AUTHORS C.K. Anyanwu, Ll.M., K.E. Nwangwa, Esq. C.K. Ezeaku, Esq.
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INTRODUCTION
In criminal law, an accused person is generally tried for the offence stated in the charge. However, the prosecution may sometimes fail to prove all the ingredients of that offence while successfully proving the ingredients of another, less serious offence. In such circumstances, the law may allow the court to convict the accused person of the lesser offence, even though that offence was not specifically charged. The law on lesser offences is intended to ensure that an accused person does not escape liability merely because the prosecution failed to establish every element of the more serious offence charged. At the same time, the power to convict for a lesser offence is limited by law and must be exercised carefully so that the accused person’s right to fair hearing is protected. This article examines the meaning of a lesser offence, what makes an offence a lesser offence, the conditions for a valid conviction, the powers of trial and appellate courts, and some important limitations and practical issues arising from the relevant case law.
MEANING OF LESSER OFFENCE
A lesser offence is an offence made up of some of the ingredients or particulars of the original offence charged. In other words, the elements of the lesser offence must be capable of being taken or carved out of the more serious offence in the charge.
In Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C., the Supreme Court explained that an offence can only be regarded as a lesser offence where its ingredients are subsumed in the offence originally charged. The particulars of the lesser offence must therefore be capable of being carved out of the particulars of the substantive offence.
The Court further stated that it is not enough merely to describe an offence as being less serious. The court must examine the ingredients of both offences and determine whether the ingredients proved by credible evidence form part of the original offence charged. The circumstances surrounding the commission of the lesser offence must also be the same as, or similar to, those contained in the original charge.
For example, stealing is an essential element of robbery. Therefore, where an accused person is charged with robbery but the prosecution proves stealing without proving the additional ingredients required for robbery, a conviction for theft or stealing may be appropriate. In Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C., the Court held that the conviction of the appellant for theft was proper because stealing was a constitutive element of the robbery originally charged.
THE PURPOSE OF THE LAW ON LESSER OFFENCES
The provisions allowing conviction for lesser offences are designed to prevent a situation in which an accused person goes free simply because the evidence proves a crime different from, or less serious than, the particular aggravated offence charged.
In Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C., the Supreme Court explained that the intention behind section 218 of the Criminal Procedure Code is to prevent accused persons from escaping criminal responsibility where the evidence establishes the commission of a lesser offence rather than the full offence charged.
Thus, where robbery is charged but the evidence establishes stealing without proving all the elements of robbery, the court may convict for theft if the applicable legal requirements are satisfied.
STATUTORY BASIS FOR CONVICTION FOR A LESSER OFFENCE
The power to convict an accused person of a lesser offence is provided for under different criminal procedure laws.
Section 179 of the Criminal Procedure Act applies in the southern part of Nigeria, while section 218 of the Criminal Procedure Code applies in the northern part of Nigeria. Under section 236 of the Administration of Criminal Justice Act, 2015, a defendant may also be convicted of a lesser offence where the required conditions are met.
In Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C., the Supreme Court considered section 218(2) of the Criminal Procedure Code, which provides that where a person is charged with an offence and the facts proved reduce it to a lesser offence, the person may be convicted of the lesser offence even though he was not charged with it.
Similarly, in Ossai v. The People of Lagos State (2022) 11 NWLR (Pt. 1840) 1 S.C., the Supreme Court considered section 179 of the Criminal Procedure Act. The provision allows a conviction for a lesser offence where some of the particulars of the offence charged, which together constitute a complete lesser offence, are proved, although the remaining particulars are not proved.
Section 236 of the Administration of Criminal Justice Act, 2015, was also considered in State v. Eze (2020) 9 NWLR (Pt. 1730) 525 C.A. The Court stated that where a defendant is charged with an offence consisting of several particulars, and some of those particulars constitute a complete lesser offence and are proved, the defendant may be convicted of the lesser offence although it was not separately charged.
THE TWO SITUATIONS IN WHICH A LESSER OFFENCE MAY ARISE
The provisions on lesser offences may apply in two different situations.
The first situation arises where an accused person is charged with a higher or aggravated offence containing several elements, but the prosecution proves only some of those elements. If the elements proved are sufficient to establish a complete lesser offence, the accused may be convicted of that lesser offence.
For example, where a person is charged with armed robbery, the prosecution may prove that the accused participated in a robbery but fail to prove that he was armed or that he was in the company of persons who were armed. In such a case, the evidence may not support a conviction for armed robbery, but it may support a conviction for robbery simpliciter.
The second situation arises where the prosecution proves the facts surrounding the offence but other facts established by the evidence reduce the gravity of the offence. For example, where a killing is proved but the evidence shows that the accused acted under grave and sudden provocation, the accused may not be guilty of murder or culpable homicide punishable with death but may instead be convicted of manslaughter or culpable homicide not punishable with death, depending on the applicable law.
These distinctions were explained in Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C.
THE MAIN DETERMINANT OF A VALID CONVICTION FOR A LESSER OFFENCE
The most important question is whether the lesser offence is contained within the original offence charged. The fact that the lesser offence is created by a different statute is not necessarily the decisive factor.
In Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C., the Supreme Court held that the key determinant is whether the evidence supporting the lesser offence consists of some of the essential elements of the original offence such that the particulars of the lesser offence can be carved out of the original charge.
The Court stated that once the lesser offence has similar features or ingredients to the original offence, and the accused has sufficient notice of the nature of the case against him, no injustice is necessarily caused. This approach is consistent with section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which protects the right of an accused person to be informed of the nature of the offence.
In Bello v. State (2020) 3 NWLR (Pt. 1710) 72 S.C., the Supreme Court held that possession of stolen goods under section 319A of the Penal Code Law of Kwara State could be a lesser offence to armed robbery contrary to section 1(2) of the Robbery and Firearms (Special Provisions) Act, even though the offences arose under State and Federal laws respectively.
CONDITIONS FOR CONVICTING AN ACCUSED PERSON OF A LESSER OFFENCE
Certain conditions must be satisfied before a conviction for a lesser offence can properly be entered.
In State v. Danjummai (1996) 8 NWLR (Pt. 469) 660 C.A., the Court stated that the following conditions must generally be satisfied:
There must have been a trial on the offence originally charged.
The particulars of the lesser offence must consist of some of the particulars making up the offence charged.
The combination of particulars constituting the lesser offence must have been proved.
The evidence and facts must be insufficient to support conviction for the offence charged but sufficient to support conviction for the lesser offence.
The cases of R. v. Adokwu 20 NLR 103, Torbambo v. Police (1956) NRNLR 94, and Agumadu v. Queen (1963) 1 SCNLR 203 were referred to in support of these principles.
The practical method of determining whether a lesser offence has been made out was also explained in Saliu v. State (2018) 10 NWLR (Pt. 1627) 251 S.C. The court or counsel should examine the particulars of the offence charged and consider whether some of the particulars can be removed, leaving behind all the ingredients necessary to constitute another complete offence.
For instance, a person charged with wounding with intent to do grievous harm may be convicted of unlawful wounding if the prosecution proves the wounding but fails to prove the specific intent to cause grievous harm. Similarly, a person charged with armed robbery may be convicted of robbery simpliciter where the evidence proves robbery but does not prove that the accused was armed. Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765 was referred to in this regard.
THE OFFENCE OF ARMED ROBBERY AND OTHER LESSER OFFENCES
The relationship between armed robbery and lesser offences provides a common illustration of the principle.
In Igwe v. The People of Lagos State (2021) 7 NWLR (Pt. 1776) 425 S.C., the Supreme Court stated that the prosecution must prove three main ingredients to establish armed robbery:
That there was a robbery or series of robberies;
That the robbery or robberies were armed robberies; and
That the accused person participated in the armed robbery or robberies.
Where the prosecution proves robbery and participation by the accused but fails to prove the use of arms, a conviction for the lesser offence of robbery may be entered.
This principle was also applied in Ossai v. The People of Lagos State (2022) 11 NWLR (Pt. 1840) 1 S.C., where the appellate court was held to have the power to substitute convictions for conspiracy to commit robbery and robbery simpliciter where the evidence did not establish the aggravated offences involving firearms or offensive weapons.
Likewise, in Babale v. State (2024) 16 NWLR (Pt. 1964) 383 S.C., the Supreme Court stated that armed robbery involves theft or stealing together with violence. Therefore, where theft is proved but the use or threat of violence is not proved beyond reasonable doubt, the accused may be convicted of theft even though theft was not separately charged.
POWER OF TRIAL AND APPELLATE COURTS
Both trial courts and appellate courts may have the power to convict for, or substitute a conviction for, a lesser offence where the law permits.
In Odeh v. F.R.N. (2008) 13 NWLR (Pt. 1103) 1 S.C., the Supreme Court held that both a trial court and an appellate court have power under section 179(1) of the Criminal Procedure Act to substitute a conviction for a lesser offence where only the particulars constituting that lesser offence have been proved.
The Court referred to Ovu v. C.O.P. (1960) SCNLR 251; Nwaugoagwu v. Queen (1962) 1 SCNLR 434; Shosimbo v. State (1974) 10 SC 91; Onashile v. Idowu (1961) 2 SCNLR 53; Wilson v. Queen (1959) SCNLR 462; Ogidi v. C.O.P. (1960) SCNLR 551; and Nwobu v. C.O.P. (1962) 2 SCNLR 93.
In Ossai v. The People of Lagos State (2022) 11 NWLR (Pt. 1840) 1 S.C., the Supreme Court further held that, by the combined effect of section 179 of the Criminal Procedure Act, section 15 of the Court of Appeal Act, 2011, and Order 4 rule 3 of the Court of Appeal Rules, the Court of Appeal may exercise the powers of the trial court to convict for a lesser offence proved by the evidence. The Supreme Court also has similar powers under section 22 of the Supreme Court Act and Order 8 rules 11 and 12 of the Supreme Court Rules.
Therefore, an appellate court may substitute a conviction for a lesser offence where the evidence shows that the lesser offence, rather than the aggravated offence, is the proper conviction.
THE POSITION WHERE THERE IS A NO-CASE SUBMISSION
Special care is required where the issue of a lesser offence arises during a no-case submission.
In Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1 S.C., the Supreme Court held that where, at the stage of a no-case submission, the trial judge finds that the prosecution has not made out a prima facie case on the offence charged but has disclosed a prima facie case on a lesser offence, the judge should not simply discharge the accused. The judge should rule that there is a case to answer and require the accused person to enter his defence.
The Court stressed that the procedure for convicting for a lesser offence after a full trial is different from the procedure following a successful no-case submission.
Thus, where a charge of murder is discharged on a no-case submission, the court cannot subsequently proceed to convict the accused of manslaughter on the same facts. In Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1 S.C., the Court held that such a procedure would be contrary to the relevant provisions of the Criminal Procedure Act.
The Court further explained that where murder is charged and the evidence may ultimately support manslaughter, it is better, in the interest of justice, for the accused to go through a full trial. At the end of the trial, if murder is not proved but manslaughter is established, the court may convict for manslaughter.
Where, after a full trial, the court convicts for manslaughter as a lesser offence to murder, a fresh plea is not required. This is because the relevant ingredients of the lesser offence have already been covered by the plea to the more serious charge. Sections 162–164 of the Criminal Procedure Act, dealing with alteration of charges, do not apply in that situation.
LIMITS ON THE POWER TO CONVICT FOR A LESSER OFFENCE
The power to convict for a lesser offence is not unlimited.
In Nigerian Air Force v. Kamaldeen (2007) 7 NWLR (Pt. 1032) 164 S.C., the Supreme Court held that the power of a court exercising criminal jurisdiction to convict on an alternative or lesser offence must remain within the limits laid down by law. The lesser offence must be made up of particulars carved out of the offence charged.
In the same case, the Court held that before a General Court Martial can convict for a lesser offence under section 142(1) of the Armed Forces Decree, 1993 (as amended), the facts, circumstances and particulars of the original offence must be the same as, or similar to, those of the lesser offence. Okwuwa v. State (1964) 1 All NLR 366 was referred to.
The lesser offence must therefore be genuinely subsumed in the original charge. A court cannot simply choose another offence because it appears less serious or because it believes the accused should be punished for something.
This was also emphasised in Agugua v. State (2017) 10 NWLR (Pt. 1573) 254 S.C., where the Supreme Court stated that the power to convict for a lesser offence must be exercised judicially and judiciously. It must not be based on sentiment, sympathy or a desire to show mercy.
THE OFFENCE OF CULPABLE HOMICIDE, MURDER AND LESSER OFFENCES
The principle also applies to offences involving unlawful killing.
In State v. Danjummai (1996) 8 NWLR (Pt. 469) 660 C.A., the Court considered the requirements for convicting a person charged with culpable homicide punishable with death of the lesser offence of culpable homicide not punishable with death under section 224 of the Penal Code. The prosecution must establish:
That the death of the person in question occurred;
That the death was caused by the act of the accused; and
That the accused intended to cause death, intended to cause bodily injury likely to cause death, or caused death by a rash or negligent act, as the case may be.
In State v. Usman (2005) 1 NWLR (Pt. 906) 80 C.A., the Court held that where a person is charged with culpable homicide punishable with death but the evidence brings the case within one of the exceptions in section 222 of the Penal Code, the accused may have the charge reduced to culpable homicide not punishable with death or manslaughter.
However, where the offence charged is fully proved and there are no facts reducing its gravity, there is no basis for a conviction for a lesser offence.
This was made clear in Bakari v. State (2025) 2 NWLR (Pt. 1975) 33 S.C., where the Supreme Court held that where culpable homicide punishable with death is sufficiently proved and established, there is no room for conviction for a lesser offence. The Court referred to Abiodun v. State (2023) 6 NWLR (Pt. 1879) 97.
Similarly, in Uwaekweghinya v. State (2005) 9 NWLR (Pt. 930) 227 S.C., the Supreme Court held that insults may, depending on the circumstances, amount to sufficient provocation capable of supporting a verdict for a lesser offence. The Court referred to Komo v. State (1967) 1 All NLR 289 and R. v. Edache (1962) NMLR 56.
OTHER EXAMPLES OF LESSER OFFENCES
The principle is not limited to robbery and homicide.
In Folorunso v. State (2020) 15 NWLR (Pt. 1746) 33 S.C., the Supreme Court held that causing grievous hurt, although a complete offence in itself, may also form an element of a murder charge. Therefore, where murder is not established but the evidence proves grievous hurt, a conviction for the lesser offence may be appropriate under section 179 of the relevant Criminal Procedure Law.
In Akpan v. State (2020) 6 NWLR (Pt. 1720) 297 C.A., the Court considered a provision allowing a person charged with an offence to be convicted of an attempt where the evidence establishes an attempted commission of the offence, even though attempt was not separately charged.
In Adebesin v. State (2014) 10 NWLR (Pt. 1413) 609 S.C., the Court also noted that under section 172 of the Criminal Procedure Act, a person tried for a misdemeanour will not necessarily be acquitted merely because the evidence proves a felony, which is a higher offence.
IMPORTANCE OF CAREFUL FRAMING OF CHARGES
The possibility of conviction for a lesser offence should also be considered when charges are being drafted.
In Babale v. State (2026) 13 NWLR (Pt. 2058) 469 S.C., the Supreme Court advised prosecutors to consider the possibility that the available evidence may fail to prove the aggravated offence. Where the possible lesser offence is contained in a different law from the law creating the aggravated offence, prosecutors should consider framing charges under both laws in the alternative where appropriate.
This may prevent a situation in which a court is unable to enter a conviction for a lesser offence because of the way the charges were framed.
THE OPINION OF AN INVESTIGATING POLICE OFFICER ON LESSER OFFENCES
The recommendation of an investigating police officer does not determine the offence for which an accused person must be convicted.
In Amaremor v. State (2014) 10 NWLR (Pt. 1414) 1 S.C., the Supreme Court held that the recommendation of an investigating police officer is merely an opinion and is not binding on the court. The court must consider the totality of the evidence before it.
Thus, the fact that an investigating officer recommends a lesser charge, such as manslaughter, does not prevent the court from reaching a different conclusion where the evidence supports another finding. The Court referred to Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576 C.A. and Nwali v. State (1991) 3 NWLR (Pt. 182) 663 C.A.
CONVICTION FOR A LESSER OFFENCE AND SENTENCING
A distinction must be made between conviction for a lesser offence and the power to impose a lesser sentence.
A court may only impose a sentence authorised by the law creating and punishing the offence. It cannot impose a sentence below a mandatory minimum or above the maximum prescribed by law simply because it wishes to exercise mercy.
In Ibrahim v. F.R.N. (2026) 10 NWLR (Pt. 2049) 325 S.C., the Supreme Court held that a court cannot impose a lesser sentence than one mandatorily prescribed by statute and cannot impose a sentence higher than the statutory maximum. In that case, a sentence of twenty years’ imprisonment for obstruction was held to exceed the five-year maximum provided by section 49 of the NDLEA Act.
Similarly, in Samuel v. State (2021) 2 NWLR (Pt. 1761) 451 C.A., the Court held that where the law prescribes a mandatory death penalty for a capital offence, the court has no discretion to impose a lesser sentence. Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt. 763) 512 C.A. and Amanchukwu v. F.R.N. (2007) 6 NWLR (Pt. 1029) 1 C.A. were referred to.
However, a different position may arise in plea bargaining.
In Agbi v. F.R.N. (2020) 15 NWLR (Pt. 1748) 416 S.C., the Court considered section 270(11) of the Administration of Criminal Justice Act, 2015. Where a defendant has been convicted under a plea-bargaining arrangement, the judge or magistrate may impose the agreed sentence if it is appropriate, impose a lesser sentence if the court considers the agreed sentence too severe, or inform the defendant where the court considers a heavier sentence to be appropriate.
CONCLUSION
The law on lesser offences provides an important balance between effective criminal justice and the rights of an accused person. It ensures that an accused person does not escape responsibility simply because the prosecution failed to prove every ingredient of a more serious offence, where the evidence clearly proves a complete lesser offence.
However, a conviction for a lesser offence is only valid where the legal requirements are satisfied. The lesser offence must ordinarily be subsumed in the original charge, and its ingredients must be capable of being carved out of the particulars of that charge. The evidence must be insufficient to prove the greater offence but sufficient to establish the lesser one.
The courts, including appellate courts where authorised by law, may exercise this power, but it must be exercised judicially and judiciously, not on the basis of sentiment or sympathy. Cases cited above demonstrate that the doctrine is both useful and carefully limited.
Ultimately, the central question remains whether the offence for which the accused is convicted is genuinely supported by the evidence and is legally connected to the offence originally charged. Where that connection exists and all the required conditions are satisfied, the law permits a conviction for the lesser offence in the interest of justice.
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