Whether an accused can be convicted under the law with which he was charged but sentenced under a different law
MURTALA v. STATE
CITATION: (2022) LPELR- 58945(CA)
In the Court of Appeal
In the Kano Judicial Division
Holden at Kano
ON FRIDAY, NOVEMBER 18, 2022
Suit No: CA/KN/51A/C/2021
Before Their Lordships:
ITA GEORGE MBABA Justice, Court of Appeal
BOLOUKUROMO MOSES UGO Justice, Court of Appeal
USMAN ALHAJI MUSALE Justice, Court of Appeal
ABDULFATAH MURTALA – Appellant(s)
THE STATE – Respondent(s)
LEADING JUDGMENT DELIVERED BY ITA GEORGE MBABA, J.C.A.
This is an appeal against the judgment of Kano State High Court in Charge No. K/197C/2017.
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 assailant(s) ran away, without taking anything.
Three of them, including the appellant, were arrested. Appellant was the second accused person. The first 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 two 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 of Appeal determined the appeal on the following issues thus:
“(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?”
On issue one, 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.
On issue two, counsel argued that the trial Court was wrong to convict the appellant of attempt to commit armed robbery, relying on the confessional statement (Exhibit A2, the English version), when the Hausa version of the confessional statement was not tendered as Exhibit. He stated that the PW2 (IPO) had said that he recorded the appellant’s statement in Hausa and in English languages. Counsel relied on ADAMU VS STATE (2019) 8 NWLR (PT 1675) 478 AT 493-494, and submitted that both the Hausa and English versions ought to have been tendered; that issue of fair hearing would arise where the appellant did not understand the English language used in trying him.
The learned counsel for the respondent on issue one, 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 could 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.”
On issue two, respondent’s counsel argued in the affirmative that the trial Court was right to rely on the confessional statement (Exhibit A2), to convict the appellant. That the testimony of the appellant in Exhibit A2 corroborated the evidence of PW1 (the victim) and PW2 (IPO); and that when Exhibit A2 was tendered, the appellant raised no objection to the admission of same, and so it was admitted, without any objection. Counsel argued that the trial Court was entitled to convict even on the basis of the confessional statement of the appellant alone. He relied on SALIU VS STATE (2014) 5-6 SC (PT 1) 26.
RESOLUTION OF ISSUES
In resolving the issues, the Court stated that the appellant and the other accused persons were tried for armed robbery under the relevant State Law – SECTION 298 OF THE PENAL CODE, CAP 105, LAWS OF KANO STATE 1991. But at the end of the trial, the learned trial Court found that the evidence rather established a lesser offence of attempt to commit armed robbery, since the accused persons did not take away anything from their victim, after stabbing and beating him, as they ran away in fear, upon the victim raising alarm. That the intention to rob was established, as well as the use of threat and arms, to do so.
The Court aligned with the decision of the trial Court in convicting the appellant and his co-accused for an attempt to commit armed robbery in the circumstance of the case but held that the resort by the trial Court to SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT in prescribing the punishment of the Appellant and the other accused persons was wrong. However, the Court stated that the said error 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.
The Court cited the provisions of SECTIONS 298 AND 299 OF THE PENAL CODE OF KANO STATE which provide as follows: “298. Whoever commits robbery shall be punished: -(a) with imprisonment for twenty-one years with or without fine and canning; and(b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment for life, with or without caning.
“299. Whoever attempts to commit robbery shall be punished with imprisonment for a term of fourteen years, with or without fine and caning.”
The Court went further to state that the rules concerning conviction for a lesser offence are well established and entrenched in our criminal jurisprudence, where the particulars or ingredients of the lesser offence are also integrated in the main offence, and so the evidence led, to establish the said main offence is subsumed in what is required to establish the lesser offence, enabling the trial Court to convict on the lesser offence, straight away, without any need to amend the charge for the accused to take plea on the said lesser offence. See the cases of GALADIMA VS STATE (2013) LPELR-20402 CA, SALIU VS STATE (2018) LPELR-44064 (SC). Thus, the Court aligned with the decision of the trial Court in convicting the appellant on the said lesser offence of attempted armed robbery, which was clearly established by the evidence led, short of proving the main offence of armed robbery. However, the Court held that the trial Court should have sentenced the appellant under the SECTION 299 OF PENAL CODE, CAP 105 OF KANO STATE, which prescribes punishment for attempted robbery, being prison terms of up to 14 years, and a fine.
The Court held the argument that the Hausa version of the appellant’s statement was not tendered, to be untrue. That it is clear from the Records that both the Hausa and English versions were admitted, together, as Exhibit A2.
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.
A. S. ABDULKADIR, ESQ. – For Appellant(s)
MUHAMMAD NASIR FARUK, ESQ. (S.S.C. Kano State MOJ) – For Respondent(s)
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