IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF MBAISE JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE
ON FRIDAY THE 14TH DAY OF FEBRUARY 2023
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
HAM/2CA/2021
BETWEEN:
HYCIENT ANYANWU – APPELLANT
AND
COMMISSIONER OF POLICE – RESPONDENT
JUDGMENT
This is an appeal from the magistrate court sitting at Ahiazu Mbaise presided over by Paul Madu.C. Esq. Magistrate Grade 1. against the ruling of the court delivered on 15th day of March, 2021 over the ruling of NO CASE SUBMISSION made by the Defendant/Appellant’s counsel on 14th day of January, 2021
at page 35 of the Record of Appeal.
The Appellant at the magistrate Court was arraigned on two counts charge on the 18-3-2020
Count 1
That you Hycient Anyanwu ‘M’ on the 7th day of march, 2020 at Umuevu Okiriknweka Ekwereazu Ahiazu Mbaise, in the Ahiazu Mbaise magisterial district did give Police False information which you know or believe to be false, that Pastor Ephraim Ikechukwu Okeke ‘M’ chased you with a matchete whereas it was not true and thereby committed an offence punishable under section 25A of the Criminal Code Cap C38 Laws of the Federation of Nigeria 2004 as now applicable in Imo State, Nigeria
Count 11
That you Hycient Anyanwu ‘M’ on the 7th day of March, 2020 at Umuevu Okirikanweke Ekwereazu Ahiazu Mbaise, in the Ahaizu Mbaise Magisterial District did unlawfully assault one Pastor Ephraim Ikechukwu Okeke ‘M’ by flogging him with a matchet at his back thereby committed an offence punishable under section 351 of the Criminal Code Cap C 38 Laws of the Federation of Nigeria 2004 as now applicable in Imo State, Nigeria
The Record stated:
“Accused person elects to plead in English language and upon the reading out the counts of the charge sheet to him admits and appears to perfectly understand same and pleads as follows:
Count 1: Alleged false information to the Police that Pastor Ephraim Ikechukwu Okeke chased you with a matchet, an offence punishable under section 25A (1) of the Criminal Code now applicable in Imo State. Accused person pleads NOT GUILTY
Count II: Alleged assault on one Pastor Ephraim Ikechukwu Okeke by flogging him with matchet at his back an offence punishable under section 351 of the Criminal Code Cap C -38 laws of the Federation of Nigeria now applicable in Imo State of Nigeria. Accused person pleads Not GUILTY.
The Prosecution called 4 witnesses and closed its case on the 16-12-2020. It was adjourned to 14-1-2021 for defence. In the 14-1-2021 the defendant indicated he has a no case submission. The no case submission was eventually adopted on 26-1-2021. Ruling was delivered on 15-3-2021.
In the Ruling the court stated:
“To this extent, the defence counsel in this matter was rather economical with the facts of this case to the extent that it cannot be said that the evidence adduced by the prosecution so far in this matter cannot justify the further hearing of this case. A no case submission, where it is successful, is aimed at discontinuing the further hearing of a matter. But that will only be if evidence adduced at the end of the prosecution’s case does not justify such further hearing. This Honourable court does not agree with the submission of the learned counsel for the defence that this case does not deserve further hearing. Lastly, I have restrained myself from delving into the merits of the entire suit which will come after the whole evidence in this matter, both that of the prosecution and the defence are tendered before me. In the circumstances of the above, the n case submission by the defence counsel is hereby overruled”.
Dissatisfied with the ruling, the Defendant filed Notice and Grounds of Appeal on the 25-3-2021.
Ground 1
The trial court presided over by His Worship PC Madu Esq. grossly erred in law when it overruled the no case submission made on behalf of the Accused/Appellant in respect of giving false information to the Police by holding that the prosecution has established prima facie case against the Defendant.
Particulars of error
- That the Prosecution did not establish the intention of causing an officer in the public service to act on the false information.
- The charge was incurably bad in law because the words “with the intention of” were not alleged in the charge.
- The intention of causing an officer in the public service to act on false information in the manner prescribed in paragraphs (a) and (b) of this section is the element of mens rea in the offence and must be alleged in any charge under the section
- The charge as framed alleged a nonexistent offence
- The charge is brought under an unknown law ie. section 25 A (1) of the Criminal Code
Ground Two
The trial magistrate Court erred in law when it refused no case submission made in count 2 of the offence i.e. assault contrary to section 357 of the Criminal Code Cap C38 laws of the Federation of Nigeria holding that Prosecution has established prima facie case against the Defendant
Particulars of Error
- The evidence of PW1 contradicted his statement to the Police as to where the matchet was kept before the Defendant took it
- The court has no right t choose and pick of evidence
- The evidence of the other prosecution witnesses contradicted their statement to the police
- When the evidence of a witness contradicts his extra judicial evidence the curt is bound to reject both evidence
The Record of Appeal was transmitted on the 20-10-2021.
On 17-3-2022, the Respondent filed motion asking the court to strike out the appeal for the failure of the Appellant to file Brief of Argument. On 22-4-2022, the Appellant filed a motion for extension of time to file Appellant’s Brief of Argument. On 27-5-2022, the Respondent filed a Notice of Preliminary Objection as well as the Respondent’s Brief of Argument.
The crux of the Respondent’s Notice of Preliminary Objection is that the Appeal is incompetent and ought to be struck out as the transmitted record of appeal is manifestly incomplete having excluded exhibits tendered at the lower court. The Respondent also argued this in his brief of argument. However, before the hearing of the Notice of Preliminary Objection and the Appeal, the alleged excluded exhibits were forwarded to this court. In that wise the Notice of Preliminary Objection and submission made in that regard in the Respondent brief of argument have lost its potency. Same will be disregarded.
The Appellant in the Appellant’s Brief of Argument formulated issue for determination as:
- Was the learned trial court justified by law in ruling that the Defendant/Applicant has’ a case to answer in count one of the charge when the ingredient of the offence of false information is not established as stipulated by LAW.
- Whether the lower trial court was right in over ruling the no case submission made on behalf of the Defendant/Appellant in respect of count two of the offence, when the evidence of all the witnesses contradicted themselves and their extra Judicial statement.
The Defendant/Appellant is charged in count one for given police false information punishable under section 25A of the criminal code cap E34 laws of the federation of Nigeria 2004 as applicable in Imo State. It is submitted that the prosecution did not establish one of the ingredients of this offence which is the intention of causing an officer in the, public service to act on the false information. There was no evidence of intention laid and again, the charge as laid is incurably bad in law as no reasonable tribunal can convict on it. The words “with the intention were not included in the charge, see the cases of MONONYE V INSPECTOR GENERAL OF POLICE (1959) N.R.N.L.R page 152 and (2) COMMISSIONER of police V.J.E OGOCHUKWU (1974) 4 E.C.S.E Page 147 ratio 1.
It is submitted that the intention of causing an officer in the public service to act on false information in the manner prescribed in paragraphs (a) and (b) of section (1) of this section is the element of mens rea in offence and must be alleged in any charge under the section. See MONONYE V POLICE (Supra)
It is submitted that the charge as framed alleged a non-existent offence see MONONYE V POLICE. The charge is brought under an unknown law i.e. section 25A (1) of the criminal code and Defending/Appellant cannot stand trial or be liable or held to be guilty under such offence. See OLIEH V FRN (2005) WRN page 87 ratio 4,5,6,23 and 15 in the case of TAWAKALITU V F.R.N. (2011) All FWLR pt. 561 page 14, 13 ratio 9 and 10
According to the counsel, it is the law that before a charge of false information is filed in court, there must be consent of a superior police and the consent must be written and lodge with the Registrar of the court, so as to be available if called for at the trial. See the criminal law and procedure of the. six southern states of Nigeria by TAKINOLA AGUDA page 49 paragraph 186. This is the condition precedent
It has been decided by the superior courts that where a statute under which an issue or a matter is to be raised has provided a procedure for raising such issues or matter, and that procedure and no other must be followed.
It is submitted that since the prosecution did not follow the act or law establishing false information, count one of the offence has failed woefully, so the Defendant/Appellant should not be called to defend himself in count one. It is when the charge is good and the prosecution has established the ingredient of the offence that the defendant/Appellant can be called on to defend himself.
On issue 2, it is submitted that it has been held in the case of Emedo & Ords V the STATE (2002) 13SCM page 61 ratio 2 “that a submission of no case to answer may properly be upheld when there has been no evidence to prove an essential element in the alleged offence and when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
It is submitted that the evidence of the prosecution witnesses has been discredited by cross-examination that it is on safe for the court to convict on it for example, The principal witness i.e. the PW1 testified on oath that the Defendant snatched the matchet i.e. Exhibit ‘D’ from him and hit him at his back, but i-n his statement to the police i.e. Exhibit “A” he stated that he kept the matchet in his wheel barrow and the Defendant took the matchet from the wheel barrow and slapped him at his back with it.
The evidence of the PW3 also contradicted his statement to the police i.e. Exhibit “E” as to the manner of collecting the matchet
The law is when a complainant’s statement to the police is inconsistent with evidence in court without any explanation about the inconsistence his statement to the court should be regarded as unreliable see ONUIJOGU V STATE (1998) 1 ACLR page 67 ‘ratio 1&2. See also OGOGOVIE V STATE (2016) all FWLR part 847 page 425 ratio 4.
It is submitted that the court cannot choose and pick of evidence.
It is our contention that the doubt arose as a result of this inconsistence should have been resolved in favour of the Defendant/Appellant see STATE V AZEEZ (2008) All FWLR pt 424 page 1423 Ratio 10
It is submitted in conclusion that based on the reasons given above the lower trial court should have discharged the Defendant on the submission of No case submission made on his behalf.
Since it did not do so, the court is urged to exercise its discretion in allowing the appeal and discharge the Defendant.
The Respondent formulated issues for determination as:
- Whether the appellant’s appeal is not incompetent and ought to be struck out on the basis that the record of appeal is manifestly incomplete.
- Whether the respondent made out a prima facie case of giving false information to the police against the Appellant to justify the order of the lower court over-ruling Appellant’s no case submission on Count one of the Charge. (distilled from Ground 1 of Notice of Appeal)
- Whether looking at the totality of evidence adduced by, the respondent at the trial court on court 2 of the charge, the lower court was right to have over-ruled appellant’s no case submission made on the charge. (distilled from Ground 2 of Notice of Appeal).
ON ISSUE NO I: it is submitted that the Appeal is manifestly incomplete and copies of all the exhibits shown in the record to have been tendered at the lower court are not contained in the record of appeal. The compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by an appellate court. ACCESS BANK PLC VS ONWUURI (2021) 6 NWLR PT 1773 AT 391. The record of appeal serves as a reference material for the appellate court upon which to base any of its findings.
What constitute a complete record of appeal has been specified by the supreme court in ACCESS BANK PLC VS ONWUURI (supra) as all the proceedings in the lower court, including the processes filed that are relevant to the just determination of the appeal as well as the exhibits tendered.
According to the counsel a careful study of the record of appeal transmitted in this appeal from the lower court; there are fifty (50) pages that comprised it. There are also seven exhibits tendered and marked at the lower court. They are Exhibit A as statement of the PW1, Exhibit B&C as statement of defendant, Exhibit D is a Machete, Exhibit E is the Police Investigation Report, Exhibit F is an extra judicial statement of PW3 while extra-judicial statement of pw4 is Exhibit G. pages 9,15,19,27 and 31 of the record of appeal are hereby referred.
Counsel to the Appellant while arguing issue No two of the Appellant’s Brief made strong references to Exhibit E, A, D and G in support of their case and argued that prosecution witnesses statements at the police were inconsistent with their testimonies in court. References to the Exhibits by Appellant counsel makes the Exhibits crucial documents for perusal by the appeal court for just determination of the appeal. Their exclusion from the record of appeal is a fundamental omission which impugns the competence of the appeal court to effectively .and efficiently determine this appeal. And court is not entitled to speculate on matters not before it. “on no account must a court deliberate on an incomplete record. In the instant case, without seeing the material that was before the trial court; the court of appeal would not be in a position to reach a just resolution of the issues brought to it. A decision reached in such circumstances affecting the rights of the parties would no doubt lead to a miscarriage of justice”. ACCESS BANK PLC VS ONWUURI (supra)
The law remains the same that appeals are heard and determined on the record of appeal which has been settled by parties. RAPHEL ONWUANUNKPE VS REUBEN ONWUANUMKPE AND ANOR (1993) 8 NWLR (pt. 310) 186 Ratio 13.
According to the counsel, the dilemma of not having the complete record of appeal transmitted to this court by the lower court is not the type the Appellant can easily claim non complicit. That the Appellant counsel argued his brief of argument and made references to inexistent documents in the record of appeal means that Appellant is fully aware and acquiesced to it for the determination of this appeal with incomplete record. In ATOSHI & ORS VS AGBU & ORS (2018) LPELR 44477(CA) OMOLOYE J.C.A observed that appellate court can hear the appeal on incomplete record but not where the missing part of the record is in its view material. The missing part of the record in this case is material having been referred to majorly by the Appellant in their brief of argument and this appeal therefore cannot be decided with such an incomplete record. We urge My Lord to strike-out this appeal for being incompetent.
ON ISSUE No 2; It is answered for the respondent in the affirmative to the effect that the respondent made out a prima facie case of giving false information to the police against the Appellant to justify the order of the lower court over-ruling Appellant’s No case submission on Count one of the charge. A submission that there is no cases to answer when made by a defendant means that the trial Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. See ANIMI VS. THE STATE (2005) 2 NWLR (PT.909) 108. Such application may be upheld when; (i) There has been no evidence connecting the accused person with the alleged offence or offences. (ii) When evidence adduced by the prosecution has been so discredited as a result of cross examination or it is manifestly unreliable that no reasonable tribunal could convict on it. It also means that there is nothing in the evidence adduced by the prosecution that would persuade the court to compel the accused to put up his defence.
In the present case, the charge in Count one is that the defendant gave false information which he knows to be false that Pastor Ephraim Ikechukwu Okeke, the complainant chased him with a machete whereas it was not true. The ingredient of proof of false information to public officers under section 125A (1) of the criminal code act, cap 38, Law of the federation of Nigeria, 2004 as applicable in Imo state are: i. That the defendant did make a false report to the police. ii. At the time of making the report he believed it to be false. iii. He did it with such intention of causing such police officer or person in public office to exercise or use his power to the injury or annoyance of any other person. iv. There must be consent of a superior police officer.
The prosecution called four witnesses via: PW1, PW2, PW3 and PW4. The PW1 who is the victim of the offence gave evidence in page 4-12 of the record of how he was met in the bush and slapped with a machete by the defendant in the presence of PW3 and PW4 who held him not to retaliate. He later went to the police station to report a case against the defendant and met the defendant already at the police station having reported falsely that he was chasing him with the same machete he assaulted him with. The police arrested the victim at the police station and after enquiring into the matter found out that the defendant gave them false information and subsequently charged him to court. This fact was corroborated in the evidence of PW2 (IPO) and that of PW3 and PW4 who were in the bush and witnessed what happened. Pages 14-27, pages 25-28, pages 30-32 of the record of appeal are referred.
On whether the defendant made the false report with intention to have the police exercise their power to injure PW1 or annoy him, it is submitted that intention is deducible from the overt act of the defendant. He was at the police station after making his false report and witnessed when the PW1 was arrested and detained as a result of his false report. His intention to achieve the desired result is observable in this scenario.
On whether there was consent of a senior police officer to file a charge of false information against the defendant, counsel referred to a copy of the charge sheet in page 1 of the record of appeal and at the signature column of the charge that, it was the Divisional police officer who is the most senior police officer in the Division that signed the charge. it is submitted that the criminal code did not specify the manner the consent should be given and did not state that it must be a written letter.
It is submitted that the DPO who is a superior police officer and the most senior police officer in the Division and who still would have signed a written consent assuming and not conceding that it was the proper approach, having signed the Charge suffices in effort to comply with the requirement of consent of a senior police officer by the Act. The position held by the Appellant counsel on this issue that such consent even though not specified on how it should be given must be a written letter, is nothing other than resorting to undue technicality to defeat a course of justice which long has departed our legal jurisprudence since the cases of BANKOLE & ANOR VS DENAPO & ANOR (2019) LPELR 46444(CA), AFOLABI VS ADEKUNLE (1983) 2 SCNLR 141. Also in criminal matters See ISA VS THE STATE (2017) LPELR 43472(SC) MAKER SMELTING CO. LTD VS ACCESS BANK (NUG) PLC(2002) 7 NWLR (pt 766) 447 at 476-477
Appellant counsel made another heavy weather on a typographical omission on the face of Count One of the charge where instead of section 125A of the Criminal Code Act, 2004, it showed 25A of the Criminal Code Act, 2004 as applicable in Imo state. He maintained that since the offence of giving false information to the police is not contained in section 25A, the defendant was charged on an inexistent law and therefore the charge is defective. The obligation the law places on the prosecution or what the law provides as a right to the defendant is right that much description of the offence be made on the charge to give the defendant sufficient notice of the matter with which he is charge. Referred to section 285 of the Imo State Administration of Criminal Justice Law, 2020; Section 36(6) (a) of 1999 Constitution.
It is submitted that sufficient attempt was made on the face of the charge to provide the section of the law violated by the defendant which suffered a typographical interference. The charge as it is, and pleaded to by the defendant in presence of his counsel is a perfect charge and defendant has submitted himself for trial and cannot thereafter refer to it as having been charged under inexistent law.
References made by counsel to Appellant on issues of section of the law upon which the defendant was charged has no bearing with challenging the ruling of the lower court overruling on his No case Submission.
The prosecution proved the ingredients of the offence sufficient to support the order of the lower Court directing defendant to enter his defence on the charge. The court is urged to hold for the respondent and resolve this issue in favour of the respondent.
On issue No 3: it is answered on the affirmative to the effect that the lower court was right to have over-ruled the Appellant’s No case submission in respect of Count Two.
The counsel adopted his argument on issue No 1 in responding to this issue and further argue that, there is no contradiction in the evidence of the prosecution witnesses and neither did their testimonies in court contradict their extra-judicial statements at the police station.
Appellant’s counsel argued vigorously that the PW1 who testified on oath that the defendant snatched Exhibit ‘0’ from him and hit him at his back but in his statement to the police i.e Exhibit ‘A’, he stated that he kept the machete in his wheel-barrow and the defendant took it from there and slapped him at his back. Even in the sense the learned defence counsel put it his brief of argument, there is nothing suggesting any contradiction in the evidence of PW1 and that of other prosecution witnesses on this allegation that the PW1 was in fact hit or slapped with a machete taken or snatched from him by the defendant. Whether the machete was snatched from the PW1 or taken from wheel barrow of PW1 by the defendant and used same to slap him or hit him on his back, they all gave account of one thing which is the assault on the PW1 by the defendant using a machete in the custody of the PW1. It is submitted that this does not amount to a contradiction of evidence of a witness under the law of evidence. Relied on IBIYEYE J.C.A. in AKANNI VS ODEJIDE (2004) ALL FWLR (pt.218) 822 at pp. 854-855 Para G-A Ratio 2, LAWSON VS AFANI CONT. CO. LTD(2002) 2 NWLR(pt.752) 585 Ratio 22,.
On when contradiction will be fatal to the prosecution’s case; It was held that before any conflict or contradiction or even discrepancies in the evidence of the witness for the prosecution could be fatal to the prosecution’s case, the conflict or contradiction must be substantial or fundamental to the main issue in question before the trial court and therefore necessarily create some doubt in the mind of the trial court then the accused is entitled to the benefit therefrom. See AFOlAJU VS STATE (2010) 43 NSCQR 227 at pp.243-244 per, ADELEKE JSC pp 264- 265
It is submitted that it is important to note that the copies of Exhibit ‘A’,. ‘D’ and ‘E’ referred to by Appellant counsel is not in the record of appeal. The approach given to such documents in this appeal is from the extent the applicant’s counsel has described them or made court to believe. There is no contradiction traceable in the testimonies of PW1 and his extra judicial statement at the police station. If the Exhibits were also before Court, the court will be better disposed to peruse them.
The court is urged to hold that there was no iota of evidence suggesting contradiction in the testimonies of the prosecution witness to warrant the lower court to uphold the No case submission in favour of the defendant.
It is submitted in conclusion that the Defendant filed this Appeal to scuttle the proceedings at the lower Court instead of defending the charge at the end of the prosecution’s case. Appeal is a Constitutional right of the defendant but when it is pursued. mala fide and obviously on no arguable ground it is most untenable. The court is urged to dismiss this appeal with reasonable cost and also direct the Defendant to the charges against him at the lower Court.
RESOLUTION OF MATTER:
The Appellant was charged under sections 125A and 351 of the Criminal Code Act.
Section 125A of the Criminal Code Act which is on making false statement to public officers with intent provides:
(1) Any individual who gives any information which he knows or believes to be false to any person employed in the public service with the intention of causing such person‐
(a) to do or omit to do anything which such person ought not to do or ought not to omit to do if the true facts concerning the information given were known to such person; or
(b) to exercise or use his lawful powers as a person employed in the public service to the injury or annoyance of any other person, is guilty of an offence and liable to imprisonment for one year.
(2) A prosecution for an offence under this section of this Code shall not be instituted‐
(a) without the consent of a superior police officer; or
(b) where in any division an administrative officer has been duly appointed to have charge of the police therein under the provisions of subsection (1) of section 7 of the Police Act, without the consent of that administrative officer.
Section 351 provides:
Any person who unlawfully assaults another is guilty of a misdemeanor, and is liable, if no greater punishment is provided, to imprisonment for one year.
The option taken by the Appellant is provided under the law. Section 202 of the Imo State, Administration of Criminal Justice Law provides:
Section 202(1) where at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence, the court shall as to that particular charge, discharge him.
(2) In considering whether a case has been made out against the defendant under subsection (1) of this section, the court shall, in the exercise of its discretion, have regard to whether-
- a) an essential element of the offence has been proved
- b) there is evidence linking the defendant with the offence with which he is charged
- c) on the face of the record, the evidence of the prosecutor has been so discredited and rendered unreliable by cross – examination that it would be unsafe to convict on such evidence
- d) the evidence so far led is such that no reasonable court or tribunal would convict on it and
- e) any other ground on which the court may find that prima facie case has not been made out against the defendant for him to be called upon to answer.
The direction on the application of this section has further been provided in the High Court of Justice Imo State Practice Direction, 2022 made pursuant to section 541 G and 119 of the Administration of the criminal Justice Law No 2 of 2020, by Order 11 provides:
- A defence counsel, who desires to make a no case submission at the close of the case of the prosecution, shall first indicate if he or she woud or would not reply on such submission of No case to Answer.
- A court before which a counsel shows no willingness to rely on a submission of no case to Answer may decide on whether or not to allow such application
- Where in a criminal proceeding a defence counsel gives indication to rely on his or her no case to Answer, the court shall proceed to give its judgment after hearing the submission of counsel in the matter.
This practice direction has not come into force at the time the Appellant took the option of no case submission at the trial court. One of the contentions of the Appellant is the count 1 of the charge was without the consent of a superior police officer. The record of the court did not show that the Appellant request to be shown the consent. The Respondent did submit that the charge sheet was signed by the Divisional police Officer (DPO). I am of the view that in the absence of any manifest contradiction, it can always be presumed that the consent of a superior police officer was obtained. “Superior police officer” means any police officer above the rank of a cadet assistant superintendent of police. section 287 of the Imo State Administration of Criminal Justice Law provides: The fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.” In CORPORAL LIVINUS UGWU V. THE STATE (2013) LPELR-20177(SC) it is stated:
“Perhaps My Lords, it must be clearly stated again that the act of applying for and the grant of leave to prefer a charge against an accused person is both an official and judicial acts. In this respect Section 150(1) of the Evidence Act provides as follows: “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” See; Kahi Vs State (1998) 13 NWLR (Pt.583) 531; (1998) LPELR 1655; Amala Vs The State (2004) 12 NWLR (ft.888) 520; (2004) 6 SCM 55; (2004) 18 NSCQR 834; Peter Locknan & Ors Vs. The State (1972) 5 SC 22. Furthermore, apart from what is called presumption of regularity of official acts as embodied in the provisions of the Evidence Act, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase as follows: “Omnia praesumuntur rite ac sollemniter esse ease acta.” Meaning – “All things are presumed to have been rightly and regularly done.” This particular presumption is very commonly resorted to and applied especially with respect to official acts. See; Ogbuanyinya Vs Okudo (1990) (No.2) 4 NWLR (Pt.146) 551 at6 570; Nwachukwu Vs The State (2002) 7 sc (Pt.1) 124; Akpan Vs State (2001) 11 SCM 66; (2002) 5 SC (Pt.11) 110. Shitta Bey Vs Attorney General of the Federation (1998) 10 NWLR (Pt.570) 392; (1998) 7 SC (Pt.11) 121.”Per ARIWOOLA, J.S.C.(Pp. 23-24, paras. G-G)
Another issue is that count 1 was on non existing law. The charge is brought under an unknown law i.e. section 25A (1) of the criminal code and Defending/Appellant cannot stand trial or be liable or held to be guilty under such offence. This issue has been adequately taken care of by the Appellate courts. In EGUNJOBI V. FEDERAL REPUBLIC OF NIGERIA [2013] 3 NWLR (PT. 1342) 534 AT 579 PARAS. D-E, per Peter-Odili, JSC:
“For emphasis, no matter how defective the section of law or even the legislation itself is, an accused cannot be heard to say that because he was charged under a wrong law, the infraction upon which he is held is covered by an existing law, the prosecution and conviction will stand based on the proper law different from that under which he has taken plea. That is the law and the appellant is not in a position to change it.”
In M.V. LONG ISLAND V. FEDERAL REPUBLIC OF NIGERIA (2018)LCN/10593(CA) it is stated:
“When the facts on which the Appellant was convicted are known to law, the fact of the Appellant being charged under a wrong law or section of a law cannot lead to his acquittal. The contention here is not that the facts are unknown to law. The Appellant’s counsel by his own showing admitted that there are sections under which the offence can come under. That is totally different from a situation where the offence is not known to law, see ARIJE v FRN (2013) LPELR-22125 (CA); SKYPOWER AIRWAYS LTD v OLIMA (2005) 18 NWLR (PT. 957) 224; OKOH v THE STATE (2013) LPELR- 21009(CA). The mere citing of a wrong section of the law under which the charge was brought is therefore not fatal and the subtle objection is misplaced and a misconception. It is discountenanced. The correct section of the law is Section 1 (17) of the Miscellaneous Offences Act.” Per NIMPAR, J.C.A. (Pp. 18-20, Paras. C-B)
It is also the contention of the Appellant, that one of the ingredients of the count 1 is not proved. Where a particular intent is an essential ingredient of an offence the charge must contain particulars of that intent which also must be proved. Thus in LATIFU GBADAMOSI V THE QUEEN (1959) 4FSC 181 the appellant was charged with an offence under subsection 1 of section 125A of the Criminal Code (Western Region) which reads: “Any individual who gives any information which he knows or believes to be false, to any person employed in the public service with the intention of causing such person-
- To do or omit to do anything which such person ought not to omit or to do if the true facts concerning the information given were known to such person or
- To exercise or use his lawful powers to a person employed in the public service to the injury or annoyance of any other person, is guilty of an offence and liable to imprisonment for one year
The fact relied upon by the prosecution were more in support of the intent under (a) above but instead the charge alleged the intent under (b) above. On appeal the conviction was set aside on the ground that the intent proved was different from the intent alleged in the charge. In REX V SHAIBU YAKUBU (1944) 10 WACA 267 the appellant was convicted of two offences. One of the offences was that of falsification of account with intent to defraud under section 438b of the Criminal Code. The charge did not contain the words ‘with intent to defraud’ and so on appeal the conviction on the count was set aside s the words ‘with intent to defraud’ form an essential part of the offence.
LATIFU GBADAMOSI V THE QUEEN (1959) 4FSC 181 and REX V SHAIBU YAKUBU (1944) 10 WACA 267 were cited in The Nigerian Criminal Code Companion page 187 by Justice EO Fakoyode. In UZUEGBUNAM v. COP (2018)LCN/11069(CA), (2018) LPELR -43931(CA) it is stated:
The law is trite that in a criminal trial, the onus is on the prosecution to prove all the elements of the offence for which an accused is charged beyond reasonable doubt by adducing cogent and credible evidence in support of the charge. Section 154(1) of the Criminal Code Law of Anambra State under which the appellant was tried provides that:
(1) “Any individual who gives any information which he knows or believes to be false to any person employed in the public service with the intention of causing such person-
(a) to do or omit to do anything which such person ought not to do or ought not to omit to do if the true facts concerning the information given were known to such person; or
(b) to exercise or use his lawful powers as a person employed in the public service to the injury or annoyance of any other person; is guilty of an offence and liable to imprisonment for one year.”
It is clear from the provisions of Section 154(1) of the Criminal Code Law of Anambra State that for the prosecution to secure a conviction on a charge of making false statement to public officers, cogent and credible evidence must be adduced to prove that:
(1) The accused knowingly gave the information.
(2) That the information was false
(3) The accused believed or knew the information to be false.
(4) The accused knew that the person to whom he gave the information is a person employed in the public service.
(6) The accused had the intention of causing the person to whom he gave the information to do or to omit to do anything or exercise or use his lawful authority or power to the detriment of another person which the person in public service ought not to do or omit not to do if the true facts concerning the information given were known to such person.
See AROYEWUN V C. O. P. OGUN STATE (SUPRA) LAMIDO V FRN (2015) LPELR-40763 (CA).” Per BOLAJI-YUSUFF, J.C.A. (Pp. 12-13, Paras. A-E)
I have looked at the ground 1 of the Notice of Appeal and the particulars of error supplied thereto as well as the submission of the counsel to the effect that the intention of causing an officer in the public service to act on false information in the manner prescribed in paragraphs (a) and (b) of section (1) of this section is the element of mens rea in the offence and must be alleged in any charge under the section, it is firmly established that the counsel and his client – defendant – were never in doubt under which section of the law he was charged.
To my mind, it is contradictory to argue that the offence for which he was charged is unknown to law and still submit that the intention is an ingredient of the offence for which he was charged.
Also when the Appellant submitted that the charge can only be instituted with the consent of a superior police officer, it also go to show that the Appellant at all times material to the determination of this case he was clearly familiar with the section under which the charge was brought. It cannot be otherwise.
I also refer to section 315 of the Imo State Administration of Criminal Justice Law, No. 2 of 2020, which provides:
“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall regarded at any stage of the case as material unless the defendant was in fact misled by such error or mission.
This section was also given vent in OLUSEGUN EGUNJOBI V. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-15537(SC) where similar provision in section 166 of the Criminal Procedure Act thus:
”I would refer to section 166 of that the Criminal Procedure Act thus: “No error in stating the offence or particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. That was the basis for this court holding in Agbo v State (2006) 6 NWLR (Pt. 977) 545 that where the appellant as in the case in hand failed to show that he was misled by what he perceived as a defect in the charge read to him at the trial he does complain too late at the appeal state. This is in keeping with the follow up section of 167 of the same Criminal Procedure Act thus” “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later” I refer to Ndukwe v LPDC (2007) 5 NWLR (pt. 1026) 1; Amadi v. FRN (2008) 18 NWLR (Pt. 119) 259.” Per PETER-ODILI, J.S.C (P. 54, paras. A-F) –
The defendant has not shown that he was in fact misled by such error or mission.
See also section 317 of the Imo State Administration of Criminal Justice Law, 2020.
I have earlier stated that the Appellant is not in any way confused as to what the charge against him in count 1, is and that is why he also argued that all the ingredients of the offence were not proved. Now I am left with the consideration of whether the ingredients were proved as provided in section 202 of the Imo State Administration of Criminal Justice Law, 2020.
In this count I will order the Appellant to enter his defence at the trial court and let the trial court determine if the prosecution is able to prove its case beyond reasonable doubt. In ERIBO EMMANUEL V. THE STATE (2017) LPELR-43550(CA) In simple terms, the standard of proof beyond reasonable doubt is attained where the evidence adduced by the prosecution is admissible, credible and reliable to unequivocally point to the guilt of an accused person and no other person and then be sufficient to establish all the essential ingredients of the offence(s) he is charged with. Evidence which meets these qualitative and quantitative criteria, would eliminate reasonable doubt in the proof of a criminal offence against an accused person that would warrant his conviction in the absence of any of the defences recognized by the law. See generally, Archibong v. State (2004) 1 NWLR (855) 485; Olieh v. State (2005) ALL FWLR (281) 1746; Udosen v. State (2007) ALL FWLR (356) 669; Amodu v. State (2010) 2 NWLR (1177) 47.
The law is also known that it is the prosecution that bears the burden of proof beyond reasonable doubt throughout the trial of an accused person and until it is satisfactorily discharged as required by the law, the accused does not have to say anything since he owes no burden to prove his innocence which is automatically presumed in his favour by the Constitution as shown earlier. Aruna v. State (1990) 6 NWLR (155) 125; Adekunle v. State (2006) ALL FWLR (322) 1452; Shehu v. State (2010) 8 NWLR (1195) 112. Because the requirement of proof beyond reasonable doubt is that all the essential constituents, elements or ingredients of the offence(s) an accused person is charged with must be established together or conjunctively, where anyone of them was not satisfactorily established by the evidence adduced by the prosecution, the standard would not be achieved because a reasonable doubt would result from the failure to establish such an essential ingredient of the offence(s) which the law says should be resolved in favour of the accused person Isah v. State (2010) 16 NWLR (1218) 132; Ibe v. State (1997) 1 NWLR (494) 632; Onyirimba v. State (2002) 11 NWLR (777) 83; Almu v. State (2009) 10 NWLR (1148) 31; Abiodun v. FRN (2009) 7 NWLR (1141) 489.” Per GARBA, J.C.A. (Pp. 5-10, Paras. D-E)
The charge is not defect in any material particular. On the face of the charge it is not, as postulated by the counsel to the Appellant, incurably bad and defective relying on TAWAKALITU V F.R.N. (2011) All FWLR pt. 561 page 14, 13 ratio 9 and 10
On count 2, which is the focus of issue two it is contended that the evidence of the prosecution has been so discredited as a result of cross examination and it is so manifestly unreliable that no reasonable tribunal could safely convict on it. According to the counsel there is inconsistency in the evidence of the prosecution occasioned by conflict in the oral evidence and extrajudicial statement of the Prosecution witnesses.
I have carefully examined the evidence before the court, and all I can say is that there is need for the Appellant to put in his defence.
As I an aside, I have always expressed the view that the Police and the Court should tread with caution while investigating, prosecuting and trial of cases that have root on dispute over land most especially involving the locals and in the rural areas. The Police or the Court must be seen as a tool for dominance and intimidation. On the other hands the parties must know that nothing is greater than life. A property can be replaced but not so with life wasted or blood shade in the pursuit of property. They should settle property or land disputes civilly.
This appeal fails and same is dismissed.
I so hold
I.M.Njaka
Judge
14-2-2023
Obinna Chilaka Esq., for the Appellant
S.A Oforegbu Esq., for the Respondent