AHMED SALIU V. THE STATE (2018)

Background

Ahmed Saliu and three other accused persons were arraigned before the High Court of Kwara State, Ilorin Judicial Division, on charges of criminal conspiracy, rape and armed robbery. The charges were brought under sections 97 and 283 of the Penal Code Law of Kwara State and section 1(1) and (2) of the Robbery and Firearms (Special Provisions) Act, 2004. The prosecution called nine witnesses and tendered nine exhibits. One accused person was discharged and acquitted after a no-case submission, while the appellant and the remaining accused persons were not found guilty of the substantive offences charged.

Instead, the trial court convicted the appellant and the others of the offence of being in possession of property reasonably suspected to have been stolen under section 319A of the Penal Code and sentenced the appellant to two years’ imprisonment. The Court of Appeal affirmed the decision. The appellant then appealed to the Supreme Court, challenging, among other matters, the reliance on the doctrine of recent possession and the legality of substituting the Penal Code offence for the offences originally charged under the Robbery and Firearms (Special Provisions) Act.

Issues

1. Whether the appellant’s fresh complaint concerning the validity of his arraignment and fair hearing could be argued before the Supreme Court without leave.
2. Whether the lower court properly relied on the doctrine of recent possession and the statutory presumption relating to property reasonably suspected to have been stolen.
3. Whether possession of property suspected to have been stolen under section 319A of the Penal Code was a lesser offence properly subsumed in, or carved out of, the offences of conspiracy, rape or armed robbery with which the appellant was charged.

Ratio Decidendi

The Supreme Court held that Order 6 rule 5(b) of the Supreme Court Rules requires a party who seeks to raise a fresh issue on appeal to obtain the court’s leave. The rule ensures that the appellate court benefits from the reasoning of the lower court before deciding an issue for the first time. The principal exception is jurisdiction, which may generally be raised for the first time without leave. Since the appellant’s fresh issue did not concern jurisdiction and no leave had been obtained, the relevant ground, issue and arguments were struck out.

On the substantive question, the Court explained that section 218 of the Criminal Procedure Code permits conviction for a lesser offence in two related circumstances: where only some of the particulars of the charged offence are proved and those particulars constitute a complete lesser offence, or where the facts proved reduce the charged offence to a lesser offence. The power is, however, limited. The lesser offence must be contained within the original charge; its ingredients must be subsumed in, and capable of being carved out of, the particulars of the offence charged. The circumstances in which the lesser offence was committed must also be the same as, or substantially similar to, those alleged in the original charge.

The Court further held that the lesser offence should ordinarily arise under the same statute or law governing the substantive offence. A court cannot, merely to secure a conviction, convict an accused person under a different enactment when the offence charged under the original statute has not been proved. The Robbery and Firearms (Special Provisions) Act did not contain section 319A’s offence of possession of property reasonably suspected to have been stolen. Consequently, that offence could not properly be treated as a lesser offence of armed robbery charged under the federal Act.

Court Findings

The Court accepted that there was evidence from which the lower courts could have concluded that exhibit N1, a Nokia handset, was found in the appellant’s possession and was reasonably suspected to have been stolen. The appellant’s explanations concerning how he acquired the phone were regarded by the lower courts as evasive and unsupported by a receipt or reliable details concerning the alleged seller. Nevertheless, proof of the factual ingredients of the possession offence did not cure the fundamental legal defect in the conviction. The issue was not simply whether the appellant possessed suspicious property, but whether the court had jurisdiction under section 218 of the Criminal Procedure Code to impose that conviction after the failure of the robbery, rape and conspiracy charges.

Relying on authorities including Nigeria Air Force v. Kamaldeen, Agugua v. State, Nwachukwu v. State and Okobi v. State, the Supreme Court distinguished cases in which a genuinely lesser offence, such as a reduced form of the same offence, may be substituted. The trial court and Court of Appeal had wrongly treated a separate Penal Code offence as a lesser offence of armed robbery. The Court also cautioned that resort to a lesser-offence conviction must not become an artificial device for avoiding the harsher sentence attached to the substantive offence originally charged.

Conclusion

The appeal was allowed. The Supreme Court set aside the concurrent judgments of the High Court of Kwara State and the Court of Appeal, Ilorin Division. Ahmed Saliu was acquitted and discharged. The conviction and two-year sentence for possession of property reasonably suspected to have been stolen were therefore nullified.

Significance

This decision reinforces the limits of judicial power to convict for a lesser offence in Nigerian criminal proceedings. A lesser offence is not merely any offence proved by the evidence that attracts a lighter punishment. It must be legally connected to the charge, share its essential particulars, and be created by the same law where the statutory scheme so requires. The judgment protects fair hearing, prevents courts from assuming the role of prosecutors, and ensures that an accused person is not convicted under an enactment or on particulars for which adequate notice was not given. It also provides practical guidance to prosecutors and trial judges: alternative charges should be properly framed where appropriate, and the particulars of any proposed lesser offence must be demonstrably contained in the substantive charge.