CRIMINAL LAW AND PROCEDURE – CONVICTION FOR LESSER OFFENCE – Whether an appellate Court can convict and impose a sentence on an accused person for a lesser offence than that for which he was convicted by the trial Court

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“It is beyond contention that an appellate Court can substitute a conviction for a lesser offence for an aggravated offence, which an Appellant is charged and convicted for, by the trial Court. In restating the principle, Section 179 of the Criminal Procedure Act, Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act, are hereunder reproduced for ease of reference:- Section 179 of the Criminal Procedure Act: (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 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. Order 4 Rule 3 The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order(s) as the case may require including any order as to costs. Section 16 of the Court of Appeal Act The Court of Appeal may, from time to time, make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and… generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of first instance and may rehear the case in whole or in part… ” A combined reading of the foregoing brings out the fact that the Court below, in the exercise of its appellate jurisdiction, may invoke the powers conferred in the trial Court under Section 179 (2) of the Criminal Procedure Act. The trial Court’s power under Section 179 (2) of the Criminal Procedure Act to convict for a lesser offence that was proved in place of the aggravated offence charged is, by operation of the law, amenable to the Court below, by virtue of Order 4 Rule 3 of its Rules and Section 16 of the Court of Appeal Act and in the case of this Court, see Section 22 of the Supreme Court and Order 8 Rules 11 and 12 of the Supreme Court Rules available to both appellate Courts. Thus by virtue of Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 16 of the Court of Appeal Act, the Court below, on the basis of the evidence on record, having found that the Appellant has committed a lesser offence to the aggravated offences he is charged with, is empowered to substitute the Appellant’s wrong conviction for the aggravated offence by the trial Court regardless of the fact that he is not charged with the lesser offence. In the same vein, this Court is empowered as well, at the end hearing the instant appeal, an appeal being a continuation of trial, to further affirm the lower Court’s decision on the subject matter of the instant appeal. Certainly, an appellate Court’s exercise of its statutory powers to substitute a conviction for a lesser offence under Section 179 (2) of the Criminal Procedure Act for conviction for an aggravated offence does not render the Court’s decision perverse. In Odeh v. Federal Republic of Nigeria (2008) LPELR-2205 (SC), this Court stated that: “It is the law that an appellate Court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial Court if from the circumstances of the case, the latter conviction should have been the proper one.” Per ABDU ABOKI, JSC in STANLEY OSSAI v. PEOPLE OF LAGOS STATE (2022-LCER-46530-SC) (Pp 12 – 15 Paras C – E)

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