Effect of Omission or Procedural Irregularity in a Charge on a Conviction 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 13th Day of January 2023

Before Their Lordships

Musa Dattijo Muhammad

Chima Centus Nweze

Uwani Musa Abba Aji

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Justices, Supreme Court

SC.858/2016

Between

THE STATE                   APPELLANT

                                And

MOSES ISIJOLA                                                                   RESPONDENT

 (Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Respondent and two other persons were arraigned before the High Court of Niger State on a four-count charge of conspiracy to commit robbery, robbery, unlawful possession of firearms and receiving stolen property. The charge against them was placed before the trial court by an application for leave to prefer a charge dated 03/04/2013, signed by Baba Aliyu, Esq., Resident State Counsel, Bida. Among the documents annexed to the application, was the charge sheet containing the four-count charge against the accused persons. The trial court granted the Appellant’s application. Thereafter, the charge sheet attached to the application granted by the court was read and explained to the accused persons, and they pleaded not guilty. 

Subsequently, the Appellant amended the charge, and the trial court took the plea of the Respondent and the others to the amended charge. At the conclusion of evidence by the Appellant, counsel for the Respondent and the other accused persons decided not to call any evidence in defence, but raised an objection to the competence of the charge on the ground that it was not separately signed by the Resident State Counsel who personally signed the application, and no separate charge was filed after leave was granted by the trial court. After final addresses by parties, the trial court delivered its judgement in which it decided that the charge was valid; and convicted the Respondent as charged. Dissatisfied, the Respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal on the ground that both the original and the amended charge were not signed, and were thus, incompetent. The charge was struck out and the Respondent was discharged. Aggrieved, the Appellant lodged an appeal at the Supreme Court. 

Issues for Determination 

The Supreme Court considered the following issues in its determination of the appeal.

1. Whether the Court of Appeal was right, when it held that the charge was incompetent.

2. Whether the Court below, not being a final court, was right when it failed to make pronouncement on issues 2 and 3 formulated by the parties and adopted by the court.

Arguments

On the 1st issue, the Honourable Attorney-General of Niger State (HAG) on behalf of the Appellant, submitted that since the charge was annexed to the application to prefer a charge which was duly signed, the charge derived its authenticity from the application, and it is not a requirement under Section 185(b) of the CPC or any other applicable law that a separate charge needs to be filed after the grant of leave to prefer a charge. He submitted that the charge was valid for the arraignment of the Respondent who was physically present and also represented by counsel, and who understood the charge before entering his plea to the same, and was not in any way confused as to the charge against him or misled throughout the trial. He argued further that, even if the charge was not signed, it is an irregularity which the Respondent had regularised by participating in the trial, thereby waiving his right to complain. He submitted that it is the law that an objection to a defect in a charge must be raised before or at the time the plea is taken, and where it is not so taken or raised, the right to object to any defect in the charge subsequently, will be lost. The HAG cited ARIORI v ELEMO (1983) 1 SCNLR, 1 at 13 in support of his argument.

Conversely, counsel for the Respondent argued that the charge which formed the basis of the Respondent’s arraignment, trial and conviction was unsigned, hence, it is an incompetent originating process. He submitted that the charge was never filed after the grant of leave to prefer it, and the grant of leave is not the same as preferring a charge. He contended that trying an accused person on an unsigned charge is not a mere irregularity which can be waived, as it goes to the jurisdiction of the court for being an incompetent originating process. He cited OKAFOR v NWEKE (2007) 3 SC (PT. 2) 60.

On the 2nd issue, the HAG submitted that the Court of Appeal had the duty to consider and make pronouncements on all the issues raised by the parties, even after arriving at the decision that the trial court has no jurisdiction to try the Respondent. 

In response, counsel for the Respondent submitted that having decided the first issue placed before it; the Court of Appeal was at liberty not to make any further pronouncement on other issues which were based on the fundamentally defective charge. 

Court’s Judgement and Rationale 

In its determination of the 1st issue, the Court referred to the provision of Section 185(c) of the Criminal Procedure Code, Laws of Niger State (Revised Edition) 1989, which makes it mandatory for the leave of a trial High Court to be obtained before a charge is preferred before that court against an accused person, as in the instant case. The Court also referred to Sections 200 – 202 of the CPC which contain essential requirements as to what the form and content of a charge drafted under the CPC should be, to constitute a proper and valid charge as provided therein. The Court held that from these provisions, there is no requirement that the charge or each counts set out thereon must be separately signed by the person who drafted the charge, or by any other person apart from the person who signed and filed the application for leave to prefer a charge before the trial court. There is also no provision which requires that a separate charge must be filed after the leave to prefer a charge duly annexed with the application, has been granted by a trial court. Although, it may be desirable for a separate charge to be filed or preferred by the Appellant after the grant of leave to prefer the charge by the trial court, there is no provision in the CPC that makes it a specific requirement for the validity and competence of a charge. 

The Court held further that by the provisions of Sections 381(1) and 382 of the CPC, no finding or sentence, after a conviction pronounced or passed, shall be deemed invalid merely on the ground of even the absence of a charge before the trial court, unless an appellate court or reviewing authority is of the view of opinion that a failure of justice, has in fact, been occasioned in the case.

The Court held that in the instant case, the trial court granted the request to prefer the charge on a valid application duly dated and personally signed by an identifiable officer in the department of the Attorney General of Niger State. There was no doubt that the charge annexed thereto, was drafted and filed by the said Resident State Counsel whose name and signature was clearly subscribed on the Application. There is no dispute about the authority and the authenticity of the signature of the Resident State Counsel, to make the application to prefer the charge and to draft the charge which was annexed thereto. The Respondent, who understood the charge against him and was also represented by counsel, pleaded to the charge and participated at full trial. There can therefore, be no question as to the validity of the charge. Even if any irregularity existed, no objection was raised at the time the plea was taken; hence, the Respondent had waived the right to complain at the later stage of trial or at the Court of Appeal. 

There was also no dispute that after the amendment of the charge, the amended charge was read and explained to the Respondent who was represented by counsel throughout the proceedings, and his plea was taken. The Court held that it was apparent in the Record of Appeal that the Respondent was afforded the fullest opportunity to defend himself of the offences he was charged with, in strict compliance with the constitutional guarantee for a fair hearing; and apart from the bare assertion on the non-signing of the charge, there has been no serious allegation of any prejudice in the trial of the Respondent which can reasonably be said to constitute a real failure of justice in the case to justify an interference by an appellate court with the findings, conviction, sentence or order of the trial court.

On the 2nd issue, the Apex Court held that the Court of Appeal as a penultimate and intermediate court whose decisions are constitutionally made subject of a further appeal to the Supreme Court, has the duty and judicial obligation to always consider and make definite and specific pronouncements on all issues properly placed before it in an appeal by the parties, even where, as in the Respondent’s case, it decided that the trial court lacks the requisite jurisdiction to adjudicate over a case in respect of which an appeal was brought. The reason for this is that, the decision of the court below on the issue of jurisdiction may be faulted by the Supreme Court in a further appeal. The Court relied on its decision in IKPEAZU v UTTI (2016) 8 NWLR (PT. 513) 38 at 79.

The Court held that the Court below clearly abdicated its primary judicial obligation to consider and make pronouncement on all the relevant and material issues raised before it by the parties in the appeal, when it failed to consider the other two issues before it.

Appeal Allowed. Judgement of the trial court restored. 

Representation

Nasara Danmallam Esq. A-G Niger State with others for the Appellant.

George E. Ukaegbu Esq. and D. Okorie Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)