⦿ CASE SUMMARY OF:
John Nwachukwu v. The State  – SC
by NSA PaulPipAr
⦿ LITE HOLDING
The Appeal was dismissed. The Supreme Court held that the appellant could be convicted for a lesser offence. The difference being for the lesser offence that he was not in possession of an offensive gun, however the other facts remained the same.
⦿AREA OF LAW
– Criminal Law.
– Lesser offence.
(1986) All N.L.R. 496;
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Otunba Ajayi-Okununga.
* FOR THE RESPONDENT
– A.N. Kessington.
⦿ FACT (as relating to the issues)
The facts, briefly stated are that at about 9.30 p.m. of the 19th October, 1979, Alhaji Mohammed Zil and Mohammed Saleh were returning to their house at Amukoko Apapa, from the Cattle market at Ojo. They were both walking home. Mohammed Zil was in front, and Mohammed Saleh behind him. He was carrying a bag (tendered as Exhibit C) containing the sum of N4,990. Mohammed Saleh was the P.W.4 in the Court of trial. Mohammed Sale (P.W.4) said that at a point, the Appellant accompanied by some other persons, brought out a pistol and pointed it at him, and demanded from him the bag he was carrying; or to lose his life. Appellant snatched the bag, and he and his confederates started running away. Mohammed Saleh (P.W.4) gave chase and pursued appellant and his confederates to a house at No. 82 Cemetry Road, Amukoko. P.W.4 raised alarm and persons so attracted to the scene helped to surround the house where appellant and his confederates had run into. At this point Mohammed Yisa went to Ajegunle Police Station to call the Police. On searching 82 Cemetry Road, appellant was found lying under a bed on top of the bag containing the money. Appellant’s confederates were also arrested. When the bag claimed by Mohammed Saleh (P.W.4) and found with appellant was opened, the sum of N4,990 and a toy gun was found in it. After the trial, appellant was convicted of the offence of Robbery punishable under Section 1(2) (a) was set aside, and appellant was convicted under Section 1(1) of the Robbery and Firearms (Special Provisions) Decree 1970.
Appellant with two others were charged before the Ikeja High Court with the offence of robbery punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. At the conclusions of the trial, the trial Judge found only the appellant guilty of the offence as charged on information.
The other two were found not guilty and were accordingly acquitted and discharged. Appellant was sentenced to death by hanging or by firing squad as the Governor of Lagos State may decide.
Appellant appealed against his conviction to the Court of Appeal. The Court of appeal allowed the Appeal and set aside the conviction for robbery under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 1970. In its place, a conviction for the offence of Robbery under section 1(1) of the same Act, with imprisonment for 21 years was substituted.
The appellant further appealed to the Supreme Court.
1. Whether the court of Appeal was right on the evidence before them having found appellant not guilty of the offence under Section 1(2)(a) to convict him of offences under Section 1(1) without calling on Counsel to address the court on the desirability of such a Course?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. What the learned Justice of the Court of Appeal would seem to be saying and which was obvious from his conclusion was that the learned trial Judge was wrong in convicting Appellant of the offence of robbery with firearms under Sub-Section (2) of the Decree, since the toy gun used for the commission of the offence could not conceivably fall within the definition of firearms. He however has no doubt that the fact as found by the learned trial Judge were sufficient to sustain the offence of simple robbery under sub-section (1), where mere threat to use actual violence was sufficient. It was on this alternative ground that the Court of Appeal set aside the conviction by the learned trial Judge under sub-section (2) and substituted a conviction under sub-Section (1).
ii. In the appeal before us, the only ingredient in the charge which promoted the offence from one of robbery simpliciter under S.1(1) to aggravated robbery under S.1(2)(a) was the interpretation given to the effect of the toy-gun by the learned trial Judge. This having been rejected, and correctly too, by the Court of Appeal, the fact of taking away the bag of money with threat of violence which is sufficient for robbery under S.1(1) was established.
iii. There is no doubt that appellant in this case had notice that he was standing trial for armed robbery. Appellant had defended himself on the allegations and no additional evidence or facts other than those led at his trial was introduced to support his conviction for the lesser offence. Section 179 in both sub-sections clearly in the expression “although he was not charged with it” exclude the requirement of a formal charge or of asking the appellant/accused convicted of a lesser offence than that charged to say something before the conviction. This phrase clearly makes it unnecessary to do what counsel for the appellant has suggested. Above all, the lesser offence being implicit in the greater offence, accused and in this appeal appellant, cannot feign ignorance of the offence.
⦿ SOME PROVISION(S)
Sections 1 of Robbery and Firearms (special Provisions) Decree No. 47 of 1970: “1(1) Any person who commits the offence of robbery shall upon trial and conviction under this Decree be sentenced to imprisonment for not less than twenty-one years. (2) If- (a) any offender mentioned in subsection (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or (b) at or immediately before or immediately after the time of the robbery the said offender wounds any person, the offender shall upon conviction under this Decree be sentenced to death.”
Section 9 of Robbery and Firearms (special Provisions) Decree No. 47 of 1970 which is the definition section defines inter alia “firearms”, “offensive weapon”, “robbery”.
“firearms” includes any canon, gun, rifle, carbine, machine-gun, capgun, flint-lock gun, revolver, pistol or other firearm, whether whole or in detached pieces;
“offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon, but does not include a firearm.
“robbery” means stealing anything, and, at or immediately before or after the time of 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.
Section 179 of the Criminal Procedure Act provides as follows – “(1) In addition to the provisions hereinbefore 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 a 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.”
⦿ RELEVANT CASE(S)
Section 1(1) of the Decree has been committed and is punishable with imprisonment for twenty-one years. This seems to be the lesser of the aggravated offence of the same kind of offence provided for under Section 1(2)(a)(b) of the same decree. The circumstances of aggravation results from the introduction of “firearms” or “any offensive weapon” by the accused, or merely being in company of a person so armed; or where the accused “immediately before” or immediately after the time of robbery wounds any person. In each case, whether in S.1(1)(2) robbery as defined in Section 9 of the Decree is an essential ingredient of the offence. It follows that where robbery simpliciter is committed, unaccompanied by the use of firearms as defined under Section 9, this is the lesser of the aggravated offence under Section 1(2)(a) of the Decree. I think the analysis of Nnaemeka-Agu, J.C.A. of the constituent ingredient of the offences is right and unassailable. Counsel has not sought to contend otherwise.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
The grounds of appeal being one of law, appellant only required extension of time to appeal. Leave to appeal is unnecessary. Since this is a matter involving a long and mandatory term of imprisonment it was considered expedient to grant extension of time to the appellant to enable arguments on the grounds filed to be addressed to this Court. – Karibe-Whyte, JSC. Nwachukwu v. State 
The primary function of seeing and hearing the witnesses and evaluating, assessing and weighing the credibility of viva voce evidence lies with the trial Court. – Karibe-Whyte, JSC. Nwachukwu v. State 
Section 1(1) of the Decree has been committed and is punishable with imprisonment for twenty-one years. This seems to be the lesser of the aggravated offence of the same kind of offence provided for under Section 1(2)(a)(b) of the same decree. The circumstances of aggravation results from the introduction of “firearms” or “any offensive weapon” by the accused, or merely being in company of a person so armed; or where the accused “immediately before” or immediately after the time of robbery wounds any person. In each case, whether in S.1(1)(2) robbery as defined in Section 9 of the Decree is an essential ingredient of the offence. It follows that where robbery simpliciter is committed, unaccompanied by the use of firearms as defined under Section 9, this is the lesser of the aggravated offence under Section 1(2)(a) of the Decree. I think the analysis of Nnaemeka-Agu, J.C.A. of the constituent ingredient of the offences is right and unassailable. Counsel has not sought to contend otherwise. – Karibe-Whyte, JSC. Nwachukwu v. State 
It is therefore important to observe from the judicial decisions and the provisions that for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed – Firstly, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences. Secondly, the evidence led and facts found, though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence. Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This last mentioned is ordinary common sense. The greater includes by necessary implication the lesser. – Karibe-Whyte, JSC. Nwachukwu v. State 
The ingredients are the same. The only difference is that if the accused person is armed with firearms or other offensive weapon at the time of committing the offence, the punishment becomes aggravated to a death sentence. The absence of possession of arms or other offensive weapon by the accused person at the time of committing the offence reflects the lesser punishment. The offence under sub-section (1) is bare or naked robbery while robbery under section 1, sub-section(2) is punishable with death. The court below was competent and right to have substituted a verdict of guilty under sub-section (1) of section 1 of Decree No. 47 of 1970 without calling the appellant or his counsel to address it for an offence which carries a lesser punishment than the offence with which the appellant was initially charged. – Coker, JSC. Nwachukwu v. State