The evidence of PW2 that the Appellant injured him

with a machete is only an afterthought in a calculated

attempt to covering the excesses of the vigilante group for

shooting the Appellant on his leg, as rightly pointed by my

A)
learned brother. The extensive judgment delivered by my
C
8(

learned brother has only buttressed the fact that it is the

05

duty of the Court to know the law.

6
-4
R

The Appellant's counsel urged the Court to reverse the

EL

finding of the trial Court and accordingly discharge and

LP

acquit the Appellant and submitted further that in the

8)

unlikely event of this Court not being disposed to

01

discharging and acquitting the Appellant, that it is clear

(2

from the totality of the evidence on record that the offences

of house-breaking and stealing could at best be said to have

been established. Counsel referred to the Sections 383(1)

and 411 of the Criminal Code.

38
However, after this Court is of the unfettered opinion that

from the totality of the evidence adduced at the Court

below, an offence of armed robbery cannot be said to have

been sufficiently established against the Appellant, this

Court would only fall into grave error in law if it goes ahead

to convict the Appellant for a lesser offence which was not

provided for under the Robbery and Firearms (Special

Provisions) Act. The Act gave no jurisdiction to convict of

offences other than those set out in the Act. To convict an

accused person for a lesser offence, both the grave offence

A)
for which the accused is charged and the lesser offence for
C
8(

which he is eventually convicted must be prescribed and

05

punished under the same law. Convicting the accused

6
-4

person for a lesser offence under a law he was not charged

R

with is tantamount to converting the Court of justice into a

EL

Court of persecution. See OKOBI V THE STATE (1984) 7

LP

SC.
8)
01

For the above reasons and of course the detailed ones

(2

adumbrated in the lead judgment, I too feel that the appeal

is meritorious and should be allowed.

39
I order accordingly and endorse the consequential order

contained in the lead judgment.

40

A)
C
8(
6 05
-4
R
EL
LP
8)
01
(2
 Appearances:

C. P. Oguchienti For Appellant(s)

S.A.M Offorkansi, (Assistant Director, Ministry of

Justice Anambra State) For Respondent(s)

A)
C
8(
6 05
-4
R
EL
LP
8)
01
(2