SALIU v. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 23rd day of March, 2018

SC.727/2013

Before Their Lordships

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria


Between

AHMED SALIU- Appellant

AND

THE STATE- Respondent

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CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): On February 8, 2010, at the Kwara State High Court, Ilorin Judicial Division, the appellant herein, and three others, were arraigned for the offences of Criminal Conspiracy, Rape and Armed Robbery contrary to Sections 97 and 283 of the Penal Code, Laws of Kwara State of Nigeria, and Section 1 (1) and (2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Volume 14, Laws of the Federation of Nigeria, 2004, respectively. Nine witnesses presented the Prosecution’s case.Nine exhibits were equally tendered. The appellant testified in an attempt to establish his defence. He, however, did not call any other witness. The third accused person, sequel to his No Case Submission, was acquitted and discharged on July 9, 2010. The other accused persons were however not that lucky as on December 21, 2010, they were convicted and sentenced to two year’s imprisonment for being in possession of stolen items of property under Section 319A of the Penal Code.
This conviction for a lesser offence stemmed from the Courts (hereinafter, simply, referred as “the trial Court) conclusion that the offences of conspiracy, Rape and Armed Robbery were not proved beyond reasonable doubt.
The appellant’s appeal at the Court of Appeal, having been dismissed, he proceeded to this Court entreating it to determine the three issues he formulated thus:
1. Whether the affirmation of the appellant’s conviction and sentence by the Court of Appeal was competent in view of the appellant’s invalid arraignment that borders on his right to fair hearing?
2. Whether the Lower Court rightly invoked or relied on the doctrine of recent possession in affirming the conviction and sentence of the appellant?
3. Whether the ingredients of the lesser offence of being in possession of stolen property, for which the Lower Court affirmed the appellant’s conviction and sentence, were properly subsumed in, or carved out of, the ingredients of conspiracy, rape or armed robbery?

Learned counsel for the respondent, on his part, took out a preliminary objection. He formulated only one issue for the determination of the preliminary objection. His issue, in the preliminary objection, was woven around the omission to seek leave to raise Ground One and to argue issue one.
ARGUMENTS ON THE OBJECTION
Learned counsel for the respondent, J. M. Mumini, DPP, Kwara State, adopted and relied on the respondent’s brief filed on July 19, 2017. He submitted that where a party seeks to file and argue any fresh issue before this Court, he ought to obtain leave, Order 6 Rule 5 (b), Rules of the Supreme Court, 2008; Obiakor v. State [2002] 10 NWLR (Pt.776) 612, 620.
He pointed out that the appellant filed three Grounds of Appeal, pages 157 -160 of the record. He explained that issue one, which derives from Ground One of the Notice and Grounds of Appeal, neither emanated from the decision of the Lower Court nor from that of the trial Court. In simple terms, the issue of law complained about was not a subject of appeal at the Lower Court; hence, it cannot be canvassed before this Court without the leave of Court.
Worse still, issue one is a fresh issue/point of law not raised and argued in the Lower Courts. It has however, been canvassed in this Court without leave, Jov v. Dom [2001] FWLR (Pt.62) 2026, 2018. He urged the Court to resolve this issue in favour of the respondent and strike out Ground One of the Notice of Appeal and issue One, paragraphs 3.03 – 3.18 of the appellant’s brief.
RESOLUTION OF THE ARGUMENTS IN THE PRELIMINARY OBJECTION 
Order 6 Rule 5 (b) Rules of the Supreme Court is a rule designed to ensure that this Court has the benefit of the opinion of the Lower Court on issues before volunteering its final and determinative decision on them; hence, where such issues were not canvassed before the Lower Court, this Court would generally, not be disposed to allow an appellant to take them before it for the first time, Kabaka’s Government v AG of Uganda [1963] 3 WLR 572.
This is the rationale for the prescription that a party who seeks to file and argue a fresh issue, which was not canvassed at the Lower Court, whether the issue pertains to law or procedure, must seek and obtain the leave of this Court first, else, such an issue must be struck out, Corporate Ideal Insurance Ltd. v. Ajaokuta Steel Coy Ltd and Ors (2014) LPELR 22255 (SC) 23 -24; G – C, Obiakor and Anor v. The State [2002] 10 NWLR (Pt.776) 10; Apena v. Barclays Bank of Nigeria Ltd. [1971] SC 47; Owners, MV Gongola Hope and Anor v Smurfit Cases Nig Ltd and Anor [2007] All FWLR (Pt.388) 1005; [2007] 6 SC (Pt.11) 58. 

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From my intimate perusal of pages 157 – 160 of the record, I am minded to endorse the submission of the respondent’s counsel that Ground One of the Notice and Grounds of Appeal neither emanated from the decision of the Lower Court nor from that of the trial Court. In effect, Issue One, which derives from that Ground is a fresh issue before this Court – it was not canvassed either before the Lower Court or before the trial Court.
Worse still, the appellant did not seek leave to canvass it before this Court, Oseni v Bajulu and Ors [2009] 18 NWLR (Pt.1122) 164; Eze v. AG, Rivers State; Eze v A. G., Rivers State [2001] 8 NSCQR 537; [2001] 18 NWLR (Pt.764) 524.
My Lords, I must take liberty here to remind the appellant’s counsel that it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, as he tried to do in this appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out, A-G., Oyo State v. Fairlakes Hotel Ltd [1988] 12 SC (Pt.1) 1; [1988] 5 NWLR (Pt.92) 1; Uor v. Loko [1988] 2 NWLR (Pt.77) 430.
In effect, where, as in this appeal, there has been no leave sought and obtained by the appellant to argue his new issue, and there are no special circumstances disclosed to warrant it being entertained, such a new issue would be incompetent and liable to be struck out by this Court, Eliochin (Nig.) Ltd. v. Mbadiwe [1986] 1 NWLR (Pt.14) 47, 72; Attorney-General of Oyo State v. Fairlakes Hotels Ltd. [1988] 5 NWLR (Pt.92) 1, 24; Lipede v. Sonekan [1995] 1 NWLR (Pt.374) 668, 685; Ejowhomu v. Edok-Eter Ltd. [1986] 5 NWLR (Pt.39) 1, 16.
It must be pointed out, however, as this Court held in West Securities and Finance Plc v. NAIC (2015) LPELR -24833 (SC) 40 – 41, that:
… the issue of jurisdiction constitutes an exception to this general principle for it [such an issue of jurisdiction] could be raised for the first time before an appellate Court, with or without leave, Obiakor and Anor v. The State [2002] 10 NWLR (Pt.776) 612, 626 G; Gaji v. Paye [2003] 8 NWLR (Pt.823) 583; Oyakhire v. The State [2006] 7 SCNJ 319, 327 – 328; [2006] 15 NWLR (Pt.1001) 157;Okoro v. Nigerian Army Council [2000] 3 NWLR (Pt. 647) 77, 90 – 91; Ajakaiye v. Military Governor, Bendel State [1993] 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd [1994) 7 NWLR (Pt.359) 676.
Regrettably, the fresh issue in this appeal does not fall into this jurisdictional category; hence, it is caught by the prescription, eloquently, enunciated in Case Law, Eliochin (Nig.) Ltd. v. Mbadiwe (supra); Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (supra); Lipede v. Sonekan (supra); Ejowhomu v. Edok-Eter Ltd. (supra).
In the circumstance, I uphold the respondent’s submissions in the Preliminary Objection. Ground One of the Notice of Appeal; Issue One, and the arguments contained in paragraphs 3.03 – 3.18 of the appellant’s brief of argument are hereby struck out.
ARGUMENTS ON THE SUBSTANTIVE APPEAL
Having disposed of issue one, only issues two and three are outstanding. The appellant’s issues two and three had earlier been set out. In response thereto, the respondent formulated a sole issue as determinative of this appeal. It was expressed thus:
Having regard to the evidence on record, whether the Court of Appeal was right in affirming the conviction and sentence of the appellant for the offence of receiving stolen property?
My Lords, the above sole issue of the respondent, quite apart from its precision and elegance, adequately captures the appellant’s grouse against the judgment of the Lower Court. It indeed subsumes the appellant’s issues two and three.
Accordingly, that would be the sole issue in the determination of this appeal.
APPELLANT’S SUBMISSIONS
The appellant’s counsel, who adopted and relied on the brief filed on January 9, 2014, contended that the Lower Court, wrongly, relied on the doctrine of recent possession, Section 149 (a) of the Evidence Act [now, Section 167(a), Evidence Act, 2011] in affirming the appellant’s conviction and sentence, [page 150 of the record].
He opined that the above sections contain a rebuttable presumption, Section 36 (1) (a) and (b) of the Evidence Act. He pointed out that these provisions have not been complied with [drawing attention to Section 36 paragraphs (a) and (b) (supra)]. According to him, the appellant gave enough explanation on how he came about exhibit N1, a Nokia phone, [pages 65; 76; 77 and 80 of the record].

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He contended that the Prosecution failed to call the vital witnesses he had mentioned so as to verify his extra -judicial statements. In his submission, the burden on the appellant [as an accused person], in the circumstances of the case was not to prove his innocence but to establish, on a balance of probabilities, that he legally came into possession of the goods in question, Igri v The State [2012] All FWLR (Pt.653) 1826, 1838; A -B.
He submitted that the Lower Court affirmed the appellant’s conviction and sentence based on the trial Court’s belief in the evidence led, [page 85 of the record] whereas the said belief had no factual foundation, Okonji v. The State [1987] 1 NWLR (Pt.42) 659, 672. In his view, even if the appellant lied, the trial Court still had an obligation to consider his defence, Oforlete v The State [2000] 3 NSCQR 243, 254.
Citing pages 50 – 51 of the record, he contended that the trial Court, whose decision the Lower Court affirmed, was not availed all the appellant’s statements: a situation that, in his submission, robbed the Court of the opportunity of considering the entirety of the appellant’s defences, Salawu v The State [2012] All FWLR (Pt.614) 1, 22; Ogudu v. The State [2012] All FWLR (Pt.629) 1111, 1130. He maintained that the appellant’s defences were not fully considered, Adesina and Anor v The State [2012] 6 SC (Pt.111) 114, 136. He urged the Court to hold that the Lower Court wrongly relied on the doctrine of recent possession.
On the question whether the ingredients of the lesser offence of being in possession of stolen property were properly subsumed into the ingredients of the offences of conspiracy, rape or armed robbery, he submitted that the lesser offence must not only be a kindred offence with the actual offence charged, its ingredients must be embedded in the actual charge, Ezeja v. The State [2008] All FWLR (Pt.428) 256, 268 – 269.
He pointed out that the ingredients of being in possession of stolen property contrary to Section 319A of the Penal Code cannot be accommodated within those of rape which consists of lack of consent and penetration, Ezigbo v The State [2012] All FWLR (Pt.638) 847, 852. He equally, drew attention to the ingredients of the offence of armed robbery,Olatinwo v. The State [2013] All FWLR (Pt.685) 312, 334; he cited Okosun v AG Bendel State [1985] 3 NWLR (Pt.12) 283, 298 for the offence of conspiracy.
He maintained that there is serious doubt about the guilt of the appellant and this ought to be resolved in his favour. Namsoh v The State [1993] 5 NWLR (Pt.292) 129, 146; Shehu v The State [2010] 2 -3 SC (Pt.1) 158, 178. He invited the Court to acquit and discharge the appellant.
RESPONDENTS SUBMISSIONS
Mumuni, the learned DPP, Kwara State, for the respondent, explained that, by the provisions of Section 319A of the Penal Code, to sustain the offence of being in possession of stolen property, the Prosecution must establish:
(a) that the accused person had in his possession or under his control something suspected of having been stolen or unlawfully obtained;
(b) that suspicion was reasonable;
(c) that burden of proof therein shifts to the defence which must satisfy the Court that the accused person came by the property lawfully, S. S. Richardson, Notes on the Penal Code Law (Zaria: ABU Press, 1963) 250.
He invited the Court’s attention to the findings of the Lower Court’s findings which prompted that Court’s affirmation of the appellant’s conviction and sentence, pages 148 – 149 of the record. He urged the Court not to disturb the concurrent findings of the Lower Courts, Adisa v. State [2015] 4 NWLR (Pt.1450) 475, 482.
He submitted that the Prosecution’s case was that all the exhibits, including Exhibit N1, were stolen in a robbery operation at the premises of PW2. The said PW2, the owner of the house that was attacked, testified that he was able to identify Exhibit N1 by the phone numbers and pictures he stored in the exhibit, namely, exhibit N1. Accordingly, he contended that the suspicion that exhibit N1 was stolen property was most reasonable in the peculiar circumstances of this case.
The Learned DPP drew attention to page 65 of the record where the appellant attempted an explanation as to how he came about the phone. He invited the Court to contrast this explanation with the appellant’s story in his extra-judicial statement where he insisted he got it from the first accused person, Muhammed Bello.
He also referred to the responses elicited from the appellant in cross-examination, page 65 of the record to the effect that the person, who called him [appellant] to buy the said handset, was not

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in a shop but was sitting in a church with a woman. The learned DPP contended that there was nothing for the police to investigate given the unsubstantiated stories of the appellant [as accused person].
Citing pages 148 – 149 of the record, he opined that the Lower Court’s findings and conclusion on the point agreed with the findings of the trial Court at page 85 of the record that the appellant was evasive and shifty in his account before the Court. He further pointed out that the trial Judge, who had the opportunity of seeing and hearing the witnesses, rightly concluded that the appellant had the obligation to explain how he came by the phone, exhibit N1.
In his submission, therefore, the Lower Courts affirmation of the appellant’s conviction under Section 149 (a)[now, Section 167 (a) of the Evidence Act was proper as the appellant failed to adduce any credible explanation, Madagwa v The State [1988] 15 NWLR (Pt.92) 60, 62; Ehimiyein v. The State [2017] All FWLR (Pt.868) 728,731.
He submitted that, where an accused person is charged with the commission of offence but the prevailing facts proved the commission of a lesser offence, the accused person could be convicted of the lesser offence under Section 218 (2) of the Criminal Procedure Code, Oladipupo v The State [1993] 6 NWLR (Pt.298) 131, 134.
He explained that the appellants and others were charged with the offences of criminal conspiracy, Armed Robbery and Rape, contrary to Sections 97 and 283 of the Penal Code and Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 respectively.
In proof of its case, the Prosecution led sufficient evidence which the trial Court found was unassailable that:
(a) exhibit N1 was a stolen property, citing the testimonies of PW2, PW5 and PW6, pages 48, 52 and 53 of the record;
(b) that exhibit N1 was found in the appellant’s possession, referring to the testimony of the appellant on pages 65 – 66 of the record; and
(c) that the appellant had knowledge that the property was stolen, citing the evidence of the appellant under cross examination on page 66 of the record.
He contended that the knowledge that a property is a stolen property is a matter of fact deduced from where the property was bought and the conduct of the accused person in relation to the property found on him. In the instant case, the appellant could not give any reasonable account of how he came by the property, exhibit N1, Section 218 of the Criminal Procedure Code (supra), Coray v. The Queen (1953) 2 WLR 965; Okwuwa v. The State (1964) All NLR 366.
He noted that Section 218 (2) of the Criminal Procedure Code is applicable to enable a Court secure a verdict of less serious offence where the evidence supports conviction for the lesser offence, Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1. He canvassed the view that the Lower Court appreciated the evidence on record, pages 150 – 151 of the record. He urged the Court to hold that the Lower Court rightly, affirmed the appellant’s conviction.
RESOLUTION OF THE SOLE ISSUE OF THE RESPONDENT
As indicated at the outset of this judgment, the appellant herein, and three others, were arraigned before the trial Court for the offences of Criminal Conspiracy, Rape and Armed Robbery contrary to Sections 97 and 283 of the Penal Code, Laws of Kwara State of Nigeria, and Section 1 (1) and (2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Volume 14, Laws of the Federation of Nigeria, 2004, respectively.
With the exception of the third accused person, who was acquitted and discharged sequel to his No Case Submission, the other accused persons were convicted and sentenced to two year’s imprisonment for being in possession of stolen items of property under Section 319A of the Penal Code. The offences of Conspiracy, Rape and Armed Robbery were not proved beyond reasonable doubt. That notwithstanding, the Lower Court affirmed his conviction for the lesser offence of being in possession of stolen items of property under Section 319A of the Penal Code.
At page 148 of the record, the Lower Court offered insights as to how the conviction for the lesser offence was arrived at. Listen to the Court:
I wish to state clearly that the section under which the appellant was convicted is exceptional in that the

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Prosecution is only required to show that it is reasonably suspected that something in the possession of the accused [person] is stolen property for the burden of proof to shift to the defence to show that he came by the thing honestly. The Prosecution is not required to prove that the property was stolen or unlawfully acquired.
PW2, the owner of the house that was attacked and the occupants robbed, testified that he was able to identify the handset, exhibit N1, because of the numbers he stored in and the messages and pictures he saved therein. Clearly, the suspicion that exhibit N1, was stolen property was reasonable…
From the evidence in this case, PW2 and his household were robbed…. Among the items stolen from the compound and which were identified by PW2, PW5 and PW6 are exhibits N, N1 and 5. Exhibit N1, a thing reasonably suspected of having been stolen, was recovered from the appellant, who could not properly explain how he came by the property. The only explanation he offered was that he bought exhibit N1 from one Hausa man whose address and name he did not know. He could also not produce any receipt evidencing the purchase. There was therefore sufficient evidence that proved that the appellant was guilty of the offence of being in possession of property suspected of having been stolen contrary to Section 319A of the Penal Code, a lesser offence than those offences for which the appellant was charged. The offence 
under Section 319A has a direct connection to the offence of robbery for which the appellant was charged, since exhibit N1 which was found in possession of the appellant is a product of the said robbery.
[pages 148 – 150 of the record; italics supplied for emphasis] As indicated earlier, learned counsel for the appellant, in impugning the reasoning of the Lower Court, contended that before substituting a lesser offence for the actual offence charged, the lesser offence must not only be a kindred offence with the actual offence, its ingredients must be clearly embedded in the actual charge. Thus, the question is whether the Lower Court was right in its conclusion.
THE JURISPRUDENCE OF THE SUBSTITUTION OF LESSER OFFENCES
Now, Section 218 of the Criminal Procedure Code provided thus:
(1)Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though 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 is not charged with it.
[Italics supplied for emphasis] The Lower Court placed reliance onAdava v The State (supra) as authority for its decision in affirming the trial Court’s conviction of the appellant on the “lesser offence.” In Adava v The State (supra), the appellants were charged with the offence of culpable homicide punishable with death under Section 221(a), read with Section 79 of the Penal Code, Cap. 89 the Laws of Northern Nigeria 1963, Vol. III (applicable in Kogi State). They each pleaded not guilty to the charge.
The prosecution called a total of five (5) witnesses and closed its case. Each of the appellants testified in his own defence and jointly called four (4) witnesses. At the end of the trial, and in a considered judgment, the learned trial Judge found each of the appellants guilty as charged, convicted them and sentenced them to death.
On appeal, it was held that the conviction of the appellants, under Section 221 (a), read with Section 79 of the Penal Code, for the offence of culpable homicide punishable with death, could not be upheld as the ingredients of the offence as required by law, had not been completely proved by evidence at the trial.
The Court noted that one of the most important ingredients of the offence, namely, the cause of death of the deceased was not proved. The Court pointed out that the evidence of the medical officer (PW1), who performed the post mortem examination on the deceased, and the medical report, (exhibit 1), which he wrote thereafter, were not useful at all in determining the cause of death of the deceased.
It was further held that although the deceased was alleged to have been shot on the stomach and he died within 48 hours, there was no evidence to show the extent of the injury on him, even though there was clear evidence that he was shot by the first appellant on the instruction of the second appellant.
In the Court’s view, this however, must have caused bodily pain to the deceased which constituted the ingredients of the offence of voluntarily causing hurt without provocation as defined by Section 240 and punishable under Section 246

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of the Penal Code. To the question whether the appellants, who were not charged with this offence, could be convicted of it, the Court returned an affirmative answer. It explained its reason thus:
By Section 218 of the Criminal Procedure Code Cap.30 of Laws of Northern Nigeria 1963 applicable to Kogi State, an accused person can be convicted of a lesser offence if proved even though he is not charged with it. See Okwuwa v. State (1964) 1 All NLR 366. The offence of voluntarily causing hurt without provocation is proved in this case against the appellants contrary to Section 246 of the Penal Code.
[Italics supplied for emphasis] In Ezeja v The State (supra), the appellant was originally charged with causing grievous hurt to Cyprian Okpala by shooting and wounding him with his service pistol but the evidence at the trial disclosed a lesser offence of causing hurt without provocation hence the conviction of the appellant by the trial Court under Section 246 of the Penal Code.
These decisions have to be contrasted with The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, where this Court held that:
It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence. See Okwuwa v. The State (1964) 1 All NLR 366 where this Court stated in a passage thus:
The lesser offence is a combination of some of the several particulars making up one offence charged: in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged.”
Under our criminal jurisprudence the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law

[Italics supplied for emphasis] In Agugua v The State (2017) LPELR-42021 (SC) 54 -55; E- A, this Court explained that:
… the offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove. The law is 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 and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See The Nigerian Air Force v. Kamaldeen[2007] 2 SC 113.
[Italics supplied for emphasis] In Okobi v The State [1984] 7 SC 47; (1984) LPELR -2453 (SC), one of the questions that arose for determination was whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act entitled a 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 [in pari materia with Section 218 of the Criminal Procedure Code].
Speaking for this Court, Obaseki, JSC, at page 23; A – C, made the following enduring pronouncements:
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 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 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.

[Italics supplied for emphasis] His Lordship had explained the ways of enabling the Court to utilise its powers under the Criminal Procedure Law [and here I add the Criminal Procedure Code] thus:
… to enable the Court to utilise 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 Lawexercise the jurisdiction conferred by the Act to convict of an offence not under the Act.

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(Italics supplied for emphasis)
Not done yet, His Lordship announced, most authoritatively, that:
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 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.

[Italics supplied for emphasis] Explaining the context of the nuanced usage of lesser offence, the distinguished jurist opined that:
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 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 manslaughter.
[Italics supplied for emphasis] In Nwachukwu v The State [1986] 2 NWLR (Pt.25) 765; [1986] 1 SC 477; (1986) LPELR – 2085 (SC), Karibi-Whyte, JSC threw further light on the application of Section 179 of the CPL [in pari materia with Section 218 of the CPC]. His Lordship first cited the decision in:
Torhamba v. Police (1956) N.R.N.L.R. at p. 94, [where] the Court had attempted to give a guide as to the determination of what constitutes a lesser offence [thus]:
a lesser offence is a combination of some of the several particulars making up the offence charged, in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged when one is considering action under Section 179, one should write out 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. An authoritative example is furnished by the case of Cooray v. The Queen [1953] 2 WLR 965; [1953] AC 407.

His Lordship, then, proceeded thus:
It must be kept constantly in mind that Section 179 in issue in this appeal is concerned [with] where the lesser [offence] charged in respect of which 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 words are ‘lesser and not ‘another’ offence.’ Thus, where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption, which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence. It is therefore important to observe from the judicial decisions and the provisions that for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed –
Firstly, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences.
Secondly, the evidence led and facts found, though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence. Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This last mentioned is ordinary common sense. The greater includes by necessary implication the lesser.

My Lords, I have deliberately embarked on this tour d horizon to demonstrate that the Lower Court was caught in a mix-up in the application of Section 218 (2) of the Criminal Procedure Code (supra). With respect, I take the humble view that the appellants counsel was right in his submission that “the lesser offence must not only be a kindred offence with the actual offence charge, its ingredients must be embedded in the actual charge.” Ezeja v. The State [2008] All FWLR (Pt.428) 256, 268 – 269.

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This much is clearly evident in the decisions considered above, The Nig Air Force v Kamaldeen (supra); Agugua v The State (supra); Okobi v The State (supra); Nwachukwu v The State [supra]. Indeed, only recently, this Court in Agugua v The State (2017) LPELR – 4202 (SC) 54 -55; E -A, relying on The Nig Air Force v Kamaldeen (supra), restated the position that:
The law is 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 and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See, The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113; 154-55; E – A.
Against the above background, I agree with the appellant’s counsel that the Lower Court, wrongly placed reliance on Adava v. The State (supra): a decision which is clearly distinguishable from the decisions in The Nig Air Force v Kamaldeen (supra); Agugua v The State (supra); Okobi v. The State (supra); Nwachukwu v. The State [supra] which are the relevant decisions in line with the facts of this case.
Accordingly, I allow the appeal and set aside the concurrent findings of the Lower Court as they were anchored on wrong and inapplicable principles. I hereby acquit and accordingly discharge the appellant. The judgments of the High Court of justice, Kwara State and the Court of Appeal, Ilorin Division are hereby set aside.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Nweze, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is meritorious and should be allowed. I too will allow the appeal and set aside the concurrent findings of the Lower Court. The judgments of the two Courts below are set aside. Accordingly, the appellant shall be and is hereby acquitted and discharged.
Appeal allowed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read before now a copy of the judgment of my learned brother CHIMA CENTUS NWEZE JSC just delivered, I adopt same as mine in allowing the appeal and abiding by the consequential orders reflected in the said lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, CHIMA CENTUS NWEZE, JSC had earlier obliged me with a copy of the judgment just delivered. I agree entirely with the sound reasoning therein and the conclusion that there is merit in this appeal.
The power of a Court to convict an accused person for a lesser offence than the one charged is exercised based on certain guidelines. Where the Court exercises this power, the evidence in support of the lesser offence must consist of a combination of some of the essential elements of the original offence charged. The particulars of the lesser offence must be capable of being subsumed in the original charge such that it is possible to carve out the particulars of the lesser offence from the particulars of the original charge. See: N.A.F. Vs Kamaldeen (2007) 7 NWLR (Pt.1032) 164 @ 190 D  F; Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1; Agugua v. The State (2017) 2 SC 113; Nwachukwu v. The State (1986) 2 NWLR (Pt.250 765. In Nwachukwu’s case (supra), His Lordship Karibi-Whyte, JSC, gave a useful guide on how to determine whether a lesser offence is made out. He suggested that the particulars (or ingredients) of the offence should be set out and the Court (or counsel) should consider whether it is possible to delete some words from the particulars of the offence charged leaving a residue of particulars making up the lesser offence e.g. a person charged with wounding with intent to do grievous harm may be convicted of unlawful wounding where the intent to do grievous harm is not proved. Similarly, a person charged with armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 LFN 2004 may be convicted of robbery simpliciter where there is no evidence that the accused was armed.
It is also pertinent to note that where it is intended to convict for a lesser offence, that lesser offence must have been created by the same law governing the substantive office. The position was illustrated very clearly in Okobi v. The State (1984) 7 SC 47; (1984) LPELR  2453 (SC) 1 @ 23 A-C where the appellant was charged with offences under the Robbery and Firearms (Special Provisions) Act. The trial High Court found the offences not proved but invoked Section 179 (1) of the Criminal Code to convict him of obtaining by false pretences under the Criminal Code.
His Lordship Obaseki, JSC stated thus:

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“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 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 under which he was tried for the sole purpose of securing his conviction.”
In a similar scenario in this case, the appellant was acquitted and discharged of the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act but convicted of the lesser offence of being in possession of property suspected to have been stolen under Section 319 A of the Penal Code.
I agree with my learned brother in the lead judgment that the conviction and sentence cannot be allowed to stand and the Lower Court erred in affirming it. I agree that there is merit in the appeal and it should be allowed. I hereby allow it and abide by the consequential orders made in the lead judgment.
EJEMBI EKO, J.S.C.: I had the privilege of reading in draft the judgment just delivered by my learned brother, C. C. Nweze, JSC. I have nothing much further to add to the judgment. I hereby adopt it.
Just by way of epilogue: the offence of being in possession of property reasonably suspected of having been stolen under Section 319A of the Penal Code Law of Kwara State is not replicated in the Robbery and Firearms (Special Provisions) Act (hereinafter called “the Act”). The nearest offence under the Act that can be equated with the offence under Section 319A of the Penal Code is the offence under Section 5 of the Act; that provides –
5. Any Person who receives anything which has been obtained by means of any act constituting an offence under this Act be guilty of an offence under this Act and shall be liable upon conviction to be sentenced to imprisonment for life.
The Appellant was tried for the offence of robbery under Section 1(1,) & (2) of the Act that provide –
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 21years.
(2) If –
(a) any offender mentioned in Subsection (1) of this Section is armed with any firearms or any offensive weapon or is in company of any person so armed; or
(b) at or immediately before 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 be sentenced to death.

The Act intends that its penalty for the offences under Sections 1 and 5 shall be punitive and to serve as deterrence. It appears the sentence of two (2) years imposed on the Appellant upon his conviction for the offence under Section 319A of the Penal Code was rather too lenient (appearing to be a mere slap on the wrist) if that offence were jurisprudentially a lesser offence in relation to the substantive offence of robbery under Section 1(1) & (2) of the Act.
The learned trial Judge if he was mindful, upon the failure of the charge for the substantive offence of robbery under the Act, to convict for a lesser offence it behoved him to look within the Act under which the substantive offence was charged. Rather, he went out of the bounds of the Act to convict and sentence the Appellant for an offence under the Penal Code with an entirely different policy or punishment. If he had invited, on the principle of audi alteram partem under Section 36(1) of the Constitution, the opinion of the prosecutor and the defence on the lesser offence the error would have been minimised or completely averted.
The lead judgment has said it all. It is hoped that prosecuting Counsel would learn their lesson from this jurisprudence when framing charges. The trial Courts should also take their time to appreciate and digest the jurisprudence when exercising their power to convict for the lesser offence upon the failure of prosecution to establish the substantive offence charged. The particulars constituting the lesser offence must be carved out of the particulars of the substantive offence charged: OKWUWA v. THE STATE (1964) 1 ALL N.L.R. 365. In other words, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged: NIGERIAN AIR FORCE v. KAMALDEEN (2007) 2 S.C. 113.
It should also be borne in mind that resort to the conviction for the lesser offence should not be pretext for, or an artful scheme of capriciously, avoiding the harsher sentence for substantive offence originally charged. That is a clear abuse of power and abdication of judicial responsibility.
With this postscript, I hereby adopt the lead judgment, including all the orders made therein. Appeal allowed.

Appearances

Isiaka Abiola Olagunju. –For Appellant

AND

Jimoh Adebimbe Mumini, DPP, Kwara State Ministry of Justice, with him, Issa Zakari. –For Respondent

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