IDOKO V THE STATE       

IDOKO V THE STATE       


The Supreme Court

Holden at Abuja

Friday, 09 June 2017 


APPEAL NO: SC.594/2014

CITATION NO:


BETWEEN THEIR LORDSHIPS

MUSA DATTIJO MUHAMMAD, JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

EJEMBI EKO

CLARA BATA OGUNBIYI, JSC


Between

                                                MATHIAS GARUBA IDOKO                                                 

(Appellant)

And

                                                                     THE STATE                                                                         

(Respondent)


PRONOUNCEMENTS

A. CONSTITUTIONAL LAW

  1. Constitution–On the supremacy of the constitution

“Let me out rightly state the principle that the Constitution is our supreme law and any law that stands in conflict with it is null and void to the extent of the inconsistency. See Nwaigwe V. Okere (2008) LPELR-2095 (SC), National Union of Electricity Employers & anor V. Bureu of Public Enterprises (2010) LPELR-1966 (SC); (2010) 7 NWLR (Pt 1194) 538 and AG, Ondo State V. AG, Federation & ors (2002) 9 NWLR (Pt 772) 226.” Per Muhammad JSC

B. CRIMINAL LAW

  1. Duty of court–Proper procedure where evidence exists for an offence for which the accused is not charged

“In general, if, during the course of a trial, there is evidence of facts to prove an offence with which the accused person is not charged the court should frame a new charge under section 208 of the Criminal Procedure Code and comply with that section and the relevant sections which follow. The Court may, however, apply section 217 to convict of an offence with which the accused is not charged provided (1) it had been doubtful which of several different offences the facts which could be proved would constitute and (2) such doubt applied only to the law and not to the facts; that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. If there is an appeal against a conviction made by virtue of section 217 the appeal court will apply section 222 and if it considers that the appellant was misled in his defence by the absence of a charge and a failure of justice has been occasioned it will either quash the conviction or order a retrial.” Per Muhammad JSC

C. STATUTORY INTERPRETATION

  1. Robbery and Firearms Act–Effect of charging an accused for the offence conspiracy not included in the principal charge

Section 1(2) (a) of the Robbery and Firearms Act 1990 under which count 4 is brought provides as follows:

‘1(2) (a) if the offender mentioned in sub-section (1) of this section is armed with any Firearms or any offensive weapon, or is in company with any person so armed; or (b)

(b) at or immediately before or immediately after the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.’

‘5. Any person who (a) ‘b’ conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

What the afore quoted provisions of Section 5 of the Robbery and Firearms Act portends is that the law automatically deems an accused person who from the evidence led in a principal offence to have conspired in the commission of that offence to be presumed guilty without more. That simply means that the evidence disclosing conspiracy against an accused whether principally charged or not would be taken as evidence alluded to after a specific charge. This is a specific statutory provision which is akin to or similar to the related provision of Sections 216 and 217 of the Criminal Procedure Code, discussed supra.” Per Muhammad JSC

D. WORDS AND PHRASES

  1. Definition–Meaning of a confessional statement

A confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act, 2011.” Per Kekere-Ekun


E. CRIMINAL LAW

  1. Confessional statement– When a confessional statement is sufficient to ground a conviction

“A confessional statement is sufficient to ground a conviction if proved to be voluntary, positive, unequivocal and amounts to an admission of guilt. See: Osetola & Anr. Vs The State (2012) 6 SCNJ 329; Dogo Vs The State (2013) 3 SCNJ 144: Nwachukwu Vs The State (2002) 7 SCNJ 230.” Per Kekere-Ekun

  1. Conviction–Position of the law on the conviction of an accused for a lesser offence

“It is settled law that an accused person may be convicted of a lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence See: Ahmed Sule (alias Eza) Vs The State (2001) 12 SCNJ 1: Adeyemi Vs The State (1991) 6 NWLR (Pt. 195)1; Nwachukwu Vs The State (1986) 2 NWLR (Pt. 25) 765.” Per Kekere-Ekun


F. STATUTORY INTERPRETATION

  1. Criminal Procedure Code (CPC)–On the conviction an accused person of an offence with which he was not charged

“Section 216 of the Criminal Procedure Code (CPC) seeks to address a situation where several offences might have been committed and the prosecution is in doubt as to which of the possible offences the available facts, if proved, could constitute. It permits the prosecution to charge the accused with all or any one or more of such offences. He may also be charged in the alternative.

By Section 217 of the CPC, where the scenario in Section 216 occurs and the accused is charged with one of several possible offences but from the evidence the accused is shown to have committed a different offence, with which he could have been charged but was not, he may be convicted of that other offence although not charged with it.

In Ezechukwu Vs C.O.P (1996) NWLR 96 @ 101, the Court of Appeal held that where Section 217 is to be relied upon in convicting an accused person of an offence with which he was not charged it must be apparent (1) that it had been doubtful which of several offences the facts which could be proved would constitute and (2) such doubt must apply only to the law and not to the fact; that is to say the fact charged must have given the accused person notice of the offence with which he is to be convicted. I think this view accords with sound reasoning and I adopt it.” Per Kekere-Ekun


G. CRIMINAL LAW

  1. Fair hearing–Duty of the prosecutor to inform the accused person, as the appellant was, in detail of the nature of the offence

“This general conspiracy was not part of the specific charges the appellant faced or defended at his trial. He was not charged and he did not defend any allegation on this general and non specific agreement to use the pistol for armed robbery operation. He was not notified that the facts he averred in Exhibit B shall form the basis of any criminal charge against him. Section 36 (6)(a) of the Constitution makes it obligatory that the prosecutor shall inform the accused person, as the appellant was, in detail of the nature of the offence. That is the function of the prosecutor. That function is not shared by the trial court or judge with the prosecutor. Sections 216 and 217 of the CPC do not, in my view, make the trial court or judge partake of the functions of the prosecutor. For purposes of nemo judex in causa sua, the trial court or judge cannot step into the arena to fish for charges to fix the accused person. The trial court or judge, whenever it or he steps into arena ceases thereby to be regarded as impartial.” Per Eko JSC

  1. Fair hearing–Effect of convicting an accused for an offence not charged

“The issue thrown up in this case is whether Sections 216 and 217 of the Criminal Procedure Code (CPC) Law of Benue State have the potency to diminish the efficacy, purpose and intent of Section 36 (6)(a) and (b) of the Constitution? The CPC, Particularly its provisions contained in Sections 216 and 217 thereof, are subordinate to any constitutional provisions. By virtue of Section 1 (1) and (3) of the Constitution, Section 36 (6) (a) and (b) of the Constitution shall override Sections 216 and 217 of the CPC if they are inconsistent with the provisions of Section 36 (6)(a) and (b) of the Constitution; and they are to the extent that they purport to enable and empower the court to convict an accused “person of the offence which he is shown to have committed although he was not charged with it”. For instance, on a charge of house breaking or burglary it will be outrageous and most perverse for the court in, in the purported exercise of its discretion under Section 217 of the CPC, to convict the accused person for rape, if it appears from the evidence that he committed that offence although he was charged with it it may, though be different if the offence the accused person is convicted of is an element of the offence of the bigger offence he was charged with.

The very essence of audi alteram partem is that the accused person should not be misled in his defence by the absence of a charge which certainty potentiates failure of justice. Where, as in the instant case, the appellant is shown to have been misled in his defense by the absence of the charge of the offence he was convicted of, by the invocation of Section 217 of the CPC, and a miscarriage of justice has been occasioned thereby, the appellate court will intervene and quash the conviction and sentence. Section 217 of the CPC cannot be invoked, if I may borrow the analog, by the court, like the umpire in a volleyball tournament, using the rules of soccer or football.” Per Eko JSC

H. CONSTITUTIONAL LAW

  1. Fair hearing– What fair hearing entails for an accused person

“When it is said that the accused is entitled to fair hearing, particularly the audi alteram partem component of it, it means, in the words of Ogundare J (as he then was) in AKINTEMI & ORS v. Prof ONWUMECHILI & ANOR (1981) 2 OY. S. H. C 457, that he should be adequately informed of the case against (him): and – (he) must be given an opportunity of meeting such a case.

The facts of this case may well be illustrative. Paul Usoro and two others were law students of University of Ife, Ile – Ife. They were executives of Law Student Society, Paul Usoro being the President. In that capacity they reported allegations of widespread examination leakages and malpractices in the sessional examinations in all classes of the Faculty of Law, particularly part III. They gave names of students who would be able to give evidence. The Vice-Chancellor was minded to set up the Adegbola Panel to investigate the allegation. Paul Usoro was the first to testify. None of the witnesses who testified received any charge or complaint against him nor was anyone of them asked to defend himself before the panel. Upon receiving the report of Adegbola Panel: the Vice-Chancellor, without showing the report to the students and calling on them to offer any explanation, issued a better placing each of them on suspension immediately. On their application for an order of certiorari to issue, on the grounds that their rights to fair hearing had been violated, their suspension and the offensive report were quashed.

The dictum of the Privy Council in Kandy Government of Malaya (1962) AC 322 further illustrates the importance of audi alteram partem in fair hearing. At page 337 of the report the law lords stated:-If the right to be heard is to be a real right which is worth anything, it must carry with it the right in the accused man to know the case which is made against him. The proof of evidence must contain the statements of witnesses to testify against him and any other evidential materials to be used against him in the bid of the prosecutor to prove the allegation or the charge against him beyond reasonable doubt. This is what it means when, it is said that the accused person must be “given a full opportunity of exculpating himself.

Ademola CJN in ADEDEJI v. POLICE SERVICE COMMISSION (1967) 1 All NLR 67; (1968) NMLR 102, citing with approval Kandy v. Government of Malaya (supra) stated the law on this thus -The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself.

Section 36 (6)(a) & (b) of the 1999 Constitution demand no less in the provisions to wit:

(6) Every person who is charged with a criminal offence shall be entitled to

(a) to be informed promptly in the language that he understands and in detail of the nature of offence;

(b) to be given adequate time and facilities for the preparation of his defence

The right conferred on the accused person by Section 36 (6)(a) & (b) of the Constitution is not a mere cosmetic or fanciful right, it is for real. In his book: Judicial Review of Administrative action, Prof. S. A. de Smith maintains, and I agree, that:

A person who is entitled to the protection afforded by the audi alteram partem rule must not only be given adequate opportunity to know the case he has to meet; he must also be given an adequate opportunity to answer it.

That is the right, in its totality, violated in Akintemi v. Prof. Onwumechili. See also Kandy v. Government of Malaya (supra); Adedeji v. Police Service Commission (supra). Per Eko JSC


I. APPEAL

  1. Appeal– Position of the law on concurrent findings of fact by the courts

“It is noteworthy to state that this appeal poses an exception to the general state of the law that concurrent findings of fact by the two lower courts should not be disturbed ordinarily, unless a substantial error, apparent on the face of the record of proceeding is shown or when such findings are perverse and or have occasioned a miscarriage of justice. See the case of Military Governor of Lagos State V. Adeyiga (2012) 5 NWLR (pt. 1293) 291 at 334 -336 and 338.

Also in the case of Adenike V. State (2015) 7 NWLR (Pt. 1458) 237 at 286 for instance, this court had the following to say:- The Supreme Court will rarely upset the findings made by the trial court and affirmed by the Court of Appeal. This is so because such findings were arrived at after cross examination and observation of the witnesses by the trial judge. Such concurrent findings of- the two courts below ought to carry much weight in an appeal court which did not have the opportunity or advantage of the trial court.” See further the cases of Shurumo V. State (2010) 19 NWLR (Pt. 1226) 54 at 100 – 101; Sobakin V. State (1981) 5 SC 75 and Igwe V. State (1982) 9 SC 174.

For all intents and purposes, and following from the foregoing authorities therefore, the appeal court should be wary to interfere with findings of fact made by a trial court. See also the decisions in the cases of Kodilinye V. Ody (1935) 2 WACA 336 and Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522. Per Ogunbiyi JSC

J. CRIMINAL LAW

  1. Conviction–Effect of convicting an accused of the offence of conspiracy to rob, which he was not at any time charged with

“As rightly submitted by the appellant’s counsel, Sections 216 and 217 of the Criminal Procedure Code cannot provide or prove a canal which will allow the Court to convict the appellant of the offence of conspiracy to rob, which he was not at any time charged with. See the decision of this Court in Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 at 614 per Fabiyi, JSC. The said sections supra, have no bearing to the case under consideration and I so hold. Hence the lower court erred and fell into the same trap as the trial court by convicting the appellant and thus occasioning a miscarriage of justice against him. In other words his constitutional right as provided by Section 36(1) of the Constitution 1999 (as amended) was violated with impunity.” Per Ogunbiyi JSC

  1. Conspiracy–Nature of the offence of conspiracy

“To be guilty of conspiracy, you must have done something in furtherance of an illegal agreement. There must be evidence that transcends merely belonging to an armed robbery gang. There is no specific act done by the appellant as having been in furtherance of the agreement.” Per Ogunbiyi JSC


LEAD JUDGMENT DELIVERED BY MUHAMMAD, JSC


This is an appeal against the judgment of the Court of Appeal holden at Makurdi delivered on 19 December 2013, affirming the conviction and sentence of the appellant by the Benue State High Court for conspiracy to commit robbery an offence punishable under Section 5(a) and (b) of the Robbery Firearms (special provisions) Act Cap 398 Laws of the Federation, in the latter’s decision of 26th February 2003. The Court of Appeal from which the appeal arose will, in the judgment, be referred to as the lower court while the Benue State High Court will be referred to as the trial court. The summary of the facts that brought about the appeal are herein under stated at once.

The appellant along with five others were initially charged for conspiracy and armed robbery punishable under Sections 1 and 5 of the robbery and firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990. At the close of the case for the prosecution three out of the accused persons were discharged for want of sufficient evidence. The appellant and the two others against whom a prima case was established were asked to enter their defence.

At the end of trial, the court relying on Sections 216 and 217 of the Criminal Procedure Code along with Section 5(l)(a) and (b) of Armed Robbery (Special Provisions) Act Cap 398 Laws of the Federation without having formally charged the appellant for conspiracy convicted him for the offence and, by virtue of the conviction, found him principally liable for the offence of armed robbery that he was formally charged for.

The lower court’s dismissal of appellant’s appeal against his conviction by the trial court informs his instant appeal to this Court.

At the hearing of the appeal, parties having filed and exchanged their briefs adopted and relied on same as their respective arguments for and against the appeal. The lone issue formulated by the appellant and on the basis of which the appeal will be determined reads:-

“Whether the appellant was properly convicted of the offence of conspiracy on the available evidence proffered by the prosecution.”

On the sole issue, learned appellant’s counsel submits that in criminal trials the burden lies on the prosecution to establish the guilt of the accused person beyond reasonable doubt. In the case at hand, it is argued, it is wrong of the lower court to have affirmed the trial court’s conviction of the appellant given the evidence on record. It is a negation of the appellant’s constitutional right to fair hearing under Section 36(1) of the 1999 Constitution for him to be convicted for an offence he was not charged. Citing the decisions in Njokwu V. State (2013) 9 NWLR (Pt 1360) 417 at 448 and Cross River State V. Young (2013) 11 NWLR (Pt 1364) 1 at 28, learned counsel submits that the lower court’s affirmation of the conviction cannot stand.

Further arguing the issue, learned counsel contends that Sections 216 and 217 of the Criminal Procedure Code on which the trial court’s findings at page 71 of the record, as affirmed by the lower court is based, stand in manifest conflict with Section 36(6)(a) and (b) of the 1999 Constitution. The constitutional provision requires that an accused be told his offence at the earliest possible time to enable him prepare his defence. Failure to do this, it is argued, is fatal to any conviction.

Lastly, learned counsel contends that exhibit B, appellant’s extra judicial statement, does not, on the authorities, constitute a confession of an agreement by the appellant to be a member of any armed robbery gang. In the absence of such an agreement, it is further argued, there cannot be the offence of conspiracy that the appellant has been convicted for by the two courts below. Relying on Ajayi V. The State (2013) 9 NWLR (Pt 1360) 589 at 614, Adeleke V. State (2013) 16 NWLR (Pt 1381) 556 and Abdullahi V. The State (2008) 17 NWLR (Pt 1115) 203 at 221 learned appellant’s counsel urges that in the absence of any evidence that an armed robbery had infact been committed pursuant to any agreement between the appellant and his two co-accused, the findings of the two courts below though concurrent cannot stand. Learned counsel prays the court to resolve the sole issue in favour of the appellant and in the result allow the appeal.

Responding under respondent’s 2nd and 5th issues, it is submitted that exhibit B, appellant’s extra-judicial statement, constitutes a confession and may alone lawfully sustain appellant’s conviction for the conspiracy he admitted. Being clear, direct and unambiguous, appellant’s confessional statement, learned respondent’s counsel submits, provides the best proof of the offence so admitted. Citing inter-alia Njoku V. The State (1992) 1 NWLR (Pt 262) 71, Nwachukwu V. State (2002 102 LRCN 213, Shodiya V. State (2013) ALL FWLR 1530 and Abiodun V. State (2013) ALL FWLR 1257 at 1261 learned counsel submits that the two courts’ reliance on exhibit B to convict the appellant is lawful more so when the confession has” been tested with other relevant facts in the testimonies of PW1 and PW2 to show that the confession is indeed true. True the appellant might not have been formally charged with the offence of conspiracy in relation to the 4th and 5th counts that survived against the appellant and the two others, however Sections 216 and 217 of the Criminal Procedure Code the trial court relied to convict the appellant, it is further submitted, do not in any way offend Section 36(6) (a) of the 1999 Constitution to justify setting aside the lower court’s affirmation of the trial court’s conviction of the appellant. Relying on the cases of Isiyaku Mohammed V. Kano N.A (1968) 1 ALL NLR 424 and Osuagwu V. State (2013) ALL FWLR 1603, learned counsel concludes that the appeal is unmeritorious and that it be dismissed.

My lords, the narrow issue in this appeal is whether in the absence of a formal charge for the offence of conspiracy to commit the substantive offence of armed robbery and notwithstanding the provision of Section 36(6) (a) of the 1999 Constitution the trial court’s conviction of the appellant by virtue of Section 216 and 217 of the Criminal Procedure Code for the conspiracy as affirmed by the lower court should endure.

The appellant in his extra judicial statement, exhibit B recorded on 20-10-2001 and fully reproduced in the trial court’s judgment, see pages 63-64 of the record, in admitting an agreement between him and others to commit armed robbery, inter-alia stated as follows;-

“…………. Sometimes a month ago, myself Olarewaju and Emmanuel we were going through deport road and along the road we saw a gun, a short pistol. As we picked the pistol I gave it to Emmanuel Ogboji, Emmanuel and Olarewaju are arrested by the police as armed robbers …………. / told Emmanuel and Olarewaju that we should buy bullets so that we use it for armed robbery operation……….. / did not come to report to police because we want to use the gun for armed robbery with Olarewaju, All Idankpo, Igoche Ojobor, Abdulraman Jibril and Emmanuel Ogboji………..”

Having found the foregoing statement of the appellant as well as those of his co-accused to be confessional, the trial court at page 67 of the record of appeal proceeded to deploy same firstly as follows:-

‘I have already made a note of how short of linking any of the accused persons to the 1st, 2nd and 3rd charges the oral testimonies before me are. I say the same also of the extra- judicial statements of the accused persons. None of them has admitted being a party to the specific offences charged in the 1st, 2nd and 3rd charges which are exclusively in relation to the incident that happened at No. I Achigifi Street, Otukpo on or about the 18th day of October, 2001. In relation to these charges, I discharge and acquit each and everyone of the 1st, 2nd and 3rd accused person.”

On the 4th and 5th heads of charge the trial court held in relation to the appellant inter-alia thus:-

“On the part of the 2nd accused, the second part of exhibit ‘B which he made on 20-10-2001 and which, as I have already noted, was put in evidence without objection, also positively, unequivocally and conclusively admitted that he was a part of a conspiracy with some named persons, including the 1st and 3rd accused persons to commit armed robbery in which he was only yet to physically take part. Whether or not this admission by him is sufficient to hold him liable for any offence(s) on account of the trial in hand is a question which I will still return to answer in this judgment.”

The court’s answer as to appellant’s culpability continues at pages 69-70 of the record of appeal as follows:-

“The question then is whether or not the accused persons can be convicted of conspiracy in the circumstances of this case even though they have not been specifically charged with the offence.

The provisions of Sections 216 and 217 of the Criminal Procedure Code are relevant in this regard……… Under these provisions read together, a trial court has the power to convict an accused for any offence disclosed by evidence even though not specifically charged with it. In the instant case, even though Exhibits ‘A’ ‘B’ and ‘C each has admitted some robberies not charged, the reason why those admitted facts cannot form the basis of any conviction is because there are no facts by which the admissions can be tested. The same cannot however be said of the conspiracy which the accused persons have all admitted.

The offence was complete upon their agreement. There are outside the confessions showing that robberies were indeed committed at No 2 Otia F and at Otia F’ 7B in furtherance of the agreement. I see the offence of criminal conspiracy to commit armed robbery established against each and every one of the 1st, 2nd and 3rd accused persons. And having also found that the offences of armed robberies in the 4th and 5th charges were indeed committed by the 1st and 3rd accused persons in furtherance of a standing conspiracy between themselves and others including the 2nd accused, I see no escape route for the latter in relation to those specific charges even though he claims not to have participated in the robberies.”

The court concluded as follows:-

“In summation, after perusing the charges and considering the entire case for the prosecution as well as the defences of the respective accused persons, I am satisfied that the offences of conspiracy and armed robberies respectively punishable under Sections 5(b) and 2(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 of the Federation of Nigeria 1990 have each been established against each of the accused persons. They are each accordingly hereby convicted as charged and also for conspiracy punishable under Section 5(b) supra.”

In affirming the trial court’s forgoing findings the lower court at pages 127-128 of the record of appeal held thus:-

“l shall, notwithstanding the above conclusion which settles the Issue in discourse still proceed to consider the issue of conviction for conspiracy for armed robbery and the imposition of a sentence for armed robbery even though not so charged. Section 1(2) (a) of the Robbery and Firearms Act 1990 under which count 4 is brought provides as follows:

‘1(2) (a) if the offender mentioned in sub-section (1) of this section is armed with any Firearms or any offensive weapon, or is in company with any person so armed; or (b)

(b) at or immediately before or immediately after the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.’

‘5. Any person who (a) ‘b’ conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

What the afore quoted provisions of Section 5 of the Robbery and Firearms Act portends is that the law automatically deems an accused person who from the evidence led in a principal offence to have conspired in the commission of that offence to be presumed guilty without more.That simply means that the evidence disclosing conspiracy against an accused whether principally charged or not would be taken as evidence alluded to after a specific charge. This is a specific statutory provision which is akin to or similar to the related provision of Sections 216 and 217 of the Criminal Procedure Code, discussed supra. The offence of conspiracy arising from the principal charge(s) brought to the Notice of the Accused/Appellant and upon which a plea had been taken, cannot be said to be in violation of the constitutional guarantee for fair hearing or a violation to the Criminal Procedure Code provisions relating to arraignment, plea to specific allegation’s e.t.c.”

Now, it is glaring from the record of this appeal that there is no formal charge for conspiracy to which the appellant has pleaded. It is equally glaring that though he has been formally charged for armed robbery under the 4th and 5th heads of charge, exhibit B, his extra judicial statement, the two courts below adjudge confessional, does not allude to any of the armed robbery offences contained under the 4th and 5th heads of charge. Both courts have, relying on Sections 216 and 217 of the Criminal Procedure Code read along with Section 5(1) of the Armed Robbery (Special Provisions) Act Cap 389, Laws of the Federation, however, convicted the appellant for the offence of conspiracy to commit the armed robberies in relation to the 4th and 5th heads of charge and for the principal offence thereunder. Learned appellant’s counsel insists that the concurrent findings of the two courts are not sustainable by virtue of Sections 216 and 217 of the Criminal Procedure read along with Sections 1(2) (a) and 5 of the Armed robbery (Special Provisions) Act which findings in any event offend Section 36 (6) (a) of the 1999 Constitution.

Resolving this issue requires a communal reading of Sections 216, 217 of the Criminal Procedure Code, Sections 1 and 5 of the Armed robbery (Special Provisions) Act as well as Section 36 (6) (a) of the 1999 Constitution all of which Sections are hereunder reproduced for ease of reference:-

SECTIONS 216 AND 217 OF THE CRIMINAL PROCEDURE CODE.

“Section 216 CPC. If a single act or series of acts is of such a nature that is doubtful to which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed someone or other of the said offences. Section 217 CPC. If in the case mentioned in section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.”

SECTIONS 1 AND 5 OF ARMED ROBBERY (SPECIAL PROVISIONS) ACT

“Section 1. Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years. Section 5. Any person who———-

(a) Aids, counsels, abets or procures any person to commit an offence under section 1, 2, 3 or 5 of this Act; or

(b) Conspires with any person to commit such an offence, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”

SECTION 36 (6) (A) OF THE 1999 CONSTITUTION

“-(6) Every person who is charged with a criminal offence shall be entitled to –

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence.”

Let me out rightly state the principle that the Constitution is our supreme law and any law that stands in conflict with it is null and void to the extent of the inconsistency. See Nwaigwe V. Okere (2008) LPELR-2095 (SC), National Union of Electricity Employers & anor V. Bureu of Public Enterprises (2010) LPELR-1966 (SC); (2010) 7 NWLR (Pt 1194) 538 and AG, Ondo State V. AG, Federation & ors (2002) 9 NWLR (Pt 772) 226. I will come back to this. Suffice it for now to refer to the instructive decision of the decision of the High Court of the then Northern region in R Ekechukwu V. Commissioner of Police 1966 NNLR 96 on the interpretation to place on Sections 216 and 217 of the Criminal Procedure Code. The court, inter-alia, held at 99, 101-102 of the report as follows:-

“The next issue is whether the appellant could, in law, have been convicted under Section 319A of the Penal Code by virtue of Sections 216 and 217 of the Criminal Procedure Code………….

So far as we are aware there is only one reported case in which the effect of Section 217 was raised. This was in the Supreme Court in Okwuwa v. The Queen 1965 N.M.L.R. 53. But the court expressly decided the issue under another section and observed that section 217 ‘raises difficult questions’ and hoped ‘that the law officers will review section 217’……………….

The Indian courts have held that where there has been a conviction by virtue of Section 237 an appeal court will apply section 232 and satisfy itself that the appellant has not been misled in his defence by the absence of the charge; vide Mallu Gope v. Emperor A 1929 P. 712.

We follow these Indian authorities and think that the position 4n Northern Nigeria may be stated as follows. In general, if, during the course of a trial, there is evidence of facts to prove an offence with which the accused person is not charged the court should frame a new charge under section 208 of the Criminal Procedure Code and comply with that section and the relevant sections which follow. The Court may, however, apply section 217 to convict of an offence with which the accused is not charged provided (1) it had been doubtful which of several different offences the facts which could be proved would constitute and (2) such doubt applied only to the law and not to the facts; that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. If there is an appeal against a conviction made by virtue of section 217 the appeal court will apply section 222 and if it considers that the appellant was misled in his defence by the absence of a charge and a failure of justice has been occasioned it will either quash the conviction or order a retrial.

We have already said that a charge of criminal breach of trust gave the appellant no notice of the ingredients of the offence of unlawful possession. It follows, in our view, that the appellant was misled in his defence and a failure of justice was occasioned. We would add that, in any event we do not think in the case before us there was doubt, when the charge was framed, as to which of several offences the facts, if proved, would constitute (Underlining supplied for emphasis). I adopt the foregoing entirely.

My lords, in the instant case none of the two conditions which justify a trial court’s invocation of Sections 216 and 217 of the CPC to convict an accused are evident. The trial and ultimate conviction and sentence of the appellant is consequent upon the leave sought and obtained by the prosecuting counsel in the chambers of the Benue State Attorney General Pursuant to rule 3(2) of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970. In support of respondent’s application for the leave are the names of the accused persons including that of the appellant, the witnesses to testify at the trial as well as the proof of evidence the witnesses are to give at trial. The respondent cannot be heard to argue that it has any doubt as to which offence the facts against the appellant, if proved,would constitute. In exhibit B, the only evidence that seems to avail the respondent, the appellant appears to confess to agreeing to commit armed robbery generally and not in relation to the specific robberies contained in the 4th and 5th charge. Nothing in the evidence on record suggests in the least that he was a party to the two robberies under the 4th and 5th heads of charge. The respondent, in the face of these facts, cannot also be heard to say that it is in doubt, were it to be taken that appellant’s confession in exhibit B relates to the robberies in the 4th and 5th charge, and it is not, as to what law provides for the offence the appellant is to be charged. I am of the firm and considered view that given the facts on which the appellant is charged he did not have the necessary notice of the offence with which he is convicted. It is, therefore, reasonable to accept the suggestion of his being misled in his defence and conclude that a failure of justice has indeed been occasioned.

Both courts, I must finally say, wrongly relied on Section 5(b) of the Armed Robbery (Special Provisions) Act to convict the appellant on the basis of exhibit B which they accept as sufficient proof of conspiracy against the appellant. That conclusion only avails the two courts where the fact of the offence of conspiracy is formally charged, pleaded to and established by evidence. Then and only then would Section 5(b) of the Robbery Act become operative. It is not the case here as earlier stated in this judgment.

Finally, since the appellant herein has not been given sufficient notice of the offence he is convicted for to facilitate his defence, the conviction runs against Section 36(6) (a) of the 1999 Constitution and is, to that extent, null and void.

In sum I find the appeal meritorious, and allow same. Resultantly, the conviction and sentence of the appellant by the trial court as affirmed by the lower court is hereby set aside.


KEKERE-EKUN, JSC

My learned brother, MUSA DATTDO MUHAMMAD, JSC has obliged me with a draft of the judgment just delivered. I agree with the reasoning and conclusion that there is merit in the appeal and it should be allowed.

A confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act, 2011. A confessional statement is sufficient to ground a conviction if proved to be voluntary, positive, unequivocal and amounts to an admission of guilt. See: Osetola & Anr. Vs The State (2012) 6 SCNJ 329; Dogo Vs The State (2013) 3 SCNJ 144: Nwachukwu Vs The State (2002) 7 SCNJ 230.

The conundrum in this appeal is that in Exhibit B, the appellant’s extra judicial statement, which was admitted in evidence as a confessional statement, the appellant did not actually confess to the commission of any robbery or conspiracy thereto. The statement, which can be found at page 12 of the record reads as follows:

“That I am a motor mechanic. I know one Lawrence Achikwu and Olarewaju Akogwun, we are both living in the same area Zone H/B. Sometime ago, about three week now, I, Emma and Olarewaju were moving towards deport road and we saw on the ground one pistol gun-along deport road then I told others that we should pick the gun and buy some bullets. We did not buy any bullets. After taking I did not learn how to shot the gun. In fact the gun is my own, I gave the gun to Emmanuel Adakole to keep for me. Emmanuel gave the gun to Adakole to keep for him. The operation they did at Otia Igbanomaje I did not share any money or with Lawrence and Olarewaju, John did not give me any money. I have never gone out with Olarewaju and Emmanuel and I never to to thief it is a serious affair with the latest problem, I am not a member of any Armed Robbery gang. The boys I cannot tell whether they have robbery gang, I was operated since three weeks ago. So I cannot robber joined bad gang. That is all.”

The learned trial Judge found that there was no evidence linking the appellant with the charge of armed robbery in counts 4 and 5 of the charge but held that the offence of conspiracy was made out by the alleged confession in Exhibit B. With due respect to their lordships of the court below who affirmed this view, the finding was erroneous. There is nothing in Exhibit B to suggest that the appellant conspired with anyone to commit the armed robberies charged in counts 4 and 5. He was never charged with the offence of conspiracy which would have afforded him an opportunity to plead thereto and to defend himself.

It is settled law that an accused person may be convicted of a lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence See: Ahmed Sule (alias Eza) Vs The State (2001) 12 SCNJ 1: Adeyemi Vs The State (1991) 6 NWLR (Pt. 195)1; Nwachukwu Vs The State (1986) 2 NWLR (Pt. 25) 765.

Section 216 of the Criminal Procedure Code (CPC) seeks to address a situation where several offences might have been committed and the prosecution is in doubt as to which of the possible offences the available facts, if proved, could constitute. It permits the prosecution to charge the accused with all or any one or more of such offences. He may also be charged in the alternative.

By Section 217 of the CPC, where the scenario in Section 216 occurs and the accused is charged with one of several possible offences but from the evidence the accused is shown to have committed a different offence, with which he could have been charged but was not, he may be convicted of that other offence although not charged with it.

In Ezechukwu Vs C.O.P (1996) NWLR 96 @ 101, the Court of Appeal held that where Section 217 is to be relied upon in convicting an accused person of an offence with which he was not charged it must be apparent (1) that it had been doubtful which of several offences the facts which could be proved would constitute and (2) such doubt must apply only to the law and not to the fact; that is to say the fact charged must have given the accused person notice of the offence with which he is to be convicted. I think this view accords with sound reasoning and I adopt it.

Applying the guidelines enunciated above, I am of the view that the sections are inapplicable in the present circumstance. No link was established between the content of Exhibit B, (which the court solely relied on to convict the appellant) and any offence at all. In particular there is no link between Exhibit B and the offence of armed robbery charged in counts 4 and 5 of the charge.

I am in agreement with my learned brother in the lead judgment that the invocation of Sections 216 and 217 of the Criminal Procedure Code by the trial court as affirmed by the court below amounted to a breach of the appellant’s fundamental right to fair hearing guaranteed by Section 36(6) of the 1999 Constitution, as amended and thereby occasioned a miscarriage of justice. For these reasons and for the more elaborate reasons well adumbrated in the lead judgment, I allow the appeal. The concurrent findings of the two lower courts are hereby set aside. I abide by the consequential orders made in the lead judgment.


EKO, JSC

I had the privilege of reading in draft the judgment just delivered in this appeal by my learned brother, MUSA DATTIJO MUHAMMAD, JSC. The judgment represents all that I need to say in this appeal.

I will only add a few words of mine. The facts are well stated in the said judgment.

The narrow question is: whether by the resort, of the courts below to Sections 216 and 217 of the Criminal Procedure Code (CPC) Law of Benue State to convict, and affirm the conviction, of the appellant of the principal offence of conspiracy to commit armed robbery; which in the first place he was not charged with, the right of the appellant to fair hearing guaranteed by Section 36 of the Constitution had been violated?

When it is said that the accused is entitled to fair hearing, particularly the audi alteram partem component of it, it means, in the words of Ogundare J (as he then was) in AKINTEMI & ORS v. Prof ONWUMECHILI & ANOR (1981) 2 OY. S. H. C 457, that he should be adequately informed of the case against (him): and – (he) must be given an opportunity of meeting such a case.

The facts of this case may well be illustrative. Paul Usoro and two others were law students of University of Ife, Ile – Ife. They were executives of Law Student Society, Paul Usoro being the President. In that capacity they reported allegations of widespread examination leakages and malpractices in the sessional examinations in all classes of the Faculty of Law, particularly part III. They gave names of students who would be able to give evidence. The Vice-Chancellor was minded to set up the Adegbola Panel to investigate the allegation. Paul Usoro was the first to testify. None of the witnesses who testified received any charge or complaint against him nor was anyone of them asked to defend himself before the panel. Upon receiving the report of Adegbola Panel: the Vice-Chancellor, without showing the report to the students and calling on them to offer any explanation, issued a better placing each of them on suspension immediately. On their application for an order of certiorari to issue, on the grounds that their rights to fair hearing had been violated, their suspension and the offensive report were quashed.

The dictum of the Privy Council in Kandy Government of Malaya (1962) AC 322 further illustrates the importance of audi alteram partem in fair hearing. At page 337 of the report the law lords stated:-

If the right to be heard is to be a real right which is worth anything, it must carry with it the right in the accused man to know the case which is made against him.

The proof of evidence must contain the statements of witnesses to testify against him and any other evidential materials to be used against him in the bid of the prosecutor to prove the allegation or the charge against him beyond reasonable doubt. This is what it means when, it is said that the accused person must be “given a full opportunity of exculpating himself. Ademola CJN in ADEDEJI v. POLICE SERVICE COMMISSION (1967) 1 All NLR 67; (1968) NMLR 102, citing with approval Kandy v. Government of Malaya (supra) stated the law on this thus –

The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself.

Section 36 (6)(a) & (b) of the 1999 Constitution demand no less in the provisions to wit:

(6) Every person who is charged with a criminal offence shall be entitled to

(a) to be informed promptly in the language that he understands and in detail of the nature of offence;

(b) to be given adequate time and facilities for the preparation of his defence

The right conferred on the accused person by Section 36 (6)(a) & (b) of the Constitution is not a mere cosmetic or fanciful right, it is for real. In his book: Judicial Review of Administrative action, Prof. S. A. de Smith maintains, and I agree, that:

A person who is entitled to the protection afforded by the audi alteram partem rule must not only be given adequate opportunity to know the case he has to meet; he must also be given an adequate opportunity to answer it.

That is the right, in its totality, violated in Akintemi v. Prof. Onwumechili. See also Kandy v. Government of Malaya (supra); Adedeji v. Police Service Commission (supra).

The issue thrown up in this case is whether Sections 216 and 217 of the Criminal Procedure Code (CPC) Law of Benue State have the potency to diminish the efficacy, purpose and intent of Section 36 (6)(a) and (b) of the Constitution? The CPC, Particularly its provisions contained in Sections 216 and 217 thereof, are subordinate to any constitutional provisions. By virtue of Section 1 (1) and (3) of the Constitution, Section 36 (6) (a) and (b) of the Constitution shall override Sections 216 and 217 of the CPC if they are inconsistent with the provisions of Section 36 (6)(a) and (b) of the Constitution; and they are to the extent that they purport to enable and empower the court to convict an accused “person of the offence which he is shown to have committed although he was not charged with it”. For instance, on a charge of house breaking or burglary it will be outrageous and most perverse for the court in, in the purported exercise of its discretion under Section 217 of the CPC, to convict the accused person for rape, if it appears from the evidence that he committed that offence although he was charged with it it may, though be different if the offence the accused person is convicted of is an element of the offence of the bigger offence he was charged with.

The very essence of audi alteram partem is that the accused person should not be misled in his defence by the absence of a charge which certainty potentiates failure of justice. Where, as in the instant case, the appellant is shown to have been misled in his defense by the absence of the charge of the offence he was convicted of, by the invocation of Section 217 of the CPC, and a miscarriage of justice has been occasioned thereby, the appellate court will intervene and quash the conviction and sentence. Section 217 of the CPC cannot be invoked, if I may borrow the analog, by the court, like the umpire in a volleyball tournament, using the rules of soccer or football.

It appears to me that the prosecution, in this case, failed to prove any of the specific charges the appellant was alleged to have committed with others. The learned trial judge had thereafter looked into Exhibit B made by the appellant on 20th October, 2001 wherein the appellant had stated.

Sometimes a month ago, myself Olarewaju and Emmanuel – were going through Deport Road and along the road we saw a gun, a short pistol. As we picked the pistol I gave it to Emmanuel Ogboji Emmauel and Olarewaju are arrested as armed robbers. –

I told Emmanuel and Olarewaju that we should buy bullets so thai we use it for armed robbery operation-

I did not come to report to police because we want to use the gun for armed robbery with Olarewaju Ali Idankpo, Igoche Ojober. Abdulrahaman, jibril and Emmanuel Ogboji –

This general conspiracy was not part of the specific charges the appellant faced or defended at his trial. He was not charged and he did not defend any allegation on this general and non specific agreement to use the pistol for armed robbery operation. He was not notified that the facts he averred in Exhibit B shall form the basis of any criminal charge against him. Section 36 (6)(a) of the Constitution makes it obligatory that the prosecutor shall inform the accused person, as the appellant was, in detail of the nature of the offence. That is the function of the prosecutor. That function is not shared by the trial court or judge with the prosecutor. Sections 216 and 217 of the CPC do not, in my view, make the trial court or judge partake of the functions of the prosecutor. For purposes of nemo judex in causa sua, the trial court or judge cannot step into the arena to fish for charges to fix the accused person. The trial court or judge, whenever it or he steps into arena ceases thereby to be regarded as impartial.

I completely, therefore, concur with the judgment just delivered in this appeal by my learned brother, MUSA DATTIJO MUHAMMAD, JSC. I also allow the appeal, and consequently set aside the conviction and sentence of the appellant by the trial court as affirmed by the Court of Appeal.


OGUNBIYI, JSC

I have had the privilege of reading in draft the lead judgment of my learned brother Musa Dattijo Muhammad, JSC. I agree entirely that the concurrent findings of the lower courts are perverse and have occasioned a gross miscarriage of justice against the appellant, and should be set aside.

It is noteworthy to state that this appeal poses an exception to the general state of the law that concurrent findings of fact by the two lower courts should not be disturbed ordinarily, unless a substantial error, apparent on the face of the record of proceeding is shown or when such findings are perverse and or have occasioned a miscarriage of justice. See the case of Military Governor of Lagos State V. Adeyiga (2012) 5 NWLR (pt. 1293) 291 at 334 -336 and 338.

Also in the case of Adenike V. State (2015) 7 NWLR (Pt. 1458) 237 at 286 for instance, this court had the following to say:-

The Supreme Court will rarely upset the findings made by the trial court and affirmed by the Court of Appeal. This is so because such findings were arrived at after cross examination and observation of the witnesses by the trial judge. Such concurrent findings of- the two courts below ought to carry much weight in an appeal court which did not have the opportunity or advantage of the trial court.”

See further the cases of Shurumo V. State (2010) 19 NWLR (Pt. 1226) 54 at 100 – 101; Sobakin V. State (1981) 5 SC 75 and Igwe V. State (1982) 9 SC 174.

For all intents and purposes, and following from the foregoing authorities therefore, the appeal court should be wary to interfere with findings of fact made by a trial court. See also the decisions in the cases of Kodilinye V. Ody (1935) 2 WACA 336 and Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522.

From all indication, the decision in the appeal under consideration does not come within the foregoing authorities but is rather shown to be unreasonable because from the record before us, it is not supported by any evidence. It is also not a result of genuine exercise of a judicial discretion and hence has resulted in a gross miscarriage of justice.

It is borne on the record that the appellant herein did confess in general terms to an agreement to rob in his statement Exh. B. The question however is, was there any formal charge against the appellant for a specific offence of conspiracy to commit robbery, and which he had confessed to in Exhibit B?

At page 69 of the record for instance, the trial court had this to say:-

“As I have already noted, the offences the accused persons have confessed to, by the available evidence, are of conspiracy and armed robberies at Nos. 2 Otia F’ and Otia F’ 7B. There is no specific charge of conspiracy which is the only point upon which the 2nd accused has confessed.”

Exhibit B, in a nutshell could be interpreted to mean that the appellant and his cohorts did conspire to form a robbery gang. The issue before us is nothing to do with belonging to a gang of armed robbers. To be guilty of conspiracy, you must have done something in furtherance of an illegal agreement. There must be evidence that transcends merely belonging to an armed robbery gang. There is no specific act done by the appellant as having been in furtherance of the agreement.

It is not shown also that the appellant agreed that Pwl and Pw2 should be robbed specifically. The prosecution must not only show that an offence was committed but must proceed further and link the appellant to the commission of the offence thereof.

As rightly submitted by the appellant’s counsel, Sections 216 and 217 of the Criminal Procedure Code cannot provide or prove a canal which will allow the Court to convict the appellant of the offence of conspiracy to rob, which he was not at any time charged with. See the decision of this Court in Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 at 614 per Fabiyi, JSC. The said sections supra, have no bearing to the case under consideration and I so hold. Hence the lower court erred and fell into the same trap as the trial court by convicting the appellant and thus occasioning a miscarriage of justice against him. In other words his constitutional right as provided by Section 36(1) of the Constitution 1999 (as amended) was violated with impunity.

The two lower courts were concurrent on a wrong conclusion and this court must Interfere appropriately with their judgments in order to do justice to the appellant.

With the few words of mine and while adopting the comprehensive reasoning and conclusion arrived at in the lead judgment of my brother, as mine, I also will allow this appeal and set aside the concurrent judgments by the two lower courts. I further abide by all orders made in the lead judgment.


APPEARANCES:

A. MADUABUCHI ESQ. for the Appellant with: Emeka Okoye Esq., Uchenna Onyedi (Mrs.), Chibueze Ndidigwe Esq., Evelyn Joseph (AAiss) and Robert Shiaondo Esq.

SIR. M. O. ATUBU, D.D.P.P. Benue State for the

Respondent with: J. O. Ewurum (Mrs.) (PSC) Benue State Ministry of Justice.