IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 6TH DAY OF JULY 1984

SC 85/1983

BETWEEN

ANTHONY OKOBI ............................................ APPELLANT

AND

THE STATE ............................................... RESPONDENT

BEFORE: Bello, Obaseki, Aniagolu, Nnamani, Uwais; JJ.S.C

Daibu Usman Sambo (P.W.1) on the 11/11/80 at about 3.30pm negotiated with the second accused to buy £50.000.00 sterling from him at a cost of N100,000.00. On the 12/11/80, P.W.1 in company of Umaru Habib P.W.4 and Mohammed Gatta at 7:30 am, went to the appellant in his office. The appellant was not in his office when they arrived. They waited and by 9:30 am he arrived. They had gone with N105,000.00 to the appellant’s office and when the appellant asked for the N100,000.00 P.W.1 produced the bag containing N105.000.00 and requested him to Count 100,000 out of it. The appellant showed them three bundles of Sterling from his brief case. He had not given them the three bundles Exhibit B, B1 and B2 and they had not counted them. He told them the first two contained £20,000.00. The appellant gave the money in nylon and paper bag produced by P.W.1, P.W.4 and P.W.6 to his accountant to count N100.000.00 out in their presence. P.W.1 followed the accountant to his office. As the accountant was counting the money, the first accused, Levy Nwonwu, armed with a revolver (gun) and two others entered. When P.W.1 saw them and the gun in hand of the first accused, he ran to the office of the second accused.

The first accused followed them to the second accused persons office leaving the other two men with the accountant. On entering the office of the second accused, he locked the door behind him and said that no one should leave or he would shoot. P.W.1 held the second accused by his trousers and held onto the brief case and told the first accused person that he could shoot if he wanted. When they came out of the office of the second accused the accountant and the two men had disappeared and had not been seen since. The first accused with the assistance of other police officers from Surulere arrested P.W.1 P.W.4 and P.W.6 and the appellant. Following police investigation, the appellant and Mr. Levy Nwonwu, the first accused were arrested and charged for robbery. Mr. Levy Nwonwu in his defence stated that he on the complaint of Currency trafficking lodged by the appellant in execution of his duties went to arrest P.W.1 P.W.4 and P.W.6 and in the process recovered N5,000.00 and the brown briefcase and the three bundles of Sterling, Exhibit B, B1, and B2.

The appellant admitted lodging complaint with the C.I.D. and Levy Nwonwu at the panti C.I.D. station following the incessant soliciting for the purchase of Foreign currency by P.W.1, P.W.4 and P.W.6. He disowned the foreign currency Exhibits B, B1, and B2 and alleged they were brought by P.W.1, P.W.4, and P.W.6 along with the N5,000.00 to his office on the day.

The appellants were convicted at the trial Court.

Being aggrieved, the two accused persons appealed to the Federal Court of Appeal against their conviction.

The Federal Court of appeal after hearing arguments of counsel allowed the appeal against the conviction of the two accused for conspiracy and the conviction of the first accused for robbery, and they dismissed the appeal against the Conviction of the second accused (who is now the appellant) for robbery.

Being aggrieved by the dismissal he now appeals to the Supreme Court.

HELD:

(1) That the conviction of the appellant for the offence of robbery under the provisions of Section 1(2) (a) of the robbery and firearms (Special Provisions) Act 1970 cannot stand. This is so having regard to the definition and the elements constituting the offence of robbery Under the Act which must be proved to secure a conviction for the offence. With the acquittal of Mr. Levy Nwonu, the evidence of threat of violence or use of violence disappears from the quantum and body of evidence against the appellant. Similarly, the evidence of stealing disappears against the appellant. According to P.W.1 he gave the money to the appellant in pursuance of an agreement for sale and purchase of sterling. As there is no evidence that the appellant was authorised to sell sterling, his representation to P.W.1 P.W.4 and P.W.6 could possibly amount to false representations and the only offence weakly established by the evidence is obtaining by pretences under Section 419 of the Criminal Code Laws of Lagos State 1973. No charge was preferred against the appellant for the offence.

(2) I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of lesser offence under the Criminal Code at the hearing of an appeal against a conviction of an offence under the provisions of the Robbery Firearms (Special Provisions) Act. There being no provisions under the Act, permitting such a course of action, it will amount to denial of Justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.

Appeal allowed.

H. A. Lardner, SAN with him A.I. Idigbe for the Appellant.

M. Okunola, Assistant Director of public prosecution, Lagos State for the Respondent.

Cases referred to:—

1. Christopher Onubogu V The State (1974) 9 S.C. 1 at p 20.

2. Lateef Saka V The State (1981) 12 S.C.

3. Joseph Okosun V The State 1978 3 S.C.1

Statutes referred to:—

(1) Criminal Code Laws of Lagos State 1973

(2) Criminal Procedure law Cap. 32 of Lagos State 1973

(3) Robbery and firearms (Special Provisions) Act 1970

Obaseki, J.S.C. The appellant and one Levy B. Nwonwu were tried and convicted on a two count charge of:

(1) Conspiracy to commit the offence of armed robbery contrary to section 3(b) of the Armed Robbery and Firearms (Special Provisions) Act, 1970.

(2) Robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970.

by Desalu J. sitting at the High Court of Lagos State, Ikeja. The particulars of count two which are of particular relevance in this judgment read:

“Levy B. Nwonwu (m) and (2) Anthony Okobi (m) on or about the 12th day of November, 1980 at Ajegunle in the Ikeja Judicial Division being armed with an offensive weapon, to wit, a revolver, robbed Alhaji Umaru Haibu and Aibu Isman of a sum of N100,000.00 (One hundred thousand Naira).”

Twelve witnesses testified at the instance of the prosecution and only the two accused persons testified in their own defence. Desalu, J. in the concluding paragraphs of his judgment, said:

“I disbelieve the second accused that he did not take the N100,000.00 from P.W.1 . . . I prefer and believe the evidence of P.W.1 that whilst the accountant was counting the money, the accused and two men entered and that the first accused was holding a gun. I believe the evidence of Sambo, that this frightened him and that he ran to the office of second accused followed by the first accused.

P.W.1 said the first accused locked the door of the second accused’s office and prevented them from going out to recover their money, I believe that the first accused threatened the P.W.1, P.W.4 and P.W.6 with using actual violence on them in order to retain the thing stolen or to prevent or overcome resistance to its being stolen or retained by agents of second accused. In like manner, the Robbery and Firearms (Special Provisions) Act 1970 speak (sic) eloquently as to this point and makes the same penalty available to both the principal offender and the accessory. I am satisfied on the evidence before me which I believe that the action of the first accused made it impossible for the P.W.1, P.W.4 and P.W.6 not (sic) to go out and retrieve their money. It is my considered view that the first and second accused stole the money the subject matter of this action. I am aware that the first accused was an Assistant Superintendent of Police. I am satisfied that he was lawfully in possession of the revolver exhibit E . . . Indeed, it was when they were in the office of the second accused that first accused threatened them with actual violence. At this time, it was not disputed by the second accused that he was present. He was in the company of the first accused in the room and actively participated in preventing the three Hausa men P.W.1, P.W.4 and P.W.6 from going out of his office to recover their money.”

(Italics mine).

Aggrieved, the two accused persons appealed to the Federal Court of Appeal against their conviction. The Federal Court of Appeal (Kazeem, Nnaemeka-Agu and Mohammed, J.J.C.A.) after hearing arguments of counsel allowed the appeal against the conviction of the two accused for conspiracy and the conviction of the first accused for robbery, and they dismissed the appeal against the conviction of the second accused (who is now the appellant) for robbery. Nnaemeka-Agu, J.C.A. (delivering the lead judgment with which Kazeem and Mohammed, J.J.C.A. agreed) said:

“. . . There was no evidence that they conspired with other persons unknown as averred. In my view, the conviction of both appellants on count one cannot stand as the finding is in conflict with the charge as laid . . .”

Dealing with the complaint of the first appellant in grounds 3(iii) and 7, Nnaemeka-Agu, J.C.A. said:

“The contentions of the first appellant and arguments of his counsel in this ground could be summarised as follows:—

The learned judge misdirected himself in law and in fact in the way he used the reference to one Thompson against the appellants. None of them gave evidence and the statement of Ewulum to the police was not tendered. All that is known of this was as stated by the first appellant . . . The strictures of Ewulum and Thompson were not justified by the evidence before the court. Nor was the suggestion that the first appellant was an unworthy police officer who went beyond his duty of mingling with informants for the purpose of investigating offences and obtaining information but was bargaining with crooks for the purposes of committing offences justified. . . . In my opinion, these complaints were well founded. As there was no evidence of who these two men were and what part they played, apart from what the first appellant himself said both in his statement and in court, these could not justify the highly prejudicial conclusion which the learned judge reached about the association of the first appellant with these two men.”

(Italics mine).

Dealing with the rejection of the evidence of P.W.3 which was favourable to the first appellant and the preference of the evidence of P.W.9 which was unfavourable to him by the learned trial Judge, Nnaemeka-Agu, J.C.A. justifiably, in my view, commented:

“No foundation was laid by the prosecution as to why one witness called by them should be preferred to the other learned Counsel submitted. I observe that the effect of P.W.9 was to show that on 12/11/80, the first appellant did not make any report at the Surulere police station from 6.00 a.m., to 2.00 p.m. The evidence of P.W.3 as well as that of the first appellant was that first appellant came to ask for police help at the station at 1.30. p.m. . . . As it is I would be guided in any assessment of the judge’s preference of the evidence of P.W.9 to that of third P.W. by a statement of the law by the Supreme Court in Christopher Onubogu v. The State (1974) 9 SC.1 at p.20 where they said:

‘We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject testimony of one witness and accept that of the other in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot without Showing clearly that one is a hostile witness discredit one and accredit the other (See Summer and Lewesley v. Brown & Co. (1909) 25 TLR 745). We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing by cross-examination the validity of the preferred explanation.’

(Italics mine).

“Applying these principles to the present case, I am bound to hold that the learned judge was in error in preferring one witness called by the prosecution to the other when no foundation had been laid for such a course.”

(Italics mine).

Dealing with the complaint about the misdirection in the summing up against the first appellant, Nnaemeka-Agu, J.C.A. said:

“Also the learned Counsel for the first appellant submitted that the learned judge misdirected himself in his summing up on some important aspects of the defence of the first appellant and in some places failed to give adequate proper consideration to them . . . Mr. Kessington for the prosecution conceded that the judge was wrong in this aspect of the summing up; but he submitted that this would be only a mitigating factor. In the alternative, he asked this Court to evaluate the evidence itself. It appears to me that this criticism of the learned judge’s summing up is well founded. Whereas the summing up gives the impression that the appellant came on a definite design to arrest the P.W.1, P.W.4 and P.W.6 to make the robbery possible, above account by the first P.W. and the fourth P.W. did not support the assumption; he did quite a lot before the arrest and the above evidence by the first appellant himself and other evidence before the learned judge certainly give the impression of a zealous police officer in pursuit of his duties. The learned judge, being a judge and jury had a duty to direct himself correctly on the nature of the case against the first appellant and the first appellant’s defence and to consider it no matter how foolish it looks. As he did not and as the most crucial issue before the court was whether the first appellant acted honestly in pursuit of his duties or in conclusion with the second appellant to make the robbery possible, it is difficult to say what conclusion the learned judge would have reached if he had directed himself correctly on the facts . . . As it stands, we are bound to interfere.”

(Italics mine)

Those passages vividly convey the reasons for allowing the appeal of Levy Nwonwu by the Federal Court of Appeal and entering a verdict of acquittal for the first accused, Levy Nwonwu.

If the learned Justices of the Court of Appeal had directed their minds to the fact that Levy Nwonwu was the source of the violence that consummated the offence of robbery and that without that violence there is no case of robbery made out against the second accused person now appellant before us, they would have most certainly arrived at a different decision on his appeal. Being aggrieved by the dismissal of his appeal, he appealed to this Court. The two grounds of appeal canvassed before this Court read:

“(1) The Federal Court of Appeal misdirected itself in law in convicting the appellant of robbery after acquitting him of conspiracy with persons unknown to commit robbery there being no evidence that the appellant was the actual robber.

(2) The conviction of the appellant of robbery is wrong in law in that there was no finding by the Federal Court of Appeal that the appellant used or threatened to use actual violence or was a party to using or threatening to use actual violence to any person.”

The learned Counsel for the appellant Mr. H. A. Lardner, SAN. set out in his brief and quite correctly, in my view, the two questions for determination in the brief. They read:

“(1) Having acquitted the appellant of conspiracy, i.e. conspiring with persons unknown to commit robbery, was the verdict of guilt on count two charging robbery not inconsistent with the verdict on count one and ought not the conviction on count two be quashed?

(2) Assuming that the findings of the Court of Appeal support the commission of an offence by the appellant, is that offence robbery?”

I think a third question necessarily arises for determination. It is that: Having regard to the fact that the conviction of the appellant for the offence of robbery was founded on the use or threat of violence on P.W.1, P.W.4 and others by Levy Nwonwu, the first accused, can his conviction for robbery still stand when that of the first accused was quashed by the Federal Court of Appeal and a verdict of acquittal entered in his favour?

A brief reflection on the facts is, in my view, at this stage desirable. Daiku Usman Sambo (P.W.1) on the 11/11/80 a about 3.30 p.m. negotiated with the second accused to buy £50,000.00 sterling from him at a Cost of N100,000.00, On the 12/11/80, P.W.1 in company of Umaru Habib (P.W.4) and Mohammed Gatta at 7.30 a.m. went to the appellant in his office. The appellant was not in his office when they arrived. They waited and by 9.30 a.m. he arrived. They had gone with N105,000.00 to the appellant’s office and when the appellant asked for the N100,000.00 P.W.1 produced the bag containing N105,000.00 and requested him to count N100,000.00 out of it. The appellant showed them three bundles of sterling from his brief case. He had not given them the three bundles exhibits B, B1, and B2 and they had not counted them. He told them the first two contained £20,000.00. The appellant gave the money in nylon and paper bags produced by P.W.1, P.W.4 and P.W.6 to his accountant to count N100,000.00 out in their presence. P.W.1 followed the accountant to his office. As the accountant was counting the money, the first accused, Levy Nwonwu, armed with a revolver (gun) and two others entered. When P.W.1 saw them and the gun in the hand of first accused, he ran to the office of the second accused. The first accused followed them to the second accused person’s office leaving the other two men with the accountant. On entering the office of second accused, he locked the door behind him and said that no one should leave or he would shoot. P.W. 1 held the second accused by his trousers and held on to the brief case and told the first accused person that he could shoot if he wanted. Then they came out of the office of second accused, the accountant and the two men had disappeared with the money and had not been seen since. The first accused, with the assistance of other police officers from Surulere arrested P.W.1, P.W.4 and P.W.6 and the appellant. Following police investigation, the appellant and Mr Levy Nwonwu, the first accused were arrested and charged for robbery. Mr. Levy Nwonwu, in his defence stated that he on the complaint of currency trafficking lodged by the appellant in execution his duties went to arrest P.W.1, P.W.4 and P.W.6 and in the process recovered N5,000.00 and the brown briefcase and the three bundles of £ sterling exhibits B, B1 and B2.

The appellant admitted lodging complaint with the C.I.D. and Levy Nwonwu at the Panti I.D. station following the incessant soliciting for the purchase of foreign currency by P.W.1, P.W.4 and P.W.6. He disowned the foreign currency exhibits B, B1 and B2 and alleged they were brought by P.W.1, P.W.4 and P.W.6 along with the N5,000.00 to his office on the day.

At the oral hearing, learned Counsel submitted that the decision of the Federal Court of Appeal setting aside the verdict of “guilty” entered by the learned trial Judge against the first accused, Levy Nwonwu, necessarily involves a reversal of some of the crucial findings of fact made by the learned trial Judge. Learned counsel then submitted that on the reversal of those findings, there is no evidence left to support the conviction of the appellant for robbery under the Act.

On the question whether an offence of stealing was on the evidence made out against the appellant, counsel submitted that no such offence was made out.

Counsel also submitted that there is no power in the court to convict the appellant for the offence of stealing or obtaining under false pretences under the Criminal Code for the reasons that the appellant was charged with robbery under the Robbery and Firearms (Special Provisions) Act 1970. Counsel submitted that express provisions will be required to enable a conviction of a lesser offence. Counsel contended that section 179 of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973 is applicable.

Mr. Muri Okunola, learned Assistant Director of Public Prosecutions for Lagos State submitted that the High Court, in the trial of offences of robbery under the Robbery and Firearms (Special Provisions) Act can convict of the lesser offence of stealing in exercise of the powers conferred by section 179 Criminal Procedure Law. He cited legal Notice No. 56 of 1975 section 18 Robbery and Firearms (Procedure) Rules 1975; Joseph Okosun v. The State (1978) SC.1; Lateef Saka v. The State (1981) 12 SC. In short, he submitted that the Criminal Procedure Law was applicable.

Counsel for the appellant, dealing with this question of the application of the criminal procedure Law to trial of offences under the Robbery and Firearms (Special Procedure) Act posed the following three questions:

(1) In the trial of a Federal offence before a State High Court, does the judge proceed under the Criminal Procedure Act or the Criminal Procedure Law?

(2) In the trial of an offence under the Robbery and Firearms (Special Provisions) Act, can the court convict the accused of a lesser offence relying on the provision of section 179 of the Criminal Procedure Act or Criminal Procedure Law?

(3) Can the court in such cases proceed to convict for an offence under the Criminal Code?

Learned counsel for the appellant submitted in answer to the first question that sections 239, 250(c) and 274(1) of the 1979 Constitution provide the answer which is that the Criminal Procedure Law of Lagos State applies.

In answer to the second question learned Counsel submitted that unless a lesser offence with penalty is expressly prescribed by the Robbery and Firearms (Miscellaneous Provisions) Act the High Court cannot convict for a lesser offence under the Act.

Learned counsel in answer to the third question, submitted that express provision will be required to enable a High Court to enter a conviction for a lesser offence under the Criminal Code where a person is charged and tried under the provisions of the Robbery and Firearms (Special Provisions) Act 1970. I have given very anxious consideration and thoughts to the submissions of counsel before us in this matter and I have come to the conclusion that the conviction of the appellant for the offence of robbery under the provisions of section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970 cannot stand. This is so having regard to the is definition and the elements constituting the offence of robbery under the Act which must be proved to secure a conviction for the offence.

Robbery is defined in section nine of the Act to mean “stealing anything, and immediately before or after the 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.”

Stealing is defined in the same section nine to mean ‘to take or convert to one’s use or the use of any other person anything other than immovable property, with any of the following intents:

“(a) an intent permanently to deprive the owner of the thing of it;

(b) not applicable

(c) not applicable

(d) not applicable

(e) not applicable

(f) in the case of money, an intent to use if at the will of the person who takes or converts it although he may intend afterwards to repay the amount to the owner.”

With the acquittal of Mr. Levy Nwonwu, the evidence of threat of violence or use of violence disappears from the quantum and body of evidence against the appellant. Similarly, the evidence of stealing disappears against the appellant. According to P.W.1 he gave the money to the appellant in pursuance of an agreement for sale and purchase of sterling.

Stealing is no offence under the Robbery and Firearms (Special Provision) Act 1970, but even then, the evidence does not prove (the elements of) the offence of stealing. The N100,000.00 was given to the appellant for the purchase of £50,000 sterling but the accountant who was counting the money in the presence of P.W.1 when the A.S.P. Levy Nwonwu arrived disappeared with the money leaving behind only N5,000.00 in the nylon bag. Exhibits B, B1 and B2 were the three bundles of foreign currencies (£pound sterling) to be bought after the N100,000 had been checked.

As there is no evidence that the appellant was authorised to sell sterling his representation to P.W.1, P.W.4 and P.W.6 could possibly amount to false representation and the only offence weakly established by the evidence is obtaining by false pretences under section 419 of the Criminal Code Laws of Lagos State 1973. No charge was preferred against the appellant for that offence.

Before the first of October, 1979, offences under the Robbery and Firearms (Special Provisions) Decree were tried by Robbery and Firearms Tribunal set up by the State Governor under section 5(1) of the Decree. The State High Court had no jurisdiction to try offences under the Decree. Special Rules made under the Decree governed the procedure for the trial of the offences before the tribunal. These rules–the Robbery and Firearms Tribunal (Procedure) Rules 1975 came into force on first September, 1975 and ceased to be in force on the 1st October, 1979 when the Armed Robbery and Firearms Tribunals ceased to exist and by Constitution of the Federal Republic (Certain Consequential Repeals etc.)

Decree 1979 Decree NO. 105 of 1979 section 1(c) Schedule 3, jurisdiction to try offences under the Robbery and Firearms (Special Provisions) Decree was conferred on the State High Court and by section 239 and 250(b) and (c) of the Constitution of the Federal Republic 1979 the Criminal Procedure Law regulated and governed the trial of offences under the Decree. These sections read:

Section 239 of the 1979 Constitution provides “The High Court of State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State or a Decree.”

Section 250: Subject to the provisions of this Constitution—

(b) where by the law of a State jurisdiction is conferred upon any court for the investigation, inquiry into, or trial of persons accused of offences against the laws of the State and with respect to the hearing and determinations of appeals arising out of any such trial or out of any proceedings connected therewith, the court shall have like jurisdiction with respect to the investigation, inquiry into, or trial of persons for Federal offences and the hearing and determination of appeals arising out of the trial or proceedings;”

Section 250(c) of the 1979 Constitution reads: “the jurisdiction conferred on a court of a State pursuant to the provisions of this section shall be exercised in conformity with the practice and procedure for the time being prescribed in relation to its jurisdiction over civil or criminal causes other than Federal causes.”

It is to be observed that the Criminal Code, Laws of Lagos State contains robbery as one of the offences recognisable under that law but less severe penalty prescribed for it. There is therefore available a choice between the two laws which the prosecutor can make.

The question that therefore arises for determination as stated above is whether a failure to secure a conviction under the Robbery and Firearms (Special Provision) Act 1970 entitles the High Court judge to proceed to convict of a lesser offence under the Criminal Code by virtue of section 179 of the Criminal procedure Law.

It is my view that to enable the court to utilise its powers under the Criminal Procedure Law to advantage, the offence should and must be charged under the two laws in the alternative.

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 the instant appeal, however, there could be no conviction for the offence of robbery under the Criminal Code. Neither is the offence of stealing under the Criminal Code established. Stealing is the only lesser constituent offence of robbery in respect of which a conviction could be entered by virtue of section 179(1) of the Criminal Procedure Law. Obtaining by false pretence is not a constituent offence, neither is cheating a constituent of offence robbery although they carry less penalties and punishment.

To appreciate the real force and effect of section 179(1) and (2) of the criminal Procedure Law, it is necessary to set out the provisions and I will set them out. They read:

“(1) In addition to the provision herein before 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 such 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.”

(Italics mine).

By virtue of section 236(1) of the 1979 Constitution of the Federal Republic of Nigeria and section 274(1), the High Court of Lagos State is invested with jurisdiction to administer the Criminal Code Law of Lagos State Cap 31 Laws of Lagos State but unless a person is charged and prosecuted under the express provision of the Code the court is not entitled to convict and punish him under the Criminal Code. See section four of the Criminal Code Law which reads:

“Subject to the provisions of any Federal law, no person shall be liable to be tried or punished in any court in the Lagos State except under the express Provisions of the Code of same Act, law, decree or edict or of some order in council made by Her Majesty for Nigeria which is in force in, or forms part of the law of the Lagos State or under the express Provisions some statute of the Imperial Parliament which remains in force in or forms part of the law of the Lagos State.

Provided that in the case of an offence committed before the commencement of this Law the offender may be tried and punished either under the law in force when the offence was committed or under the Code, provided that the offender shall not be punished to any greater extent than was authorised by the former laws.”

(Italics mine).

The High Court of Lagos State cannot, in my view, proceed to convict the appellant who was charged and tried for an offence under the Robbery and Firearms (Special Provisions) Act under the Criminal Code of Lagos State because the Court found that it had committed no offence under the Robbery and Firearms (Special Provisions) Act.

As no offence under the Robbery and Firearms (Special Provisions) was proved, the High Court of Lagos State is not, in my view, entitled to apply the provisions of section 179(1) of the Criminal Code Law to enter a conviction for an offence under the Criminal Code.

Lesser offence mentioned in section 179(1) can only, in my view, refer to lesser offence under the law or Act under which the main or composite offence was charged. It cannot properly be interpreted to refer to a lesser offence under another law. Section 179(2) Criminal Procedure Law has, in my view, an independent application which differs from that of section 179(1) of the Criminal Procedure Law. While section 179(1) of the Criminal Procedure Law enables conviction to be entered for complete lesser offence established by the proof of some of the several particulars of the main or principal offence, e.g. in the trial for robber under section 401, Criminal Code stealing under section 390 Criminal Code is proved, section 179(2) Criminal Procedure Law enables a conviction to be entered for a lesser offence to which the main offence has been reduced by the proof of facts having the effect of reducing the main offence to a lesser offence, e.g. in the trial for murder under section 316 of the Criminal Code if provocation is proved, the offence is reduced from murder to manslaughter.

None of the subsections of section 179 of the Criminal Procedure Law is applicable in the circumstances of this case to warrant the conviction of the appellant. I have also considered the provisions of sections 169 of the Criminal Procedure Law of Lagos State 1973 and find that none of them enables any conviction for an offence under the Criminal Code to be entered against the appellant. I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action, it will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.

The appeal succeeds and is hereby allowed. The conviction and sentence for robbery entered against the appellant by the High Court and affirmed by the Federal Court of Appeal are hereby set aside and quashed and a verdict of acquittal is hereby entered. The appellant is accordingly discharged.

Bello, J.S.C. I had the opportunity of reading the judgment delivered by my learned brother, Obaseki J.S.C. For the reasons stated therein, I agree the conviction of the appellant under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970 cannot stand when the first accused who was alleged to have been the principal offender and had threatened to use his revolver in the commission of the alleged robbery was acquitted and discharged by the Court of Appeal. I have also given serious consideration as to whether a conviction of any lesser offence can be substituted. For the reasons stated by Obaseki J.S.C., we cannot do so.

The appeal is accordingly allowed. The conviction and sentence are set aside. The appellant is acquitted and discharged.

Aniagolu, J.S.C. The draft of the judgment just read by my learned brother, Obaseki J.S.C., was made available to me before now. I agree that the appeal should be, and is hereby, allowed, not because the appellant is innocent but because he can neither, on the state of the law, be found guilty of the offence charged having regard to the findings made by the Court of Appeal, nor of a lesser offence pursuant to section 179(1) and (2) of the Criminal Procedure Law of Lagos State having regard to all the circumstances, which have been amply dealt with by my learned brother in the said judgment.

The conviction of the appellant for robbery and the sentence passed on him in respect thereof, by the High Court and the Federal Court of Appeal, must be, and are hereby set aside and, in lieu thereof, a verdict of acquittal hereby entered. The appellant is discharged.

Nnamani, J.S.C. I had a preview of the judgment just delivered by learned brother OBASEKI, J.S.C. I agree entirely with his reasoning and conclusions.

It seems to me too that since the appellant and one Levi Nwonwu had been discharged and acquitted on count one which charged them of conspiracy to commit the offence of robbery and Levi Nwonwu had been discharged and acquitted also in respect of count two–i.e. robbery–there is no way the appellant could be guilty of robbery. By the facts as fully stated by my learned brother he was not guilty of robbery. It was indeed the first accused, Levi Nwonwu, who on the findings of the learned trial Judge used violence to prevent P.W.1,P.W.4 and P.W.6 from going out of the appellant’s office to retrieve the N100,000 now missing.

If anything the facts appear to disclose the offence by the appellant of obtaining by false pretences contrary to section 419 of the Criminal Code but he was never charged with that offence.

It was indeed the question whether the appellant could be convicted of this or any other lesser offence to robbery with violence (under the Robbery and Firearms (Special Provisions) Act 1970) that engaged the attention of this Court. I have also come to the conclusion reluctantly that he cannot. The issues canvassed having been fully dealt with by my learned brother, I would merely agree that the Robbery and Firearms (Special Provisions) Act 1970 contains no express Provisions allowing the court to convict of a lesser offence to robbery; that having regard to the Constitution of the Federal Republic of Nigeria (Consequential Repeals) Act No. 105 of 1979 Schedule 3 section l(c) (which made offences under the Robbery and Firearms Special Provisions Act 1970 triable in the High Court of a State) and section 18 of the Robbery and Firearms Tribunal Procedure) Rules 1975 L.N.56 of 1975, the Criminal Procedure Law of the State (in this case Lagos State) applies to such trials; that section 179(1) of the Criminal Procedure Law, Cap.32 of Lagos State under which conviction for a lesser offence can in some circumstances be obtained postulates that the lesser must be under the Act or Law under which the main offence is charged. In other words one cannot convict of the lesser offence of obtaining by false pretences under the Criminal Code in respect of a main offence charged under the Robbery and Firearms Special Provisions Act. In any case obtaining by false pretences is not a constituent element of robbery under the Robbery and Firearms Special Provisions Act.

In the circumstances I too would allow the appeal. The orders are as contained in the judgment of OBASEKI, J.S.C.

Uwais, J.S.C. I have had the opportunity of reading in draft the judgment read by my learned brother Obaseki, J.S.C. I agree with the reasons given and the conclusion reached by him. I have nothing to add.