Crictical Appraisal Of The Prosecutorial Regime Under The Robbery And Firearms

May 12, 2014


(A seminar of the Department of Public Prosecutions, Ekiti State Ministry of Justice Ado-Ekiti)

 Presented by the PCG Group 3.


O. Fasote (Senior Legal Officer), Eniola A. Arogundade (Senior Legal Officer), Akinola Olufemi Onipede (Senior Legal Officer), Felix.O Awoniyi (Senior Legal Officer)


It is an unassailable truth that the provisions under the Robbery and Firearms (special provisions) Act are enacted by the National Assembly of the Federal Republic of Nigeria. It is an Act of twelve sections and the offences under this Act are triable in the High Court of the State concerned and FCT where the Minister there serves as the Governor. These offences include robbery, armed robbery, attempted robbery, illegal possession of firearms, sheltering and treating armed robbers etc.  The appropriate penalty for each of these offences is clearly stipulated in the Act.

It is observed that besideSections 6(b) and 1(2) (a) which deal with conspiracy and armed robbery respectively and which are commonly employed when charging an offender to court under this Act, we hardly aver our minds to other provisions which are equally very salient in stemming the prevalent and dangerous spate of armed robbery in our dear State and Nigeria in general. The authority believes we deserve to know and further familiarize ourselves with the provisions of the Act to buttress our knowledge when rendering legal advice, drafting charges or information and essentially in our prosecutorial activities. This paper examines and analyses the provisions under the Act and relevant provisions of the 1999 constitution.


Section 1 of the Act prescribed 21 years as punishment for robbery.                                     Robbery is defined to mean stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.  See-AWOSIKA VS STATE 2010 (18) WRN PAGE 149 AT 157.

From the above definition, it is deducible that robbery principally means stealing.

It is very apposite to discuss stealing as encapsulated in the Section11 of the Act which defines stealing to mean to take or convert to one’s use or the use of any other person anything other than immovable property, with any of the following

a).       an intent permanently to deprive  the owner  of the thing of it.

b).       any intent permanently to deprive any  person who has any special property in the thing of such property, the  term ‘special property’ here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question.  Whether by the person entitled to such right or by some other person for his benefit

c).       an intent to use the thing as a pledge or as security.

d).       an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform.

e).       an intent to deal with the thing in such a manner that it cannot be the condition in which it was at the time of taking or conversion.

f).        in the case of money, an attempt to use it at the will of the person who takes it, although he may intend afterwards to repay the amount to the owner

Stealing as defined above becomes robbery when violence is employed or threatened to be employed against the victims or his property to consummate it or retained the stolen items. Violence is a vital ingredient that must be proved by the prosecution to sustain this charge.

The offence in Section 1 above will become an armed robbery and be punishable with death if the offender is armed with any firearms or any offensive weapon or is in company with any person so armed or if the offender wounds or uses any personal violence [profanation]. See HENRYOTTI V STATE (1991)8 NWLR PT 103 page 119.

By virtue of the above cited decision, it is of no moment that an armed robber was not armed with offensive weapon or firearms, forcible  deprivation of a victim’s property coupled with threatened slap, excessive, unrestrained, unjustifiable or outrageous force against such victim is enough to constitute violence and the accused can be proceeded against under Section 1(2) (b) and be punished with the maximum punishment.See also the case of BOZIN V THE STATE (1985) 2NWLR PT 8 at 465.

These Sections as earlier maintained are the most commonly-used sections in the Act Perhaps because of the prevalent of the offence of armed robbery itself.

Surprisingly, Section1(2) (b) of the Act,has almost been abandoned by the court.Where it is the case that  the  accused  did not employ any physical weapon either offensive or firearms in perpetrating the crime,the court is quick in convicting for robbery even where personal violence[profanation] is proved not minding that provision i.e Section 1[2]b. Such an accused person can still be convicted if it is established that he employed physical violence. Also the prosecuting counsel while rendering legal advice or preparing information and proof of evidence should avert their mind to this Subsection.

Subsection 3, deals with passing of sentence on the convicted accused. It is instructive to point out that judges do pass sentence on convicted accused person with specific mode of execution which is vividly at variance with the referred section.

By the wordings of Section 1(3) of the Act, the governor of the concerned state has the exclusive preserve in determining the mode of execution of the convict. A convict under the Act cannot be punished under the criminal procedure law particularly the section 367(2) which provides as follows;

the sentence of death shall be pronounced in the following form- the sentence of the court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul’

The Judges usually invoke the above section while passing sentence in the case of armed robbery under this Act. Such sentence is not in consonance with the wordings of that Section.

In the popular case of ANTHONY OKOBI V THE STATE(1984)7 SC PAGE 62 AT PAGE 63.The Supreme court was very assertive when it held that;

where a person is charged or prosecuted under the Robbery or Firearms Decree, the court CANNOT convict and punish him under the Criminal Code Law’’

Above all, it is apposite to mention at this point that three ingredients must be contemporaneously proved by the prosecution to sustain an allegation of armed robbery. These are:

(1)  That there was a robbery or series of armed robbery

(2)  That each of the robbery was an armed robbery

(3)  That the accused was one of those who robbed.

See Bello  vs. State (2007) ALL FWLR (Pt 396) 702.  Emenegor vs. State (2010) ALL FWLR (pt 511) 884.

The above conditions or ingredients are to be strictly proved to sustain allegation under Section 1 (2)(a and b) of the Act. Section (2) 1 and 2 (a)&(b) deal with attempted armed robbery and the punishment is imprisonment for life if vividly proved against offender(s). What constitute the offence of attempt to commit armed robbery was aptly described by the Supreme Court in the case of SHURUMO VS. STATE (2011) ALL FWLR (Part 568) page 864 at Ratio 5 as follows:

“To constitute an attempt to commit armed robbery, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. The mere intention to commit a misdemeanor is not criminal. Some act is required. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it. But acts immediately connected to it are of moment. It literally means that the acts proved against an offender must be such as would show means that he had done all he needed to do to complete the act before he was stopped”SEE ALSO IDEN V THE STATE (1994)8NWLR PT 365 PG719 AT 727-728.

From the above decisions, the following ingredients are salient to be proved by the prosecution to sustain a charge of attempted armed robbery viz,

(a)  That the accused was armed with dangerous weapon. See 2(1) of the Act.

(b)  That the accused exercised violence against his victim in the course of fulfilling his intention.See 2(1) of the Act.

(c)  That the accused actually exercised some overt acts to commit the robbery but was cut short as a result of a timely intervention.

It is expedient however to point out here that where the substantive offence is charged and attempt is proved, the court can convict for attempt. See Section 179(1) and (2) of the Criminal Procedure Law Cap C17, Laws of Ekiti State, 2012. SeeBabalola vs. The State (1989) 4 NWLR (pt 115) 264 at 268-269 ratio 8.

By Sections 2( 3)and Section 3 of this Act,[explained together]deal with being in possession of firearms   which is prohibited and the  punishment is 14 years and above but not more than twenty years.           Section 2[3] is one of the sections hardly invoked when drafting charge or preparing information. We are quick in invoking Section 3 of the Act once it is ascertained that neither attempted robbery nor armed robbery has been committed by the alleged offender.  The offender will quickly be charged under illegal possession of firearms whereas they are two different provisions and the offences therein attract different degree of punishment. Under section 2 (3) of the Act, it must be ascertained that the possession was with intent to the immediate or eventual commission by that person having the possession or any other person of any offence under section 1 of this Act. While intention to immediately or eventually commit an offence must be proved under this section, merely being in possession of firearms without MORE, will sustain an allegation and eventual conviction under Section 3 of the Act. In the case of STEPHEN VS. STATE 2009 VOL. 44 WRN PAGE 168 AT 172. It was held that:

“it is imperative to state that the offence of being in an unlawful possession of firearms does not required proof of mensrea and actusreus as contended by the appellant’s counsel. it is a strict liability offence. The element do not contain the need for criminal intent or mensrea…”

It is crystal clear from the above decision that the two sections are fundamentally different and they cannot be used interchangeably.

Section 4(1) of the Act prohibits knowingly giving assistance to any person by housing, sheltering or giving quarters to that person who has committed an offence under section 1(2) of this Act.     This is notably called accessories after the fact under the Criminal Code.  Subsections 2, 3 and 4 of the Act place a duty on any person, hospital or clinic that admits, treats or administers any drug to any person suspected of having bullet wounds to forthwith report the matter to the police. Subsection 4 of this Section prescribes punishment for offences created under subsections 1,2 and 3.

It is the view well concerted that the prosecution should beam its prosecutorial lights in this section which provided that it is not only individual that can be prosecuted/sanctioned but even a hospital or clinic because the section provides a duty.


By virtue of Sections 1 and 2 under this Act,robbery and armed robbery constitute offences and these offences means stealing with violence. It means that the word receiving in Section 5 of this Act connotes receiving stolen property. Receiving stolen property is a criminal offence of acquiring or controlling property known to have been stolen by another person.

It is important to point out that element of wrongful intention must be proved by the prosecutions to secure conviction. It is not a strict liability offence like illegal possession of firearms as held in STEPHEN VS STATE[SUPRA] otherwise the punishment prescribes in Section 5 of the Act will be too harsh and unjustified in law.


The section is silent on the knowledge of the accused knowing that the property found on him was acquired as a result of any offence under this Act, and the punishment is life imprisonment,  whereas under the criminal code, where the essential element is having the knowledge that the property found on the accused was illegally acquire by that person where he/she came into possession, the penalty is mild. See Section 427 of the Criminal Code Law.


It is trite that where an offence is committed every person who aids another person in committing the offence is deemed to have taken part in the commission of the offence and to be guilt of the offence and may be charged with actually committing it. It is however crucial that to bring a person within Section 6 of this Act, there must be clear evidence that either prior to, or at the time of the commission of the criminal act, that person did something to assist and help or facilitate the commission of any of the offences under Sections 1,2,3 and 4 of the Act.See NWACHUKWU VS THE STATE[2002] FWLR [PART 123]PAGE 312.


It is submitted that this section is self explanatory as it connotes that it cannot be a sound defence that any of the persons mentioned in the section was not physically present when the offence was committed.

SECTION 7 – Forfeiture Of Assets/Property

Once an accused person is charged to court, prosecuted, convicted and sentenced accordingly, Section [7]1 of this Act makes All the assets of the convict, either movable or immovable, including motor vehicles forfeited to the Government of the State in which the asset or property is situated or found.

COMMENT:  The  provision of Section 7(1) is harsh as it leaves the court and the prosecutions on a wide-goose chase to determining whether single or series of the act of the Accused are the proceed of all his asset both movable and immovable sought to be forfeited. It is our opinion that all the items (Assets) employed by the Accused person in prosecution of the crime should be forfeited and not ALL the Assets of the Convict.

Section 7 (2) enjoins the Governor of each state to constitute a panel which will include an officer of the State Ministry of Justice which will be saddled with the responsibility of conducting investigation for the purpose of ascertaining the assets of any person convicted of an offence under this Act.

It is believed that this section can only be exercised subject to Sections 233 and 240 of the 1999 Constitution which deal with rights of appeal of any convict who wishes to exercise those rights.

COMMENT: It is observed that this Section has not been invoked by the State even when the case has been litigated up to the Supreme Court and the conviction and Sentence slashed on the convict upheld.


This section empowers members of Police Force or Armed Forces to arrest without warrant any person reasonably suspected of having committed or about to commit an offence under this Act. This section further empowers them to employ reasonable force including the use of firearms, which may reasonably necessary to effect the arrest of that person or to prevent his escape. By virtue of Section 8(2) of the Act, subsection 1, shall have effect notwithstanding anything to the contrary in any law.

Brilliant as this Section of the Act appears to be, the inclusion of members of the Armed Forces is absolutely unnecessary and same is absurd under a democratic setting. Members of the armed forces are not trained in handling this kind of cases. Their inclusion is a carryover of the military to democratic setting. There is no justification for their inclusion when members of the police are not incapable of performing those duties.


This section confers jurisdiction on the High Court on each state to try any offence under this Act.


This section of the Act makes the provisions under the act applicable to Federal Capital Territory as if it is one of the states of the Federation. By this section, any reference in this Act to the Governor of a state shall be construed as being a reference to the Minister of the Federal Capital Territory, Abuja. Any reference to a serving or retired judge of a state shall be construed as a reference to a serving or retired Judge of the High Court of the federal capital territory, Abuja or a serving or retired judge of the Federal High Court. Any reference to the Attorney-General of a |State shall be construed as being a reference to the Attorney-General of the Federation.


This section of the Act deals with the interpretation where some key words were defined. Worthy of mentioning is “Offensive weapons & Firearms”.

Offensive Weapon: By virtue of this Section means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person, having it for such use by him and it include an air gun, air pistol, bow and arrow, spear, cutlass, machete, dagger, cudgel or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.

The above position was reinforced in the case of SOWEMIMO VS STATE (2011) ALL FWLR (part 599) page 1064 at page 1068-1069 Ratio 4 where the court held as follows:

“Offensive weapon include any weapon or instrument which creates in the          mind of the victim reasonable apprehension that were it used on his/her person, it would cause death or some grievous bodily harm or hurt and will include axe, knife, machete, dagger, spear, cudgel, iron rod e.t.c”

COMMENT: It is vivid from the above statutory definition and case law that what constitute offensive weapon is inexhausitive. It includes any object that will make a victim become apprehensive if it is to be used on his/her person.

Firearms: By virtue of this Section includes any cannon, gun, rifle, carbine, machine-gun, car-gun, flint-luck gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces.

COMMENT:  The word “Includes” means the list is inexhaustive.


This is the Citation Section. It needs no explanation.

CONCLUSION:  it is our humble position that all agencies especially the police who are saddled with responsibilities   under this Act should not shy away from those responsibilities i.e the institutions should diligently and holistically perform their roles before the burden of prosecution is passed to the Department of public prosecutions. It must be noted that whether justice in a particular case will be met or not depends largely on the out-come of investigations.

It is equally suggested that the inclusion of members of Armed Forces  in Section 8 of the Section is unfounded and such inclusion should be removed in a future amendment to the Act as same is prone to abuse by the institution. This is especially important to guide against experiencing jungle justice as a result of that inclusion. It is equally important as prosecuting counsel that we familiarize ourselves with the provisions of the Act.  What is more, offences under this Act are more rampant than others.


List of Cases And Authorities

(1)    AWOSIKA VS. STATE 2010 (VOL.18) WRN PAGE 149.

(2)    SOWEMIMO VS. STATE (2011) ALL FWLR (PART 599) PAGE 1064.

(3)    BELLO VS. STATE (2007) ALL FWLR (PART 396) PAGE 702.

(4)    EMENEGOR VS. STATE (2010) ALL FWLR (PART 511) PAGE 884.

(5)    SHURUMO VS. STATE (2011) ALL FWLR (PART 568) PAGE 864.

(6)    BABALOLA VS. THE STATE (1989) 4 NWLR (PART 115) PAGE 264.

(7)    STEPHEN VS.  STATE 2009 VOL. 44 WRN PAGE 168.

(8)    NWACHUKWU VS. THE STATE (2002) FWLR (PART 123) PAGE 312.

(9)    HENRY OTTI V STATE (1991)8 NWLR PT 103 PAGE 119

(10) BOZIN V THE STATE (1985) 2NWLR PT 8 at 465.


(12) IDEN V THE STATE (1994)8NWLR PT 365 PG719 AT 727-728