NWACHUKWU V. STATE (1986)

Alternative Citation: (1986) All N.L.R. 496

JOHN NWACHUKWU V. THE STATE

In The Supreme Court of Nigeria

On Friday, 25th April, 1986

 (SC. 233/84)

Before Their Lordships

KARIBI- WHYTE Justice of The Supreme Court of Nigeria

OPUTAJustice of The Supreme Court of Nigeria

COKER Justice of The Supreme Court of Nigeria

KAYODE ESOJustice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAISJustice of The Supreme Court of Nigeria

Between

JOHN NWACHUKWU (APPELLANT)

v.

THE STATE (RESPONDENT)

…………………….A…………………….

Karibi-Whyte, J.S.C.-On the 30th January 1986 I dismissed this appeal after hearing Counsel for the appellant and respondent and indicated that I shall give my reasons for so doing today. Herein below are the reasons.

Appellant with two others were charged before the Ikeja High Court with the offence of Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. At the conclusion of the trial, the trial Judge found only the Appellant guilty of the offence as charged on the information. The other two were found not guilty and were accordingly acquitted and discharged. Appellant was sentenced to death by hanging or by firing squad as the Governor of Lagos State may decide. Appellant appealed against his conviction to the Court of Appeal. The court of Appeal allowed the appeal and set aside the conviction for Robbery and Firearms (Special Provisions) Act 1970. In its place a conviction for the offence of Robbery under section 1(1) of the same Act, with imprisonment for 21 years was substituted.

The appeal before this Court is against the judgment of the Court of Appeal. There are two grounds of appeal which are reproduced as follows:-

GROUNDS OF APPEAL

“A.     The learned judges of the Court of Appeal erred in law in changing the charge of Robbery & Firearms under the Robbery & Firearms Decree 1970 (as amended) to simple robbery and found the Appellant guilty of the ordinary robbery without calling on the parties to address it on the desirability of such holding.

PARTICULARS

(i) The learned judges ought to have called for addresses on the point before deciding.

(ii) If they had, it would have been submitted to them that such a holding in the circumstance of this case is not open to them

(iii) The elements of ordinary robbery are not made out in the Record.

B.      The learned judges of the Court of Appeal erred in law in reducing the charge to that of ordinary robbery when the evidence before the Court cannot sustain such a finding law.”

Counsel for the Appellant Otunba Ajayi-Okununga, sought and was granted extension of time within which to appeal, and for leave to appeal to this Court against the judgment of the Court of Appeal. The Court of Appeal had refused applicant leave to appeal to this Court.

…………………….B…………………….

The judgment of the Court of Appeal appealed against was delivered on the 3rd October, 1985. It is a final decision and by virtue of Section 31(2)(b) of the Supreme Court Act 1960, right of appeal can be exercised within 30 days. The grounds of appeal being one of law, appellant only required extension of time to appeal. Leave to appeal is unnecessary. Since this is a matter involving a long and mandatory term of imprisonment it was considered expedient to grant extension of time to the appellant to enable arguments on the grounds filed to be addressed to this Court.

Mr A.N. Kessington, Assistant Director of Public Prosecutions, Lagos State opposed the application. He submitted quite erroneously that this Court by virtue of Section 31(4) of the Supreme Court Act, 1960, has no jurisdiction to grant extension of time within which to appeal since the conviction involved a sentence of death. The short answer to that submission is that the appeal is not against the judgment of the High Court but against the judgment of the Court of Appeal where the conviction was imprisonment for 21 years. Counsel then spelt out four conditions as prerequisite for the grant for the extension of time. The first is that appellant must show that he has a right of appeal as of right. Secondly, it was contended by counsel to the Respondent that the affidavit must give satisfactory explanation for the delay. Thirdly, the ground of appeal must show good cause why the appeal should be argued. Mr Kessington has cited to us an impressive array of relevant cases in support of each condition. I do not think these cases are necessary. As I have said, the grounds of appeal having been founded on law, there is a Constitutional right of appeal.-See Section 213(3) of the Constitution 1979. In respect of the second condition, the averments in paragraph 2(a) (b)(c)(d) of the supporting affidavit satisfactorily explain the reasons for the delay.

The third and fourth conditions have been satisfied by the nature of the case against which the appeal has been brought.

It is for the above reasons I granted extension of time for leave to appeal. The Court waived the requirements to filing briefs in respect of the appeal. The brief filed in respect of the application for extension of time to appeal was accepted as sufficient in respect of the appeal. Otunba Ajayi-Okunuga, Counsel for the appellant has filed a brief of argument in support of the application. Mr Kessington, sought and was granted leave to reply without filing a brief. He was of the impression that arguments in the appeal would be heard on a future date. His brief as that of Counsel for the appellant was limited to the issue of the application for extension of time and for leave to appeal.

Counsel to the appellant submitted that the issue raised in the appeal was whether an Appellate Court ought to determine an appeal on a point in which it did not give the parties an opportunity of being heard? It was submitted that the Court after hearing argument on a charge of Section 1(2)(a), went on to find the Appellant guilty on Section 1(1) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. It was submitted that this latter issue did not arise and was therefore not argued before the Court of Appeal.

…………………….C…………………….

I consider it appropriate and helpful to state the facts of the case on which the Court of Appeal’s judgment was founded, before considering the arguments of Counsel. The facts, briefly stated are that at about 9.30 p.m. of the 19th October, 1979, Alhaji Mohammed Zil and Mohammed Saleh were returning to their house at Amukoko Apapa, from the Cattle market at Ojo. They were both walking home. Mohammed Zil was in front, and Mohammed Saleh behind him. He was carrying a bag (tendered as Exhibit C) containing the sum of N4,990. Mohammed Saleh was the P.W.4 in the Court of trial. Mohammed Sale (P.W.4) said that at a point, the Appellant accompanied by some other persons, brought out a pistol and pointed it at him, and demanded from him the bag he was carrying; or to lose his life. Appellant snatched the bag, and he and his confederates started running away. Mohammed Saleh (P.W.4) gave chase and pursued appellant and his confederates to a house at No. 82 Cemetry Road, Amukoko. P.W.4 raised alarm and persons so attracted to the scene helped to surround the house where appellant and his confederates had run into. At this point Mohammed Yisa went to Ajegunle Police Station to call the Police. On searching 82 Cemetry Road, appellant was found lying under a bed on top of the bag containing the money. Appellant’s confederates were also arrested. When the bag claimed by Mohammed Saleh (P.W.4) and found with appellant was opened, the sum of N4,990 and a toy gun was found in it. After the trial, appellant was convicted of the offence of Robbery punishable under Section 1(2) (a) was set aside, and appellant was convicted under Section 1(1) of the Robbery and Firearms (Special Provisions) Decree 1970.

The only issue raised in this appeal and necessary for determination before this Court is whether the court of Appeal was right on the evidence before them having found appellant not guilty of the offence under Section 1(2) (a) to convict him of offences under Section 1 (1) without calling on Counsel to address the court on the desirability of such a Course.

It is not disputed by the Respondents that before the conviction of appellant, he was not confronted with the charge of the lesser offences and asked to plead to it. This however would seem to be the main thrust of the case of the Appellant in this Court. The question is whether this amount to a denial of fair hearing.

In their consideration of the case of the Appellant in the Court of Appeal, the learned Justice of the Court of Appeal Nmaemeka-Agu J.C.A. carefully distinguished between facts sufficient to support a conviction for the offence of robbery under Sub-Section (1), from those resulting in the imposition of the aggravated offence under Sub-section (2) of Section 1. He went on to state that for a conviction under sub-section (1) to be sustained, the offence of robbery as defined under Section 9 of the Act must have been proved. In respect of the aggravated offence, under Sub-section (2), the offence as defined under Section 9 must be proved to have been committed with “firearms” or “offensive weapon”.

After considering the definition of Firearms under the provision of the Decree, the learned justice of the Court of

Appeal held that a “toy gun” does not fall within the meaning of “Offensive weapon”. In his opinion, the operative words in the definition of “offensive weapon” are “for use for causing injury to the person or intended…for such use.” Thus in holding that the offence with which appellant was charged could not come within Sub-Section (2) it was held, as follows:-

“As a toy-gun is not normally made or adapted for causing injury to the person and is not capable of being used as an offensive weapon. It follows therefore that what was used by the appellant and his collaborators for the alleged offence was neither a firearm nor an offensive weapon.”

The learned justice of the Court of Appeal went on to give reasons why Appellant could be convicted under Sub-Section (1) although he was charged under Sub-Section (2). He considered Sub-Section (1) of Section 1 and proceeded as follows

“…for the offence of robbery, stealing by putting a person in fear of violence is enough to constitute the offence. It appears to me if it is proved that the appellant and his accomplices threatened to use actual violence with what merely looked like a gun on the 4th P.W. and Mohammed Zil at the time they snatched the money from them, and if all the other facts which could constitute the offence of robbery are proved, they could be convicted of the simple offence of robbery; but the aggravated sentence could not be rightly imposed on them.”

…………………….D…………………….

What the learned Justice of the Court of Appeal would seem to be saying and which was obvious from his conclusion was that the learned trial Judge was wrong in convicting Appellant of the offence of robbery with firearms under Sub-Section (2) of the Decree, since the toy gun used for the commission of the offence could not conceivably fall within the definition of firearms. He however has no doubt that the fact as found by the learned trial Judge were sufficient to sustain the offence of simple robbery under sub-section (1), where mere threat to use actual violence was sufficient. It was on this alternative ground that the Court of Appeal set aside the conviction by the learned trial Judge under sub-section (2) and substituted a conviction under sub-Section (1).

On a careful reading of the grounds of appeal, it is obvious that appellant is disputing the facts as found by the learned trial Judge and affirmed by the Court of Appeal. The issue, as I have already pointed out, is whether the conviction for the lesser offence without calling on the parties to address the Court was proper, and whether there was sufficient evidence on which the Court of Appeal could convict of the lesser offence.

This Court has times without number stated unequivocally, citation of authorities no longer seems necessary, that it is only in very exceptional cases, and where the injustice of the findings of fact are egregious and the Court has no doubt that the decision is wrong will this Court interfere with concurrent findings of facts by the two courts below.-See Ohere v. Ohere (1942)2 WACA. 1; Otubu & Ors v. Guobodia (1984) 10S.C. 130. The reason is both elementary and fundamental. The primary function of seeing and hearing the witnesses and evaluating, assessing and weighing the credibility of viva voce evidence lies with the trial Court.

The secondary function of considering whether the trial court was right does not empower the appellate court to arrogate to itself the role of the trial court whilst hearing evidence. Hence the Court of Appeal is not permitted to disturb a judgment on the facts if there was sufficient evidence in support of the finding merely because it would have held differently. It could however do so where the trial Court has failed to discharge its function.

In this case the Court of Appeal has affirmed all the findings of fact made by the learned trial Judge. The only difference in the view held was not with respect to the facts, but as to the law, that is, whether a toy-gun is an offensive weapon within the definition of Section 9 of the Decree.

This brings me to a consideration of the grounds of appeal urged on us. These are two grounds which are better considered together. The first ground raises the often cited defence of fair hearing, under S.33(b) of the Constitution, 1979, and the second ground deals with the question whether in the absence of the evidence relating to the toy-gun, there was no sufficient evidence in respect of which the appellant could be convicted of any offence. There is no doubt if the defence of fair hearing which is fundamental avails the appellant, that is the end of the matter. The issue whether there was sufficient evidence to support conviction for an offence will therefore not arise.

Counsel for the appellant Otunba Ajayi-Okunuga, in her brief of argument rather put the issue in a somewhat attractive manner as follows:-

“The issues proposed to be raised in the Appeal itself is whether an Appellate Court ought to determine on Appeal on a point in which it did not give the parties an opportunity of being heard as to that point.”

…………………….E…………………….

The contention of counsel in the brief was that since the successful argument in the Court below was that appellant did not commit the aggravated offence of robbery punishable with death, the appellant on the facts could not have committed the lesser offence in respect of which a conviction was entered in the Court below. Counsel whilst admitting that the Court of Appeal under Section 20 of its Act and S.179 of the Criminal Procedure act had the power to substitute a lesser offence, should have given the appellant an opportunity of being heard on the issue. Counsel cited Okonofua & Ors v. The State (1981) 6-7 SC 25. It was conceded that Section 179(2) of the Criminal Procedure Act under which the Court of Appeal acted, did not specifically require that the accused be heard. It was however submitted that the section is subject to the overriding provisions of Section 33 of the Constitution 1979. Counsel then cited and relied on the dictum of Oputa J.S.C. in Josiah v. The State (1985) 1 NWWLR. 127.

Mr Kessington, for the Respondent in a short reply referred to Section 179(2) of the Criminal Procedure Act and S.20 of the Court of Appeal Act, and submitted that on the facts as found on the evidence before the Court, the substitution of a lesser offence was proper.

I have already set out the facts relied upon by the Court of Appeal earlier in this judgment. I shall now set out the provisions of Section 179 of the Criminal Procedure Act, and the relevant parts of sections 1 and 9 of Robbery and Firearms (special Provisions) Decree No. 47 of 1970 as amended which are as follows-

Robbery and Firearms (Special Provisions) Decree No. 47 of 1970

“Section 1 (1) Any person who commits the offence of robbery shall upon trial and conviction under this Decree be sentenced to imprisonment for not less than twenty-one years.

(2)     If-

(a)     any offender mentioned in subsection (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or

(b)     at or immediately before or immediately after the time of the robbery the said offender wounds any person, the offender shall upon conviction under this Decree be sentenced to death.”

Section 9 which is the definition section defines inter alia “firearms”, “offensive weapon”, “robbery”.

“firearms” includes any canon, gun, rifle, carbine, machine-gun, capgun, flint-lock gun, revolver, pistol or other firearm, whether whole or in detached pieces;

“offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon, but does not include a firearm.

“robbery” means stealing anything, and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

…………………….F…………………….

Thus the offence of robbery punishable under S.1(1) of the Decree is defined in Section 9 of the Decree.

Section 179 of the Criminal Procedure Act provides as follows-

“(1)    In addition to the provisions hereinbefore 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 a 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 reading together of Section 1 and 9 of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by Decree No. 8 of 1974 clearly show that where a person takes away from anything from another permanently and with intent to do so, and forcibly, using threat or actual violence at the time of such taking, or using such threat or violence to retain or prevent or overcome resistance to the taking of or retention of the thing so taken, the offence of robbery under Section 1(1) of the Decree has been committed and is punishable with imprisonment for twenty-one years. This seems to be the lesser of the aggravated offence of the same kind of offence provided for under Section 1(2)(a)(b) of the same decree. The circumstances of aggravation results from the introduction of “firearms” or “any offensive weapon” by the accused, or merely being in company of a person so armed; or where the accused “immediately before” or immediately after the time of robbery wounds any person. In each case, whether in S.1(1)(2) robbery as defined in Section 9 of the Decree is an essential ingredient of the offence. It follows that where robbery simpliciter is committed, unaccompanied by the use of firearms as defined under Section 9, this is the lesser of the aggravated offence under Section 1(2)(a) of the Decree. I think the analysis of Nnaemeka-Agu, J.C.A. of the constituent ingredient of the offences is right and unassailable. Counsel has not sought to contend otherwise.

It is necessary therefore to consider whether on the facts as stated the Court of Appeal exercising the powers under Section 179 of the Criminal Procedure Act was entitled to convict appellant who was charged under Section 1(2)(a) under the lesser offence under Section 1(1).

Section 179 of the Criminal Procedure Act has been drafted with admirable clarity. There appears to be no aspect of the section or any of the subsections which is ambiguous. For instance subsection (1) which speaks of persons charged with an offence consisting of several particulars, provide for the possibility of only a combination of some of these particulars constituting a lesser offence in respect of which the accused was not charged. It goes on to provide that a conviction can lie in respect of such lesser offence either on a trial of the offence charged or by the accused pleading guilty to such lesser offence, although he was not charged with it-See The Queen v. Nwaugoagwu (1962) 1 All N.L.R. 294.

Sub-section 2 is simpler, although the differences are marginal. Like sub-section 1, the lesser offence is part of the greater offence charged, but unlike sub-section (1) the greater offence charged does not have to consist of several particulars, a combination only of which constitute the lesser offence. In this case the facts produced merely reduce the offence charged to a lesser offence. Also in this case there is no requirement that the accused so convicted should have been charged with this lesser offence-See Shosimbo v. The State (1974) 10 S.C. 1.

…………………….G…………………….

The points of law raised before us in this appeal by Otunba Ajayi Okunnuga is not without precedents in our Court. In Akwule & Ors. v. The Queen (1963) 1 All N.L.R. 193, the provision of S.128 of the Criminal Procedure Code, in pari materia with Section 179 in issue was relied upon to substitute the offence under S.132 for the offence of criminal breach of trust under S.135. The contention of appellant was that 1st appellant not being a Banker the charge laid under Section 315 was a nullity. He was however guilty of the lesser offence under S.312 of criminal breach of trust.

Again in Agumadu v. The Queen (1963) 1 All N.L.R. 203 followed in Okwuwa v. State (1964) 1 All N.L.R. 366 the appellant was charged with the offence of attempted murder under S.320(1) of the Criminal Code, the evidence before the Court disclosed that appellant wounded the victim, but there was no evidence of intention to kill. In convicting appellant of unlawful wounding, Brett, F.J., said

I have stated above the two circumstances where Section 179 will be applicable. In Torhamba v. Police (1956) N.R.N.L.R. at p. 94, the Court had attempted to give a guide as to the determination of what constitutes a lesser offence-It was said.

“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 W.L.R. 965; (1953) A.C. 407.”

There are other decisions such as Shosimbo v. State (1974) 10 S.C. 91; Oyediran v. Republic (1967) N.M.L.R. 122; R. v. Tyson (1945) 11 W.A.C.A 90; R. v. Adokwu (1952) 20 N.L.R. 103.

It must be kept constantly in mind that S.179 in issue in this appeal is concerned where the lesser charged in respect of which accused 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.

…………………….H…………………….

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.

In the appeal before us, the only ingredient in the charge which promoted the offence from one of robbery simpliciter under S.1(1) to aggravated robbery under S.1(2)(a) was the interpretation given to the effect of the toy-gun by the learned trial Judge. This having been rejected, and correctly too, by the Court of Appeal, the fact of taking away the bag of money with threat of violence which is sufficient for robbery under S.1(1) was established.

I now turn to the contention that Section 179 which provides that an accused person could be convicted of an offence with which he was not formally charged if it was a lesser offence of an aggravated offence in respect of which he was charged is a denial of his right to fair hearing and accordingly unconstitutional and to that extent void.

This same point of law was raised in the Court of Appeal by Counsel for the appellant in Maja v. The State (1980) 1 N.C.R. 212. The following are the facts in Maja’s case.

Appellant who was charged with the offence of murder contrary to S.319(1) of the Criminal Code, attempt to murder, contrary to S.320(1) of the Criminal Code, and wounding with intent contrary to Section 332(1) of the Code. At the trial, the prosecution withdrew the charge of murder and pursued the two remaining charges. At the end of the trial appellant was acquitted on all the charges but the Court invoking Section 179 of the Criminal Procedure Law substituted a conviction for unlawfully doing grievous harm contrary to Section 335 of the Criminal Code. Appellant appealed to the Court of Appeal. It was contended on appeal that (1) the substitution of conviction under S.335 was contrary to S.22(5) of the Constitution 1963 (now S.33(6)(a), Constitution 1979) in that appellant was convicted of an offence of which he had no notice (2) the conviction was contrary to S.22(8) of the Constitution 1963 (now S.33(9)) since appellant had been convicted of the offence for which he was charged, the proceedings were concluded, and a conviction on the facts for another offence was improper. (3) the conviction was contrary to S.22(1) of the Constitution 1963 (now S.33(1)) in that the Court did not call on the appellant to show cause why he should not be convicted on the substituted charge, nor even to address the Court on that charge, and in effect the Court recorded a conviction without the appellants’ having had a proper hearing on the charge. This last mentioned ground is the principal complaint of appellant before us. The Court of Appeal held that Section 22(1) of the Constitution 1963 was not violated merely because appellant was not asked to show cause why he should not be convicted of an offence included in that charge, or giving him opportunity to address the Court on the issue.

I have already analysed the provisions of Section 179 of the Criminal Procedure Act, and stated their purport. There is no doubt that the lesser offence in respect of which an accused is convicted must be included in the substance of the charge and the evidence relied upon for conviction must support the lesser offence.

…………………….I…………………….

On the facts before the Court of Appeal, it is difficult to contend that at the trial appellant was not aware of the fact of the circumstances that he was being tried for the offence of robbery, the aggravated nature of the offence merely resting on the circumstances of his commission of the offence. Thus as was stated in R. v. Adokwu 20 N.L.R. at p. 105 by Bairamian, J., as he then was,

“If he is to be convicted under Section 179 of the Criminal Procedure Ordinance, of a lesser offence this must be on facts embraced in the particulars of the greater offence charged, otherwise he cannot properly be deemed to have notice of the lesser offence.”

Counsel for the appellant relied on the dictum of Bello, J.S.C. in Okonofua v. The State (1981) 6-7 S.C. 1, at p. 25. It seems that the dictum was not supported by the conclusion. As Bello, J.S.C. said at p. 26 “it appears therefore that before his conviction, the 1st appellant had knowledge in advance that the Court might convict him of the offences by killing by false pretence and had opportunity to meet, if he had so wished these offences…” There is no doubt that appellant in this case had notice that he was standing trial for armed robbery. Appellant had defended himself on the allegations and no additional evidence or facts other than those led at his trial was introduced to support his conviction for the lesser offence.

Section 179 in both sub-sections clearly in the expression “although he was not charged with it” exclude the requirement of a formal charge or of asking the appellant/accused convicted of a lesser offence than that charged to say something before the conviction. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested. Above all, the lesser offence being implicit in the greater offence, accused and in this appeal appellant, cannot feign ignorance of the offence.

Both grounds of appeal accordingly fail.

Eso, J.S.C.-I had a preview of the reasons given by my learned brother Karibi-Whyte, J.S.C. I agree with the Reasons and will adopt them as my reason for dismissing the appeal.

Uwais, J.S.C.-This appeal was dismissed on 31st January, 1986 and our reasons for the dismissal were reserved. I now give my reasons.

The grounds on which the appeal was brought read thus:

“A.     The learned judges of the Court of Appeal erred in law in changing the charge of robbery & firearms under the Robbery & Firearms Decree 1970 (as amended) to simple robbery and found the appellant guilty of the ordinary robbery without calling on the parties to address it on the desirability of such holding.

…………………….J…………………….

PARTICULARS

(i)      The learned judges ought to have called for addresses on the point before deciding.

(ii)     If they had, it would have been submitted to them that such a holding in the circumstance of this case is not open to them.

(iii)    The elements of ordinary robbery are not made out in the Record.

B.      The learned judges of the Court of Appeal erred in law in reducing the charge to that of ordinary robbery when the evidence before the Court cannot sustain such a finding law (sic).”

In the course of her argument learned Counsel for the appellant contended inter alia that the appellant did not have fair hearing in the Court of Appeal, because he was not called upon to address the Court before he was convicted of the lesser offence of simple robbery. She submitted that the provisions of section 33 of the Constitution had been violated. Although this argument is attractive, it is clear from the grounds of appeal that the constitutional point which the argument is in support of is not in fact raised in any of the grounds of appeal nor in the appellant’s brief of argument. It is clear therefore that the argument is, with respect, irrelevant to the appeal and should in my opinion be ignored.

With regard to the rest of the argument in the appeal I have read in draft the reasons for judgment read by my learned brother, Karibi-Whyte, J.S.C. I entirely agree with the reasons and I adopt them as mine.

It was for these reasons that I agreed that the appeal should be dismissed and the conviction and sentence passed on the appellant by the Court of Appeal should be affirmed.

Coker, J.S.C.-This appeal was dismissed on the 30th January 1986 after listening to learned Counsel for the appellant and the Deputy Director of Public Prosecutions, Lagos State. And as indicated on that day, I now give my reasons for doing so.

The appellant and two other persons were charged before Agoro, J., in the High Court of Lagos with the offence of robbery and stealing a sum of N4,990.00 while armed with a gun, an offence punishable with death under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970 as amended.

The learned trial Judge found that of the three accused persons only the appellant robbed the victim, Alhaji Mohammed Zil, of N4,990.090 cash with threat while armed with a toy gun but sentenced him to death under section 1(2)(a) of Decree No. 47 of 1970 as charged. On appeal to the Court of Appeal, the court found that a toy gun is not an offensive weapon as defined by the Act and accordingly quashed the sentence of death and substituted a sentence under section 1(1) of the Decree, No. 47 of 1970 punishable with a minimum term of twenty one years imprisonment.

Now the thrust of the complaint in this appeal is that the Court of Appeal did not hear the appellant or his counsel before substituting a conviction and sentence under a different section of the Act.

I agree with the reasons as extensively discussed in the lead judgment of my learned brother Karibi-Whyte, J.S.C. which draft I have had the privilege of previewing. I agree there is no substance in the contention.

…………………….K…………………….

I agree with him that while the offences of robbery under section 1 of the Decree is one and the same offence, different punishments are provided depending on the gravity of the act. The ingredients are the same. The only difference is that if the accused person is armed with firearms or other offensive weapon at the time of committing the offence, the punishment becomes aggravated to a death sentence. The absence of possession of arms or other offensive weapon by the accused person at the time of committing the offence reflects the lesser punishment. The offence under sub-section (1) is bare or naked robbery while robbery under section 1, sub-section(2) is punishable with death.

The court below was competent and right to have substituted a verdict of guilty under sub-section (1) of section 1 of Decree No. 47 of 1970 without calling the appellant or his counsel to address it for an offence which carries a lesser punishment than the offence with which the appellant was initially charged.

In conclusion, I entirely agree with the reasons given by my learned brother Karibi-Whyte, J.S.C. which I adopt as mine.

Oputa, J.S.C.-On the 30th January 1986 after a careful study of the record of proceedings in this case, as well as the Briefs filed by learned Counsel for the appellant and the respondent respectively; and after listening to learned Counsel in elaboration of points taken up in their respective Briefs, the Court unanimously dismissed the appeal and reserved its reasons for judgment for Friday, 25th day of April 1986. I have had the advantage of a preview in draft of the lead Reasons for Judgment just delivered by my learned brother Karibi-Whyte, J.S.C. I am in complete agreement with his reasoning as well as his conclusion.

learned Counsel for the appellant, Otunba Ajayi-Okunnuga, prefixed her Brief with excerpts from my judgments in Godwin Josiah v. The State (1985) 1 N.W.L.R. 125 at p. 141. This dealt with what order an appellate court should, in the interest of justice make where an appeal is allowed not on the merits of the case, and where the facts and surrounding circumstances cry out for a retrial of the case on the merits. In that case I further observed:-

“To acquit the appellant …… on a mere technical point, and without a trial on the merits will be to sacrifice justice and commonsense on the shrine of guilt …… for the community has a right to regard such wrongful acquittal as unmerciful, firstly, to the accused person whose real interest are sacrificed by his escape on a serious charge (here in the case now on appeal all the elements of robbery were established) and secondly, to society whose protection and security are compromised and jeopardised by a rash acquittal.”

…………………….L…………………….

The above observation simply imposes on the court a duty to see to it that justice is done by making an appellant who had been proved guilty even of some lesser offence by the facts and surrounding circumstances pay for his crime to show that crime does not pay. If he was not proved that section stipulates:-

“S.179(2)    When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted to the lesser offence although he was not charged with it.

In the trial court, the appellant and two others were charged on an information with robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended.

Robbery is a blanket expression, a genus with so many species. Some species of robbery carry very heavy penalties but in any species the essential constituents of robbery will nevertheless exist. Those essential ingredients form the common foundation of all robberies and the seriousness of each species is reflected by the punishment assigned-the more serious the robbery, the heavier the penalty but still in essentials they are all robberies. Thus the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 in its Section 1(1) provides and stipulates imprisonment for not less than 21 years for ordinary robbery. But if the offender who committed a robbery as defined in sub-section (1) above is armed with any firearms or any offensive weapon or is in the company with any person so armed, the offender shall upon conviction under this (Decree) now Act be sentenced to death.

In the case now on appeal, the appellant and two others were charged under Section 1(2)(a) of Act No. 47 of 1970 as amended. The trial court discharged and acquitted his two companions but found the appellant guilty. On appeal, the issue was not whether there was a robbery. No, that was not the issue. Rather the issue was whether or not a toy-gun (which according to the evidence was what the appellant used) could be designated offensive weapon. The Court of Appeal per Nnaemeka-Agu, J.C.A. answered the question, rightly in my view, in the negative. The net result was that the Court of Appeal, on the evidence, found that the appellant committed the offence of robbery as defined in Section 1(1) of Act No. 47 of 1970 as amended but found also that he was not armed with any firearms or offensive weapon as defined in Section 9 of the Act. With the above finding, it naturally follows that the appellant should be convicted of the simple but lesser offence of robbery amply disclosed by the evidence. The only difference between an offence punishable under Section 1(1) and Section 1(2) of the Robbery and Firearms (Special Provisions) Act of 1970 as amended is just i.e. element of aggravation. Thus the offence with which the appellant was charged and tried in the High Court was robbery with an element of aggravation. The Court of Appeal still found him guilty of robbery minus the aggravation and sentenced him accordingly.

…………………….M…………………….

This Court has sanctioned and affirmed convictions for lesser offence where Section 1799(2) was applicable: see Akwule & Ors. v. The Queen (1963) 1 All N.L.R. 193 at p. 202; Michael Okwuma v. The State (1964) 1 All N.L.R. at pp. 373/374. It is my view that acting under powers conferred on it by Section 179(2) of the Criminal Procedure Act, Cap. 43 of 1958 the trial court or an appellate court is not obliged to call for further addresses before convicting of any lesser offence established by the evidence. The greater offence includes the lesser offence and any address on the greater offence will naturally cover the lesser offence first before dealing with the aggravation which produces the greater offence.

Quite similar to the above is the other point raised by learned Counsel for the appellant that at the stage when the Court of Appeal decided to convict of the lesser offence of robbery under Section 1(1) of Act No. 47 of 1970 as amended, the defence should have been given an opportunity of being heard. Failure to so accord the defence that opportunity, it is argued, amounted to denial of the right to fair hearing. Is this not stretching the right to be heard too far? The right to be heard carries with it the right in the accused to know the case which is made against him; to know what evidence is to be given and what statements are to be made affecting him and to be given a fair opportunity to correct or contradict such evidence or statement. In this case on appeal, the appellant is not complaining that he did not know what case was presented or charged against him; he is not complaining that any evidence was taken in his absence or that any document was tendered in his absence, or that any representation was received behind him. What was it then that amounted to this deprivation of opportunity to be heard? It is suggested that when the Court of Appeal decided to convict for the lesser offence, counsel for the appellant should have been called upon to address the court further-address the court on what? Let me just say right away that the procedure to be followed when the court decides to act under Section 179(2) of the Criminal Procedure Act, Cap. 43 of 1958 has nothing to do with the right to fair hearing under Section 33 of the 1979 Constitution. It is merely a matter of interpretation of S.179(2) of Cap. 43 of 1958. learned Counsel on this ground relied on the case of E. O. Okonofua & Anor. v. The State (1981)6/7 S.C. 1 at p. 25 where two English cases were considered, namely R. v. Cross & Channon (1971) 55 CR.App.R. 540 and R. v. Vincent (1972) 56 CR.App.R. 281. These two cases were interpreting Section 4(2) of the Criminal Law Act of 1967 which stipulates.

“S.4 (2)     If on the trial of an Indictment for an arrestable offence the jury are satisfied that the offence charged (or some other offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it; they may find him guilty of any offence under sub-section (1) above of which they are satisfied that he is guilty in relation to the offence charged (or that other offence).”

…………………….N…………………….

Delivering the judgment of the Court of Appeal, Waller, J. held inter alia at p. 545:-

“2.     In our view, it is most undesirable and wrong for the issue of Section 4 to be raised after the evidence is closed. If the prosecution foresee that a charge under Section 4 may be the proper way in which to deal with the facts, there should be a specific count in the indictment charging it. But if in the course of the case, by reason of the evidence that is given in the case the nature of the case for the prosecution changes, where for example, the defendant gives evidence which would exculpate him from the offence but would provide a case covered by Section 4 and, therefore a verdict could be brought in by Section 4(2) there would obviously be no objection to the prosecution raising the question under Section 4. But the matter should be raised before the evidence has been complete so that the defence may have an opportunity to deal with it. When it is raised in the course of counsel’s speech, the defence has had no proper opportunity to deal with it. Where Section 4 is to be considered as a possible verdict, if it is foreseen in advance that an offence under Section 4 would be the appropriate charge, it should be specifically charged. If this is not foreseen in advance, but emerges in the course of the case, then the defendant should be told before the evidence is closed of the possibility of a verdict under Section 4 and he should be offered the opportunity of an adjournment, if he so wishes, in order to enable him to meet that particular charge.”

It is obvious from the section of the judgment in Cross and Channon (supra) quoted above that our Section 179(2) and Section 4(2) of the English Criminal Law Act 1967 are not dealing with the same situation. Both Statutes are not in pari materia. While an offence under Section 4 of the English Act should be specially charged, our Section 179 operates “although he was not charged with it” (the lesser offence). Again our S.179 of the Criminal Procedure Act of 1958 is in clear and unambiguous languages and therefore does not require an external aid for its construction much less Section 4 of the English Criminal Law Act of 1967 will operate more on the same lines as Section 163 of our Criminal Procedure Act, Cap. 43 of 1958 dealing with the alteration of a charge, calling for fresh plea and adjournment at the instance of the defence. Also, and this is important, the case of Okonofua & Anor. v. The State (supra) in which Cross & Channon (supra) was considered was not and did not deal with Section 179(2) of the Criminal Procedure Act of 1958 but with Section 174(2) of the same Act. I would be wrong to drag this case, as it were, by the hair of the head into the interpretation of Section 179(2) of the Criminal Procedure Act.

It is for all the reasons given above and for the fuller reasons in the lead Reasons for Judgment of my learned brother Karibi-Whyte, J.S.C., with which I agree, and which I now adopt as mine, that I dismissed this appeal on the 30th January 1986.

Otunba Ajayi Okunuga for the Appellant

A.N. Kessington, Assistant Director of Public Prosecution, Lagos State, for Respondent.

Citation: LOR (25/04/1986) SC

Alternative Citation: (1986) All N.L.R. 496

JOHN NWACHUKWU V. THE STATE

In The Supreme Court of Nigeria

On Friday, 25th April, 1986

 (SC. 233/84)

Before Their Lordships

KARIBI- WHYTE Justice of The Supreme Court of Nigeria

OPUTAJustice of The Supreme Court of Nigeria

COKER Justice of The Supreme Court of Nigeria

KAYODE ESOJustice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAISJustice of The Supreme Court of Nigeria

Between

JOHN NWACHUKWU (APPELLANT)

v.

THE STATE (RESPONDENT)

…………………….A…………………….

Karibi-Whyte, J.S.C.-On the 30th January 1986 I dismissed this appeal after hearing Counsel for the appellant and respondent and indicated that I shall give my reasons for so doing today. Herein below are the reasons.

Appellant with two others were charged before the Ikeja High Court with the offence of Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. At the conclusion of the trial, the trial Judge found only the Appellant guilty of the offence as charged on the information. The other two were found not guilty and were accordingly acquitted and discharged. Appellant was sentenced to death by hanging or by firing squad as the Governor of Lagos State may decide. Appellant appealed against his conviction to the Court of Appeal. The court of Appeal allowed the appeal and set aside the conviction for Robbery and Firearms (Special Provisions) Act 1970. In its place a conviction for the offence of Robbery under section 1(1) of the same Act, with imprisonment for 21 years was substituted.

The appeal before this Court is against the judgment of the Court of Appeal. There are two grounds of appeal which are reproduced as follows:-

GROUNDS OF APPEAL

“A.     The learned judges of the Court of Appeal erred in law in changing the charge of Robbery & Firearms under the Robbery & Firearms Decree 1970 (as amended) to simple robbery and found the Appellant guilty of the ordinary robbery without calling on the parties to address it on the desirability of such holding.

PARTICULARS

(i) The learned judges ought to have called for addresses on the point before deciding.

(ii) If they had, it would have been submitted to them that such a holding in the circumstance of this case is not open to them

(iii) The elements of ordinary robbery are not made out in the Record.

B.      The learned judges of the Court of Appeal erred in law in reducing the charge to that of ordinary robbery when the evidence before the Court cannot sustain such a finding law.”

Counsel for the Appellant Otunba Ajayi-Okununga, sought and was granted extension of time within which to appeal, and for leave to appeal to this Court against the judgment of the Court of Appeal. The Court of Appeal had refused applicant leave to appeal to this Court.

…………………….B…………………….

The judgment of the Court of Appeal appealed against was delivered on the 3rd October, 1985. It is a final decision and by virtue of Section 31(2)(b) of the Supreme Court Act 1960, right of appeal can be exercised within 30 days. The grounds of appeal being one of law, appellant only required extension of time to appeal. Leave to appeal is unnecessary. Since this is a matter involving a long and mandatory term of imprisonment it was considered expedient to grant extension of time to the appellant to enable arguments on the grounds filed to be addressed to this Court.

Mr A.N. Kessington, Assistant Director of Public Prosecutions, Lagos State opposed the application. He submitted quite erroneously that this Court by virtue of Section 31(4) of the Supreme Court Act, 1960, has no jurisdiction to grant extension of time within which to appeal since the conviction involved a sentence of death. The short answer to that submission is that the appeal is not against the judgment of the High Court but against the judgment of the Court of Appeal where the conviction was imprisonment for 21 years. Counsel then spelt out four conditions as prerequisite for the grant for the extension of time. The first is that appellant must show that he has a right of appeal as of right. Secondly, it was contended by counsel to the Respondent that the affidavit must give satisfactory explanation for the delay. Thirdly, the ground of appeal must show good cause why the appeal should be argued. Mr Kessington has cited to us an impressive array of relevant cases in support of each condition. I do not think these cases are necessary. As I have said, the grounds of appeal having been founded on law, there is a Constitutional right of appeal.-See Section 213(3) of the Constitution 1979. In respect of the second condition, the averments in paragraph 2(a) (b)(c)(d) of the supporting affidavit satisfactorily explain the reasons for the delay.

The third and fourth conditions have been satisfied by the nature of the case against which the appeal has been brought.

It is for the above reasons I granted extension of time for leave to appeal. The Court waived the requirements to filing briefs in respect of the appeal. The brief filed in respect of the application for extension of time to appeal was accepted as sufficient in respect of the appeal. Otunba Ajayi-Okunuga, Counsel for the appellant has filed a brief of argument in support of the application. Mr Kessington, sought and was granted leave to reply without filing a brief. He was of the impression that arguments in the appeal would be heard on a future date. His brief as that of Counsel for the appellant was limited to the issue of the application for extension of time and for leave to appeal.

Counsel to the appellant submitted that the issue raised in the appeal was whether an Appellate Court ought to determine an appeal on a point in which it did not give the parties an opportunity of being heard? It was submitted that the Court after hearing argument on a charge of Section 1(2)(a), went on to find the Appellant guilty on Section 1(1) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. It was submitted that this latter issue did not arise and was therefore not argued before the Court of Appeal.

…………………….C…………………….

I consider it appropriate and helpful to state the facts of the case on which the Court of Appeal’s judgment was founded, before considering the arguments of Counsel. The facts, briefly stated are that at about 9.30 p.m. of the 19th October, 1979, Alhaji Mohammed Zil and Mohammed Saleh were returning to their house at Amukoko Apapa, from the Cattle market at Ojo. They were both walking home. Mohammed Zil was in front, and Mohammed Saleh behind him. He was carrying a bag (tendered as Exhibit C) containing the sum of N4,990. Mohammed Saleh was the P.W.4 in the Court of trial. Mohammed Sale (P.W.4) said that at a point, the Appellant accompanied by some other persons, brought out a pistol and pointed it at him, and demanded from him the bag he was carrying; or to lose his life. Appellant snatched the bag, and he and his confederates started running away. Mohammed Saleh (P.W.4) gave chase and pursued appellant and his confederates to a house at No. 82 Cemetry Road, Amukoko. P.W.4 raised alarm and persons so attracted to the scene helped to surround the house where appellant and his confederates had run into. At this point Mohammed Yisa went to Ajegunle Police Station to call the Police. On searching 82 Cemetry Road, appellant was found lying under a bed on top of the bag containing the money. Appellant’s confederates were also arrested. When the bag claimed by Mohammed Saleh (P.W.4) and found with appellant was opened, the sum of N4,990 and a toy gun was found in it. After the trial, appellant was convicted of the offence of Robbery punishable under Section 1(2) (a) was set aside, and appellant was convicted under Section 1(1) of the Robbery and Firearms (Special Provisions) Decree 1970.

The only issue raised in this appeal and necessary for determination before this Court is whether the court of Appeal was right on the evidence before them having found appellant not guilty of the offence under Section 1(2) (a) to convict him of offences under Section 1 (1) without calling on Counsel to address the court on the desirability of such a Course.

It is not disputed by the Respondents that before the conviction of appellant, he was not confronted with the charge of the lesser offences and asked to plead to it. This however would seem to be the main thrust of the case of the Appellant in this Court. The question is whether this amount to a denial of fair hearing.

In their consideration of the case of the Appellant in the Court of Appeal, the learned Justice of the Court of Appeal Nmaemeka-Agu J.C.A. carefully distinguished between facts sufficient to support a conviction for the offence of robbery under Sub-Section (1), from those resulting in the imposition of the aggravated offence under Sub-section (2) of Section 1. He went on to state that for a conviction under sub-section (1) to be sustained, the offence of robbery as defined under Section 9 of the Act must have been proved. In respect of the aggravated offence, under Sub-section (2), the offence as defined under Section 9 must be proved to have been committed with “firearms” or “offensive weapon”.

After considering the definition of Firearms under the provision of the Decree, the learned justice of the Court of

Appeal held that a “toy gun” does not fall within the meaning of “Offensive weapon”. In his opinion, the operative words in the definition of “offensive weapon” are “for use for causing injury to the person or intended…for such use.” Thus in holding that the offence with which appellant was charged could not come within Sub-Section (2) it was held, as follows:-

“As a toy-gun is not normally made or adapted for causing injury to the person and is not capable of being used as an offensive weapon. It follows therefore that what was used by the appellant and his collaborators for the alleged offence was neither a firearm nor an offensive weapon.”

The learned justice of the Court of Appeal went on to give reasons why Appellant could be convicted under Sub-Section (1) although he was charged under Sub-Section (2). He considered Sub-Section (1) of Section 1 and proceeded as follows

“…for the offence of robbery, stealing by putting a person in fear of violence is enough to constitute the offence. It appears to me if it is proved that the appellant and his accomplices threatened to use actual violence with what merely looked like a gun on the 4th P.W. and Mohammed Zil at the time they snatched the money from them, and if all the other facts which could constitute the offence of robbery are proved, they could be convicted of the simple offence of robbery; but the aggravated sentence could not be rightly imposed on them.”

…………………….D…………………….

What the learned Justice of the Court of Appeal would seem to be saying and which was obvious from his conclusion was that the learned trial Judge was wrong in convicting Appellant of the offence of robbery with firearms under Sub-Section (2) of the Decree, since the toy gun used for the commission of the offence could not conceivably fall within the definition of firearms. He however has no doubt that the fact as found by the learned trial Judge were sufficient to sustain the offence of simple robbery under sub-section (1), where mere threat to use actual violence was sufficient. It was on this alternative ground that the Court of Appeal set aside the conviction by the learned trial Judge under sub-section (2) and substituted a conviction under sub-Section (1).

On a careful reading of the grounds of appeal, it is obvious that appellant is disputing the facts as found by the learned trial Judge and affirmed by the Court of Appeal. The issue, as I have already pointed out, is whether the conviction for the lesser offence without calling on the parties to address the Court was proper, and whether there was sufficient evidence on which the Court of Appeal could convict of the lesser offence.

This Court has times without number stated unequivocally, citation of authorities no longer seems necessary, that it is only in very exceptional cases, and where the injustice of the findings of fact are egregious and the Court has no doubt that the decision is wrong will this Court interfere with concurrent findings of facts by the two courts below.-See Ohere v. Ohere (1942)2 WACA. 1; Otubu & Ors v. Guobodia (1984) 10S.C. 130. The reason is both elementary and fundamental. The primary function of seeing and hearing the witnesses and evaluating, assessing and weighing the credibility of viva voce evidence lies with the trial Court.

The secondary function of considering whether the trial court was right does not empower the appellate court to arrogate to itself the role of the trial court whilst hearing evidence. Hence the Court of Appeal is not permitted to disturb a judgment on the facts if there was sufficient evidence in support of the finding merely because it would have held differently. It could however do so where the trial Court has failed to discharge its function.

In this case the Court of Appeal has affirmed all the findings of fact made by the learned trial Judge. The only difference in the view held was not with respect to the facts, but as to the law, that is, whether a toy-gun is an offensive weapon within the definition of Section 9 of the Decree.

This brings me to a consideration of the grounds of appeal urged on us. These are two grounds which are better considered together. The first ground raises the often cited defence of fair hearing, under S.33(b) of the Constitution, 1979, and the second ground deals with the question whether in the absence of the evidence relating to the toy-gun, there was no sufficient evidence in respect of which the appellant could be convicted of any offence. There is no doubt if the defence of fair hearing which is fundamental avails the appellant, that is the end of the matter. The issue whether there was sufficient evidence to support conviction for an offence will therefore not arise.

Counsel for the appellant Otunba Ajayi-Okunuga, in her brief of argument rather put the issue in a somewhat attractive manner as follows:-

“The issues proposed to be raised in the Appeal itself is whether an Appellate Court ought to determine on Appeal on a point in which it did not give the parties an opportunity of being heard as to that point.”

…………………….E…………………….

The contention of counsel in the brief was that since the successful argument in the Court below was that appellant did not commit the aggravated offence of robbery punishable with death, the appellant on the facts could not have committed the lesser offence in respect of which a conviction was entered in the Court below. Counsel whilst admitting that the Court of Appeal under Section 20 of its Act and S.179 of the Criminal Procedure act had the power to substitute a lesser offence, should have given the appellant an opportunity of being heard on the issue. Counsel cited Okonofua & Ors v. The State (1981) 6-7 SC 25. It was conceded that Section 179(2) of the Criminal Procedure Act under which the Court of Appeal acted, did not specifically require that the accused be heard. It was however submitted that the section is subject to the overriding provisions of Section 33 of the Constitution 1979. Counsel then cited and relied on the dictum of Oputa J.S.C. in Josiah v. The State (1985) 1 NWWLR. 127.

Mr Kessington, for the Respondent in a short reply referred to Section 179(2) of the Criminal Procedure Act and S.20 of the Court of Appeal Act, and submitted that on the facts as found on the evidence before the Court, the substitution of a lesser offence was proper.

I have already set out the facts relied upon by the Court of Appeal earlier in this judgment. I shall now set out the provisions of Section 179 of the Criminal Procedure Act, and the relevant parts of sections 1 and 9 of Robbery and Firearms (special Provisions) Decree No. 47 of 1970 as amended which are as follows-

Robbery and Firearms (Special Provisions) Decree No. 47 of 1970

“Section 1 (1) Any person who commits the offence of robbery shall upon trial and conviction under this Decree be sentenced to imprisonment for not less than twenty-one years.

(2)     If-

(a)     any offender mentioned in subsection (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or

(b)     at or immediately before or immediately after the time of the robbery the said offender wounds any person, the offender shall upon conviction under this Decree be sentenced to death.”

Section 9 which is the definition section defines inter alia “firearms”, “offensive weapon”, “robbery”.

“firearms” includes any canon, gun, rifle, carbine, machine-gun, capgun, flint-lock gun, revolver, pistol or other firearm, whether whole or in detached pieces;

“offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon, but does not include a firearm.

“robbery” means stealing anything, and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

…………………….F…………………….

Thus the offence of robbery punishable under S.1(1) of the Decree is defined in Section 9 of the Decree.

Section 179 of the Criminal Procedure Act provides as follows-

“(1)    In addition to the provisions hereinbefore 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 a 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 reading together of Section 1 and 9 of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by Decree No. 8 of 1974 clearly show that where a person takes away from anything from another permanently and with intent to do so, and forcibly, using threat or actual violence at the time of such taking, or using such threat or violence to retain or prevent or overcome resistance to the taking of or retention of the thing so taken, the offence of robbery under Section 1(1) of the Decree has been committed and is punishable with imprisonment for twenty-one years. This seems to be the lesser of the aggravated offence of the same kind of offence provided for under Section 1(2)(a)(b) of the same decree. The circumstances of aggravation results from the introduction of “firearms” or “any offensive weapon” by the accused, or merely being in company of a person so armed; or where the accused “immediately before” or immediately after the time of robbery wounds any person. In each case, whether in S.1(1)(2) robbery as defined in Section 9 of the Decree is an essential ingredient of the offence. It follows that where robbery simpliciter is committed, unaccompanied by the use of firearms as defined under Section 9, this is the lesser of the aggravated offence under Section 1(2)(a) of the Decree. I think the analysis of Nnaemeka-Agu, J.C.A. of the constituent ingredient of the offences is right and unassailable. Counsel has not sought to contend otherwise.

It is necessary therefore to consider whether on the facts as stated the Court of Appeal exercising the powers under Section 179 of the Criminal Procedure Act was entitled to convict appellant who was charged under Section 1(2)(a) under the lesser offence under Section 1(1).

Section 179 of the Criminal Procedure Act has been drafted with admirable clarity. There appears to be no aspect of the section or any of the subsections which is ambiguous. For instance subsection (1) which speaks of persons charged with an offence consisting of several particulars, provide for the possibility of only a combination of some of these particulars constituting a lesser offence in respect of which the accused was not charged. It goes on to provide that a conviction can lie in respect of such lesser offence either on a trial of the offence charged or by the accused pleading guilty to such lesser offence, although he was not charged with it-See The Queen v. Nwaugoagwu (1962) 1 All N.L.R. 294.

Sub-section 2 is simpler, although the differences are marginal. Like sub-section 1, the lesser offence is part of the greater offence charged, but unlike sub-section (1) the greater offence charged does not have to consist of several particulars, a combination only of which constitute the lesser offence. In this case the facts produced merely reduce the offence charged to a lesser offence. Also in this case there is no requirement that the accused so convicted should have been charged with this lesser offence-See Shosimbo v. The State (1974) 10 S.C. 1.

…………………….G…………………….

The points of law raised before us in this appeal by Otunba Ajayi Okunnuga is not without precedents in our Court. In Akwule & Ors. v. The Queen (1963) 1 All N.L.R. 193, the provision of S.128 of the Criminal Procedure Code, in pari materia with Section 179 in issue was relied upon to substitute the offence under S.132 for the offence of criminal breach of trust under S.135. The contention of appellant was that 1st appellant not being a Banker the charge laid under Section 315 was a nullity. He was however guilty of the lesser offence under S.312 of criminal breach of trust.

Again in Agumadu v. The Queen (1963) 1 All N.L.R. 203 followed in Okwuwa v. State (1964) 1 All N.L.R. 366 the appellant was charged with the offence of attempted murder under S.320(1) of the Criminal Code, the evidence before the Court disclosed that appellant wounded the victim, but there was no evidence of intention to kill. In convicting appellant of unlawful wounding, Brett, F.J., said

I have stated above the two circumstances where Section 179 will be applicable. In Torhamba v. Police (1956) N.R.N.L.R. at p. 94, the Court had attempted to give a guide as to the determination of what constitutes a lesser offence-It was said.

“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 W.L.R. 965; (1953) A.C. 407.”

There are other decisions such as Shosimbo v. State (1974) 10 S.C. 91; Oyediran v. Republic (1967) N.M.L.R. 122; R. v. Tyson (1945) 11 W.A.C.A 90; R. v. Adokwu (1952) 20 N.L.R. 103.

It must be kept constantly in mind that S.179 in issue in this appeal is concerned where the lesser charged in respect of which accused 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.

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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.

In the appeal before us, the only ingredient in the charge which promoted the offence from one of robbery simpliciter under S.1(1) to aggravated robbery under S.1(2)(a) was the interpretation given to the effect of the toy-gun by the learned trial Judge. This having been rejected, and correctly too, by the Court of Appeal, the fact of taking away the bag of money with threat of violence which is sufficient for robbery under S.1(1) was established.

I now turn to the contention that Section 179 which provides that an accused person could be convicted of an offence with which he was not formally charged if it was a lesser offence of an aggravated offence in respect of which he was charged is a denial of his right to fair hearing and accordingly unconstitutional and to that extent void.

This same point of law was raised in the Court of Appeal by Counsel for the appellant in Maja v. The State (1980) 1 N.C.R. 212. The following are the facts in Maja’s case.

Appellant who was charged with the offence of murder contrary to S.319(1) of the Criminal Code, attempt to murder, contrary to S.320(1) of the Criminal Code, and wounding with intent contrary to Section 332(1) of the Code. At the trial, the prosecution withdrew the charge of murder and pursued the two remaining charges. At the end of the trial appellant was acquitted on all the charges but the Court invoking Section 179 of the Criminal Procedure Law substituted a conviction for unlawfully doing grievous harm contrary to Section 335 of the Criminal Code. Appellant appealed to the Court of Appeal. It was contended on appeal that (1) the substitution of conviction under S.335 was contrary to S.22(5) of the Constitution 1963 (now S.33(6)(a), Constitution 1979) in that appellant was convicted of an offence of which he had no notice (2) the conviction was contrary to S.22(8) of the Constitution 1963 (now S.33(9)) since appellant had been convicted of the offence for which he was charged, the proceedings were concluded, and a conviction on the facts for another offence was improper. (3) the conviction was contrary to S.22(1) of the Constitution 1963 (now S.33(1)) in that the Court did not call on the appellant to show cause why he should not be convicted on the substituted charge, nor even to address the Court on that charge, and in effect the Court recorded a conviction without the appellants’ having had a proper hearing on the charge. This last mentioned ground is the principal complaint of appellant before us. The Court of Appeal held that Section 22(1) of the Constitution 1963 was not violated merely because appellant was not asked to show cause why he should not be convicted of an offence included in that charge, or giving him opportunity to address the Court on the issue.

I have already analysed the provisions of Section 179 of the Criminal Procedure Act, and stated their purport. There is no doubt that the lesser offence in respect of which an accused is convicted must be included in the substance of the charge and the evidence relied upon for conviction must support the lesser offence.

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On the facts before the Court of Appeal, it is difficult to contend that at the trial appellant was not aware of the fact of the circumstances that he was being tried for the offence of robbery, the aggravated nature of the offence merely resting on the circumstances of his commission of the offence. Thus as was stated in R. v. Adokwu 20 N.L.R. at p. 105 by Bairamian, J., as he then was,

“If he is to be convicted under Section 179 of the Criminal Procedure Ordinance, of a lesser offence this must be on facts embraced in the particulars of the greater offence charged, otherwise he cannot properly be deemed to have notice of the lesser offence.”

Counsel for the appellant relied on the dictum of Bello, J.S.C. in Okonofua v. The State (1981) 6-7 S.C. 1, at p. 25. It seems that the dictum was not supported by the conclusion. As Bello, J.S.C. said at p. 26 “it appears therefore that before his conviction, the 1st appellant had knowledge in advance that the Court might convict him of the offences by killing by false pretence and had opportunity to meet, if he had so wished these offences…” There is no doubt that appellant in this case had notice that he was standing trial for armed robbery. Appellant had defended himself on the allegations and no additional evidence or facts other than those led at his trial was introduced to support his conviction for the lesser offence.

Section 179 in both sub-sections clearly in the expression “although he was not charged with it” exclude the requirement of a formal charge or of asking the appellant/accused convicted of a lesser offence than that charged to say something before the conviction. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested. Above all, the lesser offence being implicit in the greater offence, accused and in this appeal appellant, cannot feign ignorance of the offence.

Both grounds of appeal accordingly fail.

Eso, J.S.C.-I had a preview of the reasons given by my learned brother Karibi-Whyte, J.S.C. I agree with the Reasons and will adopt them as my reason for dismissing the appeal.

Uwais, J.S.C.-This appeal was dismissed on 31st January, 1986 and our reasons for the dismissal were reserved. I now give my reasons.

The grounds on which the appeal was brought read thus:

“A.     The learned judges of the Court of Appeal erred in law in changing the charge of robbery & firearms under the Robbery & Firearms Decree 1970 (as amended) to simple robbery and found the appellant guilty of the ordinary robbery without calling on the parties to address it on the desirability of such holding.

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PARTICULARS

(i)      The learned judges ought to have called for addresses on the point before deciding.

(ii)     If they had, it would have been submitted to them that such a holding in the circumstance of this case is not open to them.

(iii)    The elements of ordinary robbery are not made out in the Record.

B.      The learned judges of the Court of Appeal erred in law in reducing the charge to that of ordinary robbery when the evidence before the Court cannot sustain such a finding law (sic).”

In the course of her argument learned Counsel for the appellant contended inter alia that the appellant did not have fair hearing in the Court of Appeal, because he was not called upon to address the Court before he was convicted of the lesser offence of simple robbery. She submitted that the provisions of section 33 of the Constitution had been violated. Although this argument is attractive, it is clear from the grounds of appeal that the constitutional point which the argument is in support of is not in fact raised in any of the grounds of appeal nor in the appellant’s brief of argument. It is clear therefore that the argument is, with respect, irrelevant to the appeal and should in my opinion be ignored.

With regard to the rest of the argument in the appeal I have read in draft the reasons for judgment read by my learned brother, Karibi-Whyte, J.S.C. I entirely agree with the reasons and I adopt them as mine.

It was for these reasons that I agreed that the appeal should be dismissed and the conviction and sentence passed on the appellant by the Court of Appeal should be affirmed.

Coker, J.S.C.-This appeal was dismissed on the 30th January 1986 after listening to learned Counsel for the appellant and the Deputy Director of Public Prosecutions, Lagos State. And as indicated on that day, I now give my reasons for doing so.

The appellant and two other persons were charged before Agoro, J., in the High Court of Lagos with the offence of robbery and stealing a sum of N4,990.00 while armed with a gun, an offence punishable with death under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970 as amended.

The learned trial Judge found that of the three accused persons only the appellant robbed the victim, Alhaji Mohammed Zil, of N4,990.090 cash with threat while armed with a toy gun but sentenced him to death under section 1(2)(a) of Decree No. 47 of 1970 as charged. On appeal to the Court of Appeal, the court found that a toy gun is not an offensive weapon as defined by the Act and accordingly quashed the sentence of death and substituted a sentence under section 1(1) of the Decree, No. 47 of 1970 punishable with a minimum term of twenty one years imprisonment.

Now the thrust of the complaint in this appeal is that the Court of Appeal did not hear the appellant or his counsel before substituting a conviction and sentence under a different section of the Act.

I agree with the reasons as extensively discussed in the lead judgment of my learned brother Karibi-Whyte, J.S.C. which draft I have had the privilege of previewing. I agree there is no substance in the contention.

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I agree with him that while the offences of robbery under section 1 of the Decree is one and the same offence, different punishments are provided depending on the gravity of the act. The ingredients are the same. The only difference is that if the accused person is armed with firearms or other offensive weapon at the time of committing the offence, the punishment becomes aggravated to a death sentence. The absence of possession of arms or other offensive weapon by the accused person at the time of committing the offence reflects the lesser punishment. The offence under sub-section (1) is bare or naked robbery while robbery under section 1, sub-section(2) is punishable with death.

The court below was competent and right to have substituted a verdict of guilty under sub-section (1) of section 1 of Decree No. 47 of 1970 without calling the appellant or his counsel to address it for an offence which carries a lesser punishment than the offence with which the appellant was initially charged.

In conclusion, I entirely agree with the reasons given by my learned brother Karibi-Whyte, J.S.C. which I adopt as mine.

Oputa, J.S.C.-On the 30th January 1986 after a careful study of the record of proceedings in this case, as well as the Briefs filed by learned Counsel for the appellant and the respondent respectively; and after listening to learned Counsel in elaboration of points taken up in their respective Briefs, the Court unanimously dismissed the appeal and reserved its reasons for judgment for Friday, 25th day of April 1986. I have had the advantage of a preview in draft of the lead Reasons for Judgment just delivered by my learned brother Karibi-Whyte, J.S.C. I am in complete agreement with his reasoning as well as his conclusion.

learned Counsel for the appellant, Otunba Ajayi-Okunnuga, prefixed her Brief with excerpts from my judgments in Godwin Josiah v. The State (1985) 1 N.W.L.R. 125 at p. 141. This dealt with what order an appellate court should, in the interest of justice make where an appeal is allowed not on the merits of the case, and where the facts and surrounding circumstances cry out for a retrial of the case on the merits. In that case I further observed:-

“To acquit the appellant …… on a mere technical point, and without a trial on the merits will be to sacrifice justice and commonsense on the shrine of guilt …… for the community has a right to regard such wrongful acquittal as unmerciful, firstly, to the accused person whose real interest are sacrificed by his escape on a serious charge (here in the case now on appeal all the elements of robbery were established) and secondly, to society whose protection and security are compromised and jeopardised by a rash acquittal.”

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The above observation simply imposes on the court a duty to see to it that justice is done by making an appellant who had been proved guilty even of some lesser offence by the facts and surrounding circumstances pay for his crime to show that crime does not pay. If he was not proved that section stipulates:-

“S.179(2)    When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted to the lesser offence although he was not charged with it.

In the trial court, the appellant and two others were charged on an information with robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended.

Robbery is a blanket expression, a genus with so many species. Some species of robbery carry very heavy penalties but in any species the essential constituents of robbery will nevertheless exist. Those essential ingredients form the common foundation of all robberies and the seriousness of each species is reflected by the punishment assigned-the more serious the robbery, the heavier the penalty but still in essentials they are all robberies. Thus the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 in its Section 1(1) provides and stipulates imprisonment for not less than 21 years for ordinary robbery. But if the offender who committed a robbery as defined in sub-section (1) above is armed with any firearms or any offensive weapon or is in the company with any person so armed, the offender shall upon conviction under this (Decree) now Act be sentenced to death.

In the case now on appeal, the appellant and two others were charged under Section 1(2)(a) of Act No. 47 of 1970 as amended. The trial court discharged and acquitted his two companions but found the appellant guilty. On appeal, the issue was not whether there was a robbery. No, that was not the issue. Rather the issue was whether or not a toy-gun (which according to the evidence was what the appellant used) could be designated offensive weapon. The Court of Appeal per Nnaemeka-Agu, J.C.A. answered the question, rightly in my view, in the negative. The net result was that the Court of Appeal, on the evidence, found that the appellant committed the offence of robbery as defined in Section 1(1) of Act No. 47 of 1970 as amended but found also that he was not armed with any firearms or offensive weapon as defined in Section 9 of the Act. With the above finding, it naturally follows that the appellant should be convicted of the simple but lesser offence of robbery amply disclosed by the evidence. The only difference between an offence punishable under Section 1(1) and Section 1(2) of the Robbery and Firearms (Special Provisions) Act of 1970 as amended is just i.e. element of aggravation. Thus the offence with which the appellant was charged and tried in the High Court was robbery with an element of aggravation. The Court of Appeal still found him guilty of robbery minus the aggravation and sentenced him accordingly.

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This Court has sanctioned and affirmed convictions for lesser offence where Section 1799(2) was applicable: see Akwule & Ors. v. The Queen (1963) 1 All N.L.R. 193 at p. 202; Michael Okwuma v. The State (1964) 1 All N.L.R. at pp. 373/374. It is my view that acting under powers conferred on it by Section 179(2) of the Criminal Procedure Act, Cap. 43 of 1958 the trial court or an appellate court is not obliged to call for further addresses before convicting of any lesser offence established by the evidence. The greater offence includes the lesser offence and any address on the greater offence will naturally cover the lesser offence first before dealing with the aggravation which produces the greater offence.

Quite similar to the above is the other point raised by learned Counsel for the appellant that at the stage when the Court of Appeal decided to convict of the lesser offence of robbery under Section 1(1) of Act No. 47 of 1970 as amended, the defence should have been given an opportunity of being heard. Failure to so accord the defence that opportunity, it is argued, amounted to denial of the right to fair hearing. Is this not stretching the right to be heard too far? The right to be heard carries with it the right in the accused to know the case which is made against him; to know what evidence is to be given and what statements are to be made affecting him and to be given a fair opportunity to correct or contradict such evidence or statement. In this case on appeal, the appellant is not complaining that he did not know what case was presented or charged against him; he is not complaining that any evidence was taken in his absence or that any document was tendered in his absence, or that any representation was received behind him. What was it then that amounted to this deprivation of opportunity to be heard? It is suggested that when the Court of Appeal decided to convict for the lesser offence, counsel for the appellant should have been called upon to address the court further-address the court on what? Let me just say right away that the procedure to be followed when the court decides to act under Section 179(2) of the Criminal Procedure Act, Cap. 43 of 1958 has nothing to do with the right to fair hearing under Section 33 of the 1979 Constitution. It is merely a matter of interpretation of S.179(2) of Cap. 43 of 1958. learned Counsel on this ground relied on the case of E. O. Okonofua & Anor. v. The State (1981)6/7 S.C. 1 at p. 25 where two English cases were considered, namely R. v. Cross & Channon (1971) 55 CR.App.R. 540 and R. v. Vincent (1972) 56 CR.App.R. 281. These two cases were interpreting Section 4(2) of the Criminal Law Act of 1967 which stipulates.

“S.4 (2)     If on the trial of an Indictment for an arrestable offence the jury are satisfied that the offence charged (or some other offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it; they may find him guilty of any offence under sub-section (1) above of which they are satisfied that he is guilty in relation to the offence charged (or that other offence).”

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Delivering the judgment of the Court of Appeal, Waller, J. held inter alia at p. 545:-

“2.     In our view, it is most undesirable and wrong for the issue of Section 4 to be raised after the evidence is closed. If the prosecution foresee that a charge under Section 4 may be the proper way in which to deal with the facts, there should be a specific count in the indictment charging it. But if in the course of the case, by reason of the evidence that is given in the case the nature of the case for the prosecution changes, where for example, the defendant gives evidence which would exculpate him from the offence but would provide a case covered by Section 4 and, therefore a verdict could be brought in by Section 4(2) there would obviously be no objection to the prosecution raising the question under Section 4. But the matter should be raised before the evidence has been complete so that the defence may have an opportunity to deal with it. When it is raised in the course of counsel’s speech, the defence has had no proper opportunity to deal with it. Where Section 4 is to be considered as a possible verdict, if it is foreseen in advance that an offence under Section 4 would be the appropriate charge, it should be specifically charged. If this is not foreseen in advance, but emerges in the course of the case, then the defendant should be told before the evidence is closed of the possibility of a verdict under Section 4 and he should be offered the opportunity of an adjournment, if he so wishes, in order to enable him to meet that particular charge.”

It is obvious from the section of the judgment in Cross and Channon (supra) quoted above that our Section 179(2) and Section 4(2) of the English Criminal Law Act 1967 are not dealing with the same situation. Both Statutes are not in pari materia. While an offence under Section 4 of the English Act should be specially charged, our Section 179 operates “although he was not charged with it” (the lesser offence). Again our S.179 of the Criminal Procedure Act of 1958 is in clear and unambiguous languages and therefore does not require an external aid for its construction much less Section 4 of the English Criminal Law Act of 1967 will operate more on the same lines as Section 163 of our Criminal Procedure Act, Cap. 43 of 1958 dealing with the alteration of a charge, calling for fresh plea and adjournment at the instance of the defence. Also, and this is important, the case of Okonofua & Anor. v. The State (supra) in which Cross & Channon (supra) was considered was not and did not deal with Section 179(2) of the Criminal Procedure Act of 1958 but with Section 174(2) of the same Act. I would be wrong to drag this case, as it were, by the hair of the head into the interpretation of Section 179(2) of the Criminal Procedure Act.

It is for all the reasons given above and for the fuller reasons in the lead Reasons for Judgment of my learned brother Karibi-Whyte, J.S.C., with which I agree, and which I now adopt as mine, that I dismissed this appeal on the 30th January 1986.

Otunba Ajayi Okunuga for the Appellant

A.N. Kessington, Assistant Director of Public Prosecution, Lagos State, for Respondent.

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