Whether an Accused Can Be Convicted of a Lesser Offence under The Law With Which He Was Charged But Punished Under A Different Law

CASE TITLE:  ABDULFATAH MURTALA v. THE STATE (2022) LPELR-58945(CA)

JUDGMENT DATE:          18TH NOVEMBER, 2022

JUSTICES:  ITA GEORGE MBABA JCA                                           

                   BOLOUKUROMO MOSES UGO JCA

                   USMAN ALHAJI MUSALE JCA

DIVISION:  KANO

PRACTICE AREA:  CRIMINAL LAW AND PROCEDURE

FACTS:

The Appellant and three other persons (one could not be arraigned, being at large) went to the house of the victim who was the PW1 to rob him. At the house of the PW1, they attacked him and threatened him to surrender his money and other valuables, but PW1 resisted them, and was beaten and stabbed, severally. He (PW1) raised alarm which attracted neighbours and the assailants ran away, without taking anything.

Three of them, including the Appellant, were arrested. Appellant was the 2nd accused person. The 1st accused was the first to be arrested at the scene and he gave the names of the others, who took part in the robbery attempt.

Subsequently, the Appellant was charged with two other accused persons, for armed robbery contrary to Section 298 of the Penal Code, Cap 105 Laws of Kano State.

The Appellant pleaded not guilty to the charge.

At the end of trial, the learned trial judge found the Appellant (and 2 other accused persons) guilty of the offence of attempted armed robbery, under Section 299 of the Penal Code of Kano State, and punished under Section 2(1) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990, and sentenced him to 14 years imprisonment.

Dissatisfied, the Appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

“(1) Was the trial Court right to convict the Appellant of a lesser offence of attempted armed robbery under the State Law, but punished under Section 2(1) of the Robbery & Firearms (Special Provision) Act, Cap 398 LFN, when Appellant was charged under Section 298 of the Penal Code Cap 105, Laws of Kano State 1991?

(2) Did the prosecution establish the commission of the lesser offence of Attempted Armed Robbery, as per the evidence, including the confessional statement of the Appellant – Exhibit A2.”

COUNSEL SUBMISSION

The learned counsel for the Appellant argued that the trial Court was wrong to convict the Appellant under a Federal Law, SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT, CAP 398 LFN, when he was charged under the State Law, SECTION 298 OF THE PENAL CODE, CAP 105, OF THE KANO STATE, 1991. Counsel relied on the case of MOHAMMED BELLO VS STATE (2019) 77 PART 2 NSCQR 594 AT 612 to emphasize the fact that the two laws are separate, one being a State Law and the other, Federal Law.

Counsel admitted that a Court can convict an accused person for a lesser offence and relied on the case of OKABACHI & ORS VS THE STATE (1995) 3 SC 141 but that in the instant case, the Appellant was convicted for a more severe offence; that SECTION 298 OF THE PENAL CODE provides for imprisonment for a term that may extend to ten years, or for one who commits robbery and SECTION 299 provides for attempted robbery, to be punished with imprisonment term that may extend to 7 years or fine, but that the trial Court, in this case, opted for a more severe punishment under the Federal Act. He relied on the case of BABALOLA VS STATE (1989) 7 SC (PT 1) 94 AT 112, to the effect that the accused person can only be found guilty in respect of the offence for which he is charged, being the offence, he pleaded to.

Respondent’s counsel in response submitted that the trial Court was right to convict the Appellant of the offence under SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT, CAP 398 LFN, when he was charged under SECTION 298 OF THE PENAL CODE, CAP 105, LAWS OF KANO STATE.

He relied on SECTIONS 216 AND 217 OF THE CRIMINAL PROCEDURE CODE which he said, empowers the Court to substitute charge against accused person, if the main charge has not been proved. Counsel also relied on SALISU VS STATE (2019) ALL FWLR (PT 972) 260, where it was held that an accused person can be convicted for lesser offence, disclosed, if the principal offence is not proved.

Counsel further cited the provision of SECTION 231 OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW OF KANO STATE, 2019 to the effect that:

“Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be, convicted of having attempted to commit that offence although the attempt is not separately charged.”

DECISION/HELD:

On the whole, the appeal was dismissed for lacking in merit. The Court held that the error of the trial Court in sentencing the Appellant under SECTION 2(1) OF THE ARMED ROBBERY & FIREARMS ACT did not affect the merit of its decision.

RATIOS:

CRIMINAL LAW AND PROCEDURE- CONVICTION AND SENTENCE: Whether an accused can be convicted under the law with which he was charged but sentenced under a different law-

“…I do not, however, know why the Learned trial Judge elected to predicate the punishment of Appellant (and the other accused persons) under Section 2(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 LFN 1990, when it was clear that Appellant (and the other accused person) was charged under Section 298 of the Penal Code of Kano State – Cap 105 Laws of Kano State.

The resort by the learned trial Court to Section 2(1) of the Robbery and Firearms (Special Provision) Act, was wrong, in my opinion, and I think that was a slip, which, alone cannot defeat or nullify the trial and conviction of the Appellant for a lesser offence of attempt to commit armed robbery, especially as the learned trial Court had stated how she arrived at the decision to convict Appellant of the lesser offence, when she said:

“However, there is enough evidence of attempted armed robbery proved in this case. I, therefore, find the 2nd accused actually participated in the attempted robbery together with 1st and 3rd accused person (sic); sequel to this finding I find no defence offered by the 2nd accused in his defence. I therefore in compliance with the provision of S. 17 of the Criminal Procedure Code (under which the charge was bought) now S. 231 of the Kano State Administration of Criminal Justice (Law) Kano, 2019, hereby find the 2nd accused guilty of attempted armed robbery, under Robbery & Firearms (Special Provision) Act…” (See pages 122-123 of the Records of Appeal).

It is clear that Appellant was tried and found guilty under the State Law – Criminal Procedure Law of Kano State, and Penal Code, Cap 105 Laws of Kano State, and so the conviction stands, despite the slip by the Court to resort to the section, with which Appellant was punished – Section 2(1) of the Robbery and Firearms Act, Cap 398 LFN, which was imported, strangely, into the case, instead of the relevant State Law- Section 299 of the Penal Code, Cap 105 Law of Kano State, which the Court kept referring to and which had made provisions for punishment in respect of attempted armed robbery. I think the trial Court had a duty to abide by that provision, in determining the punishment of Appellant. But because the State law also allows for a term up to 14 years imprisonment, and a fine for a convict, (not 7 years as wrongly stated by Appellant’s Counsel), that sentence should not be disturbed, in my opinion.” Per MBABA, J.C.A.