Applicability of Conviction for a Lesser Offence Where Prosecution Only Establishes Attempt
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 12th day of December, 2025
Before their Lordships
Uwani Musa Abba Aji
Ibrahim Mohammed Musa Saulawa
Emmanuel Akomaye Agim
Chidiebere Nwaoma Uwa
Moore Aseimo Abraham Adumein
Justices, Supreme Court Legal
SC/CR/961/2016
Between
Musa Mohammed Appellant
And
The State Respondent
(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)
Facts
This appeal arose from the judgement of the Court of Appeal, Sokoto Judicial Division, delivered on 19th January, 2014, which upheld the judgement of the High Court of Zamfara State convicting and sentencing the Appellant to life imprisonment.
The Appellant, who was the Defendant at the trial court, hired a commercial motorcyclist (PW2) to take him to Unguwar Yerima Area in Gusau. Upon reaching the destination, the Appellant, who had hidden a cutlass on him, began to cut PW2 several times on the head and left ear, in an attempt to steal the motorcycle. The cries from PW2 attracted residents, who intervened, causing the Appellant to abandon the attempt and flee. He was subsequently pursued, and apprehended. Accordingly, he was arraigned before the High Court of Zamfara State for armed robbery under Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, LFN 2009.
At trial, the prosecution called four witnesses and tendered two exhibits, including the Appellant’s extra-judicial statement (Exhibit C), where he confessed to the commission of the crime. Notably, in Exhibit C, the Appellant admitted attacking PW2 with a cutlass with the intention of robbing him of the motorcycle used to convey him to Unguwar Yerima, selling the said motorcycle, and using the proceeds to alleviate his financial difficulties, which had motivated him to engage in the act. At the point of tendering the said extra-judicial statement, he did not object to its admissibility on the basis that it was not voluntarily made. Thereafter, the Appellant testified as the sole defence witness and denied aspects of the prosecution’s case, including the contents of Exhibit C. However, the trial court believed the evidence of PW1, PW2 and PW4 (ASP Bala Elkanas) and accepted Exhibit C as having been voluntarily made by the Appellant.
In its judgement, the trial court found that the prosecution failed to prove the completed offence of robbery, particularly because it did not establish that the Appellant actually succeeded in taking the motorcycle, which is an element of the offence. The trial court, however, held that the evidence proved attempted robbery beyond reasonable doubt. Relying on Section 219 of the Criminal Procedure Code, the court convicted the Appellant under Section 2(2) of the Robbery and Firearms (Special Provisions) Act, and imposed the prescribed mandatory sentence of life imprisonment.
Dissatisfied with the judgement, the Appellant approached the Court of Appeal, challenging the conviction and sentence imposed upon him. The Court of Appeal dismissed the appeal and affirmed the judgement of the trial court, prompting the Appellant to appeal further to the Supreme Court.
Issue for Determination
The Supreme Court identified one issue for determination:
Whether the Court of Appeal was right in affirming the judgement of the trial court, thereby convicting and sentencing the Appellant to life imprisonment for the offence of attempted robbery contrary to Section 2(2) of the Robbery and Fire Arms (Special Provisions) Act, CAP 389, Laws of the Federation of Nigeria, 2004.
Arguments
The Appellant had proffered arguments, in line with the issues raised in his brief. He submitted that the conviction and sentence imposed on him, occasioned a miscarriage of justice and ought to be overturned. He argued further that there was nothing in Exhibit C to show that he committed the alleged offence, and that the testimonies of the prosecution witnesses could not withstand the test of truth due to the absence of the vital ingredients of the offence. He concluded that the Respondent had failed to prove its case beyond reasonable doubt against him, and urged the Supreme Court to set aside his conviction and sentence.
The Respondent, on the other hand, argued that the evidence of PW1 and PW2 established that the Appellant, armed with a cutlass, assaulted PW2 with the intention of stealing his motorcycle. Counsel posited that the Court of Appeal properly affirmed the decision of the trial court, and that there were no exceptional circumstances warranting interference with the concurrent findings. The prosecution submitted further that, an accused person may be convicted of a lesser offence than the one charged, provided that both offences are similar under Section 236(2) of the Administration of Justice Act 2015, and based on the decisions of the Supreme Court in Ogboka v The State (2021) Lpelr-55338 (Sc); Ezeja v The State (2008) Lpelr -1202 (SC). Counsel submitted that the Court of Appeal was therefore, right to uphold the conviction of the Appellant for attempted robbery as a lesser offence of armed robbery.
Court’s Judgement and Rationale
To begin with, the Supreme Court described robbery as the “illegal taking of property from another person, or in the person’s presence, by violence or intimidation, also termed aggravated larceny”. Armed robbery, on the other hand, is “robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used”, relying on Aruna v The State (1990) 9–10 Sc 87; (1994) 6 Nwlr (Pt. 155) 125 And Aminu Tanko v The State (2009) 1–2 Sc (Pt. 1) 198 At 223. Their Lordships identified the three essential elements of armed robbery as follows: that there was a robbery; that the robbery was an armed robbery; and that the accused person committed or participated in the commission of the robbery. The prosecution, in line with Section 138(1) of the Evidence Act and the decision in Idemudia v The State (1999) 7 Nwlr (Pt. 610) 202 @ 215, must prove the guilt of the accused person beyond reasonable doubt, by establishing all the elements stated above.
The Supreme Court noted that the evidence adduced by the prosecution witnesses, established the ingredients of the offence of attempted robbery punishable under Section 2(2) of the Robbery and Firearms (Special Provisions) Act. The trial court found that the Appellant hired PW2 to convey him to Unguwar Yerima with the intention of stealing his motorcycle and subsequently attacked PW2 with a cutlass, causing injuries to his head and ear. The cries from PW2 attracted residents, who intervened and apprehended the Appellant before he could take the motorcycle. Consequently, the trial court discharged the Appellant of the completed offence of robbery because the motorcycle was not actually stolen but convicted him of attempted robbery under Section 2(2) of the Robbery and Firearms (Special Provisions) Act, relying on Section 219 of the Criminal Procedure Code.
Although the Court of Appeal considered the reliance by the trial court on Section 219 erroneous, it nevertheless affirmed the conviction and life sentence, holding that the Appellant could properly be convicted of the lesser offence. This is supported by Section 218 Of The Criminal Procedure Code And Ezeja V State (2008) 10 NWLR (Pt. 1096). The Supreme Court reiterated that, the power to substitute a conviction for a lesser offence or an attempt is well established. In Okwuwa V The Queen (1965) NWLR 53–55, relying on Queen V Nwogugua Aganiadu (1963) 1 Anlr 213, the Court held that, the lesser offence must be capable of being carved out of the particulars of the offence charged. This principle is known as the “Red Pencil Rule”, which was enunciated in R v O’brien, 6 Car 108.
In relation specifically to attempts, the Apex Court held that Section 219 of the Penal Code is unequivocally clear, to the effect that a trial court of jurisdictional competence, has the power to convict an accused person (charged with an offence) of attempt to commit such offence, notwithstanding the fact that the attempt was not separately charged. The Court held that, this power is not restricted to the trial court. In Salihu v The State (1961) 1 All Nlr 199, the Supreme Court exercised the power to substitute a conviction for an attempt in place of the substantive offence.
Further, Their Lordships considered whether the trial court was entitled to rely on the Appellant’s confessional statement, Exhibit C, despite the Appellant’s alleged retraction. The Appellant had opined that the statement should not have been relied upon, because it had been retracted and was not sufficiently corroborated by eyewitness or circumstantial evidence. In resolving this issue, the Supreme Court noted that the applicable law is that a voluntary, direct, positive and unequivocal confession can sustain a conviction even if the accused subsequently retracts it. Relying on Egboghonome v The State (1993) 7 NWLR (Pt. 306) 383; Arthur Onyejekwe V The State (1992) 3 NWLR (Pt. 230) 444; And Osetola & Anor. v The State (2012) 17 NWLR (Pt. 1329) 251, the Supreme Court affirmed that a retracted confession may still ground a conviction, where it is shown to be voluntary and credible. Where a Defendant retracts a confessional statement, it is “desirable … that there should be corroboration, no matter how slight, but conviction will not be questioned merely because it is based entirely upon the evidence by a confession from the accused” – Danladi Bala v Commissioner of Police (2025) 9 NWLR (Pt. 1994) 495 At 532.
The Supreme Court, however, noted that Exhibit C was tendered and admitted without objection from the Appellant or his Counsel. Ordinarily, an objection to the admissibility of a confessional statement must be raised when the statement is tendered. Failure to object may prevent the Appellant from raising the issue for the first time on appeal – Asimiyu Alarape v The State (2001) 5 NWLR (Pt. 705) 79 and Joseph Ubi Igri v The State (2012) 16 NWLR (Pt. 1327) 552. In this case, the Appellant did not actually retract Exhibit C in his testimony. Accordingly, the alleged retraction did not properly arise from the evidence before the court.
Given the foregoing, the Supreme Court declined the invitation to disturb the concurrent findings of the trial court and the Court of Appeal – The State v Nafiu Rabiu (1980) 1 NCR 47 And Bracegirdle v Oxley (1947) All ER 126. Accordingly, the Supreme Court affirmed the judgement of the Court of Appeal and resolved the sole issue against the Appellant. The judgement of the trial court, which convicted the Appellant of attempted robbery and sentenced him to life imprisonment, was thereby upheld.
Appeal Dismissed.
Representation
Adeniji A. Oni for the Appellant.
S.K. Idowu with fiat of the A-G Zamfara State, for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
Culled From THISDAY
