PRINCE JOSHUA PAULSON V. THE STATE
(2016)LCN/8327(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/B/155C/2010
RATIO
CRIMINAL PROCEEDINGS; WHO IS VESTED WITH POWER TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST A PERSON
Thus the power to institute Criminal Proceedings against any person under the Constitution is on the Attorney-General of a State or the Federation. Hence an officer under them is highly qualified to institute criminal proceedings.
See: FRN V. ADEWUNMI Supra A.G. KADUNA STATE V. HASSAN (1985) 2 NWLR (Pt. 8) 483 SC. per. GEORGE OLADEINDE SHOREMI, J.C.A.
CRIMINAL LAW: WHEN DOES AN ACT OR OMISSION BECOMES A CRIME AND WHETHER THE REQUIREMENT FOR A VALID ARRAIGNMENT MUST BE COMPLIED WITH WHERE THERE IS AN ADDITION OR ALTERATION TO ANY CHARGE BEFORE JUDGEMENT IS GIVEN
An act or omission is not a crime unless its definitions and punishment for it are contained in a written law. See: ALAO AOKO V. FAGBEMI 1961 1 AU NLR PAGE 400.
It should be noted in this one that while by provision of the Criminal Procedure Act any court may alter or add to any charge at any time before Judgment is given and every such alteration on charge shall be read and explained to the accused. By the same procedure if a new charge is formed or alteration made, the requirement for a valid arraignment must be complied with.
See: ATTAH V. THE STATE (1993) 7 NWLR (PT. 305) 257
In the instant case there is no valid amendment till Judgment was given.
The provisions of Section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria 1999 which stipulate that
“S. 36(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence”.
“S. 36(12) Subject to or otherwise provided by the constitution a person shall not be convicted of a criminal offence whereas that offence is defined and the Penalty therefore is prescribed in a written law and in this subsection a written law refers to an act of the National Assembly or a law of a State”.
These Section have been given judicial interpretation in AOKO V. FAGBEMI Supra.
OGBONOR V. THE STATE (1985) 1 NWLR (Pt. 2) 223 AT 233. FRN V. IFEGWU (2003) 5 SCNJ 217 AT 242 LINES 15 – 25. ASEKE V. NIGERIA ARMY CONCIL (2007) ALL FWLR (Pt.396) 737 PARA C. per. GEORGE OLADEINDE SHOREMI, J.C.A.
Justice
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
Justice
PRINCE JOSHUA PAULSONAppellant(s)
AND
THE STATERespondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice sitting at Effurun Delta State of Nigeria, delivered on 16/2/2010 wherein the trial judge after full trial pronounced a sentence of life imprisonment on the appellant.
The appellant being dissatisfied with his conviction and sentence on 28/4/2010 filed his notice of appeal with 8 grounds which are reproduced as follows. For reasons I will revert to later Ground 1 shall be with all particulars. It reads:
GROUND 1 The Learned Trial Judge erred in law by trying the appellant for Conspiracy and Armed Robbery contrary to S. 1(2) (a) of the Armed Robbery and Firearms (Special Provisions) Cap 48 Laws of Bendel State applicable to Delta State. Whereas there is no existing law known and called Armed Robbery and Firearms (Special Provisions) Cap 48 Laws of Bendel State 1976 applicable to Delta State by virtue of S.4(2)(3)(4). Second Schedule Part 1 item 2, Part 111 item 2(b), and S. 36(12) of the constitution of the Federal Republic of Nigeria 1999. This occasioned great in Justice to the appellant.
PARTICULARS OF ERROR
a. The information upon which the appellant was arraigned before the trial court contained three count charge of conspiracy. Armed Robbery of various personal articles and Opel vehicle Reg. No. BD BEN punishable under S. 1(2) of the Robbery and Firearms (Special Provisions) Law cap 48 Laws of the Defunct Bendel State of Nigeria 1976 as applicable to Delta State.
b. By virtue of S. 4(2)(3)4, and item No. 2 of part 1 of the second schedule, and item No. 2(a) of part 111 of the second schedule of the Nigerian constitution 1999, offences of Armed Robbery and Firearms are under exclusive list of legislation of National Assembly.
c. Armed Robbery and Firearms are not to be legislated upon by any State House of Assembly.
d. By provision of S. 36(12) of Nigeria Constitution a person shall not be convicted on a criminal offence under a State law unless that offence is defined and the penalty prescribed in the written law which refers to Acts of the National Assembly or a law of the State.
e. The appellant was arraigned, tried and convicted by Effurun High Court on non existent law of Delta State termed Armed Robbery and Firearms (Special Provisions) Cap 48 Laws of the Defunct Bendel State of Nigeria 1976 as applicable to Delta State.
f. The prosecution made no amendment whatsoever to the original information upon which the appellant was arraigned for trial to reflect the character of the Federal Offence which can be tried by a High Court of a State.
g. Decree No. 47 of 1970 covered the entire field and expressly repealed all pre-existing state laws on Armed Robbery and Firearms the subject hence as from 27 August, 1970, it was Decree No. 47 of 1970 that was the only existing law on Armed Robbery and Firearms.
h. The appellant during arraignment understood and pleaded not guilty that he was being charged and tried under armed Robbery and Firearms (Special Provisions) Cap 48 Law of Defunct Bendel state applicable to Delta state as a State law. He is expected to be sentenced on a Federal Law which he was not tried.
i. The National Assembly order Legislative powers vested in it in S. 4(1) of 1999 constitution of Federal Republic of Nigeria could not be deemed to be a law enacted by the House of Assembly of a State under the Legislative powers in its S. 4(5) of 1999 constitution.
GROUND 2
The learned Trial Judge erred in law when he held that
“The offence involved is armed robbery has been established” and went ahead to convict the appellant of receiving stolen robber goods under S. 5 Armed Robbery (Special Provisions) Law cap R11 Laws of the Federation 2004 when the prosecution did not prove all the three ingredients of armed robbery as required by Law, thus occasioning in Justice to the appellant.
GROUND 3
The learned trial Judge erred in law when he held “What was recovered from the accused and released on bond to PW2 is a Jeep No. BDE 878 BEN, which he believed without seeing some when the prosecution did not tender in the course of proceedings the said vehicle alleged to have been recovered from the appellant and the appellant insisted that vehicle Reg. No. BD 878 BEN was not recovered from him and that what he was charged of robbing was Vehicle Reg. No. BD 87 BEN none of the vehicle particulars involved was tendered in court”. This finding by the trial court is perverse and thus occasioned in Justice to the appellant.
GROUND 4
The Learned Trial Judge erred in law when he held that it was “immaterial that Nicholas Orerhime was not called” as a witness notwithstanding that Nicholas Orerhime was not only the person said to be driving vehicle No. BD 87 BEN that the appellant Robbed of him but he was the unmasked robber, therefore he is a marginal witness whose evidence could have swayed the issue of robbery of Opel Jeep No. BD 87 BEN Nicholas Orerhime was driving. The marginal witness not called occasioned miscarriage of Justice against the appellant.
GROUND 5
The learned trial Judge erred in law when he held that “The Evidence of the accused is that the car was not recovered from him. I wonder what he meant by that when he was amongst the three occupants of the car when the car was halted to a stop, probably because he was not the one sitting on the stirring driving as was the applet in Document’s (supra). Whether he was the one driving or just inside the recovered allegedly stolen vehicle is immaterial because there is no evidence that he was a mere innocent passenger. He knew the other occupant and gave evidence concerning them.” Notwithstanding the fact that the appellant gave detailed uncontroverted evidence of how he come about sitting at the back of the vehicle and that the possessor of the key of the vehicle stolen and its particulars of the vehicle was the possessor of the vehicle.
GROUND 6
The Learned Trial Judge erred in law when the appellant informed him that he made three statements one at Ughelli, one at Asaba and by the Delta Storm Police and that the one he made at Ughelli and Delta storm were made under duress, yet he did not order trial within trial to determine the issue of the voluntariness or otherwise of the statements nor were or otherwise of the statements nor were all the statements made by the appellant tendered during the trial and his failure to order trial within trial occasioned in Justice to the appellant.
GROUND 7
The Learned Trial Judge erred in law when in one breath he held “The accused did not lay claim to any Opel Jeep whether as used in the charge or was led in evidence by all the witnesses” and in another breath he held “In the case against the accused there is overwhelming evidence from the circumstance, the accused statement and the accused evidence that this accused had in his possession goods, 6 hours after it was stolen, he knew the people he received goods from”. This among evaluation of the evidence occasioned in Justice against the appellant.
GROUND 8
The Learned Trial Judge erred in law when he held “If a car was sold to him was discovered to be stolen car for which litigation is on vide Exhibit D and the same people offered him another, any reasonable person would know that the dealers are dealers on vehicle from illegal means” which conclusion is arrived on the basis of suspicion which occasioned in Justice to the appellant.
The back ground of the case briefly stated is as given by the appellant. The fact need be put extensively to be able to grasps the intricate position of the law involved and I will therefore quote in extenso from the brief of the Appellant I quote.
“By information trial, the appellant was charged for Conspiracy and Armed Robbery contrary to S. 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 48 Laws of the defunct Bendel State 1976 as applicable to Delta State – a non existent law at the time the offence was said to have been committed.
The application by the Honourable Attorney General Delta State for the information Charge to be approved, as the law required, was made on 18th June, 2007 and was approved by Hon. Justice E.U. Akporido of Effurun High Court. The charge marked Exhibit A was annexed to the said application.
On 3rd August, 2007, for inexplicable reasons the same Justice Akporido issued another order in which he decided on his own for the Attorney General of Delta State to prefer and file information charge based upon the proof of evidence filed in the High Court Registry Effurun for the appellant to be tried on a different law which the Attorney General did not file at the Effurun High Court – that is S. 1(2) a of the Armed Robbery and Firearms (Special Provisions) Act Cap 398 Vol. 22 (Laws of the Federation of Nigeria 1990) and which law was not displayed in the charge as per Exhibit A.
The appellant nevertheless took plea of not guilty based on Exhibit A filed by the Hon. Attorney General of Delta State as approved on same day i.e. 18th June, 2007 EHC/M/C/20C/2007.
Both the prosecution and the defence closed their cases on 7/4/09 and 9/6/07 respectively. The Defence counsel addressed the court on 30/6/07. Before the prosecution started its address, the Prosecuting counsel applied to amend the “Section under which the accused is charged” instead of amending the section as charged, the Prosecuting counsel amended the law that is “from cap 48 Laws of the defunct Bendel State 1976 as applicable to Delta state to read S. 1(2) (a) of the Robbery and Fire arms (special provision) Act Cap R 11 Vol. 14 Laws of the Federation 2004” as he put it leaving the Original Law “Robbery and Firearms (Special Provision of Bendel State 1976″ hanging unamended.
The prosecuting counsel also applied that the amendment is made to apply to the Laws as under counts 2 & 3 leaving the appellant to be tried in count 1 under non existent Robbery and Firearms (Special Provisions) Cap 48 Laws of the Defunct Bendel State 1976 as applicable to Delta State”. The court granted the amendments.
The accused took plea again in line with the amendment in count 2 & 3 and count 1 remained unamended as ordered by the court.
The prosecuting counsel then addressed the court thereafter and trial ended and date for judgment fixed.
There was no attempt to seek the leave of the court to seek the approval of the judge who granted the trial by information of these amendments that affected the jurisdiction of the trial court.
On the 16th February, 2010, the trial judge while delivering his judgment in the case repeated that the appellant faced a three count charge as contained in Exhibit A of approval to prefer information charge against the accused and not on the amended Law which were not authorized by Justice Akporido of Effurun High court when he granted the request of Hon. Attorney-General of Delta state to prefer information charge against the appellant.
The accused was discharged on all the three count charges of conspiracy and armed robbery but was convicted of lesser offence of possession of article robbery which carries a life imprisonment. It is for that reason that the appellant applied to this court to set aside the conviction and sentence of imprisonment for life for various reasons.
In the court of Appeal briefs were exchanged by parties therefore when the Case came up for hearing on 30/5/2011 Mr. Nweajagu learned counsel to the Appellant adopted and relied on the appellant’s brief dated and filed on 24/6/2010 and the Reply brief dated and filed on 8/2/2011. He relied on the two Briefs and urged the court to allow the appeal.
The Respondent’s counsel not present in court. His brief is deemed properly filed and served on 8/2/2011. He is deemed to have argued the appeal on its merit.
The appellant distilled 4 issues for determination thus I quote
ISSUE FOR DETERMINATION
1. CONSIDERING THE FACT THAT THERE IS NO LAW KNOWN AS ROBBERY AND FIREARMS (SPECIAL PROVISIONS) CAP 48 LAWS OF DEFUNCT BENDEL STATE 1976 AS APPLICABLE TO DELTA STATE AND NOTWITHSTANDING THE PURPORTED AMENDMENT OF THE SECTION UNDER WHICH THE APPELLANT WAS CHARGED BY THE STATE COUNSEL, WHETHER THE TRIAL AND CONVICTION OF THE APPELLANT WAS NOT A NULLITY. (GROUND 1).
2. WHETHER FROM THE NATURE OF THE CHARGES AND THE TOTALITY OF THE EVIDENCE ADDUCED AT THE TRIAL, THE PROSECUTION HAD PROVED THE INGREDIENTS OF OFFENCE OF ROBBERY UNDER THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) CAP RULE 11 LAWS OF FEDERATION OF NIGERIA 2004? (GROUND 2, 3 & 4)
3. FROM THE TOTALITY OF EVIDENCE WHETHER THE TRIAL COURT WAS NOT IN ERROR IN HOLDING THAT THE PRESUMPTION OF RECENT POSSESSION UNDER S. 149 (a) OF THE EVIDENCE ACT APPLIED IN THIS CASE AGAINST THE APPELLANT? (GROUNDS 5, 7 & 8).
4. WHETHER MISCARRIAGE OF JUSTICE HAS BEEN OCCASIONED TO THE APPELLANT BY THE MISDIRECTION CONTAINED ON THE JUDGMENT OF THE TRIAL JUDGE WHEN HE SIAD “IF THE CAR THAT WAS SOLD TO HIM WAS DISCOVERED TO BE STOLEN CAR FOR WHICH LITIGATION IS ON VIDE EXHIBIT D AND THE SAME PEOPLE OFFERED HIM ANOTHER, ANY REASONABLE PERSON WOULD KNOW THAT THE DEALERS ARE DEALERS IN VEHICLE FROM ILLEGAL MEANS”
In his argument on issue one based on what I refer to as the competence of the trial judge in trying the case I also take this issues to mean that the trial court lacks jurisdiction to try the matter in view of the complaint of the appellant on ground one. Again I will like to state the submission of the learned counsel to the appellant in his own style and words.
“ISSUE 1
Considering the fact that there is no law known as Robbery and Firearms (Special Provisions) Cap 48 Laws of Defunct Bendel State 1976 as applicable to Delta State and notwithstanding the purported amendment of the Section under which the appellant was charged by the state counsel, whether the trial and conviction of the appellant was not a nullity. (Ground 1).
1.1 Submit: It is a cardinal principle of our concept to Criminality and which is provided by our constitution, that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore prescribed in a written law – S. 36(12) of the 1999 Constitution. In this subsection, a written Law refers to an act of the National assembly or a Law of a State, any subsidiary legislation or instrument under the provision of a law. This is the hallowed and sacred principle of legality.
This means that if a law of a state is defunct, that law is dead and no person shall be convicted under such non existent law and any trial and conviction of such a person under such law is a nullity. Further more it is trite that where there is noncompliance with a stipulated pre-condition for the commencement of an action or for setting a legal process in motion as in the instant case, any suit or action instituted in contravention of such a provision of the relevant law or statute is regarded as incompetent and as such the court in which the action is instituted or sought to be instituted lacks the jurisdictional power to entertain the suit or action.
Submit: The Robbery and Firearms (special provisions) Decree No. 47, 1970 which came into force on the 27th August, 1970 applied throughout the country by S. 1 of the Decree No. 1 1966 and the Decree itself. The Decree No. 47 of 1970 having been promulgated covered the entire field and expressly repealed all the pre-existing laws of the subject throughout the Federation. Hence as from 27th August, 1970, it was only law applicable with respect to offences of Armed Robbery in Nigeria.
1.2 Submit: The Robbery and Firearms (Special provisions). Decree No. 47 of 1970 was abrogated when Robbery and Firearms (Special Provisions) Act CAP 399 OF No. 5 1984 was enacted which later became by amendment Robbery and Firearms (Special Provisions) Act No. 28 1986 which became Robbery and Firearms (Special provisions) cap R 11 vol. 14 Laws of the Federation 2004 which is the current law that is applicable throughout the Federation of Nigeria. This offence under which the appellant was charged, convicted and sentenced was committed on 8th December, 2006.
1.3 Submit further: The prosecution chose among other methods to commence criminal trial of the appellant in the High Court of Effurun in Delta State by the Attorney General Delta State filing information pursuant to S. 340(a)(6) of the criminal procedure Law Cap 49 vol. 11, Laws of Bendel State 1976 applicable to Delta State. S. 340 of the Criminal Procedure Law provided among other things that no person shall be tried by High Court unless a charge is preferred against him without the holding of a preliminary inquiry, by leave of Judge of the High Court. An application for such leave is made pursuant to S. 340 (a) & (b) of the Criminal Procedure Law. The application must be accompanied by
a. a copy of charge sought to be preferred
b. The names of witness who shall give evidence at the trial.
c. Proof of evidence (Written Statements) which shall be relied upon at the trial. The applicant must also inform the court that no application for such leave has been previously in the case and no preliminary inquiry is being conducted in the matter by any Magistrate court.
By virtue of these said rules, the learned trial judge had the discretion to grant or refuse the application.
See the case of Ohwovoriole V. FRN (2003) 2 NWLR (PT. 803) P. 183 Para F-H Ratio 1.
1.4 Submit: S. 340(a) & (b) of the criminal procedure Law of the Defunct Bendel State applicable to Delta State never made provision for the judge before whom the application is placed to on his own draft charges or decide to change the law under which the person is charged by the Attorney General of the State or to insert any Law he feels is more appropriate without the attorney General making such an application. That section did not provide that a Law officer should prefer his own charge and did not Provide that the Law officer should confirm that no Charge has be preferred before.
In Tanko v. The State (2009) 4 NWLR (1131) p 457 Para H, the Supreme Court re-emphasised the age long principle of Law that “where a statue provides for a particular method for performing a duty regulated by the statue, that method, and no other must have to be adopted”. This was not the case in this trial where the S. 430 (a) & (b) were breached by the trial judge fixing the law under which the appellant will be charged and not seeking fresh leave when the law was amended and others and the state counsel making amendments contrary to the provisions of S. 340 (a) & (b) of Criminal Procedure Law.
1.4 In the light of the above provisions of the law let us in instant case state chronogically what happened in the filing of information Charge by the Attorney-General of Delta State and the purported amendments at the address the appellant.
i. In an application dated 1st June, 2007 to Hon. Judge of Effurun High court Division, the Hon. Attorney General Delta State sought and obtained leave to file Information charge against the appellant for the offences of conspiracy to commit armed Robbery and Armed Robbery punishable under S. 1 (2) (a) of Robbery and Firearms (Special provisions) cap 48 laws of the defunct Bendel State of Nigeria applicable to Delta State. The Attorney-General attached to the application (which was granted same day) a copy of Information Charge which the Attorney-General marked Exhibit A page 2 and 3 of the Record of Appeal.
ii. In consenting to the application of the Attorney-General Delta State, the Honourable Justice approved same thus “I have considered the documents in this file and I am satisfied that consent ought to be granted, consent is hereby granted to the Attorney-General to file information against the accused person in this case” He signed and sealed the order. That was on 18th June, 2007.
The appellant argued vehemently on this issue. Since I said this issue i.e. germane as it is on competence of the trial Judge to try the appellant any decision in favour will end the appeal. The Respondent in his brief has this say I quote.
It is submitted that the accused/Appellant in this case was charged for a known offence under an existing law. The Robbery and Firearms (Special Provisions) Act Cap R 11 of the Federation of Nigeria, 2004 is an existing Law. The fact of this case and the amendment made by the Prosecuting counsel is a clear indication that the Appellant was charged under this law.
There is evidence from the Records of Appeal at Page 58 that there was an amendment of the charge before court. See generally page 53 lines 10 – 23 of the records of appeal. That the amendment is clear from the order of court at page 53 lines 17 – 19. I will reproduce same for emphasis:
“Order the relevant section as endorsed in the Proceeding lines are ordered amended as prayed. Charge is to be read afresh to the accused.”
It is clear from the Records of appeal that the Accused was charged in count 2 and 3 under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R 11 volume 14 Laws of the Federation of Nigeria, 2004, an existing law.
The Respondent on this issue seems not to grasps the seriousness of the appellant’s submission. This trial was initiated by the application at page 6 of the record of Proceedings the opening paragraph reads as follows I quote:
Ref. No. DTMJ3/6/3455/9
Ministry of Justice,
(Public Prosecutions Department),
Asaba.
Delta State.
Date: 18th June, 2007
EHC/M/C/20C/2007
The Honourable Judge,
Judge’s Chambers,
High Court of Justice,
Effurun.
APPLICATION UNDER SECTION 340(2) (B) OF THE CRIMINAL PROCEDURE LAW CAP. 49 VOLUME II. APPLICABLE IN DELTA STATE AND THE INDICTMENT PROCEDURE RULES (ENGLISH) 1971
IN THE MATTER OF:
THE STATE
VERSUS
PRINCE JOSHUA PAULSON
The Attorney-General of Delta State proposes to file information against the above named accused person(s) for the offence(s) of conspiracy to commit armed Robbery and armed Robbery punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Law Cap. 48 Laws of the defunct Bendel state of Nigeria 1976 as applicable to Delta State. (Underlined mine).
The information attached reads and I quote again:
IN THE HIGH COURT OF JUSTICE, DELTA STATE OF NIGERIA IN THE EFFURUN JUDICIAL DIVISION HOLDEN AT EFFURUN
EHC/M/C/20C/2007
THE STATE
VERSUS
PRINCE JOSHUA PAULSON
THE ….DAY OF … 2007
At the session holden at Effurun on the … day of … 2007, the Court is informed by the Attorney-General of Delta State on behalf of the State PRINCE JOSHUA PAULSON is charged with the following offences:
STATEMENT OF OFFENCE: COUNT 1
Conspiracy to commit Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap 48 Laws of the defunct Bendel State 1976 as applicable to Delta State. (Underlined mine).
PARTICULARS OF OFFENCE
PRINCE JOSHUA PAULSON and others now at large on or about the 8th day of December, 2006 at Refinery junction along Sapele/Warri road Effurun within the Effurun Judicial Division conspired to commit armed Robbery.
STATEMENT OF OFFENCE COUNT II
Armed Robbery, punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Law Cap. 48 Laws of the defunct Bendel State 1976 as applicable to Delta State. (Underlined mine).
PARTICULARS OF OFFENCE
PRINCE JOSHUA PAULSON (M) and others now at large on or about 8th day of December, 2006 at Refinery Junction along Sapele/Warri Road, Effurun, within the Effurun Judicial Division robbed one Rev. Father Ezekiel Awone of his priest vestment, Mass box, Nokia handset, shoes and unestimated amount of money while armed with a gun.
STATEMENT OF OFFENCE: COUNT III
Armed Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Law Cap. 48 Laws of the Bendel State of Nigeria 1976 as applicable to Delta State. (Underlined mine).
PARTICULARS OF OFFENCE
PRINCE JOSHUA PAULSON and others now at large on or about the 8th day of December, 2006 at Refinery Junction along Sapele/Warri Road, Effurun within the Effurun Judicial Division robbed one Nicholas Orerhime (m), one Opel Jeep with Reg. No. BD 87 BEN property of Rev. father Thaddeus Okpodu (m) and one Sunny Erickson handset while armed with a gun.
A.P. Popo,
For: Hon. Attorney-General,
Delta State.
For inexplicable reasons and without further application to change the law under which the appellant was charged or a new charge substituted other than charge No. EHC/M/C/20C/2007 OF 18/6/2007 the Hon. Judge Akporido J. gave another consent order on Page 39 of the Records part of which now reads-
“IN THE HIGH COURT OF JUSTICE DELTA STATE OF NIGERIA IN THE EFFURUN JUDICIAL DIVISION HOLDEN AT EFFURUN
Charge No. EHC/M/C/20c/2007.
Between:
The State
V.
Prince Joshua Paulson
Complainant
Accused person
Consent Order
UPON the consideration of the application of the Attorney-General of Delta State of Nigeria, Ministry of Justice, Asaba, dated, 18th day of June, 2007, for consent of this Honourable Court to prefer a charge against the above-named accused person for the offence of Armed Robbery, punishable under Section (1) (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Vol. 22 (Laws of the Federation of Nigeria, 1990.
I, Honourable Justice E.U. Akporido, Judge of High Court of Justice, Effurun, in the Effurrun Judicial Division, holden at Effurun, do hereby give consent for the attorney-General of Delta State to prefer and file information based upon the proofs of evidence filed in the High Court Registry, Effurun, against the above-named accused person.
Signed and sealed at the High court Registry, Effurun, this 3rd day of August, 2007.
(Hon. Justice E.U. Akporido)
Judge
“By this act the said Judge without any application from the Attorney-General the only competent authority to institute criminal proceedings against any one usurped that power and attempted to institute a criminal charge.
“See: NYAME V. FRN (2010) Vol. 185 LRCN 90 at 121 PZ.
The constitution of the Federal Republic of Nigeria 1999 as amended empowers the Attorney-General of a State to institute and undertake Criminal Proceedings against any person before any court of law in Nigeria in Respect of any offence created by law or under any Act of the National Assembly.
See: Section 174 and 211 of the 1999 constitution as amended. See FRN V. ADEWUNMI (2007) to NWLR (pt 1042) 399 SC. ATTAH V. COP (2003), 17 NWLR (pt. 849) 250.
Thus the power to institute Criminal Proceedings against any person under the Constitution is on the Attorney-General of a State or the Federation. Hence an officer under them is highly qualified to institute criminal proceedings.
See: FRN V. ADEWUNMI Supra A.G. KADUNA STATE V. HASSAN (1985) 2 NWLR (Pt. 8) 483 SC.
The said Judge is neither the Attorney-General nor an officer under him. As if that blunder was not enough pleas was taken by the appellant on the 6th November, 2007 based on Exhibit a (Page 2 & 3 of the records) with Hon. Justice E.U. Akporido presiding.
On 1st July, 2007, a new Judge, Justice F.G. Ahperi took over the trial of the appellant. Although trial started de novo because he took over, no plea was taken but on that day PW1 was put in the witness box and trial commenced in earnest. On this date the appellant was not sure on which law he is being tried in this case which fact occasioned great in Justice to the appellant.
The trial of the appellant continued in a situation of unresolved law until the prosecution and defence closed their cases. The defence addressed the court on June 2009 and ended same day.
On 14th July, 2009 before the state counsel prosecuting started his address, he applied to amend the section under which the accused was charged as he put it “from Cap 48 Laws of the Defunct Bendel State 1976 as applicable to Delta State to read S. 1 (2)(a) of the Robbery and firearms (Special provision) Act cap R11 Laws of Federation 2004” and added “this amendment is made to apply to the law as under count 2 & 3.
The amended charge was never written down as such but what was written down was “Order; the relevant section as endorsed in the proceedings lines are ordered amended as prayed”. Regrettably there is nowhere in the record of the appeal where this purported endorsement was made and signed by the state Counsel or the law officer as the prosecutor thus breaching S. 164(4) of the Criminal Procedure Law, which occasioned great in Justice to the appellant in the whole trial?
The charge/information on which the Judgment was made is at Page 64
It reads:
SUIT NO. EHC/240/07
BETWEEN:
THE STATE
V.
PRINCE JOSHUA PAULSON
JUDGMENT
The accused faces a three count charge as follows
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit Armed Robbery contrary to Section 1 (2)(a) of the
Robbery and Firearms (Special Provisions) Act Cap. 48 Laws of the Defunct
Bendel State 1976 as applicable to Delta State. (Underlined mine).
PARTICULARS OF OFFENCE
PRINCE JOSHUA PAULSON and others now at large on or about the 8th day of December, 2006 at refinery Junction along Sapele/Warri road, Effurun within the Effurun Judicial Division conspired to commit Armed Robbery.
STATEMENT OF OFFENCE: COUNT II
Armed Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Law Cap. 48 Laws of the defunct Bendel State 1976 as applicable to Delta State. (Underlined mine).
PARTICULARS OF OFFENCE
PRINCE JOSHUA PAULSON (M and others now at large on or about the 8th day of December, 2006 at Refinery Junction along Sapele/Warri Road, Effurun, within the Effurun Judicial division robbed one Rev. Ezekiel awone of his priest vestment, Mass box, Nokia 2610, shoes and unestimated amount of money while armed with gun.
STATEMENT OF OFFENCE: COUNT III
Armed Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Laws Cap. 48 Laws of the Defunct Bendel State of Nigeria 1976 as applicable to Delta State. (Underlined mine).
PARTICALARS OF OFFENCE
PRINCE JOSHUA PAULSON and others now at large on or about the 8th day of December, 2006 at Refinery Junction along Sapele/Warri Road, Effurun within the Effurun Judicial Division robbed one Nicholas Orerhime (m), one Opel Jeep with Reg. No. BD87BEN property of Rev. father Thaddeus Okpodu (m) and one Sunny Erickson handset while armed with a gun”.
S. 2 of the Cap 48 Laws of the Defunct Bendel State of Nigeria 1976 as applicable to Delta State under which the appellant was charged, tried and Judgment given without any amendment on the information or ‘record’.
Reads as follows:
“Definition of offence “Any act or omission which renders the person doing the act or making the omission liable to punishment under the code or under any order in Council, Act or Law, Decree, Edict or Statue is called an offence”.
An act or omission is not a crime unless its definitions and punishment for it are contained in a written law. See: ALAO AOKO V. FAGBEMI 1961 1 AU NLR PAGE 400.
It should be noted in this one that while by provision of the Criminal Procedure Act any court may alter or add to any charge at any time before Judgment is given and every such alteration on charge shall be read and explained to the accused. By the same procedure if a new charge is formed or alteration made, the requirement for a valid arraignment must be complied with.
See: ATTAH V. THE STATE (1993) 7 NWLR (PT. 305) 257
In the instant case there is no valid amendment till Judgment was given.
The provisions of Section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria 1999 which stipulate that
“S. 36(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence”.
“S. 36(12) Subject to or otherwise provided by the constitution a person shall not be convicted of a criminal offence whereas that offence is defined and the Penalty therefore is prescribed in a written law and in this subsection a written law refers to an act of the National Assembly or a law of a State”.
These Section have been given judicial interpretation in AOKO V. FAGBEMI Supra.
OGBONOR V. THE STATE (1985) 1 NWLR (Pt. 2) 223 AT 233. FRN V. IFEGWU (2003) 5 SCNJ 217 AT 242 LINES 15 – 25. ASEKE V. NIGERIA ARMY CONCIL (2007) ALL FWLR (Pt.396) 737 PARA C.
The Respondent to my mind had no answer to this issue seriously raised by the appellant. It has been decided in the following circumstances that a trial will be a nullity
(1) where charge itself is incurably defective such as was the case in the instant case and as in OKORO V. THE STATE (1953) 14 WACA 370.
(2) where arraignment is irregular, null and void as in the instant case and in KAJUBO V. THE STATE NWLR (PT. 73) 721 and
(3) where trial Judge has no jurisdiction to try the case See: R V. SHODIPO 12 WACA 374. ORUCHE V. COP (1963) 1 ALL NLR 262.
I adopt the view of the learned Justice of the Supreme Court FABIYI JSC in the case of SHEHU V. THE STATE (2010) 2 – 3 SC PT. 1. 158 AT 190 LINES 4 – 6 when he said a charge should not be framed in such a manner which depicts that “a trap is set to catch the accused person”.
The trial of the appellant is flawed with serious irregularity, a breach of his constitutional right, incurable procedural errors and therefore a nullity. Other issues raised are of no moment. The appeal succeeds and the Judgment of the learned Judge is declared a nullity the conviction and sentence of the appellant is set aside. The information as laid is dismissed the appellant having gone through the trial and has been in custody since his arrest on 14/12/2006 till date. I am of the opinion that the rigours of trial and custody must have taught a lesson. I therefore do not order a retrial.
AMIRU SANUSI, J.C.A.: I have perused before now the judgment delivered by my learned brother Shoremi, JCA. I note that all the salient issues canvassed by parties learned counsel in the appeal were duly and ably addressed by my learned brother. As comprehensive and convincing as the reasons and conclusion arrived at are, I do not find any need to add any thing except to adopt them as mine. The appeal is therefore also allowed by me. I abide by the orders made in the lead judgment including the consequential ones.
CHIOMA EGONDU NWOSU-IHEME, (Ph.D) J.CA.: I have had a preview of the Judgment just delivered by my learned brother, GEORGE SHOREMI JCA.
For the reasons given and the conclusion reached in the lead Judgment, which I adopt as mine, I also find this appeal meritorious. The appeal succeeds and the Judgment of the lower court declared a nullity. The conviction and sentence of the Appellant is set aside. I also do not order a retrial.
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Appearances
MR. N. EPELLE with Mr. E.O. Onyeama – for the 1st Appellant.For Appellant
AND
Mr. E. Nwagwu with Mr. A.I. Nwachukwu – for the 1st Respondent
Mrs. B.I. Amadi with Mrs. O.C. Nwugo for the 3rd to 5th Respondents.For Respondent
