1.0       BRIEF FACTS OF THE CASE

The Appellant was charged before the High Court of Bauchi State, for the offences of Conspiracy to commit Armed Robbery; Abetment contrary to Section 83 of the Penal Code; and Armed Robbery contrary to Section 1 (2) (a) (b) of the Robbery and Firearms Act (Special Provisions) Act, Cap R11 LFN 2004. The Appellant pleaded not guilty to the three (3) count charge.

Following the trial, the Learned Trial Judge discharged and acquitted the Appellant on the three-count charge but proceeded to convict the Appellant of the lesser offence of Dishonestly Receiving Stolen Property pursuant to Section 214 of the Criminal Procedure Law of Bauchi State.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court of Appeal, Jos, complaining that the conviction of the Appellant of the lesser offence of Dishonestly Receiving Stolen Property was erroneous. The Respondent cross-appealed on the ground that the trial Court erred in disregarding the evidence of PW4 when it discharged the Appellant of the charges of Conspiracy to commit Armed Robbery and Abetment.

2.0       ISSUES

The issues before the appellate Court were:

  1. Whether the trial Court had jurisdiction to convict for the lesser offence of dishonestly receiving stolen property?
  1. Whether on the totality of the evidence adduced, the trial court was right in holding that the Prosecution did not prove beyond reasonable doubt all the ingredients of criminal conspiracy and abetment against the Appellant?

3.0       ARGUMENTS

The Appellant argued that the trial Court lacked jurisdiction to convict the Appellant of the offence of Dishonestly Receiving Stolen Property under Section 317 of the Penal code (a State law), at a trial where the Appellant was charged for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act (a Federal Statute). The Appellant argued that the criminal laws of Nigeria make a dichotomy between Federal and State laws on conviction, therefore, having being discharged for the offence charged under the Federal law, a conviction under a state law not charged was erroneous. To buttress his position, Counsel relied on the decisions of the Supreme Court in Anthony Okobi v. The State (1984) LPELR-2453 (SC) and Mohammed Bello v. The State (2020) 3NWLR (PT 1710) 72.

Counsel for the Appellant further submitted that for the Court to convict for a lesser offence than the offence charged, it must be shown that the particulars and facts of the original charge are the same or similar to the lesser offence. Learned Counsel submitted that the ingredients of Dishonestly Receiving Stolen Property were different from a charge of Armed Robbery and accordingly, the Appellant’s conviction was wrong and should be upturned.

The Respondent in rebuttal argued that the trial Court was empowered to convict the appellant of the offence of Receiving Stolen Property by Section 217 of the Criminal Procedure Code. Counsel argued that if evidence before the Court shows that the Appellant has committed a different offence which he might not have been charged, the Court can convict him on a different offence which he is shown to have committed although he was not charged with it. Counsel further argued that the Appellant was properly convicted by the trial Court on the basis of Section 167 (a) of the Evidence Act 2011.

On the issue of Section 167 (a) of the Evidence Act, Counsel for the Appellant in the Reply Brief, argued that the provision of Section 167 (a) of the Evidence Act was inapplicable as the record showed that the Appellant was not found in possession of the stolen motorcycle.

In the Cross-Appellant’s Brief, Counsel for the Respondent/Cross-Appellant argued that the trial Court did not give sufficient cognizance and value to the testimony of PW4 in his judgment. While in the Cross-Respondent’s Brief, Counsel for the Appellant/Cross-Respondent gave several reasons why the decision of the trial judge should not be interfered with.

 4.0       COURT’S JUDGMENT AND RATIONALE

Issue 1

The appellate Court considered the question, whether a person charged for a federal offence like armed robbery can be convicted for a state offence of dishonestly receiving stolen property after he is acquitted of armed robbery. In resolving the question, the appellate Court placed reliance on the authorities of Anthony Okobi v. The State (1984) LPELR-2453 (SC), (1984) 7 S.C 47 and Mohammed Bello v. The State (2020) 2 NWLR (Pt. 1710) 72.

The appellate Court cited Anthony Okobi v. The State (supra), which elucidates the principle that:

“The court is not a prosecutor but an adjudicator and it borders on persecution for the court to invoke its powers under a law under which the prosecutor decided not to proceed or prosecute. The jurisdiction being exercised by the High Court of the State in the trial of persons for offences under the Armed Robbery and Firearms (Special Provisions) Act is the jurisdiction conferred upon the High Court by the Robbery and Firearms (Special Provision) Act. Offences under the Act are Federal offences. As the Act gave no jurisdiction to convict of offences other than those set out in the Act, the High Court cannot by the application of section 179(1) of the Criminal procedure Law exercise the jurisdiction conferred by the Act to convict of an offence not under the Act”.

In addition, the appellate Court held that the course taken by the trial Court could only be justified if the Appellant was charged in the alternative for receiving stolen property which incidentally was also an offence under Section 5 of the same Robbery and Firearms (Special Provisions) Act. The appellate Court further held that the Appellant’s conviction by the trial court for the offence of receiving stolen property was wrong for the following reasons:

  1. The state did not so charge the Appellant;
  2. Dishonestly receiving stolen property being not a lesser offence properly so called of Armed Robbery as the two did not share the same ingredients, which means that the Appellant’s right to fair hearing would have been and was actually infringed with his conviction for the offence of dishonestly receiving stolen property when he had no opportunity of contesting that charge; and
  3. The federal penal statute of Robbery and Firearms (Special Provisions) Act under which the Appellant was charged not having any provision for punishment of lesser offence.

Issue 2

On the second issue which arose from the Cross-appeal of the Respondent/Cross-Appellant, the appellate Court upheld the decision of the trial court and dismissed the cross-appeal.

5.0       COMMENT

From the above analysis, it is apparent that the authority of Yakubu Musa v. The State underscores the following principles:

  1. That the dichotomy between federal and state laws exists for the purpose of fair hearing and the interest of justice; and
  2. a court has no jurisdiction to entertain any submission to convict an accused for a lesser offence under a state law at a trial or an appeal against a conviction for an offence under a federal law.

 

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