LEGAL PRINCIPLE: CRIMINAL PROCEDURE – Substitution of Conviction – Power under Section 217 of Criminal Procedure Code
PRINCIPLE STATEMENT
If an accused is charged with one offence and the evidence shows he committed a different offence with which he might have been charged, he may be convicted of the offence he is shown to have committed, even if not charged with it.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Onogwu v. The State (1995) NLC-2861991(SC) at p. 9; Paras E–F.
"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 the 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."
EXPLANATION / SCOPE
Section 217 allows conviction for a different offence disclosed by the evidence. The accused must have had notice of the facts. The principle prevents acquittal on technical grounds. The court must be satisfied that the accused was not prejudiced. The rule applies to both trial and appellate courts. The substituted offence must be cognate or related to the charged offence. The accused’s fair hearing rights must be respected. The principle promotes justice. The court will not substitute an offence if it would cause prejudice.