IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE OWERI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THE 21ST DAY OF JANUARY, 2021
BEFORE HIS LORDSHIP: – HON. JUSTICE I.M. NJAKA
SUIT NO: HOW/4CA/2018
BETWEEN
RAYMOND IWUJI ——————————— APPELLANT
V
COMMISSIONER OF POLICE ———————— RESPONDENT
JUDGMENT
This appeal was transferred to this court by a letter dated 11th April, 2019. It is an Appeal against the Judgment of His Worship Charles Nkwocha Esq. sitting at Magistrate Court Eziama, Ikeduru Magisterial District. The Judgment was delivered on the 14/6/18 in Charge No.MCE/7C/2018.
This judgment was to be delivered on 20-1-2021 but could not be delivered because the Appellant and his counsel were not in court. The appeal was heard on the 11th day of November 2020. The Appellant was in court. It was adjourned to 20-1-2021 for judgment. The absence of the counsel and the Appellant was not explained
The Appellant was charged by the Respondent as follows:
Count I
That you RAYMOND IWUJI ‘M’ on the 26th day of December, 2016, at Okwu Magisterial District of this Honourable Court did conduct yourself in a manner likely to cause breach of peace by holding a cultural/traditional event called Okwu Day Ceremony at Community School Okwu which is a public place, without the consent and approval of HRH EZE T.N.K AJUGWEOGU, the custodian of the of the custom and tradition of Okwu Autonomous community and in disregard of the directive of the government of Imo state that such occasion should not be held and you thereby committed an offence punishable under section 249(d) of the Criminal Code Cap ’38’ LFN 2004
Count II
That you RAYMOND IWUJI ‘M’ on the 13th day of January, 2017, at Zone 9 Headquarters Umuahia, made a statement to the Police which you knew to be false to the effect that HRH EZE T.N.K AJUGWEOGU master minded and instructed one Uche Ayozie, Christian Onye and others armed with guns and machetes to pull down canopies and stop your Okwu Day Ceremony of 26th December, 2016 that led to the arrest and detention of HRH EZE T.N.K IJUGWEOGU which injured his reputation and you thereby committed an offence punishable under Section 125A (b) of the Criminal Code Cap ‘C38’ LFN
Count III
That you RAYMOND IWUJI ‘M’ On the 26th and 27th days of December, 2016 in the Magisterial District of this Honourable Court and on the 24th of January, 2017 at Zone 9 Police Headquarters, Umuahia and on the 20th of February,2017 at Iho, Ikeduru Local-Government Area did make a defamatory statement to the against HRH EZE T.N.K AJUGWEOGU to the effect that HRH EZE UGWEOGU is a native man and a confirmed dissident, a statement expose him to hatred and ridicule and which is likely to injure his repution and you thereby committed an offence punishable under Section 375 Criminal Code Cap ‘C38’ LFN 2004
At the end of the trial the trial Magistrate Court found the Appellant guilty on all the three counts. Appellant was convicted on the three counts charge. It is against the order of conviction and sentencing that the Appellant has appealed to this Court.
The appeal is hinged on the amended notice of appeal dated 3rd day of September 2018 and filed on 5th day of September 2018
GROUND ONE
The learned trial magistrate erred in law when he assumed jurisdiction and entertained the Charge No. MCE/7C/2017 COP v Raymond Iwuji which charge was incompetent
PARTICULARS OF ERROR
- Prosecution for an offence pursuant to section 125(b) of the criminal code cannot be instituted without the consent of a superior police officer
- The Prosecution did not tender any such consent or authority from a superior police officer to prosecute the appellant during the trial
- The charge in count 11 was incompetent and the trial magistrate was without jurisdiction to hear the charge convict, sentence the appellant
- The conviction and sentence of appellant in count 11 of the charge is a nullity.
GROUND TWO
The Trial Magistrate erred in law and failed to exercise its discretion judicially and judiciously by passing the maximum terms of imprisonment on the appellant without option of fine
Particulars of error
- The sentence prescribed by law upon conviction in respect of the offences for which the appellant was charged is terms of imprisonment
- The trial Magistrate was bound to consider and take into account the age of the appellant, the fact that he was a first offender etc and ought to have imposed the sentence of a fine instead of the maximum term of imprisonment prescribed by law.
- The maximum sentence imposed on the appellant was excessive.
GROUND THREE
The judgment is unwarranted, unreasonable and cannot be supported having regards to the evidence
GROUND FOUR
The trial Magistrate erred in law when on the 5/07/2017 it allowed charge No. MCE/2C/2017 to be amended by substituting same with Charge No. MCE/7C/2017
Particulars of Error
- Charge No. MCE/2C/2017 was incompetent process of Court and cannot be revived by an amendment.
- Police officer of no particular name, designation or rank is not a juristic person known to law competent to sign and file a charge in court of law.
- The trial Magistrate lacked the jurisdiction to entertain an application for amendment prescribed on an incompetent charge
- One cannot put something upon noting and expects the something to stand.
- The entire trial was a nullity being a trial conducted without jurisdiction, Charge No. MCE/7C/2017, being incompetent abinitio
On 29th day of January 2020, the Applicant brought an application for extension of time within which to file Appellant Brief of argument and to deem the Appellant brief filed that same 29th day of January 2020 as properly filed and served. It was granted on the 13th day of February 2020. The Respondent filed their brief dated 5th March 2020 and the Appellant filed a Reply on point of law on 10-3-2020
I have critically analyzed the arguments and submissions of both Appellant’s and Respondent’s counsel. I have also gone through the Record of Appeal the issues raised in the brief can be re-couched as follows.
- Whether there was any factor that deprived the trial Magistrate Court the jurisdiction to have tried, convicted and sentenced the Appellant
- Whether the maximum terms of imprisonment passed against the Appellant was not a discretion judicially and judiciously exercised to warrant the intervention of this court.
Before I consider the issues, it is noted that the Appellant’s Ground 3 of the Notice of Appeal is omnibus ground of appeal. In OKAFOR v. EFFIONG (2017) LPELR-42699(CA) it is stated:
“…Ground 5 is the omnibus ground of appeal, that is, a ground of appeal which complains against the totality of evidence adduced at the trial. It is not a complaint against any specific finding or any documentary evidence. It implies that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the winning party and therefore cannot raise any issue for determination, see AJIBONA V KOLAWOLE (1996) 10 NWLR (PT.476) 22; BISIRIYU AKINLAGUN V TAIWO OSHOBOJA & ANOR (2006)12 NWLR (PT.993) 60 and OSOLU v OSOLU (2003) 11 NWLR (PT.832) 608.” Per NIMPAR, J.C.A. (P. 11, Paras. A-D)
It is designed to allow complaint on evaluation of evidence. See ABUBAKA TIJANI SHEHU V THE STATE (2010) 2-3 SC 158.
There is no issue formulated from this ground of appeal. Where no issue is formulated on a ground of appeal it is deemed abandoned and liable to be struck out. In OKE v. OGIDI & ORS (2017) LPELR-42396(CA) it is stated:
“The law is settled that issues for determination are distilled from the Grounds of Appeal filed. Accordingly, any issue formulated in an appeal which cannot be traced to any of the Grounds of Appeal filed, it would be struck out. So also, since appeals are not argued on the Grounds of Appeal filed, but on the issues formulated from the Grounds of Appeal, any Ground of Appeal for which no issue has been distilled, is deemed abandoned and must be struck out. See Babalola v. Obaoku-Ote & Anor (2005) 5 NWLR (pt. 927) p. 386; Admin. Gen. Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) p. 366 and Wilfred Okafor v. The State (2005) LPELR – 7566 (CA ). In the instant appeal, the issues formulated by the Appellant are said to be culled from Grounds 2, 3 and 4 of the Notice of Appeal. None of the issues is said to be culled from Ground 1. The implication is that the Appellant has abandoned Ground 1 of the Notice of Appeal. Ground One (1) having been abandoned is hereby struck out.” Per TSAMMANI, J.C.A. (Pp. 13-14, Paras. E-C)
The implication of this is that there, there seem to be no appeal against the findings of fact by the trial court. The law is that a finding of fact not appealed against is deemed to have been accepted as true. In OKOROAFOR V. STATE (2014) LPELR-23148(CA) it is stated:
“In ATUFE V. OGHOMIENOR (2004) ALL FWLR (PT.224) 2061 at 2076 PARAGRAPH B, it was held inter alia that “Any finding of the trial court that has not been appealed against or challenged by any ground of appeal is subsisting and valid’.” Per EKPE, J.C.A. (P. 15, paras. A-B)
See OBASI V. ONWUKA (1987) 3 NWLR (PT.61) 364; NDIWE V. OKOCHA (1992) 7 NWLR (PT. 252) 129; ADEJUMO V. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252; NYESOM V. PETERSIDE (2016) 1 NWLR (PT. 1492) 71 AND COL. MOHAMMED SAMBO DASUKI V. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1627) 320.
The law has long been settled that a Court not being a Father Christmas or a charitable institution has no jurisdiction to grant a relief not sought for by a party. Again the court is not a busy body or knight in shining amour riding about and looking for any lady in distress to be rescued. See GBADAMOSI V. DAIRO (2007) 3 NWLR (PT.1021) 282, (2007) 1-2 S.C (PT II) 157. OLAOPA V. O.A. U, ILE – IFE (1997) LPELR – 2571 (SC)
On issue 1, it is the contention of the Appellant that the Charge Sheet for Charge No: MCE/2c/2017 was not signed or properly signed in that it was purportedly signed by a police officer without a name or rank. Therefore, it cannot be amended by the subsequent Charge No: MCE/7c/2017 under which he was eventually convicted and sentenced.
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 considering the provisions of Administration of Justice (Miscellaneous Provisions) Act 1932 which provided:.-(1) Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly: Provided that if the judge or chairman of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer to sign the bill and the bill shall be signed accordingly. In R V MORAIS (1988) 87 CR APP R 9, the Appellate court upheld the submission that the voluntary bill had never been signed by the proper officer: without a signature, there could be no indictment, and without an indictment there could be no valid trial. In a judgment given by Lord Lane CJ, sitting with McCowan and Pill JJ, the Court of Appeal upheld that submission. The court found considerable value in an unreported judgment of the Court of Appeal in R v Hodges (George David), 5 June 1981, in which Peter Pain J had said:
“It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed”.
There are certain provisions in the Rules of Court or statutory provisions that hold that certain court processes must be signed by a Legal Practitioner. See Order 6 of the High Court of Imo State (Civil Procedure) Rules 2017.
Just like the law requires the police officer to sign a charge so does the law require a legal practitioner to sign a process to give it validity. If it is not enough for a legal practitioner to sign a document with “Legal Practitioner” written under, then it will not be proper for a police officer to sign a charge sheet and just write “Police Officer” under. Just as there shall be a name of a legal practitioner, attached to the signature, for it to be recognized by the court; so there shall be the name of a police officer, attached to the signature, to give the charge validity before the court. See FRANPHINO PHARMACEUTICAL LTD VS. JAWA INTERNATIONAL LTD (2012) LPELR 1; NEW NIGERIAN BANK PLC VS.DENCLAG LTD (2005) 4 NWLR (PT 916) 549, OKETADE VS. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 AT 73H – 75H, OGUNDELE VS. AGIRI (2009) 18 NWLR (PT 1173) 219 AT 246 – 247, OKAFOR VS. NWEKE (2007) 10 NWLR (PT 1043) 521; SLB CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) P. 317
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.
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 unsigned by an identifiable police officer. UGANDA VS OSILAJE (CRIM.REV.NO.182 OF 1976) [1976] UGHCCRD 2 (23 DECEMBER 1976)
The Respondent has contended that the fact that the Appellant did not raise the issue timeously, he is precluded from saying it at this stage. Generally, once a plea has been taken on a defective charge, it is considered as a waiver of any such defect, except where the defect affects the jurisdiction of the court. The question of signature goes to jurisdiction. In CAPTAIN Y. U. ZAKARI v. NIGERIAN ARMY & ANOR (2015) LPELR-24721(SC) it is stated:
“The reasons have already been stated but at the risk of repetition I would adopt the Court of Appeal decision in Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt.647) where the Appellant, a Major in the Nigerian Army was tried by a panel consisting of, inter alia, two Captains who were below his rank and when asked in compliance with Section 137 of the Act whether he objected to the constitution of the panel, he answered in the negative and the Court Martial went on and thereafter convicted him. On appeal to the Court of Appeal and the matter of a defective composition based on those two juniors was raised by Appellant’s counsel, the Court of Appeal per Adamu JCA held: “The failure of a party to raise an objection at a court martial as to the membership of unqualified officers on the court martial is not a bar, waiver or an estoppel for the said party to raise objection to the jurisdiction of the court martial on appeal. This is in line with the principle that a party cannot by consent or otherwise confer jurisdiction on a court where the Court has no jurisdiction to entertain the action. In the instant case, the contention of the Respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, has waived his right to subsequently complain or he has thereby conferred on the said court martial, the jurisdiction that it did not have, has no substance in law”. The 2nd Respondent had raised the point that though Captain I.D Bashir was junior and therefore disqualified, the fact that in keeping with Section 129 (b) of the Armed Forces Act 2004 the quorum was in order with the president and two other members, the competence of the Court was not impugned. That argument, in my view, would not stand in the light of what is required for the jurisdiction of a court property constituted as has become trite, that is, once a member is disqualified and the panel or court goes on with the proceedings, everything done by that Court would collapse as the disqualification of anyone or more members renders the entire court incompetent and without jurisdiction. Section 133 of the Armed Forces Act so provided and the cases of Madukolu v Nkemdilim (supra); Agbiti v. Nigerian Army (supra) have ensured the mandatoriness of the compliance and not those defects that are redeemable or could be waived or treated as a mere irregularity not going to the root. Before I conclude, I must say, this is one of those instances where the Supreme Court or an Appellate Court so positioned can intervene and disturb the concurrent findings and conclusions of two courts below. The reasons herein are that there has been a violation of some principles of law and procedure which have created a miscarriage of justice and so leaving me no option than to chart a different route. I rely on Alhaji Ganiyu Martins v. Commissioner of Police (2012) 12 MJSC (Pt.11) 73 at 93-94.” Per PETER-ODILI, J.S.C. (Pp. 24-35, paras. B-F)
Now the Appellant submitted that Charge No. MCE/2C/2017 having not been signed, the trial Magistrate should not have amended same or substitute it with Charge No. MCE/7C/2017. According to him it was wrong for the magistrate court to have assumed jurisdiction over Charge No: MCE/7C/2017 because of the defect in Charge No: MCE/2C/2017. The submission of the appellant is a correct position of the law only to the extent that an unsigned originating process cannot be amended in the same process. 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)
However, I must quickly add that the nullity of an originating process as result of none signing or invalid signing does not mean loss of action. If the action is not caught up by statutory limitation, the processes can be started afresh. So even where a notice of appeal is or a writ of summons is declared null because of none signing of the originating process, even at the level of the Supreme Court, whosoever is affected can still go back and start all over again. Starting afresh is not the same thing as amending the process but for want of a better word it may be called amendment because the counsel or whosoever that did not sign the original process by starting afresh is correcting his initial error of not signing or signing properly.
With this in mind, let me look at what transpired on the 5th day of July 2017. On the 5th day of July 2017, the record of the court has it:
“Parties: parties are present in court
“Appearances: V.U.Igbokwe for prosecution
H.C.Nwoko for the accused person
Matter is for amendment of charge
Counsel for the prosecution applied to amend the charge with Charge No: MCE/2C/ with Charge No: MCE/7C/2017. Counsel for the defence did not oppse.
Court: the application is hereby granted and the said charge No: MCE/2c/2017 is already substituted with No. MCE/7C/2017. The Accused person is hereby called upon to elect whether to be tried on the new charge or not.
The accused hereby elects to be tried on the new charge. The bail as granted by this court in the previous charge hereby subsists”
I think the Record should have read “counsel for the prosecution applied to substitute the Charge Sheet no MCE/2C/2017 with Charge Sheet No MCE/7C/2017”. In any case at page 1 of the Record is the Charge Sheet in Charge No MCE/2C/2017. And written across it is: “Substituted with MCE/7C/2017”. To my mind what is recorded cannot change the actual import of what happened on that day.
I have looked at the charge sheet bearing MCE/2c/2017 and the charge sheet bearing MCE/7c/2017. The MCE/7c/2017 was signed by V.U Igbokwe, Esq, prosecutor and MCE/2c/2017 was signed by police officer.
The charge sheet containing the charges, for which the Appellant was tried, convicted and sentenced, is Charge No: MCE/7C/2017. The notice of appeal is bearing Charge No: MCE/7C/2017. In other words this appeal is on MCE/7C/2017 and not Charge No. MCE/2C/2017.
Now, the court recorded that the charge No. MCE/2C/2017 was amended by Charge No. MCE/7c/2017. Amendment is held to be the same as substitution. Hence, in F.R.N. V. ADEWUNMI (2007) ALL FWLR (PT.368) 978 AT 1002; PARAS. B – C (SC), (2007) 4 – 5 SC (PT. III)30, it is stated:
A substitution is the same thing as an amendment and an amendment wherever made by the court relates back to the original date of the document so amended. .” Per Ogbuagu JSC
The amendment of charge is well covered in our laws. Respondent has contended that once an amendment is made it dates back to the date of the original filing. This is a correct statement of the law. Amendment of charge has been held also to accommodate framing of a new charge or adding to or altering the original charge. In RUFUS v. STATE (2014) LPELR-22797(CA) it is stated:
“It has been previously and recently considered in the case of Nigerian Air Force v. Ex-Wing Commander L. D. James (2002) 18 NWLR (Pt. 798) 295 at 331-332 where it was enunciated thus:-
“S. 162 and S. 163 of the Criminal Procedure Act speak of framing a new charge or adding to or altering the original charge.” In the case of Okwechime v. I.G.P. (1956) FSC 73, it was held that the alteration of a charge under S. 162 and 163 of the Act includes the framing of a new charge in place of the original charge. There the Federal Supreme Court held at page 74 of the report that –
‘The learned trial judge was of the opinion that the word “alter” in the context means more than “amend” and includes “substitute”, with this view we respectfully agree. In view of the fact that new charges could, under the section, be added to the original one, it would be unreasonable to hold that alteration of the charge cannot be extended to the framing of new charge in place of the original one.’
Therefore substitution will have the same meaning and effect with alteration. And according to S. 164 of the said Act, where a charge or count is altered all that is required to be done is to read the new charge or count to the accused and record his or her plea thereto. The proceedings are deemed to be continued and not disturbed as a result of the alteration. This in my view is the correct position in the instant appeal immediately after the original counts were struck out.” Per Kalgo, JSC.” Per OREDOLA,J.C.A. (Pp.21-22,paras.F-G)
I am not sure I can describe what happened on the 5th day of July 2017 as an amendment which may include substitution of a charge, reframing of a charge, adding of a charge, altering of a charge. In this sense of amendment, I understand it to be that it is the same charge sheet with the same charge number before the same court but the prosecution has decided to tamper or tinker with the content of the charge sheet.
We have to bear in mind that this particular section said: “and the charge sheet shall be signed by the police officer in charge of the case.”
I think there is a difference between the charge and the charge sheet. The law did not say that the charge shall be signed by a police officer but that the police officer shall sign the Charge Sheet. Charge is not a form but the charge- (offence(s), count(s)) that is levied against the accused is mentioned in the charge-sheet which is the form of charge. When a charge is read to an accused person it does not include the heading of the court, the charge number, the parties, and the signatory. These and more are contained in the charge sheet but are not part of the charge. Generally the contents of a charge-sheet must include information on:
- what the charges against the accused are and when the offence is alleged to have been committed;
- what Act and relevant section of the Act that is alleged to have been breached;
- the name and signature of the police officer issuing the charge; and
- when the matter is listed for hearing in the Magistrates’ Court (among other things).
Unless a charge sheet is signed, the court will not have jurisdiction to look at the content whether further requirements are met. Just like an invalid service is not service an improper or invalid signature is no signature.
It is my humble view and with utmost respect to the learned counsel, both the Appellant and the Respondent missed the legal import of what happened on the 5th July 2017. The trial of the Appellant started on clean slate with different charge number and different charge sheet, signed by a different personality. The Charge No MCE/7c/2017 was instituted by the Hon Attorney General via a private prosecution through a fiat. The fact that Charge Sheet in Charge No. MCE/2C/2017 was not signed could not have prevented the filing of another charge sheet now properly signed. The Hon. Attorney has the powers to withdraw a charge sheet/charge at any time and to file or present a fresh charge sheet. Good enough what took place under Charge No: MCE/2C/2017 was an arraignment? No evidence has been led on it. 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.
Also in STATE V. OKOYE (2007) 16 NWLR (PT. 1061) 607 AT 645, PARAS. B – C; 644 – 645, PARAS. E – G (CA) it was stated that
“A fiat issued to a private legal practitioner to prosecute a matter covers prosecution of the matter in any court of law at all levels and includes an appeal, especially since an appeal is not an inception of a new case but a continuation of the original suit.
What happens where a charged is filed on fiat is explained in AMADI v. A.G IMO STATE (2017) LPELR-42013(SC) thus:
“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. Per PETER-ODILI, J.S.C. (Pp. 27-29, Paras. B -A)
I am convinced beyond any iota of doubt that Charge No. MCE/7C/2017 is not splashed with the paint brush of illegality or nullity originating from or pertaining to Charge No. MCE/2C/2017.
There is also the issue of section 125A(2)(a) of the Criminal Code Cap C38 FN 2004 to the effect that
“A prosecution for an offence under this section shall not be instituted without the consent of a superior police officer
“superior police officer” means any police officer above the rank of a cadet assistant superintendent of police.”
The authority ranks in Nigeria police force (NPF), from top to bottom is the Inspector General of police down to the constable. The charge sheet in Charge No: MCE/2C/2017 was signed as a police officer. The name and rank of the police officer is not indicated. There is nowhere to ascertain if it was a superior police officer who signed in which case there will be no need seeking for consent.
Again the particular section did not say whether this consent should be in writing or orally. In similar situation it is stated 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. See ONWUDINJO v. STATE (2014) LPELR-24061(CA).
In that line, I am prepared to hold that the consent of a superior police officer need not be in writing that such has to be filed along with the charge.
The prosecutorial power of the Police is not in doubt. In SARAH EKUNDAYO EZEKIEL V ATTORNEY GENERAL OF THE FEDERATION (2017) LPELR-41908 (SC), the Supreme Court held that:
“all Agencies charged with prosecutorial powers are qualified to initiate criminal charges in Court. Indeed, even legal practitioners briefed by the Attorney General are competent to initiate charges”.
This prosecutorial power of the police and other law enforcement agencies is only subject to that of the Attorney General of the Federation or the State. And whenever any member of the police officer exercises this prosecutorial power, it is deemed to have been exercised by the Commissioner of Police, the Assistant Inspector General of Police or Inspector General of the Police. The institution of criminal cases at the magistrate court by the Police is always in the name of the Commissioner of Police who is the Complainant. If the Commissioner of Police is the complainant it will not be necessary to enquire if the consent of a superior police officer was obtained. It is my humble but firm view that once the complainant is the Commissioner of Police who is a Superior Police Officer it is futile to enquire if the person or police offer who proffered the charge has the consent of a superior police officer. In this regard the only who can raise the issue of consent is the Commissioner of Police in whose name the charge is filed. In AMADI v. A.G IMO STATE (2017) LPELR-42013(SC) it is stated:
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)
Another issue is that here the trial was concluded with the fiat of the Attorney General of Imo State. In that wise it is taken to have been instituted by the Attorney General of Imo State whose powers to institute, or take over any criminal trial is secured by the Constitution of the Federal Republic of Nigeria 1999 (as amended). EMEAKAYI V. C.O.P. (2004) 4 N.W.L.R. PT. 862 P. 158
Section 174(1) of the
Constitution of the Federal Republic of Nigeria provides that the Attorney General
of the Federal shall have power:
- 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 Act of the National
Assembly,
- To take over and continue any such criminal proceedings that may
have been instituted by any other authority or person, and
- To discontinue at any stage before judgment is delivered any such
criminal proceedings instituted or undertaken by him or any other
authority or person
by virtue of section 211. (1) of the Constitution which provided:
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 b 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
The Attorney General of Imo State does not need or require the consent of a senior police officer or any other authority to commence or institute any action in any court of law. Any law that requires such shall be null, void and of no effect to the extent of its inconsistency with the provisions of the Constitution relating to the powers of the Attorney General.
In addition to all I have hitherto said in relation to this issue, the respondent at page 7 of his brief of argument paragraphs 4.14, 4.15 and 4.16 made a submission which I am very much in agreement with. The evidence of the PW6 and the exhibit 12 put it beyond argument that consent was given. But that will be as it relates to Charge No. MCE/2C/2017 which is no longer before the court and was not the bases of the Appellant’s trial, conviction and sentencing.
I will also state that even if count 2 is said to be brought without the consent of a superior police officer, still as it relates to Charge No. MCE/2C/2017, it will only affect the count 2 and not the entire count as to affect the jurisdiction of the court to try the appellant. At worst the count will be struck out. However, in this case it is not shown or proved that it was brought without the consent of a superior police officers.
It was just like putting an old wine in a new sack. It is a brand New Charge Sheet containing the same counts of charge. What is prohibited is putting a new wine in an old wine sack. Mark 2:22 says: “And no man putteth new wine into old bottles; else the new wine will burst the bottles, and be spilled, and the bottles shall perish”. It is not like putting something on nothing and expecting it to stand. It is a case of brand new foundation or neutral and clean ground
I hold that there is no factor in Charge No. MCE/7C/2017 that deprived the trial magistrate court the jurisdiction to entertain it. The trial magistrate court in my humble view was perfectly in order to have assumed jurisdiction and entertained Charge No. MCE/7C/2017. To have done otherwise would have amounted to abdication of duty.
On issue 2, the Appellant complained about the sentencing.
The punishments for the offences under which the Appellant was charged and convicted are:
Count 1 on section 249(d) of the Criminal Code Cap ’38’ LFN 2004
“Every person who, in any public place, conducts himself in a manner likely to cause a breach of the peace shall be deemed idle and disorderly persons, and may be arrested without warrant, and shall be guilty of a simple offence, and shall be liable to imprisonment for one month.
Count 2 on section 125A(b) of the Criminal Code Cap C38 FN 2004
“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-
- —————- or
- 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
Count 3 on section 375 Criminal Code Cap ‘C38’ LFN 2004
“Subject to the provisions of this chapter, any person who publishes any defamatory matter is guilty of a misdemeanor, and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.
At page 121 of the Record, the court said:
“This court hereby found the accused person guilty as charged in the 3 count charges before this court and the accused is hereby sentenced to 1 month imprisonment in count1, 1 year imprisonment in count 11 and 2 years imprisonment in count 11. The terms are to run concurrently and the accused to be kept in Owerri prisons. Accused is hereby reminded of his right to appeal if he is not satisfied with this judgment”
The learned trial magistrate sentenced the appellant to the maximum term of sentence on each of the three counts. In ICHI V. STATE (1996) 9 N.W.L.R (PT. 470) 83 AT 89 AT PARAS, E.-F it was held:
“A Sentence” is the judgment formally pronounced by the court or judge upon an accused person after his conviction in a criminal prosecution, imposing the punishment to be inflicted. It is the judgment formally declaring to the accused person the legal consequences of the guilt which he has confessed or of which he has been convicted”
The essence of appeal against sentencing and what the Appellate court is expected to do was considered in EYO NSA v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-42340(CA) where the court stated:
“In the instant case, issue one is quarrying whether the sentence of ten years imprisonment without an option of fine passed on the Appellant by the Lower Court was not excessive. Sentencing no doubt it is settled, is a matter within the domain of the discretion of the trial Court. Being this discretion no doubt must be exercised judicially and judiciously having regards to the facts and circumstances of the case. Although exercise of discretion is not subjected to stare decisis, our Courts have laid out principles to assist and guide in exercising judicial discretion. A little survey of some of these principles will suffice to guide us in this matter and particular attention is paid to the fact that an appellate Court must be warry of interfering with discretion validly exercised by a trial Court.
In HACO LTD v. BROWN (1973) 4 SC (REPRINT) 103, IRIKEFE JSC held that:
“Discretion must be exercised on fixed principles that are according to rules of reason and justice not according to private opinion. (See SHARPE vs. WAKEFIELD (1891) AC 175, 179; WURNO v. U.A.C. LTD. (1956) (FSC 33, 34).
Similarly, the exercise of this discretion must not be affected by questions of benevolence or sympathy.”
In the case of ODUBA v. HOUTMANGRACHT (1997) 6 NWLR (PT. 508) 185, IGUH, JSC held emphatically that a Court’s exercise of its discretion without adverting to all the peculiar facts and circumstances of the particular case before it has been said to be as bad as its exercise upon a wrong principle. See LEONARD OKERE v. TITUS NLEM (1992) 4 NWLR (PT. 234) 132 per Nnaemeka-Agu, JSC. And if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate Court to have it reviewed.
The sum of these my Lords, is that it is only when the Lower Court exercised the discretion upon a wrong principle or mistake of law or under a misapprehension of facts or has taken into account irrelevant matters or on the ground that injustice could arise or has arisen that the Appeal Court will interfere. See UWAIS, JSC (as then was) in N.A.A. vs. OKORO (1995) 6 NWLR (PT. 403) 510.” Per ADAH, J.C.A. (Pp. 11-13, Paras. B-A)
What the Appellant need to show is that the Lower Court:
- exercised the discretion upon a wrong principle or mistake of law or
- under a misapprehension of facts or has taken into account irrelevant matters or
- on the ground that injustice could arise or has arisen
It is the contention of the Appellant that as a first offender, the trial court should have exercised his discretion to give him option of fine instead of the maximum terms as provided by the law. In OLABAMIJI MICHAEL KAYODE v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-41865(CA) the court stated:
“See Amoshima V. State (Supra) @ p. 553, where Onnoghen JSC (as he then was, now Ag. CJN) had pronounced succinctly inter alia thus:
“It is settled law also that where a Statute prescribes a mandatory sentence in clear terms as in the instant case, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the manner. It is duty imposed by law. The above situation is different from, the one in which, the Statute provides for either the minimum sentence as in Section 1(1) of the Robbery and Firearms (Special Provisions) Act or the maximum sentence to be imposed. In either case, the Court is clothed with the discretion to either impose more than the minimum or less than the maximum sentence prescribed.” Per GEORGEWILL, J.C.A. (Pp. 47-48, Paras. F-D)
Now the procedure is before a magistrate pronounces the sentence on a person convicted, the law in criminal trials requires the judge/magistrate to request the convict, or if represented by a counsel, to enter a plea as to why the court should consider mitigation while imposing the punishment that would be handed down to the convict.
Section 247 of the Criminal Procedure Act, in operation at the time of conviction and sentence of the Appellant provides as follows:-
“If the court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law, but the omission of the registrar so to ask him or his being so asked by the judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings”
In the instance case, there seem not to be allocutus before the sentencing. What the Appellant submitted in paragraph 6.04 of his brief of argument was not in respect of allocutus but while the court was refusing application for bail pending appeal. See page 122 of the Record under ‘Ruling’. The pronouncement quoted is not made respect of allocutus but in respect of bail application. The application for bail was made at page 121 of the record. It was erroneously headed “Allocutus”. The Respondent counsel at page 13-14 of his brief, paragraphs 4.35 captured it correctly as a pronouncement made in the course of ruling on bail application.
The Appellant is not contesting that there was no allocutus. In CHIDI EDWIN v. THE STATE. SC.63/2015 delivered on the 21st day of February, 2019 it is stated:
“My noble Lords may wish to recall that this Court, has defined allocutus in many cases, the most recent of which is the case of Lucky v. The State (2016) LPELR 40541 where it was held that allocutus is a plea in mitigation of the punishment richly deserved by appellant for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly.” Per MUHAMMAD, J.S.C. (P. 12, Paras. A-B)
He is saying that the court ought to have exercised its powers under section 382 of the Criminal Procedure Act. He said the Appellant was a first offender. It appears that a wide discretionary power is provided by this section of the CPA the powers vested in the court to, in certain cases, to impose a fine in lieu of imprisonment. SECTION 382 (1) – (5) OF THE CRIMINAL PROCEDURE ACT provides thus:
(1) Subject to the other provisions of this section, where a court has authority under any written law to impose imprisonment for any offence and has not specific authority, to impose a fine for that offence, the court may, in its discretion, impose a fine in lieu of imprisonment”.
(3) Provides:-
“In the case of a conviction in a Magistrate’s Court:-
- a) The amount of the fine shall be in the discretion of the court but shall not exceed the maximum fine authorized to be imposed by the magistrate by or under the law by virtue of which he was appointed a magistrate; and b) No term of imprisonment imposed in default of payment of the fine shall exceed the maximum fixed in relation to the amount of the fine by the scale specified in subsection (2) of section 390 of this Act.
(4) Provides:
“In no case shall any term of imprisonment imposed in default of payment of fine which has been imposed by virtue of the power in that behalf contained in subsection (1) of this section exceeds the maximum term authorized as a punishment for the offence by the written law”.
(5) Provides:
“The provision of this section shall not apply in any case where a written laws provides a minimum period of imprisonment to be imposed for the commission of an offence”
This provision of the law has found expression in the court of law. In THOMAS V. STATE (1994) 4 N.W.L.R. (PT. 337) 129 AT 138-139, PARAS. H-B the Supreme Court held that under section 382 (1) of the Criminal Procedure Code, where a court has authority under any written law to impose imprisonment for any offence and has not specific authority to impose a fine for that offence, the court may in its discretion, impose a fine in lieu of imprisonment. See also the case of Isang V. State (1996) 9 N.W.L.R. (Pt. 473) 458 at 472, Paras. B-D
But where the law specifically outlawed option of fine, the court will have no discretion in that respect. The Court of Appeal in OKECHUKWU V. STATE (1993) 9 N.W.L.R. (PT. 315) 78 AT 95 PARAS B. emphasized the need for compliance with the provision of subsection 5 of section 382 of CPA where the court held:-
“”Section 382(1) of the Criminal Procedure Law gives the courts a general power to impose a fine in lieu of imprisonment. The sub-Section provides that:
“382(1) Subject to the other provisions of this Section, where a court has authority under any written law to impose imprisonment for any offence and has no specific authority to impose a fine for that offence the court may, in its discretion, impose a fine in lieu of imprisonment.’
There is no doubt that the two years imprisonment prescribed in Section 19 of the Traditional Rulers Law is the maximum that a court can impose. (See Udoye v. State (1967) NMLR 197). The question however, is whether the inclusion of ‘without option of fine’ should be construed as depriving the court of exercising its discretion to impose a fine in lieu of imprisonment. That is definitely the intention of the law in this respect. It follows therefore that whereas the court is free to impose any term of imprisonment not exceeding two years, it is barred from imposing a fine in lieu of imprisonment.
The trial court therefore had no power to give an option of fine as it did in the instant case.”
The respondent before us has not appealed against this part of the judgment of the court below. In any event, that court is correct in its conclusion. The position then is that the respondent is sentenced on count (2) to 2 months imprisonment without any option of fine. The terms of imprisonment imposed on the two counts are to be concurrent..
The section did not set out factors to be taken into consideration in exercising the discretionary power to impose a fine in lieu of imprisonment. Apart from imprisonment, judicial systems typically have a range of non-custodial sentencing options at their disposal. Among these non custodial sentencing options are
- Fines: the offender is required to pay a specified sum of money to the authorities.
- Probation: the offender is required to be supervised and regularly checked for a specific period.
- Reparation & restitution: the offender is required to undertake specified activities to ‘repay’ either society or his victim for his criminal activities.
Among these three options, option of fine is most operational in this part of the world. Some law provide for it specifically as an alternative to custodial sentencing while in some laws it is silent and some others specifically prohibit it as an option. The defendant complaining about the sentence need satisfy the court that some other sentence was warranted in law and should have been imposed. See Simpson (2001) 53 NSWLR 704 at para [79]; R v Cocking [1999] NSWCCA 311; (1999) 6 Crim LN 81 [1000], applying R v Anstill (No 2) (1992) 64 A Crim R 289.
The manner in which the option of fine should be given in sentencing is sated in OGUNBAYO V. STATE (2007) 3 S.C. (PT. II) 1 AT 27 LINES 15 – 20 thus:
“Before concluding this judgment, I wish to observe that the sentencing of the appellant to imprisonment with an option of fine is not correct. The fine comes first and in default, the imprisonment takes effect and not the other way round.” Per. Ogbuagu, JSC
Though if done in that manner it will not vitiate the sentencing. See LEYE ADEJUYIGBE v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43801(CA)
I have earlier noted that there was no allocutus, though this has no effect of nullifying the proceeding, the court did not take into consideration what brought about the charge in the first place. It is a contention among the parties of whose duty it is to organize Okwu Day. Use of such words as ‘Dissident’ and ‘Native Man’. if the contention was about who holds “Okwu day” was the one allegedly organized by the Appellant disrupted that day? The question one may ask is in all these where is the freedom of association and assembly? Where is the freedom of expression within the bound of law? Where is the place of civil litigation in settlement of matters between the parties?
I have not forgotten that I am only called upon to review the sentencing. In sentencing the court considers the defendant’s past criminal record, age, and sophistication, the circumstances under which the crime was committed, and whether the defendant genuinely feels remorse. When considering the past criminal record, whether the convict is a first offender comes up. I understand first offender to me a person who has not been convicted for an offence before the present conviction. It does not mean a person who has not been a suspect or been accused of any offence. I do not think that the above facts to be considered must be in favour of the Defendant. One factor is enough. In ADEBAYO V. STATE (2007) ALL FWLR (PT. 365) 498 AT 522 PARAS. D – E (CA) it is stated:
“It is proper for the court to give a first offender an option of fine and the amount depends on the discretion of the court. In the instant case, the learned trial judge was humane to give an option of fine on the three courts on which the accused person was charged. There was no provision for an option of fine under the law on which he was sentenced but he used his discretion in favour of the appellant. See Ebhohimen v. State (1996) 1 NWLR (Pt. 422) 44.” Per Awala JCA.
I have earlier noted that there was no appeal on the conviction of the appellant. In EYO NSA v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-42340(CA) (cited earlier), the court lamented:
It is rather unfortunate that grounds 1 and 4 of the notice of appeal were abandoned by counsel if not the Court would have looked critically to see whether there was any evidence of dealing in cannabis Sativa placed before the Lower Court before the Appellant was found guilty, convicted, and sentenced for an offence of dealing in 450 grammes of cannabis sativa. Since that is the situation in the instant case, I will not engage further in any misdirected magnanimity to cry more than the bereaved. I leave the issue at this point and go back to the issue of excessive sentencing. ———-Having regard to the circumstances of this case and more particularly that this Appellant is found to be a first offender in dealing in 450 grammes of cannabis sativa and being said to be 56 years old on the charge sheet, it is obvious that his sentence of ten years is excessive.
Ground 3 of the Notice of Appeal was abandoned in pursuit of dry area of law. On the face of the charge, the appellant is said to be 52 year old. That was in 2017. He is now probably 56 years old.
Among the counts, the count 3 carries highest jail term. Criminal defamation has been a subject of debt in Nigeria as well as other jurisdictions. The Constitutional Court of Lesotho in the case of Peta v Minister of Law, Constitutional Affairs and Human Rights (CC 11/2016) [2018] LSHC 3 (18 May 2018) struck down the provisions of the Penal Code relating to criminal defamation on the basis that they violate the right to freedom of expression as envisaged in section 14 of the Constitution. Hence sections 104,102 and 101 of the Penal Code Act no.6 of 2010 were declared inconsistent with the Constitution on account of the impugned sections’ over breadth, vagueness of the concepts used, the availability of civil remedies and the overall undesirability of criminalizing defamation, they are declared inconsistent with section 14 of the Constitution. See H ‘Nyane ‘Abolition of criminal defamation and retention of scandalum magnatum in Lesotho’ (2019) 19 African Human Rights Law Journal 743-762
In Nigeria it has been argued that, unlike in civil defamation, those accused of criminal defamation must establish not only that the words were true, but also that they were published for the public benefit. It is difficult to appreciate the continued retention of criminal defamation in its present form in our statute books. Obviously, an attack on a person’s reputation is a civil matter, which is adequately addressed and redressed by the tort of defamation. Criminal defamation should be restricted to those situations where defamatory matters are published with intent to extort or commit other crimes. In such cases, the basis for the offence is not in the bare publication of defamatory matter but in the criminal intent to extort money or other property from the person against whom the publication is made.
Regarding the sentence under review, let me humbly refer to His Lordship Hon. Justice Belgore CJ, where he said in his paper titled “judge and judging”, Induction Course for Newly Appointed Judges and Kadis, 1999
“A judge must remember that the purpose of sentencing is to protect the society as a whole from dangerous action of the prisoner, to assist as far as possible the victim of the crime, to reform the offender and prevent other people from being criminal. In applying any of these principles, the judge must be humane, not imposing a draconian punishment or an inhuman one. Concurrent and not consecutive sentences should be given. If it is a fine, it must not be excessive or out of proportion to the gravity of the total offence”.
I am of the view that in the circumstances of this case the custodial sentence without the option of fine on the Appellant is excessive.
This appeal succeeds in part; the sentence passed on the Appellant is accordingly varied. The Appellant is to pay the sum of N100, 000 (One Hundred Thousand Naira) in default of which he shall serve his terms of imprisonment
I so hold
I.M.Njaka
Judge
21-1-2021
Appearance: D.O.Agbo Esq. for the Appellant
V.U.Igbokwe Esq. for Respondent