Invalidity of Criminal Proceedings Commenced by an Unsigned Criminal Charge

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 21st day of June, 2024

Before Their Lordships

John Inyang Okoro

Adamu Jauro

Emmanuel Akomaye Agim

Obande Festus Ogbuinya

Habeeb Adewale O. Abiru

Justices, Supreme Court 

SC/CR/413/2020

Between

THE STATE       APPELLANT

               And

JERRY GIDEON     RESPONDENT

(Lead Judgement delivered by Honourable Obande Festus Ogbuinya, JSC

Facts

The Respondent was one of five persons arraigned before the High Court of Adamawa State by the Appellant on a five count charge of criminal conspiracy, culpable homicide punishable with death, inciting disturbance, mischief by killing or maiming animals and causing disappearance of evidence punishable under various sections of the Penal Code, Laws of Adamawa State 1997). The Respondent pleaded not guilty and the matter proceeded to trial. The Appellant called six witnesses in proof of the charge against the Respondent, while the Respondent testified as the sole witness in his defence. At the conclusion of trial and after adoption of final addresses by respective counsel for the parties, the trial court delivered judgement wherein it convicted the Respondent on all the counts and sentenced him to death and terms of imprisonment.

Aggrieved, the Respondent filed an appeal at the Court of Appeal, by an amended notice of appeal containing seven grounds of appeal. One of the grounds of appeal questioned for the first time the competence of the motion to prefer the charge filed at the trial court by the Appellant and the charge by which proceedings were commenced at the trial court, for failure by the Counsel who filed the motion and the charge to sign either of them. The Respondent distilled two issues for determination in its Appellant’s brief before the Court of Appeal, as to whether the proceedings conducted before the trial court was not a nullity, and whether the prosecution proved the case against the Appellant to justify his conviction and sentence by the trial court. 

After hearing the appeal, the Court of Appeal delivered its judgement in which it held that the charge against the Appellant and the other co-accused persons was fundamentally defective, for failure by Counsel who filed the motion to prefer the charge and the charge itself to sign the same. The Court of Appeal also held that the trial court committed a deluge of errors in its evaluation of the evidence led by the Appellant, and the evidence led by the Appellant on each of the five counts did not meet the threshold of proof beyond reasonable doubt required in a criminal charge. The Court of Appeal allowed the appeal, set aside the judgement of the trial court and discharged and acquitted the Respondent.

The Appellant was dissatisfied with the judgement of the Court of Appeal; hence it filed an appeal against it at the Supreme Court. 

Issue for Determination 

In its resolution of the Appeal, the Apex Court considered the following issue raised by the Appellant for determination:-

Whether the lower court was not in error when it held that the matter was not initiated before the trial court by due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction, thereby rendering the whole exercise a nullity and yet went ahead and discharged and acquitted the Respondent. 

Arguments

Counsel for the Appellant submitted that the Court of Appeal was wrong, when it declared the trial an exercise in futility and discharged and acquitted the Respondent. He argued that an objection to any formal defect in a charge must be taken immediately it is read to an accused, especially where he is represented by a Counsel, and asserted that the Respondent did not raise the objection to the charge timeously as it was raised at the Court of Appeal for the first time. He submitted further that the Respondent was not misled or misinformed by the defect in the charge, as to amount to a miscarriage of justice. He argued that the lower court ought to have ordered a retrial of the case. Counsel cited AMADI v FRN (2008) 12 SC (PT. II) 15.

In response, Counsel for the Respondent contended that an issue of jurisdiction can be raised at any stage of the proceedings, and only a competent charge can confer jurisdiction on the trial court. He referred to UMANAH v ATTAH (2007) ALL FWLR (PT. 346) 40. Relying on MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341, he submitted that a charge being an originating process can only be competent if it is signed, as it is a condition precedent to the arraignment and trial of an accused person. He insisted that the failure to sign the application to prefer the charge and the charge was a fundamental defect that could not have been waived or overlooked, as it went to the jurisdiction of the trial court to hear the case.

Court’s Judgement And Rationale

The Court held that an issue of jurisdiction, which is the blood, lifeline and heartbeat of adjudication, can be raised at any stage of the proceeding, even for the first time in the Supreme Court, and the parties cannot by waiver, consent, collusion, indolence, compromise, acquiescence or estoppel, or any guise, vest jurisdiction on the court where none exists. 

The Court held that it is rudimentary law that the appropriate time to object to any defect in a charge or information is when it is being read and before plea, and if an accused person delays or fails to register his opposition to a charge before plea is taken, the law deems him as having acquiesced in the irregularity and it is not an issue that can and should be taken up on appeal for the first time; however where the defect in a charge is so fundamental that it goes to the jurisdiction and competence of the court, the doctrine of waiver of right to objection vaporises and takes to flight. The Apex Court held that the issue of signing and endorsement of an originating process is not a matter of procedural law but a requirement of substantive law which cannot be waived, and which can be raised even at the Supreme Court for the first time, and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such non-signing of the court process.

The Supreme Court held further that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner who prepared it, in order to infuse validity into in. In other words, an originating process not signed by a legal practitioner is infested with incompetence with the attendant liability of expunction, as the incompetence divests the court of the jurisdiction to adjudicate over the action. The Apex Court held that this position of the law applies with equal force, mutatis mutandis, to a charge or information which is an originating process in criminal law, and referred to its decision in STATE v ISIJOLA (2003) (PT. 1884) 417 at 449 that a criminal charge which is not signed by the Attorney-General or an authorised officer in his department, would be fundamentally defective for the purpose of initiation of criminal proceedings before the court.  

The Court held that a charge or an information being an originating process, like a writ of summons, an originating summons or a notice of appeal, is the foundation upon which all other processes and proceedings are hinged on in a criminal matter, it follows therefore, that the incompetence of the charge/information pollutes the purity of the other processes and proceedings, inclusive of the judgement, and, ipso facto, renders them incompetent. 

The Apex Court found that the failure of the Appellant’s Counsel to sign the charge constitutes a serious feature that drains the trial court of the requisite jurisdiction to entertain the criminal case; moreover, the non-endorsement of the charge is an ample demonstration that the charge was not initiated by due process and upon fulfilment of the condition precedent for the exercise of the trial court’s jurisdiction over the same.

The Court however, held that it is not in sync with the criminal jurisprudence to formally discharge and acquit the Respondent who had not gone through the crucible of criminal trial on the merits, on the footing of proceedings that were enveloped in a nullity and de jure, non-existent in the sight of the law. The Court held further that in the same vein, it would be ultra vires the authority of the lower court to order a retrial on an invalid charge supplicated by the Appellant, and the proper order which the law clothed the lower court with the jurisdiction to make was to strike out the case. The Court however held that, nonetheless, the minor error committed by the lower court in the discharge and acquittal of the Respondent is a negligible error which is not sufficient to clothe the Appellant’s appeal with any atom of success. 

Appeal Dismissed.

Representation

Z. Y. Musa, SSCI, Ministry of Justice, Yola, Adamawa State for the Appellant.

S. S. Obende with Simon Wilson and W. S. Aboki for the Respondent.  

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