IN THE HIGH COURT OF IMO STATE
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THE 13TH DAY OF JANUARY 2021
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
OW/454C/2015
HOW/3CA/2017
NGOKA GODWIN ELEKWACHI ——————————————-APPELLANT
V
COMMISSIONER OF POLICE ———————————————–RESPONDENT
JUDGMENT
This is an appeal against the decision of S.U Odom (Mrs.), Senior Magistrate Grade 1, sitting at the Magistrate Court, Owerri, Imo State, which decision was made on 15-11-2016 and not on 3/3/2015, as stated in the Appellant’s written address/brief. The trial magistrate refused the Appellant’s contention that the fiat/authority to prosecute the charge, subject of this appeal, given to I.I Otokwula Esq. (a private legal practitioner), by the Attorney General of Imo State, is in valid in that the Attorney General cannot issue fiat in respect of charge under Federal law.
The appellant no satisfied filed a memorandum and 4 grounds of appeal on 13-12-2016. This was letter amended and the grounds of appeal was upgraded to 5 on 13-12-18 and deemed on 24-1-2019.
The parties filed and exchanged addresses on the appeal. However, the Respondent after two days of filing his address, filed a motion for amendment of the charge sheet which is one of the grounds of the appeal.
On 1-12-2020, the Prosecuting/Respondent’s counsel, moved his motion for amendment. It is dated 6-2-2019 and filed on 7th February 2019. It is supported by affidavit of 16 paragraphs affidavit and accompanied by a written address. He urged the court to grant the application. He also relied on his further affidavit of 16 paragraphs accompanied with a written address.
The appellant counsel relied on his counter affidavit filed on 12-2-2019 and accompanied by written address. They rely on the affidavit and addressed urged the refuse the application
I have carefully considered the affidavit evidence before me and the submission of the counsel. It is certain that the issue is whether the appellate court can amend a charge before the lower court and whether it can do so while it is already a ground of Appeal.
However, it was in the course of preparing the ruling on the motion for amendment that I discovered that the parties have filed and exchanged addresses on the main appeal. I observed that the record of appeal was transmitted on 20-6-2017. The Respondent filed his address on the 5-2-2019 and that was after the Appellant filed his written address on 13-12-18 but deemed on 24-1-2019.
It is noted that this appeal was reassigned to this court for determination on 24-7-2019. I have noted that this is a Charge of 2015. The Ruling given rise to this appeal was made in 2017. It is now January 2021 no progress has been made at the Trial court as the result of this appeal. Since the motion for amendment was heard since 1-12-2020 and I discovered in the course of writing my Ruling that the counsel has addressed the court on the main appeal, I have had enough time to consider and look at the addresses.
Today I called on the counsel to argue the appeal. They have argued the appeal and I have retired to the chambers to consider their submission. The parties adopted their brief and added nothing to it. In my well considered view it will not serve the interest of justice to further adjourn this matter. As the counsel to the Appellant said, he can test the decision of this court to take this step (ie hearing this appeal today) at the Court of Appeal. But I think it is in the best interest of justice.
The issue raised in the motion for amendment is the same as has been raised by the counsel in their various addresses on the main appeal. It will be highly impossible for this court to decide on the issue raised in the motion without touching on the main appeal. In MR. GABRIEL ULEKE & ANOR V. PRINCESS BENEDICT A. KAKWA & ANOR (2013) LPELR-20819(CA) it is stated:
“Furthermore, the general position of the law is that at the interlocutory stage, a court, in considering and deciding applications brought by the parties in respect of the substantive cases before it, should avoid making pronouncements which touch or are likely to pre-judge such substantive cases. See UBN Plc v Astra Builders (W.A) Ltd. (2010) 5 NWLR (1186) 1; Idanre L.G. v Govt. of Ondo State (2010) 14 NWLR (1214) 509: Adetomo v Zenith Int’l Bank Plc. (2011) 12 MJSC (Pt.III) 75;Okotie-Eboh v Manager (2004) 11 – 12 SC, 174 at 177.” Per GARBA, J.C.A.(P 14,Paras E-G) –
Appellant’s Grounds of Appeal and the Particulars are:
Ground 1: Error in law:
The learned senior magistrate erred in law in holding that the issue calling for determination in the objection raised to the admissibility of exhibit A by my counsel is: “Whether the fiat sought to be tendered is in compliance with the provisions of the law”.
Particulars of error:
- The objection raised by my counsel to the admissibility of exhibit A is predicated on the ground that the Attorney General of Imo State, cannot, pursuant to Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, issue exhibit A to I.I. Otokwula (a private legal practitioner) for the purpose of prosecuting offences allegedly committed by me (the Appellant) outside the scope of Laws of Eastern Nigeria, as applicable to Imo State.
- The learned senior magistrate in admitting in evidence as exhibit A, the purported authority to prosecute me (the Appellant) issued by the Honourable, the Attorney General of Imo State, to I.I. Otokwula Esq, held that the said exhibit is in compliance with the provision of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, and thus admissible in evidence for the prosecution of the alleged charges leveled against me (the Appellant), which charges are in respect of offences allegedly committed by me (the Appellant) under the Laws of the Federation of Nigeria.
- In admitting exhibit A in evidence, the learned senior magistrate misconstrued the issue placed before him for adjudication, and thereby reached a wrong conclusion, which occasioned a miscarriage of justice against me.
Ground 2: Error in law:
The learned senior magistrate erred in law in holding thus: “It is worthy of note that the above provisions of Section 78(1) of the magistrate court law, do not limit the Honourable Attorney General with regard to the law under which he can donate his authority to prosecute.”
Particulars of error:
- Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, provides as follows:
“78(1) Subject to this Section, in the case of a prosecution –
(c) by or on behalf of the State, or
(d) by a public officer in his official capacity, the State or the
public officer may be represented by –
(iv) a law officer,
(v) a police officer, or
(vi) a legal practitioner duly authorized in that behalf by the
Attorney-General, or in revenue cases authorized by the
head of the department concerned.”
- It is the law that nothing shall be intended to be within the jurisdiction of an inferior Court except that which is expressly stated on the face of the statute creating it.
- The provision of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, is express and clear, and the learned senior magistrate cannot read into the said provision what is not expressly stated on the face thereof.
- Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, is subject to the provision of the said section, and the learned senior magistrate was in error in reading into the said provision what is not contained therein, which occasioned a miscarriage of justice against me.
- The decision of the learned senior magistrate that the provisions of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, do not limit the powers of the Honourable Attorney General regarding his authority to issue exhibit A to I.I. Otokwula Esq. for my prosecution, occasioned a miscarriage of justice against me (the Appellant).
Ground 3: Error in law:
The learned senior magistrate erred in law in holding thus: –
“I am therefore not in agreement with the submissions of counsel for the defence that this charge which is predicated on laws of the federation cannot be prosecuted by I.I. Otokwula (Esq.) by virtue of the fiat of the Attorney General.”
Particulars of error:
- The Honourable, the Attorney General of Imo State in exhibit A, clearly stated that he was acting pursuant to the powers conferred on him by Section 78(1) of the Magistrate Court law, Cap.82, Laws of Eastern Nigeria, 1963, applicable to Imo State.
- The powers conferred on the Attorney General of Imo State to issue exhibit A, is subject to the provisions of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, and thus the powers of the Attorney- General of Imo State, having been confined within the ambit of the provision of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, he (the Attorney General of Imo State), cannot act outside the scope of the said provision of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State.
- The learned senior magistrate by its decision that the Honourable Attorney General of Imo State, can issue exhibit A to I.I. Otokwula for the purpose of prosecuting me (the Appellant) in respect of offences, allegedly committed outside the scope of Laws of Eastern Nigeria, as applicable to Imo State, erred in law, which error occasioned a miscarriage of justice against me (the Appellant).
Ground 4: Error in law:
The learned senior magistrate erred in law in admitting exhibit A in evidence for the purpose of prosecuting me (the Appellant) although the alleged offences for which I was arraigned in Court are completely outside the scope of Laws of Eastern Nigeria, as applicable to Imo State, for which the provision of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State, authorised the Attorney General of Imo State, to issue exhibit A.
Particulars of error:
- The powers of the Attorney General of Imo State to issue exhibit A for the purpose of prosecuting me (the Appellant) is confined within the ambit of the provision of Section 78(1) of the Magistrate Court law, Cap 82, Laws of Eastern Nigeria, 1963, as applicable to Imo State.
- The Attorney General of Imo State acted outside the scope of his powers when he issued exhibit A to I.I. Otokwula Esq. for the purpose of prosecuting me (the Appellant) in respect of offences allegedly committed by me (the Appellant) under the Laws of the Federation of Nigeria, and the admission of the said exhibit A in evidence, despite the objection of my counsel, occasioned a miscarriage of justice against me (the Appellant).
Ground 5: Error in Law:
The Learned Senior Magistrate erred in law in admitting exhibit A in evidence although the charge upon which exhibit A is predicated is incompetent and an abuse of the process of Court.
Particulars of Error:
- The purported fiat issued to I.I. Otokwula Esq. was predicated on Charge No. OW/454/2015: Commissioner of Police Vs. Ngoka Godwin Elekwachi & 3 Ors, which charge was signed by a person unknown to law to wit: “police officer”.
- There is no evidence that the Commissioner of Police authorized any unknown “police officer” to sign the charge for, and on his behalf.
- The charge upon which the fiat exhibit A is predicated was signed by an unknown unidentified and unascertainable “police officer”, and thus incapable of giving life to the fiat, exhibit A.
- The Learned Trial Senior Magistrate’s admission of exhibit A in evidence although there is no competent charge before him to sustain the charge occasioned a miscarriage of justice.
APPELLANT’S SUBMISSION
Appellant filed address and formulated two issues for determination:
- Whether the Honourable, the Attorney General of Imo State, can, pursuant to Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State, issue a fiat to I.I. Otokwula (a private legal practitioner), for the purpose of prosecuting offences outside the ambit of the criminal code, Laws of Eastern Nigeria, 1963, as applicable to Imo State? Distilled from grounds 1-4 of the grounds of appeal.
- Whether the purported charge before the Lower Court can sustain the fiat given to I.I. Otokwula Esq. (a private legal practitioner), by the Honourable, the Attorney General of Imo State, the said charge having not been signed by a person known to law? Distilled from ground 5 of the grounds of appeal.
On issue 2, it is submitted that a perusal of the charge before the Court would show that same was signed by a person not known to law. The charge was simply signed by a “Police officer”, The question that may arise therefrom is, who is this unknown, unnamed, unidentifiable and unascertainable “Police officer” among the more than 3000 police officers in Imo State? Section 213 (2) of the Criminal Procedure Law, CAP C31, Vol. 11, Laws of Eastern Nigeria, 1963, as applicable in Imo State, under which the charge is brought provides inter alia:
” … such proceeding may subject to any special or general direction given by the Attorney General of the State, be brought in the NAME of the public officer, police officer instituting the proceedings or making the arrest of any or in the case of a member of the police force, in the name of the Commissioner of Police of the State”,
According to the counsel, the words “Police officer” is nebulous and not ascribable to any particular member or named police officer. The above renders the charge incurably bad, incompetent and therefore robs the Court of the requisite jurisdiction to hear the appeal. He referred to EZIRE Vs. TRANSOCEAN SERVICES NIG LTD (2017) All FWLR, (Pt. 913), 744 at page 806 paragraph B: to the effect that where the author of a legal process is unknown, then the process has not been properly signed. The defect robs the court of jurisdiction to entertain the matter.
He submitted that the question is who is the Police officer who signed and/or authored this charge when there are more than 3000 Police officers in Imo State? Another fundamental defect to the charge is the capacity in which the unnamed “Police officer” signed or preferred the charge. He cited and relied on OKAFOR Vs. STATE (1976) 5 SC, 13 to the effect that the person signing a charge sheet must also show the capacity he signed or preferred the indictment.
His charge falls foul of the above Supreme Court decision in that the capacity of the unknown, unnamed, unascertainable and nebulous Police officer is not also disclosed in the charge. In C.O.P ONOO STATE VS. OBOLO (1985) 5 NWLR, Pt. 120, 130, 141, the court held that: “A Police officer simplicita is not a person capable of suing or being sued in a court of law”.
According to the counsel, the court took a similar view in OLATUNJI Vs. STATE (2000) FWLR, Pt. 30 wherein it was held: “An incompetent charge is null and void ab initio so also everything that proceeded from it
It is submitted that the charge was not initiate by due process of law, the same having not been signed by a. person known to law. In OKPE Vs. FAN MILK PLC (2017) ALL FWLR, Pt. 887, 157, 187 – 188, he court held as follows: “Once validity or invalidity of a process is discovered by a person concerned or the court itself, that process must be declared null and void, affecting consequently, anything that comes out of it by way of order, ruling or judgment. In the instant case, the’ Lower Court erred by determining 1st and 2nd Respondents’ appeal before it initiated by a defective notice of appeal”.
According to the counsel, to sign a charge as a “Police officer” without more renders the charge incompetent. He relied on the High Court decision in THE STATE Vs. UZOMA PEDRO. MADUAGHONYE & ANOR, HOW /113C/2016, which is a ruling of the Honourable Justice E.F.Njemanze, delivered on the 29th June,2017, wherein his lordship held: “Therefore, where a charge as in Charge No. OW/92C/2016, now in contention was signed by
unknown, unidentifiable and/or unascertainable ‘Police officer’ such charge is not properly signed on behalf of the Commissioner of Police as such a charge is neither maintainable nor entertainable by the court and it constitutes an abuse of court process”.
According to the counsel on legal status of a void act, the case of CENTRAL BANK OF IGERIA Vs. EDET (2015) ALL FWLR, Pt. 768, 896 is instructive; the Court held inter alia: “Where an act is void, it is void and nothing can be added to it, ex nihilo fit It is void and the court is bereft of the necessary vires to entertain the suit which is incompetent. Any proceeding or order arising from an incompetent suit amount to a nullity.
Flowing from the foregoing, it is submitted that the charge before the Lower Court cannot sustain the fiat given to I.I. Otokwula Esq. by the A.G. of Imo State to prosecute the Appellant, the said charge having not been signed by a person known to law.
The charge in issue having not complied with the requirement of law is incompetent. The law is well settled that one cannot put something on nothing expect it to stand, it will collapse. See CENTRAL BANK OF NIGERIA D T (Supra); MCFOY Vs. UAC Ltd (1962) AC 152, (1961) ALL ER 1169. The fiat, therefore, cannot be sustained where the charge is competent as in the instant case. The court is urged to so hold.
In arguing issue 1 the counsel adopted his argument in respect of issue No -2 above, and further submitted that the objection raised by the defence to the admissibility of the fiat is predicated on fact that the offences for which the Appellant was arraigned
before the lower are offences under the Laws of the Federation, although the fiat was issued pursuant to Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State. The Appellant contended that a fiat issued pursuant to Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State, cannot be used to prosecute offences allegedly committed under the Laws of the Federation Nigeria, 2004. Consequently, the lower court was therefore in error in admitting in evidence as exhibit A, a fiat issued pursuant to Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State, for use in prosecuting the Appellant for offences allegedly committed under the Laws of the Federation of Nigeria, 2004.
The lower court in its decision, ruled that the Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State, cannot limit the powers of the Attorney General for the purpose(s) of issuance of a fiat under the said section. This may be so. However, the Supreme Court of Nigeria in the case of OLOBA Vs AKEREJA (1988) 3 NWLR Pt 84, 508, 527 C., held that nothing- shall be intended to be within the jurisdiction of an inferior court, such as the court below, save the items clearly stated on the face of the statute creating such court.
Thus, if the charge had been brought under the Criminal Code, Laws of Nigeria, 1963 as applicable to Imo State certainly the fiat issued by Honurable, the Attorney General would have been competent to prosecute offences, for which the fiat was issued. But where as in the instant case, the fiat is for the purpose of prosecuting offences allegedly committed under the laws of the Federation of Nigeria, 2004, a fiat predicated Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State, it is submitted, shall be incapable of prosecuting such offences.
The effect of all the foregoing is that the lower court erred in law in admitting exhibit A in evidence, when, in fact, the alleged offences for which the Appellant was arraigned are not offences under the Laws of Eastern Nigeria, 1963, as applicable to Imo State, but under the laws of the Federation of Nigeria, 2004. It is therefore submitted that the Honourable, the Attorney General of Imo State, acted completely outside the scope of his powers under Section 78(1) of the Magistrate Court Law, Laws of Eastern
Nigeria, 1963, as applicable to Imo State, in issuing exhibit A to I.I Otokwula Esq., for the purpose of prosecuting the Appellant for offences allegedly committed under the laws of the Federation of Nigeria, 2004.
RESPONDENT’S SUBMISSION
On service of the Appellant’s address, the Respondent filed his brief. He adopted the two issues raised by the Appellant.
He submitted that the facts of the cases relied upon by the Appellant are highly distinguishable from the facts of this case in that in those cases cited by the Learned Appellant’s counsel, no application for amendment was made to Court to amend an imperfect charge before judgment as provided for under Sections 162 and 163 of the criminal procedure law, as in the instant case.
He submitted and urged the court to hold that going by the provisions of the Criminal Procedure Law which permit the making of application for amendment of an imperfect charge, a charge should not be declared void simply because it does not contain the name of the Police Officer who signed it, except in the final judgment if there was no amendment. He submitted that such a conclusion can only be made if as at the time of judgment, no application for amendment has been made and granted by the Court.
He relied and cited Sections 162, 163 and 166 of the Criminal Procedure Law. he submitted that from the provisions of the Criminal Procedure Law, it is clear that an imperfect charge can be amended with the consent of the Court which is considering the charge.
He submitted that the contention that the charge is incurably bad is not supportable both on points of law and in the particular circumstances of this case.
He submitted that specifically, the fiat granted by the Attorney General of Imo state specifically provides for Amendment of the charge where necessary, Paragraph 2 of the fiat states that the charge can be amended. The lower Court alluded to this fact at page 17 paragraphs 15 – 24 of the record thus: “The above notwithstanding, the offences in contention were allegedly committed in Imo State which falls within the ambit of the Attorney to prosecute. Furthermore, by the provisions of Sections 162, 163 and 164 of the Criminal Procedure Law 2004 as amended in conjunction with the provisions of the second schedule of the fiat donated I. I. OTOKWULA ESQ counsel can amend any defect on the charge assuming there is any as pointed out by the defense counsel in his objection ”.
It is submitted that this position of the lower Court has support in several decisions of the Supreme Court. the counsel cited and relied on PRINCENT VS. THE STATE ( 2002) 18 NWLR ( PT 798) PG 49 , 68 – 69, PARAS G – C,
It is submitted that this decision of the Supreme Court is in line with Section 163 of the Criminal procedure Law which provides:
“Any Court may alter or add to any charge at any time before judgment is given”
It is further submitted that the Court in ENGR. SAMUEL MELIFONWU VS. ALEXANDER ILUKWE EGBUNIKE & 29 ORS (2001) NWLR (PT 694 ) PG 271 @ 273 emphasized the propriety of granting amendment at any stage of a proceeding before judgment is delivered. He also cited IFEANYI PADDY EKE VS. FEDERAL REPUBLIC OF NIGERIA (2013) ALL. FWLR (PT 702) PAGE 1748 @ 1755. ADEWUMI VS. A. G. EKITI STA TE ( 2002) NWLR (PT 751) PG 474 @ 507
According to the counsel from the provisions of the Criminal Procedure Law, even as interpreted by the Supreme Court in a plethora of cases including those referred to herein, it is clear that an imperfect charge can be amended with the consent of the Court which is considering the charge.
It is submitted; therefore, that the contention by Learned accused counsel’s in issue two that the charge is incurably bad is not supportable in the light of the particular facts of this case and the law.
Upon the totality of all of the above, the court is urged to resolve issue No.2 in favour of the Respondent and hold that the charge in this appeal is not incurably bad as contended by the Appellant’s counsel in his address in support of his issue two (2).
On issue I argued as issue 2, it is submitted that the framing of this issue No.1 by learned Appellant’s counsel is debatedable in that it is claimed therein that the offences the Accused/ Appellant is facing are said to be OUTSIDE THE AMBIT OF THE CRIMINAL
CODE when they are not. All the offences charged against the accused are known to the Criminal Code.
It is submitted, in urging the court to discountenance that argument of the appellant, that it is trite law that a charge or suit is not incompetent simply because it is brought under a wrong law. Our Laws have developed to the extent that once an offence is known to law; a Court will not dismiss the case simple because it was brought under a wrong law. It’s equivalent in civil cases is that once a relief is known to law, it will not be struck out but will be granted on the correct law as the law is said to be in the bosom of the Court. This is what meets with substantial justice in each case.
It is submitted finally that the two complaints of the accused person in this appeal are matters that can be taken care of by amendment of the charge which is clearly provided for under Sections 162 and 163 of the Criminal Procedure Law.
Amendment is also provided for in the fiat. The Superior Courts have also interpreted the provisions of Sections 162 and 163 in holding in situations as we have that amendment is what serves the best interest of justice. See again the Supreme Court case of PRINCENT VS. THE STATE (SUPRA).
Courts of law are Courts of justice. It is the duty of every Court to find and apply what serves the best interest of justice in each case and apply it. It is equally instructive that Section 2 (1) and (2) of the Criminal Code makes provisions that are relevant to the complaint in Appellant’s issue 1 (one ) in this appeal.
The said Section 2 (1) and (2) provides as follows:
Section 2 (1) “The provisions contained in the Code of Criminal Law set forth in the Schedule to this Act, and hereinafter called “the code”, shall, except to the extent specified in subsection (2), be State Laws with respect to the several matters therein dealt with. Section 2 (1) “The provisions contained in the code which relate to any matter contained in the First Schedule to the Constitution of the Federal Republic of Nigeria, shall be the law of the Federal Republic of Nigeria with respect to the several matters therein dealt with.
The court is urged to dismiss this Appeal upon the totality of all of the above.
MOTION FOR AMENDMENT
The respondent filed a motion on 7th – 2-2019 that is two days after filing his Respondent brief in the main appeal on 5-2-2019
The motion is brought pursuant to SECTIONS 162 AND 163 OF THE CRIMINAL PROCEDURE LAW. And UNDER THE INHERENT JURISDICTION OF this COURT BY VIRTUE OF SECTION 6 (6) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED.
It prays for:
- AN ORDER granting leave to the Applicant to amend Charge No. OW/454C/2015 C. O. P VS NGOKA GODWIN ELEKWACHI & 3 ORS by inserting the name of the person signing the charge.
- AN ORDER deeming the amended charge as properly filed and served.
- AND for such further Order(s) as the Court may deem fit.
The application is supported by 16 paragraphs affidavit sworn to by one NWOSU OGADIMMA N, the litigation clerks in the law office of I. I. OTOKWULA & CO.,
She deposed that the accused persons were charged in the Magistrate Court upon the charge sheet preferred by the Police in Charge No. OW/454C/2015. The said charge sheet is hereby annexed and marked as exhibit “A”. The Nominal Complainant briefed I. I. OTOKWULA ESQ. to obtain the fiat of the Honorable Attorney General of Imo State to prosecute this charge. On the 4th day of April 2016, the Honorable Attorney General issued a fiat authorizing I. I. OTOKWULA ESQ. to prosecute this charge. The said fiat dated the 4th day of April 2016 is hereby annexed and marked as’ exhibit “B”. The counsel prosecuting the charge informed me on the 5th day of February 2019 in his office at No. 10 Okigwe Road Owerri, Imo State at about 1 pm and I verily believe him that he discovered that the name of the Police Officer who prepared and signed the charge sheet was erroneously not included even though the said Police Officer signed same.
I was informed by the counsel prosecuting the charge on the same day, time and place as mentioned in paragraph 6 above and I verily believe him that an amendment to the charge is needed so that on the face of the charge sheet, the name of the person signing it appears thereon. An amendment can be made at anytime in a proceeding before judgment is delivered. This amendment is necessary in the interest of justice. The amendment sought by this application is only to the extent of including the name of the person signing the charge sheet. The proposed amended charge in Charge No. OW/454C/2015 is hereby attached and marked as exhibit “C”.
The Accused / Respondent will lose nothing by the grant of this application. This amendment will not occasion any injustice on the Accused/Respondent. It is in the interest of justice and fair hearing to grant this application so that this Honourable Court will determine this matter on the merit. The balance of convenience is in favor of granting this application.
The application is accompanied by written address of the counsel and formulated issue for determination as: WHETHER THE INTEREST OF JUSTICE WILL BE SERVED BY THE GRANT OF THIS APPLICATION.
It is submitted that the interest of justice will best served by the grant of this application. It is trite law that an amendment will be granted where such an amendment is to bring before the Court all the facts of the case to enable the Court do substantial justice to the matter. Thus, Section 162 of the Criminal Procedure Law provides as follows: “When any person is arraigned for trial on an imperfect or erroneous charge the court may permit” or direct the framing of a new charge or add to or otherwise alter the original charge”. In the same vein, Section 163 of the Criminal Procedure Law equally provides as follows: “Any court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused”.
It is submitted therefore, that this Court has the jurisdiction and powers to alter or amend omission of the name of the Police Officer who prepared and signed the charge, the amendment is not such that leaves the accused person in doubt or mislead the accused person as to why he was charge to Court. The error is not as to particulars of the offence with which he was charged.
In OKITO VS OBIORU (2007) ALL FWLR ( PT 365) PG 568 @ 573 RATIO 6, it was held that: ” …. if substantial justice can be secured by an amendment of pleadings and the nature of the amendment sought is not to over-reach, and if a refusal to amend or grant order to amend would cause injustice, and Order of Court will be made granting leave to amend the error”.
It is submitted that although this authority is on civil matter, the principle therein which is that an amendment will be granted if it will not overreach or occasion injustice to the other party can be extended to a criminal matter. The accused person will not be overreached by this amendment neither will it occasion any injustice on him.
It is submitted also that the law is settled that where there is an application seeking to end the life of a pending case on ground of irregularity or error as in this case and another application seeking to cure the defect or irregularity, priority is given to the application seeking to give life. In the case of OGBENU VS. OTI (2000) 8 NWLR (PT 670) PG 582 RATIO 6, the Court held as follows: “There is an Order of hearing motions and also entry of judgment in the suit when they are both before a Court. When there are two motions and one motion seeks to terminate the action on an account of irregularity and the other seeks to cure the defect, it is the duty of the Court to hear the latter first but the application to cure the defect itself must be a proper application”.
In view of this authority, the court is urged to grant this application for amendment which is aimed at giving life or put differently correcting an error on the face of the charge sheet. Also, where the amendment is not frivolous, or overreaching, the Court will grant such amendment.
It is submitted that a perusal of the affidavit in support of this application shows that the amendment is to clearly correct a defect or error on the face of the charge sheet and enable the Court to do justice in this matter. Also, the amendment is not overreaching. It is also submitted that this application is not overreaching and in fact will ensure that parties in this charge are given equal opportunity to present their cases.
The court is urged to grant this application for amendment as same is aimed at enabling this Court to do justice.
The Respondent filed a FURTHER AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE sworn to by NWOSU OGADIMMA N. one of the litigation clerks in the law office of I. I. OTOKWULA &
- She deposed: the prosecuting counsel I. I. Otokwula Esq. informed me that all offences charged are known to the Criminal Code under the sections mentioned. The said Notice of Appeal did not complain about the matter that has led to this application for amendment. This application has become necessary for the grant of the Appellant’s application for amendment which was granted on the last adjourned date namely; the 24th day of January 2019. The amendment became necessary following the Appellant’s own amendment of his Notice of Appeal which introduced for the first time the name of the Police Officer who signed the charge. In answer to paragraph 8 of the counter affidavit that the charge is part of the records in this Court and is by the appellant’s amendment of 24th January 2019 what the Appellant is seeking to strike out. The charge subject matter of this case is also pending in this Court by reason of the Appeal on it. Paragraph 9 of the counter affidavit is completely false and hereby denied. The grant of this application will not overreach the Appellant. Counter affidavit has been filed in bad faith. An amendment can be made to a charge anytime before judgment is delivered in a Criminal case. The Accused/Respondent will lose nothing by the grant of this application. This amendment will not occasion any injustice on the Accused/Respondent. It is in the interest of justice and fair hearing to grant this application so that this Honourable Court will determine this matter on the merit. The balance of convenience is in favor of granting this application.
The further affidavit is accompanied by a reply address. The counsel submitted that he agreed with the submissions of the Appellant as expressed in paragraphs 3.0.2 and 3.0.3 page 1 of his written address but strongly disagree with the argument that it is only the lower Court that can amend this charge.
According to the counsel in making the argument that it is only the lower Court that can amend this charge which is part of the record and is sought to be struck out by the Appellant, it cannot be argued that the charge is not pending before this Court. If it is true that the charge is not pending before this Court the Appellant cannot invite this Court to strike out a charge not before it.
It is submitted that by the Provision of the Criminal Procedure Law in the definition section, Court is defined as including “A High Court and a Magistrate Court”. It is not surprising that learned Counsel for the Appellant cited no authority supporting his contention that an amendment cannot be made before judgment simply because there is an interlocutory appeal.
According to the counsel it is instructive to note that no judgment or ruling has been delivered by any Court touching on the competence of the charge pending before this Court as the matter of competence of the charge was only introduced into this case on the last adjourned date being the 24th day of January 2019. It is also instructive to note that by the provisions of Sections 162 and 163 of the Criminal Procedure Law and under the inherent jurisdiction of this Honorable Court by virtue of Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 as amended, this Honorable Court can amend the charge at any time before judgment.
According to the counsel, the lower Court hinted at this position of the law in its ruling on the 15th day of November 2016 at page 17, paragraphs 15 – 20 where the Court held that: ” Furthermore, by the provisions of Sections 162, 163 and 164 of the Criminal Procedure Law I. I. OTOKWULA ESQ. can amend any defect on the charge “. In the same vein, Section 163 of the Criminal Procedure Law equally provides as follows: “Any Court may alter or add to any charge. at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused”.
It is submitted therefore, that this Court has the jurisdiction and powers to alter or amend omission of the name of the Police Officer who prepared and signed the charge, the amendment is not such that leaves ‘the accused person in doubt or mislead the accused person as to why he was charged to Court. The error is not as to particulars of the offence with which he was charged.
In OKITO VS OBIORU ( 2007) ALL FWLR ( PT 365) PG 568 @ 573 RA TlO 6, it was held that: ” …. if substantial justice can be secured by an amendment of pleadings and the nature of the amendment sought is not to over-reach, and if a refusal to amend or grant order to amend would cause injustice and Order of Court will be made granting leave amend the error”. It is submitted that the clear provision of Section 163 of the Criminal Procedure Law cannot be defeated by argument of counsel not supported by relevant authorities. In view of this authority, the court is urged to grant this application for amendment which is aimed at giving life or put differently correcting an error on face of the charge sheet.
According to counsel, also, where the amendment is not frivolous, or overreaching, the Honorable Court will grant such amendment. It is submitted that a perusal of the affidavit in support of this application shows that the amendment is to clearly correct a defect or error on the face of the charge sheet and enable the Court to do justice in this matter. Also, the amendment is not overreaching. We also submit that this application is not overreaching and in fact will ensure that parties in this charge are given equal opportunity to present their cases. We urge Your Lordship to grant this application for amendment as same is aimed at enabling this Court to do justice.
APPELLANT”S RESPONSE TO MOTION FOR AMENDMENT
The Appellant on the service of the Motion for Amendment filed a counter affidavit of 10 paragraphs sworn to by Ngoka Godwin Elekwachi, the Appellant/Respondent in this motion.
He deposed, I (the Appellant/Respondent) was arraigned along with 3 other persons before the Honourable Court below for forcible entry, conduct likely to cause of breach of the peace, and willfully and unlawfully seized the working implements of one Chukwuemeka Lambert Amamsiugwudi, the complainant herein. I (the Appellant/Respondent) pleaded not guilty to the counts of the charge and was admitted to bail by the Honourable Court below. After plea 1.1. Otokwula Esq. (the prosecutor herein) came into the matter, claiming to have authority of the Honourable, the Attorney General of Imo State to prosecute me and the other accused persons, and even sought to tender in evidence, a fiat (authority to prosecute). Upon the foregoing, my counsel, (Naths Epelle Esq,), objected to the admissibility of the flat in evidence on various grounds, The Honourable Court heard the parties and on the is” day of November, 2016, made its decision, overruling the objection of my counsel aforesaid. I (the Appellant/Respondent), being aggrieved with the decision of the Honourable Court, promptly instructed my counsel to file an appeal against the said decision. Consequently, my counsel (Naths Epelle Esq.), filed an appeal against the decision of the Lower Court, the notice and memorandum of grounds of which are shown at page 19-24 of the records of appeal. On 7th February, 2019, I, (through my counsel) (Naths Epelle Esq.), was served with a motion for the amendment of the charge pending at the lower court. I was informed by my counsel (Naths Epelle Esq.) that the amendment sought, if granted will prejudice my appeal, the said amendment being intended to overreach my said appeal, and it is in the interest of the justice that the application be refused.
Appellant/Respondent counter affidavit is accompanied by the counsel written address. The issue for determination is: Whether the Honourable Court, in its appellate jurisdiction, can amend the charge pending at the Lower Court?
It is submitted that at the lower court, the Respondent/Applicant sought to tender a fiat to prosecute the charge and the Appellant/Respondent’s counsel objected to the admissibility of the fiat. The fiat sought to be tendered is predicated on the charge pending before the lower court. The lower court overruled the objection, consequent upon which, the Appellant/Respondent appealed against the ruling to this Court. The crux of the appeal before the Court is whether the lower court was not in error in overruling the objection. This is the case of the Appellant/Respondent on appeal, and the Appellant had since filed his written address which is pending before the Court.
It is submitted that the substantive criminal charge, (although part of the records of the Appeal) is pending before the lower court. It is further submitted that the charge cannot be subject of an amendment by the Court at this stage of the proceedings. It is only the lower court, wherein the charge is pending that can amend the said charge having regard to the nature of the amendment sought, the amendment sought is to place a name on the face of the charge where non hitherto existed.
It is submitted that in MACFOY Vs. U.A.C (1961) 3 All ER 1169, 1172, it was decided that you cannot place something on nothing and expect it to stand. Can the Respondent now place a name on a charge by way of amendment although there was not any name on the charge as the times the argument was taken at the lower court? The Respondent now wants to amend the charge to include what was not on the face of the charge at the time the fiat was being tendered and the objection taken. The amendment, if allowed, will surely overreach the Appellants appeal, and thereby violates his fundamental right to fair hearing.
See OJAH OJAH Vs EYO OGBONI (1976) 4 SC 69. It is further submitted that the application to amend the charge is abuse of the process of this court, the same having been made mala fide, all be it to prejudice the Appellant’s appeal. See CBN Vs. AHMED (2001) 11 NWLR Pt 724.
It is on the basis of the foregoing that the counsel submitted that the Respondent/Applicant has not made out a case for the grant of this application and the court is urged to dismiss same.
RESOLUTION OF MATTER
I have considered the written address of the counsel in the main appeal as well as the motion for amendment which also has the written submission of the counsel accompanying the affidavit of the parties.
It is my considered view that the issues are:
- Whether the fiat of the Attorney General given to I.I.Otokwula to prosecute the Appellant is competent.
- Whether the Charge Sheet signed by a police officer without indicating his name is such that can be amended.
On issue 1, it is the submission of the Appellant that the charge before the Lower Court cannot sustain the fiat given to I.I. Otokwula Esq. by the A.G. of Imo State to prosecute the Appellant, the said charge having not been signed by a person known to law is not the correct statement of the law. A charge does not sustain a fiat. In fact a charge has nothing to do with a fiat. The Attorney General can at any point withdraw a charge or file a fresh charge he does not need any enablement to do so. Likewise what the Attorney General can do by himself he can do through a fiat. A person with a fiat can do what the Attorney General can do. He can decide to withdraw a charge or file a fresh charge. His authority is not dependent on an existing charge. The principle of law that one cannot put something on nothing and expect it to stand, it will collapse as enunciated in See CENTRAL BANK OF NIGERIA VS EDET (Supra); MCFOY Vs. UAC Ltd (1962) AC 152, (1961) ALL ER 1169 relied on by the Appellant is not applicable as it relates to the fiat. The fiat is based on the existence of offence that is alleged.
According to Appellant the objection raised by the defence to the admissibility of the fiat is predicated on fact that the offences for which the Appellant was arraigned before the lower court are offences under the Laws of the Federation, although the fiat was issued pursuant to Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State. The Appellant contended that a fiat issued pursuant to Section 78(1) of the Magistrate Court Law, Laws of Eastern Nigeria, 1963, as applicable to Imo State, cannot be used to prosecute offences allegedly committed under the Laws of the Federation Nigeria, 2004.
Let me say straight away that the powers of the Attorney General is donated by the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) any law that seeks to curtail or impede this powers will be declared unconstitutional null, void and of no effect whatsoever. Section 211 of the constitution provides:
“(1) The Attorney General of a state shall have power
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of a state under subsection 1 of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the attorney-General of a state shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Fiat has been accepted as one of the means through which the Attorney General can perform his constitutional duty. In AMADI v. A.G IMO STATE (2017) LPELR-42013(SC) it is stated:
“In this instance, the information was initiated by the Attorney-General or Imo State under powers donated to him by Section 211 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria within his powers the Attorney General is authorized to have those prosecutorial powers exercised by officers under his office or any counsel he so assigns by Fiat. Therefore, when such assignments or delegation take place, the office of the Attorney-General is taken as having performed its constitutional duty and it is not for anyone to go into the minute details of which officer is holding the forth on behalf of the Attorney General. —-It is in the light of what has been constitutionally provided for the Attorney-General of a State that the Attorney General can so delegate his Powers to officers of his Ministry to prosecute and defend matters in Court on his behalf, be it criminal or civil. It is therefore within that province that the Law Officers of the State can decide in the public interest and in a given case who should be charged and with what office. Therefore the Courts take it for granted that if the Director of Public Prosecution has started prosecution, he has done so in accordance with the instruction given him by the Attorney General and it is in that wise that any Law Officer can sign an information on behalf of the DPP. It follows that it is not for the Court or any party to begin fishing into the internal working of the ministry of Justice to see whether such an instruction has been given and information accorded validity. See M.U.D Ezomo v. A. G. Bendel State (1984) 4 NWLR (Pt.36) 448 Shittu Layiwola & Ors v The Queen 4 FSC 119 at 120; Abacha v The State (2002) 11 NWLR (Pt.779) 43; Christopher Awobotu v The State I.U.I.L.R (pt.1) 5 at 18 – 20; Onwuka v State (1970) 1 All NLR 9.” Per PETER-ODILI, J.S.C. (Pp. 27-29, Paras. B -A)
There is presumption of regularity of fiat where and when issued. Hence, SECTION 33 INTERPRETATION ACT -with subheading-Evidence of signature of fiat or consent of President or public officer, provides:
“Whenever the fiat or consent of the President or of any public officer is necessary before any prosecution or action is commenced, any document purporting to bear the fiat or consent of the President or of the public officer concerned shall be received as prima facie evidence in any proceeding without proof being given that the signature to such fiat or consent is that of the President or the public officer concerned.”
In any case it is stated that the fiat must not be in writing. In OKON BASSEY EBE V. COMMISSIONER OF POLICE (2008) ALL FWLR (PT. 406) 1840 AT 1871, PARAS. A – C (SC) it is stated:
“Fiat is a latin word which means ‘let it be done.’ It denotes the grant or conferment of power on another by a person having complete authority on the issue upon which the fiat was given. In matters of prosecution, the Attorney-General of a State or of the Federation can give such a fiat. A Commissioner of Police can also delegate his officers or private legal practitioners to represent him in a case. The life span of such an authority or fiat may extend to the conclusion of the case in question”. Per Muhammad, J.S.C.
Further in NWUDINJO v. STATE (2014) LPELR-24061(CA) the court said:
“In Provost, Lagos State College of Education V. Edun (2004) ALL FWLR (pt. 29) 1628; (2004) 6 NWLR (pt. 870) 476 at 495 – 496, the apex court stated:
“A legal practitioner who is not in the employment of the Ministry of Justice of a State, or not a private legal practitioner briefed to appear in a case, or has no fiat or authorization whether from the Attorney General of the State or from any other authorized public officer to appear in a case, cannot represent the State or any of its public officers in the service of the State sued in his public capacity, without a fiat, such a person cannot appropriately appear for such public officers in the case.”
Therefore, a private legal practitioner briefed by the Attorney General to appear in a case has his authorization to handle the matter for that State. If the Attorney General chooses to issue a fiat to the legal practitioner to do so, the former has the discretion to so do, but where he briefed the legal practitioner to handle a matter for the State without issuing a fiat to that effect, that does not distract or remove anything from or whittle down the efficacy of the authorization so donated to the private legal practitioner by the Attorney General. The court has no business to inquire into the authorization by the Attorney General. This is so because, “Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the court has no business into inquiring whether the counsel was regularly or properly briefed. The court must allow the counsel to represent the party without any restriction or any procedural requirement.”- per Musdapher, JCA (as he then was) in NUR V. NRC (1999) 9 NWLR (Pt. 473) 490 at 500. See also Oyebode V. Gabriel (2013) ALL FWLR (Pt. 669) 1043 at 1061 – 1062 (CA); Federal Republic of Nigeria v. George Osahon (2006) 2 SCNJ 348 at 358.
Both learned counsel herein, profusely referred to the authorities of Tukur V. Government of Gongola State (1988) 1 SCNJ 54 and The State V. Aibangbee (1988) 7 SCNJ 128. It is sufficient to refer to some passages in the law reports to fortify my reasoning to the effect that the authorization by the Attorney General to a private legal practitioner to handle a matter for the State, need not be in writing and that the Attorney General has the power and discretion to brief any legal practitioner to do a case for the State.” Per YAKUBU, J.C.A. (Pp. 48-49, paras. A-E)
The Respondent, rightly in my thinking, submitted that it is equally instructive that Section 2 (1) and (2) of the Criminal Code makes provisions that are relevant to the complaint in Appellant’s issue 1 (one ) in this appeal. The said Section 2 (1) and (2) provides as follows: Section 2 (1) “The provisions contained in the Code of Criminal Law set forth in the Schedule to this Act, and hereinafter called “the code”, shall, except to the extent specified in subsection (2), be State Laws with respect to the several matters therein dealt with. Section 2 (1) “The provisions contained in the code which relate to any matter contained in the First Schedule to the Constitution of the Federal Republic of Nigeria, shall be the law of the Federal Republic of Nigeria with respect to the several matters therein dealt with.
Irrespective of the offence, and the law under which the defendant is charge, so long as it is allegedly committed within the territory of a particular state, the Attorney General of that particular State is empowered to prosecute and can as well issue a fait to any private counsel to prosecute. The palace where the offence is committed was taken into consideration in approving the fiat issued by the Attorney General of the Federation in IGBOKWE V. STATE (2013) LPELR-20933(SC) where it was stated:
“On a community reading of Section 4(2) (b) of the Penal Code Act read along with Section 134(a) (b)(c) and (d) of the Criminal Procedure Code Act as well as Section 301 of the Constitution of the Federal Republic of Nigeria 1999, the Attorney General of the Federation is competent to issue a fiat for the prosecution of the charge inclusive of counts 3 and 4. This is especially with the offences having, by operation of law, automatically become those that were committed within the FCT upon the entry of the appellant into the Federal Capital Territory.” Per OGUNBIYI, J.S.C. (Pp 2-3,Paras B-C)
It is always an effort in futility to challenge the fiat. One a party appears on the assumption of the fiat of the Attorney General or authorization of the Commissioner of Power, the only one that can challenged such assumed authority is the Attorney General or the Commissioner of Police. Just like as litigant is represented by a counsel nobody has the authority to challenge the appearance of such counsel except the litigant who he claimed briefed him.
If the Appellant is not contesting that the Attorney General has powers to issue fiat, then it does not matter under what law he excised that power. Whether there is a pending charge or not the Attorney General can issue a fiat. The fiat of the counsel to prosecute the Appellant is valid. I so hold.
On issue 2, the contention is that the charge before the court is unsigned because it did not carry the name of the police officer who signed and therefore should be struck out according to the Appellant. On the other hand, it is signed although the name of the police officer who signed is not included, it can be amended by the order of this court by inserting the name of the police officer whose signature appeared on the charge sheet according to the Respondent.
The power of the court both at the trial level and appellate level to amend a process including a charge is not in contest when talking about amendment simplicter. I am concentrated on the appellate court here.
The amendment of a charge involves the exercise of discretion on the part of the trial court. Amendment on appeal is not simply a matter of the court substituting its discretion for that of the Magistrate. See Ngumbela v S 2008 JOL 21934 (E)
Amendment can be such that add charges, substitute applicable charges for inapplicable charges and add or vary the particulars of an offence, correct the omission of an essential element, the correct name or alias of the defendant or to state the correct statutory provision. It has been stated that in exceptional cases, an indictment may even be amended during an appeal, to correct a formal defect. This may include amending the wording of a count to remove an ambiguity or to identify the relevant statutory provision. See OAA V R [2010] VSCA 155; NELSON V R (1977) 65 CR APP R 119). Some others are of the view that it is an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended. See Cory J. in R. V. TREMBLAY, [1993] 2 S.C.R. 932.
When there is an amendment at the trial court there is still the ability by the defendant to meet an amended charge but at the appellate stage it is long after the evidence has been led, arguments made and facts found, the Defendant unless fresh trial is ordered, has not the ability to meet the charge against him. Trial de novo is not always the best option in criminal trials. In determining whether an amendment to a charge-sheet or indictment will cause prejudice to the accused, the court should consider the stage of proceedings at which the amendment is sought. See R V STREET [1960] VR 669; R V WESTERMAN (1991) 55 A CRIM R 353.There is however an additional consideration and that is that an amendment will only be granted where no possible prejudice could result to the accused. Whether prejudice will exist is essentially determined by asking whether the defence would have remained exactly the same. See R V NAIDOO 1948 (4) SA 69 (N) AT 72 and S V PILLAY AND OTHERS 1975 (1) SA 919 (N) AT 922D-E S V F 1975 (3) SA 167 (T) AT 170G-H
The contention is not relating to the charge but the charge sheet. It is not that there are some errors or omissions on the charge proffered against the Appellant rather it is that the charge sheet was not signed or properly signed. It is that the charge sheet is invalid null and void as result of improper signature or non signature. Should this court accede to the request of the Respondent to amend same by inserting the name of the police officer whose signature is said to be on the charge sheet?
The requirement of signature on the charge sheet is provided in the CPA. Section 78 of the CPA subtitled: Particulars of instituting criminal proceedings in magistrates’ courts, provides:
Where proceedings are instituted in a magistrate’s court, they may be instituted in either of the following ways‐
(a) upon complaint to the court, whether or not on oath, that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate, in the manner hereinafter set forth for the issue of either a summons directed to, or warrant of arrest to apprehend, such person; or
(b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed; and the charge sheet shall be signed by the police officer in charge of the case.
In a similar way, various Rules of the Court stipulate that processes should be signed by the legal practitioner or the litigant. For instance Order 6 of the High Court of Imo State (Civil Procedure) Rules 2017 provides
- Originating Process shall be prepared by a Plaintiff or his Legal Practitioner, and shall be clearly printed on opaque A4 paper of good quality
- (1) The Registrar shall sign an d seal every Originating Process whereupon it shall be deemed to be issued
(2) A plaintiff or his legal Practitioner shall, on presenting any Originating Process for signing and sealing, leave with the Registrar as many copies of the process as there are Defendants to be served and one copy for endorsement of service on each Defendant.
(3) Each copy shall be signed by the Legal Practitioner or by a Plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
So just like every originating process shall be signed by a legal Practitioner or Plaintiff is the charge sheet to be signed by a Police Officer.
The term ‘signature’ is generally understood to mean the signing of a written document with one’s own hand. However, it is not critical that a signature actually be written by hand for it to be legally valid. It may, for example, be affixed to the document mechanically by means of a rubber stamp, be typewritten, engraved, or printed see LONDON COUNTY COUNCIL V AGRICULTURAL FOOD PRODUCTS LTD [1955] 1 QB 218, FRANCE V DUTTON [1891] 2 QB 208), NEWBORNE V SENSOLID GREAT BRITAIN LTD [1954] 1 QB 45.
The purpose of a signature is to authenticate writing, or provide notice of its source, and to bind the individual signing the writing by the provisions contained in the document. See http://legal-dictionary.thefreedictionary.com/signature
It does appear that in whatever manner or form the signee wants to indicate his signature it must be different from the printed/typed name of the signee. It would appear from the decided authorities that both the name and signature of a person signing a court process are essential and central in the validity of the process.
On how the court processes are to be signed the Supreme Court in the case of SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (PT. 1252) 317 AT 337 -338, per Rhodes – Vivour JSC stated thus:-
“All processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel written.
Thirdly, who the counsel represents.
Fourthly, name and address of legal firm”.
In AREMU v. SHIBA & ORS (2014) LPELR-22445(CA) it is stated:
“…In respect of legal practitioners, the case of The Nigerian Army v. Sgt. Asanu Samuel and Ors. (2013) 14 NWLR (Pt. 1375) 466 at 485 restates in the words of Rhodes-Vivour, J.S.C. following the earlier case of SLB Consortium v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 at 337-338 that the originating process must convey first, the signature of counsel, which may be any contraption; second, the name of counsel clearly written as indication of authorship of the signature; third, the name of the person(s) counsel represents; and fourth, the name and address of the legal firm under which counsel practices as a legal practitioner or solicitor/advocate of the supreme court of Nigeria. All the three requirements stipulated above must be present before the court process so signed would be authentic and beyond reproach. See also Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570 at 518, where Rhodes-Vivour, J.S.C., re-emphasised what his lordship had earlier stated in SLB Consortium v. N.N.P.C. (supra) that –
“Once it cannot be said who signed the process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule of court cannot override the Legal Practitioner Act. There must be strict compliance with the law”.
See also F.B.N. Plc. v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) page 11 at 16 – 22.
In respect of a claimant, the signature and name together with the description of the claimant as the claimant in the action must be on the originating process to cloth it with validity.” Per IKYEGH, J.C.A. (Pp. 18-19, paras. B-C)
A charge sheet should be signed by the police officer who brings it and the magistrate should not accept to proceed with the charge until it is signed. A charge sheet submitted by the police is neither proper nor complete if it is signed by an unidentifiable police officer. UGANDA VS OSILAJE (CRIM.REV.NO.182 OF 1976) [1976] UGHCCRD 2 (23 DECEMBER 1976)
The question of whether the originating process in this case the Charge sheet is signed is an issue of jurisdiction that can be raised at any stage in the proceeding. Whenever it is raised and is sustained, it cannot be shaken by recourse to the interest of justice and not succumbing to technicality. See DADA V DOSUNMU (2006) 18 NWLR (PT 1010) 134., ALHAJI UMAR ALIYU TECHNICAL V FBN & ORS (2018) LPELR – 44663 (CA)
Relating to the Legal Practitioner not signing properly an Originating Process, in MINISTRY OF WORKS AND TRANSPORT, ADAMAWA STATE V. YAKUBU, [2013] 6 NWLR (PT. 1351) 481 AT 496 the Supreme Court, per Muntaka-Coomasie JSC said:
“The questions that easily come to mind are that can an incompetent originating process or processes be amended, or can the incompetence of the process be cured by the amendment?….The fatal effect of the signing of an originating process by a law firm is that the entire suit was incompetent ab initio. It was dead at the point of filing….The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment”
It is not in doubt that charge sheet is originating process in a criminal trial before a magistrate Court. The charge sheet is regarded as the originating process in the criminal trial hence in ANI v. STATE (2017) LPELR-42831(CA) it is stated:
“A charge sheet or information is the originating process by which a criminal proceeding is instituted in Court, and such charge or information must comply with both the substantive and procedural law. It is the duty of counsel, particularly defence counsel to carefully look at the charge sheet or information and raise objection to any defect therein, for it to be amended before proceeding to trial.” Per OGUNWUMIJU, J.C.A. (P. 10, Paras. D-E)
Charge sheet is also in the category of Notice of Appeal as an originating process. In OKARIKA & ORS. V. SAMUEL & ANOR (2013) LPELR-19935(SC), (2013) 7 NWLR (PT 1352) 19
“The nature of a Notice of Appeal being an originating process is well settled and should not be a matter of controversy. Being an initiating process therefore it must be certified as competent in order to give it legality and recognition.” Per OGUNBIYI, J.S.C.
It is therefore the law that an initiating process whether Writ of Summons, Originating Summons, Notice of Appeal, or Charge Sheet must be valid to confer jurisdiction on a court to adjudicate between parties on a subject matter in dispute between them or to try a defendant on the count(s)/offence(s) therein.
It is my view that for a proper signature as required by the law, the police officer who signs a charge must indicate his name and designation immediately along with his signature. If the amendment sought is such that is contemplated under the sections 163, 167 of the CPA cited and relied upon by the Respondent I will not hesitate one bit in granting the amendment. This will be on the ground that the Appellant has just taken his plea. But this is something more than that.
A defective charge sheet is void ab initio. It is a nullity and cannot be amended. An incompetent process cannot be revived by an amendment as one cannot put something on nothing and expect it to stand. Indeed all proceedings based on it are a nullity. In the circumstances, the application for amendment is refused. It is hold that the charge sheet is void ab initio and no legal action such as arraignment could have been taken based on it.
The appeal succeeds only to the extent that the charge sheet for Charge No: OW/454C/2015 is void and is accordingly struck out. The fiat issued to I.I Otukola Esq., is valid.
I so hold
I.M.Njaka
Judge
13-1-2021