Whether an accused can be convicted under the law with which he was charged but sentenced under a different law (2023)

CITATION: (2022) LPELR- 58945(CA)
In the Court of Appeal
In the Kano Judicial Division
Holden at Kano


Suit No: CA/KN/51A/C/2021

Before Their Lordships:

ITA GEORGE MBABA Justice, Court of Appeal
BOLOUKUROMO MOSES UGO Justice, Court of Appeal
USMAN ALHAJI MUSALE Justice, Court of Appeal



THE STATE – Respondent(s)

This is an appeal against the judgment of Kano State High Court in Charge No. K/197C/2017.
The appellant and three other persons (one could not be arraigned, being at large) went to the house of the victim who was the PW1 to rob him. At the house of the PW1, they attacked him and threatened him to surrender his money and other valuables, but PW1 resisted them, and was beaten and stabbed, severally. He (PW1) raised alarm which attracted neighbours and the assailant(s) ran away, without taking anything.

Three of them, including the appellant, were arrested. Appellant was the second accused person. The first accused was the first to be arrested at the scene and he gave the names of the others, who took part in the robbery attempt.
Subsequently, the appellant was charged with two other accused persons, for armed robbery contrary to SECTION 298 OF THE PENAL CODE, CAP 105 LAWS OF KANO STATE. The appellant pleaded not guilty to the charge.
At the end of trial, the learned trial judge found the appellant (and two other accused persons) guilty of the offence of attempted armed robbery, under SECTION 299 OF THE PENAL CODE OF KANO STATE, and punished under SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT CAP 398 LFN 1990, and sentenced him to 14 years imprisonment.
Dissatisfied, the appellant lodged an appeal at the Court of Appeal.

The Court of Appeal determined the appeal on the following issues thus:
“(1) Was the trial Court right to convict the appellant of a lesser offence of attempted armed robbery under the State Law, but punished under SECTION 2(1) OF THE ROBBERY & FIREARMS (SPECIAL PROVISION) ACT, CAP 398 LFN, when appellant was charged under SECTION 298 OF THE PENAL CODE CAP 105, LAWS OF KANO STATE 1991?
(2) Did the prosecution establish the commission of the lesser offence of Attempted Armed Robbery, as per the evidence, including the confessional statement of the Appellant – Exhibit A2?”

On issue one, the learned counsel for the appellant argued that the trial Court was wrong to convict the appellant under a Federal Law, SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT, CAP 398 LFN, when he was charged under the State Law, SECTION 298 OF THE PENAL CODE, CAP 105, OF THE KANO STATE, 1991. Counsel relied on the case of MOHAMMED BELLO VS STATE (2019) 77 PART 2 NSCQR 594 AT 612 to emphasize the fact that the two laws are separate, one being a State Law and the other, Federal Law.

Counsel admitted that a Court can convict an accused person for a lesser offence and relied on the case of OKABACHI & ORS VS THE STATE (1995) 3 SC 141 but that in the instant case, the appellant was convicted for a more severe offence; that SECTION 298 OF THE PENAL CODE provides for imprisonment for a term that may extend to ten years, or for one who commits robbery and SECTION 299 provides for attempted robbery, to be punished with imprisonment term that may extend to 7 years or fine, but that the trial Court in this case opted for a more severe punishment under the Federal Act. He relied on the case of BABALOLA VS STATE (1989) 7 SC (PT 1) 94 AT 112, to the effect that the accused person can only be found guilty in respect of the offence for which he is charged, being the offence, he pleaded to.

On issue two, counsel argued that the trial Court was wrong to convict the appellant of attempt to commit armed robbery, relying on the confessional statement (Exhibit A2, the English version), when the Hausa version of the confessional statement was not tendered as Exhibit. He stated that the PW2 (IPO) had said that he recorded the appellant’s statement in Hausa and in English languages. Counsel relied on ADAMU VS STATE (2019) 8 NWLR (PT 1675) 478 AT 493-494, and submitted that both the Hausa and English versions ought to have been tendered; that issue of fair hearing would arise where the appellant did not understand the English language used in trying him.

The learned counsel for the respondent on issue one, submitted that the trial Court was right to convict the appellant of the offence under SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT, CAP 398 LFN, when he was charged under SECTION 298 OF THE PENAL CODE, CAP 105, LAWS OF KANO STATE.
He relied on SECTIONS 216 AND 217 OF THE CRIMINAL PROCEDURE CODE, which he said, empowers the Court to substitute charge, against accused person, if the main charge has not been proved. Counsel also relied on SALISU VS STATE (2019) ALL FWLR (PT 972) 260, where it was held that an accused person could be convicted for lesser offence, disclosed, if the principal offence is not proved.

Counsel further cited the provision of SECTION 231 OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW OF KANO STATE, 2019 to the effect that: “Where a defendant is charged with an offence but the evidence establishes an attempt to commit the offence, he may be, convicted of having attempted to commit that offence although the attempt is not separately charged.”

On issue two, respondent’s counsel argued in the affirmative that the trial Court was right to rely on the confessional statement (Exhibit A2), to convict the appellant. That the testimony of the appellant in Exhibit A2 corroborated the evidence of PW1 (the victim) and PW2 (IPO); and that when Exhibit A2 was tendered, the appellant raised no objection to the admission of same, and so it was admitted, without any objection. Counsel argued that the trial Court was entitled to convict even on the basis of the confessional statement of the appellant alone. He relied on SALIU VS STATE (2014) 5-6 SC (PT 1) 26.

In resolving the issues, the Court stated that the appellant and the other accused persons were tried for armed robbery under the relevant State Law – SECTION 298 OF THE PENAL CODE, CAP 105, LAWS OF KANO STATE 1991. But at the end of the trial, the learned trial Court found that the evidence rather established a lesser offence of attempt to commit armed robbery, since the accused persons did not take away anything from their victim, after stabbing and beating him, as they ran away in fear, upon the victim raising alarm. That the intention to rob was established, as well as the use of threat and arms, to do so.

The Court aligned with the decision of the trial Court in convicting the appellant and his co-accused for an attempt to commit armed robbery in the circumstance of the case but held that the resort by the trial Court to SECTION 2(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT in prescribing the punishment of the Appellant and the other accused persons was wrong. However, the Court stated that the said error was a slip, which alone cannot defeat or nullify the trial and conviction of the Appellant for a lesser offence of attempt to commit armed robbery.

The Court cited the provisions of SECTIONS 298 AND 299 OF THE PENAL CODE OF KANO STATE which provide as follows: “298. Whoever commits robbery shall be punished: -(a) with imprisonment for twenty-one years with or without fine and canning; and(b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, to imprisonment for life, with or without caning.
“299. Whoever attempts to commit robbery shall be punished with imprisonment for a term of fourteen years, with or without fine and caning.”

The Court went further to state that the rules concerning conviction for a lesser offence are well established and entrenched in our criminal jurisprudence, where the particulars or ingredients of the lesser offence are also integrated in the main offence, and so the evidence led, to establish the said main offence is subsumed in what is required to establish the lesser offence, enabling the trial Court to convict on the lesser offence, straight away, without any need to amend the charge for the accused to take plea on the said lesser offence. See the cases of GALADIMA VS STATE (2013) LPELR-20402 CA, SALIU VS STATE (2018) LPELR-44064 (SC). Thus, the Court aligned with the decision of the trial Court in convicting the appellant on the said lesser offence of attempted armed robbery, which was clearly established by the evidence led, short of proving the main offence of armed robbery. However, the Court held that the trial Court should have sentenced the appellant under the SECTION 299 OF PENAL CODE, CAP 105 OF KANO STATE, which prescribes punishment for attempted robbery, being prison terms of up to 14 years, and a fine.

The Court held the argument that the Hausa version of the appellant’s statement was not tendered, to be untrue. That it is clear from the Records that both the Hausa and English versions were admitted, together, as Exhibit A2.
The appeal was dismissed for lacking in merit. The Court held that the error of the trial Court in sentencing the Appellant under SECTION 2(1) OF THE ARMED ROBBERY & FIREARMS ACT did not affect the merit of its decision.
A. S. ABDULKADIR, ESQ. – For Appellant(s)
MUHAMMAD NASIR FARUK, ESQ. (S.S.C. Kano State MOJ) – For Respondent(s)

Compiled by LawPavilion


Whether an accused can be convicted under the law with which he was charged but sentenced under a different law? ›

Sentencing. If the verdict is guilty, the judge determines the defendant's sentence. During sentencing, the court may consider U. S. Sentencing Commission guidelines, evidence produced at trial, and also relevant information provided by the pretrial services officer, the U.S. attorney, and the defense attorney.

When the accused has been convicted of a crime the judge determines the sentence? ›

Sentencing. If the verdict is guilty, the judge determines the defendant's sentence. During sentencing, the court may consider U. S. Sentencing Commission guidelines, evidence produced at trial, and also relevant information provided by the pretrial services officer, the U.S. attorney, and the defense attorney.

What is required for the conviction of the accused? ›

The prosecutor must prove that the accused is guilty “beyond a reasonable doubt.” At the end of the trial, if the prosecutor has not presented enough evidence, or if the judge or jury still has a reasonable doubt about whether the accused committed the crime, he must be found not guilty.

What does proof beyond a reasonable doubt mean commonlit answers? ›

This means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant's guilt in order to render a guilty verdict.

What determines whether an accused criminal is guilty or innocent? ›

Juries decide whether a defendant is guilty or not guilty based on whether the prosecutor proved guilt beyond a reasonable doubt.

What factors are considered when sentencing a convicted offender? ›

The judge may consider a variety of aggravating or mitigating factors. These include whether the defendant has committed the same crime before, whether the defendant has expressed regret for the crime, and the nature of the crime itself.

Who determines the sentence for a convicted criminal? ›

In most states and in the federal courts, only the judge determines the sentence to be imposed. (The main exception is that in most states juries impose sentence in cases where the death penalty is a possibility.)

How much evidence is enough to convict someone? ›

Proof beyond a reasonable doubt: This is the main burden of proof in criminal cases. To convict you of a crime, a prosecutor must prove your guilt beyond a reasonable doubt. This burden means the prosecution must show there is no other reasonable explanation for the evidence it presents at trial.

What are the 3 elements that must be proven to be convicted of a crime? ›

In general, every crime involves three elements: first, the act or conduct (actus reus); second, the individual's mental state at the time of the act (mens rea); and third, the causation between the act and the effect (typically either proximate causation or but-for causation).

What other kinds of proof are typically required for a conviction? ›

burden of proof
  • beyond a reasonable doubt in criminal law.
  • clear and convincing evidence in fraud in will disputes.
  • preponderance of the evidence in most civil cases.
  • probable cause in the acquisition of a warrant or arrest proceeding.
  • reasonable belief as part of establishing probable cause.

What does clear and convincing burden of proof mean? ›

“Clear and convincing evidence” is a medium level burden of proof which must be met for certain convictions/judgments. This standard is a more rigorous to meet than preponderance of the evidence standard, but less rigorous standard to meet than proving evidence beyond a reasonable doubt.

What is to prove beyond doubt? ›

: without question : definitely. The test results proved beyond (all/any) doubt that he was not the child's father. If she is to be found guilty, the charges against her must be proved beyond a reasonable doubt.

What does burden of proof clear and convincing evidence mean? ›

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true.

What type of evidence tends to show innocence of the accused? ›

Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to present guilt.

What is the process of determining whether the defendant is guilty or not called? ›

The trial is a structured process where the facts of a case are presented to a jury, and they decide if the defendant is guilty or not guilty of the charge offered. During trial, the prosecutor uses witnesses and evidence to prove to the jury that the defendant committed the crime(s).

What is any evidence that tends to prove the guilt of the defendant called? ›

Evidence that supports a defendant's guilt is known as inculpatory evidence. It is used to prove that an individual committed a crime. Examples of inculpatory evidence can include video footage of the defendant committing a robbery, an eyewitness statement or DNA testing.

What are the two most important factors that judges consider in determining a sentence? ›

Federal judges refer to sentencing guidelines when considering the term of incarceration to impose after a defendant has been convicted. The guidelines provide sentencing ranges determined by the offense level and the defendant's criminal history.

What are the four basic reasons for sentencing criminals? ›

Four major goals are usually attributed to the sentencing process: retribution, rehabilitation, deterrence, and incapacitation.

What are the 4 factors of sentencing? ›

There are many factors that come into play in this decision.
  • The Severity of the Crime. Not all federal crimes are equal in severity. ...
  • The Defendant's History. One of the biggest red flags for judges is if the defendant has a prior criminal record. ...
  • Mandatory Minimums. ...
  • The Purpose of the Sentence.
Mar 4, 2022

Can a federal judge change a sentence after it has been imposed? ›

court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked” and that the court “shall determine the motion within a reasonable time”).

What is the second most important factor in sentencing? ›

The second most important factor in sentencing. As the prior record increases, so does the sentence severity. Research has found this to be the second most prominent predictor in determining sentence severity. Specific characteristics of a crime that may increase the severity of the sentence imposed.

Who is ultimately responsible for sentencing? ›

Judges provide instructions to juries prior to their deliberations and in the case of bench trials, judges must decide the facts of the case and make a ruling. Additionally, judges are also responsible for sentencing convicted criminal defendants.

What is the hardest case to convict? ›

The most severe criminal charge that anybody may face is first-degree murder. Although all murder charges are serious, first-degree murder carries the worst punishments. This is because it entails premeditation, which means the defendant is accused of pre-planning their victim's death.

Is testimony evidence enough to convict? ›

Contrary to what many people believe, the prosecutor does not need any physical evidence of your guilt. The witness's testimony is direct evidence that the prosecutor can use to convict you of a crime.

Will I only be charged if there is enough evidence? ›

Solid evidence to charge someone with a crime is not necessary. An arrest or charge against someone is only an allegation or complaint that the person either participated in or committed a crime. Police or a district attorney often file charges against someone without evidence to convict them.

What two basic elements are needed to prove that someone has committed a crime? ›

It is generally agreed that the essential ingredients of any crime are (1) a voluntary act or omission (actus reus), accompanied by (2) a certain state of mind (mens rea).

What are the two parts of criminal intent that must be proven? ›

Lawyers call these two things actus reus (criminal action) and mens rea (criminal intent). A prosecutor has to prove both the action and the intent part of any criminal statute if they want to convict you for breaking the law. If they fail to prove that you had the required intent, you must be found Not Guilty.

What is the corpus delicti rule? ›

Before utilizing a suspect's confession against him or her in a criminal case, the prosecutor must establish two facts: (1) that a crime was in fact committed and (2) the suspect's connection to the crime. A suspect's confession cannot be used to establish that a crime was committed--a corpus delicti.

What evidence Cannot be used in court? ›

Inadmissible evidence

Forms of evidence judges consider inadmissible include hearsay, prejudicial, improperly obtained or irrelevant items. For example, investigators use polygraph tests to determine whether a person is lying about the events of a case.

What is the highest proof of evidence? ›

The “beyond a reasonable doubt” standard is the highest standard of proof that may be imposed upon a party at trial, and it is the main standard used in criminal cases.

What are the two types of proof? ›

There are two major types of proofs: direct proofs and indirect proofs.

What does strong burden of proof mean? ›

The burden of proof is a legal standard that requires parties to provide evidence to demonstrate that a claim is valid. Three levels of the burden of proof, "beyond a reasonable doubt," a "preponderance of the evidence," and "clear and convincing" determine the level of evidence required for a claim.

What is reasonable evidence? ›

Reasonable Evidence means evidence that a reasonable person would find sufficient to determine whether one conclusion is more likely than another.

What constitutes sufficient evidence? ›

Sufficient evidence is admitted evidence that has enough overall weight, in terms of relevance and credibility, to legally justify a particular conclusion. Sufficient evidence to support the legitimacy, effectiveness and necessity of the measure to achieve a specific health outcome.

What is prima facie evidence? ›

Prima facie evidence means that proof of the first fact permits, but does not require, the fact finder, in the absence of competing evidence, to find that the second fact is true beyond a reasonable doubt.

How do you prove beyond reasonable doubt? ›

How Do You Prove Reasonable Doubt? The jurors must walk into the courtroom presuming the accused is innocent. Reasonable doubt exists unless the prosecution can prove that the accused is guilty. This can be achieved by supplying evidence and inviting people to testify on the stand.

What's the meaning of prima facie case? ›

A prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.

What is strong evidence? ›

Strong evidence is accurate, convincing, and relevant to the argument at hand. It comes from a credible source, and it truly supports the reason it is supposed to prove. Evaluating the strengths and weaknesses of arguments is an important skill to develop.

How do you win preponderance of evidence? ›

To meet this standard of proof on a preponderance of the evidence, the plaintiff must show that their allegations have more than a 50% chance of being true. You can understand this as the “more likely than not” principle.

What is compelling evidence in law? ›

Clear and compelling evidence is a term that is not as strictly defined in legal terms, but it generally means evidence that is so strong and convincing that it leaves little or no doubt about the truth of a matter.

Who gives evidence against the accused? ›

The evidence at a trial usually starts with the prosecution witnesses and is then followed by the defence witness. It is the role of the prosecution lawyers to prove the case against the defendant.

What is an example of improper character evidence? ›

Character evidence is not admissible to prove conduct in civil cases. For example, a defendant cannot offer the testimony of friends (or her own testimony) that she is usually a very careful driver as circumstantial evidence she was probably driving carefully and not negligently on the day of an accident.

What is the process of innocent until proven guilty? ›

The presumption of innocence until proven guilty means that the burden of proof is always on the government to satisfy you that [defendant] is guilty of the crime with which [he/she] is charged beyond a reasonable doubt.

What looks at the evidence and decides whether or not there is enough evidence to bring you to trial? ›

The grand jury determines whether there is “probable cause” to believe the individual has committed a crime and should be put on trial. If the grand jury determines there is enough evidence, an indictment will be issued against the defendant.

Who is responsible to prove the defendant guilty? ›

It is the government's responsibility to prove the defendant committed the crime as detailed in the indictment. There is no burden on the defendant to prove that they are innocent.

What is the burden of proof required to prove the defendant is guilty in a criminal case? ›


What is false evidence called in court? ›

Falsified evidence is evidence that is illegally created for the purpose of influencing the outcome in a court case. It is also termed as forged evidence or tainted evidence.

What are the two things a plaintiff has to prove by the preponderance of the evidence in an infringement lawsuit? ›

The plaintiff in a copyright infringement lawsuit has the burden of proving two elements: that they own a copyright, and that the defendant infringed it.

What is the judge using to determine a sentence? ›

Statutes and case law.

The first thing that a judge will consider is the law. Criminal offenses will have minimum and maximum punishments that are set by statute. Further, case law and constitutional considerations will also impact the judge's ability to determine a particular sentence.

Which type of sentencing gives the judge the authority to set the sentence? ›

Indefinite sentences give judges discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a range of years to be served, and a parole board decides when the offender will ultimately be released.

What does determinate sentence mean? ›

Primary tabs. A determinate sentence is a jail or prison sentence that has a definite length and can't be reviewed or changed by a parole board or any other agency. The judge has little discretion in sentencing and must follow the sentence guidelines determined by the law.

What two factors are considered by sentencing guidelines? ›

he sentencing guidelines take into account both the seriousness of the offense and the offender's criminal history. The sentencing guidelines provide 43 levels of offense seriousness — the more serious the crime, the higher the offense level.

What is the most important factor in determining an offender's sentence? ›

The only relevant factors to consider when sentencing an offender would be the crime(s) of conviction and the offender's criminal history.

Can a sentence be change after it has been imposed? ›

Yes. A court generally maintains power to correct an incorrect sentence. This means that if the sentence was brought about by a clerical error, the court can simply amend the abstract of judgment to reflect the correct sentence.

Can a judge change his mind after a ruling? ›

The request for reconsideration must clearly show an error of fact or law material to the decision. The Judge may also reconsider a decision on his or her own initiative.

Can a judge take back a sentence? ›

Most (if not all) jurisdictions allow judge to correct an illegal sentence at any time.

Can a judge go below minimum sentence? ›

While judges can vary from the sentencing guidelines, they can't sentence below the mandatory minimums (except in very limited circumstances). If there is a mandatory minimum triggered by the crime, it always trumps a lower guidelines sentence. Read this FAQ for even more information about how federal sentencing works.

What are the three types of sentencing? ›

Sentencing statutes can be classified into three categories: indeterminate, determinate, and presumptive. In jurisdictions with indeterminate sentencing, the judge imposes a minimum and maximum term of incarceration, rather than a set number of years.

Which type of sentencing gives judges the most discretion? ›

Indefinite sentences give judges discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a range of years to be served, and a parole board decides when the offender will ultimately be released. Under determinate sentencing, judges have little discretion in sentencing.

What is presumptive sentencing? ›


What are the four types of release? ›

Types of Release
  • Parole. "Parole" means the release of a prisoner to the community by the Board of Parole (BOP) prior to the expiration of the offender's sentence. ...
  • Probation. ...
  • Determinate Release. ...
  • Community Corrections.

Why is determinate sentencing better? ›

Determinate sentencing can aid in equalizing prison sentences per specific convictions, and remove the pressure of finding financial and legal resources needed to apply for probation, parole, or sentence commutation.


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