Musa Dattijo Muhammad, J

“Sections 216 and 217 of the criminal procedure code (CPC) cannot provide or prove a canal which will allow the court to convict the appellant of the offence of conspiracy to rob, which he was not at any time charged with. For instance on a charge of house breaking or burglary, it will be outrageous and most perverse for the court in the purported exercise of its discretion under section 217 of the CPC, to convict the accused of rape”

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 2nd Day of June, 2017

Before Their Lordships

Musa Dattijo Muhammad

Clara Bata Ogunbiyi

Kudirat Motonmori Olatokunbo Kekere-Ekun

Ejembi Eko

Sidi Dauda Bage

Justices, Supreme Court



Mathias Garuba Idoko…………….  Appellant


The State…………………………………Respondent

Lead Judgement delivered by Hon. Musa Dattijo Muhammad, JSC



The Appellant, along with five others, were charged before the High Court of Benue State, for conspiracy and armed robbery punishable under sections 1 and 5 of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990. After the prosecution closed their case, three of the accused persons were discharged for want of sufficient evidence, while the Appellant and the two others were asked to enter their defence. At the end of trial, the Appellant was convicted for conspiracy, even though he was not formally charged with the offence of conspiracy. As a result of the Appellant’s conviction for conspiracy, the Appellant was found principally liable for the offence of armed robbery that he was formally charged for. The trial court relied on sections 216 and 217 of the Criminal Procedure Code and section 5(1) (a) and (b) of the Armed Robbery (Special Provisions) Act Cap 398. The Appellant’s appeal to the Court of Appeal was dismissed, he further appealed to the Supreme Court.

Issue for Determination

The Supreme Court adopted a sole issue for determination: “Whether the Appellant was properly convicted of the offence of conspiracy on the available evidence proffered by the prosecution”


Counsel to the Appellant, argued that in criminal trials, the burden to prove the guilt of the accused person beyond reasonable doubt lies on the prosecution. He stated that it is a denial of an accused’s constitutional right to fair hearing under section 36(1) of the Constitution of the Federal Republic of Nigeria (1999), for him to be convicted for an offence he was not charged. He argued that sections 216 and 217 of the Criminal Procedure Code which the trial court relied on to convict the Appellant, is in manifest conflict with the provisions of the Constitution which requires that an accused be told his offence at the earliest possible time, to enable him prepare his defence. He relied on NJOKWU v STATE (2013) 9 NWLR (Pt 1360) 417 at 448. Finally he submitted that Exhibit B, the Appellant’s extra judicial statement, does not constitute a confession of an agreement by the Appellant with a member of any armed robbery gang. In the absence of such an agreement, he further argued that, the two lower courts were wrong to have convicted the Appellant for the offence of conspiracy. He further relied on AJAYI v THE STATE (2013) 9 NWLR (Pt 1360) 589 at 614; ADELEKE v THE STATE (2013) 16 NWLR (Pt 1381). He urged the Supreme Court, to allow the appeal.

Counsel to the Respondent, submitted that Exhibit B, the Appellant’s extra- judicial statement, being clear, direct and unambiguous, constitutes a confession and that alone, lawfully sustains Appellant’s conviction for the conspiracy he admitted. He contended that, the lower courts were right to convict the Appellant based on the confessional statement, especially when the confession has been tested with other relevant facts in the testimonies of PW1 and PW2, to show that the confession is true. He relied on NJOKWU v STATE (1992) 1 NWLR (Pt 262) 71. He argued that sections 216 and 217 of the Criminal Procedure Code, do not in any way offend section 36(1) of the Constitution of the Federal Republic of Nigeria (1999), to justify setting aside the lower court’s affirmation of the trial court’s conviction of the Appellant. He submitted that, the appeal was unmeritorious and urged the Supreme Court to dismiss same.

Court’s Judgement and Rationale

The Supreme Court observed that, the issue thrown up in this case, is whether sections 216 and 217 of the Criminal Procedure Code (CPC) Laws of Benue State have the potency to diminish the efficacy, purpose and intent of 36(6)

(a) and (b) of the Constitution of the Federal Republic of Nigeria (1999). Section 216 and 217 of the CPC provides as follows:

Section 216 – If a single act or series of acts is of such a nature that is doubtful to which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed some of the said offences Section 217 – If in the case mentioned in section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it. Section 36 (a) of the Constitution of the Federal Republic of Nigeria (1999) provides that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.

The Supreme Court restated the principle that the Constitution is our Supreme law and any law that stands in conflict with it, is null and void to the extent of the inconsistency. The Court relied on NWAIGWE v OKERE (2008) LPELR – 2095 (SC); NATIONAL UNION ELECTRICITY EMPLOYERS & ANOR v BUREAU OF PUBLIC ENTERPRISES (2010) LPELR 1966 (SC); (2010) 7 NWLR (Pt 1194) 538. In this case, the Supreme Court reviewed R. EKECHUKWU v COMMISSIONER OF PO-LICE 1966 NNLR 96 and stated that a court may apply section 217 to convict of an offence with which the accused is not charged provided (1) it had been doubtful which of several different offences the facts which could be proved would constitute and (2) such doubts applied only to the law and not to the facts; that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted. The Supreme Court however, observed that in the instant case, none of the two conditions which justify a trial court’s invocation of sections 216 and 217 of the CPC to convict an accused, were evident.

The court stated that in the instant case, the Respondent could not be heard to argue that it has any doubt as to which offence the facts against the Appellant, if proved, would constitute. The court stated that, in Ex-hibit B, the only evidence that seems to avail the Respondent, the Appellant appears to confess to agreeing to commit armed robbery generally and not in relation to the specific robberies contained in the 4th and 5th charge. The court further held that, it firmly believes that given the facts on which the Appellant is charged, he did not have the necessary notice of the offence with which he is convicted. It is, therefore, reasonable to accept the suggestion of his being misled in his defence, and conclude that a failure of justice has indeed been occasioned. The Court further held that the two lower courts wrongly relied on section 5(b) of the Armed Robbery (Special Provisions) Act to convict the Appellant on the basis of Exhibit B, which they accepted as sufficient proof of conspiracy against the Appellant. Finally, the Supreme Court held that, since the Appellant herein had not been given sufficient notice of the offence he was convicted for to facilitate his defence, the conviction runs against section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999, and is to that extent null and void. Appeal Allowed.

Representation: A. Maduabuchi Esq with Emeka Okoye Esq. Uchenna Onyedi (Mrs.), Chibueze Ndidigwe Esq. Evelyn Joseph (Miss) and Robert Shiaondo Esq. for the Appellant. Sir M. 0. Atubu, DDPP Benue State with J. 0. Ewurum (Mrs.) (PSC) Benue State Ministry of Justice for the Respondent.

Reported by Optimum Publishers Limited, (Publishers of the Nigerian Monthly Law Reports (NMLR))

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