LEKAN v. STATE (2020)

LEKAN v. STATE

(2020)LCN/14172(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/IB/360C/2016

Before Our Lordships:

Helen Moronkeji Ogunwumi juJustice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

AKOSILE LEKAN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE NON-AFFIXING OF THE STAMP OF A LEGAL PRACTITIONER TO ANY LEGAL DOCUMENT MAKES THE DOCUMENT ILLEGAL OR INCOMPETENT

There must be a connection between the stamp and the signature. The Supreme Court in Tanimu vs. Rabiu (2018) 4 NWLR (Pt. 1610) 505 made this point clearly in these words:
“Keeping with the effort to weed out impostors and charlatans in the legal profession, the provision of Rule 10(1) (2) and of the Rules of Professional Conduct in the Legal Profession 2007 is directed at the legal practitioner to provide evidence of his qualification to practice law in Nigeria, in addition to his name being on the roll at the Supreme Court of Nigeria. It saves the time that would have been expended in conducting a search at the Supreme Court to determine whether the legal practitioner is so qualified. It is therefore a means of authenticating the claim of the signatory of a legal document to being a legal practitioner whose name is on the roll. In effect, the mere presence of the stamp and seal of the Nigeria Bar Association on a document without linking it to the signature endorsed thereon is not sufficient proof that the stamp and seal belongs to the person who signed the document, or conversely that the signature that appears on the document belongs to the person whose stamp and seal is affixed thereto.”
The general position of the law is that the non-affixing of the stamp to any legal document does not necessarily make the document illegal or incompetent but rather the documents become voidable meaning it is an irregularity which can be corrected subsequently in the proceedings. In Wike Ezenwo Nyesom vs. Hon. (Dr) Dakuku Peterside (2016) 7 NWLR (Pt. 1512) 452, the apex Court referring to Gen. Bello Sakin Yaki vs. Senator Abubakar Atiku Bagudu (supra), a case referred to by the Appellant held that failure to affix approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. This Court per Sankey, JCA exhaustively addressed this in Abba vs. Yusuf & Ors (2015) LPELR-42414 (CA) while explaining the effect of failure to attach a lawyer’s stamp to a process. In the said judgment, my lord made reference to the position of the various Justices of the Supreme Court on the effect of a legal document presented by a lawyer for filing without affixing his stamp. The effect is that such a document is voidable. Though a long quote it will be worth the while since the position of various Justices on the subject matter was stated therein. Let us go.
“Rule 10 of the Rules of Professional Conduct for Legal Practitioners (supra) provides as follows: “Rule 10: (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. (2) For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any other similar documents. (3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in Sub-rule 2 of this Rule, and in any of the capacities mentioned in Sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.” PER TOBI, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON IS UNDER OBLIGATION TO RAISE OBJECTION TO ANY DEFECT TO A CHARGE

Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea, Ogunye v The State [1999] 5 FWLR (pt.604) 545; Adeniji v The State[2001] 13 NWLR (pt.730) 375; Okeke v The State (2003) 5 SCM 131, 185-186; Solola and Anor v The State (2005) 6 SCM 137, 147; Okewu v FRN(2012) 1 NWLR (pt 1305) 327, 369. Where he fails to do so, he is presumed to have understood the charge preferred against him, Ogunye v The State (supra); Adeniji v The State (supra); Okeke v The State (supra); Solola and Anor v The State (supra); Okewu v FRN (supra). PER TOBI, J.C.A.

WHEN IS AN OBJECTION TO A CHARGE TO BE RAISED BY THE ACCUSED PERSON

The law is quite clear that objection to the charge must be taken before or at the time plea is to be taken, and not thereafter. See Section 167 of the Criminal Procedure Act, Cap 43. This Court, in Adio v. The State (1986) 3 NWLR (PT. 31) 714, also reported in (1986) LPELR – 184 (SC) at pages 27 – 28 paragraphs G – D held as follows: “The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise the objection is taken as having been waived – (See S. 167 Criminal Procedure Act, Cap 43). PER TOBI, J.C.A.

DEFINITION OF MISCARRAGE OF JUSTICE

In Gbadamosi v. Dairo (2007) LPELR – 1315 (SC) at pp.23 23 – 24 paras G -8, this Court defines miscarriage of justice as follows: “Miscarriage of Justice connotes decision or outcome of legal proceeding that is prejudiced or inconsistent with the substantial rights of the party. Miscarriage of Justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the injustice has been miscarried.” As was rightly held by the Court below, the appellant herein has failed to show how he was cheated in the proceedings. The Appellant had a duty to show how the charge signed by a person who did not file the application to file the information has affected him. He had the onerous duty to show that had the charge been signed by the particular person who filed the application, the result would have been different. This he failed to do. Let me make one last sentence in respect of this issue before I end it. There is no doubt that issue of jurisdiction is a threshold issue. It is so fundamental that the absence of it would rob the Court of the power to hear and determine a matter. It can be raised at the trial Court, Court of Appeal or even in this Court for the first time. See Elelu – Habeeb v. Attorney General of Federation v. Ors (2012) 13 NWLR (pt.1318) 423; Madukolu v. Nkemdilim (1962) 2 SC NLR, 341, Odofin v. Agu (1992) 3 NWLR (pt.329) 350. PER TOBI, J.C.A.

BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

The burden of proof in criminal cases is on the prosecution and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369; Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457; Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254. Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would have been said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC). PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Hon. Justice Bayo A. Taiwo of the High Court of Oyo State sitting in Ibadan delivered on 16/5/2016 in Charge No. I/80C/2015 – The State vs. Akosile Lekan wherein the Appellant was arraigned on a one-count charge for manslaughter and was eventually convicted for Manslaughter and sentenced to 4 years imprisonment. The facts of the case before the lower Court is that the Appellant together with the deceased person were neighborhood security men employed by the landlord’s association of Gbekuba, Ibadan, Oyo State. On 20/11/2014, the Appellant was found to have killed the deceased while they were at their duty post. The Appellant shot the deceased with the single barrel gun which was in his custody in the course of his employment and the deceased died on the spot; though the Appellant claimed it was accidental. He was then arrested and charged to Court. The Appellant was initially arraigned on a charge of murder but subsequently, the charge was amended and was substituted for that of manslaughter. The operative charge before the lower Court was

Manslaughter contrary to Section 217 and punishable under Section 325 of the Criminal Code Law of Oyo State 2000, Cap 38 Vol. II (page 17 of the records). The lower Court after evidence and address of counsel proceeded to deliver its judgment found on pages 55 – 72 of the record of appeal while finding the Appellant guilty for Manslaughter and sentenced him to 4 years imprisonment from 22/11/2014. The lower Court on pages 71-72 of the records (pages 17-18 of the judgment) held thus:
“There was no doubt that the accused person has shown that the act of shooting of the deceased was accidental.
-The accused person has also shown that there was no criminal intention when the deceased was shot
-The accused person also had shown that the shooting occurred during his legitimate job as security guard and which to me is a lawful act.
The accused person while testifying as DW1 told the Court that –
“we are normally given 3 bullets, we load one and keep 2…”
From the above, no doubt the accused person was aware that the gun was loaded on the day the incident occurred.
A loaded gun ought to be

treated with proper care and caution because of the danger it possess if it is shot as a life lost can never be recovered.
That takes me to the issue of proper care and caution.
The accused person told the Court that he tried to pick the gun when a motorcyclist was approaching the gate.
If proper care had been taken to treat the loaded gun with extra care the deceased would not have lost his life in the unfortunate way it occurred.
In view of the above, I hereby found the accused person guilty of manslaughter
… I hereby sentence the accused person to 4 (Four years) imprisonment with effect from 22nd November, 2014, the day he was arrested.”

The basis of the conviction by the lower Court is that the Appellant was negligent in the handling of the gun and therefore since death had resulted from that negligent act, then the Appellant was convicted for Manslaughter. Appellant dissatisfied with his conviction has approached this Court vide a notice of appeal dated 1/7/2016 but filed on 25/7/2016 found on pages 73-79 of the record of appeal containing 6 grounds of appeal. The grounds of appeal are as follows:
Ground A:

The learned trial Judge erred in law when he countenanced and tried the Accused/Appellant on a Charge not in compliance with Rule 10(1) of the Rules of Professional Conduct, 2007, same having been signed by one person and sealed by another counsel.
Ground B:
The learned trial Judge erred in law when he held that the fact that trial in a criminal matter such as this, is to the hearing of the Accused person supersedes the objection such as raised by the Appellant to the non-fixing of the practice stamp of the alleged legal practitioner that signed the charge.
Ground C:
The learned trial Judge misdirected himself when he convicted the Appellant in spite of his Lordship’s findings that the Appellant had no criminal intention when the gun fell down from his hand and killed the deceased.
Ground D:
The learned trial Judge erred in law when he found as a fact that the shooting of the deceased was accidental and went ahead at the same time to hold and convict the Appellant for being negligent in exercising proper care and caution with the loaded gun which resulted in its firing.
Ground E:
The learned trial Judge erred

in law when he failed to resolve all reasonable doubts in favour of the Appellant and to therefore discharge and acquit him of the offence of murder or manslaughter.
Ground F:
The learned trial Judge erred in law when he held that the fact that trial in a criminal matter such as this, is to the hearing of the Accused person supersedes the objection such as raised by the Appellant, to the non-affixing of the practice stamp of the alleged legal practitioner that signed the Charge.

The Appellant brief dated 22/11/2018 but filed 12/12/2018 was settled by Adewale Adegoke Esq. In its brief, counsel raised two issues for determination.
1. Whether the Charge on which the Appellant was tried and convicted not having been affixed with the Nigerian Bar Association issued practice stamp of the officer who signed it, was not defective as to render it incompetent and rob the Court of jurisdiction.
2. Whether having found that the Appellant has shown that the act of shooting the deceased was accidental and without any criminal intent, the learned trial Judge was not in error when he held the Appellant negligent in the handling of the gun that killed

the deceased instead of resolving all reasonable doubts in favour of the Appellant as to entitle the Appellant to a discharge and an acquittal for the offence of manslaughter for which he was charged.

On issue 1, it is the contention of the Appellant counsel that while it is not in dispute that under Section 211(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), an officer in the office of the Attorney General of Oyo State could exercise the power of instituting criminal proceedings against any person before any Court of law in Nigeria, such delegated officer must be one that meets all professional requirements for acting as such officer. It is submitted by counsel that there is no indication that Yewande Oyediran (Mrs) who signed the Charge in this matter is such an officer in the office of the Attorney General of Oyo State as her stamp was not affixed to the charge, instead, the stamp affixed to the charge belonged to one Abdul Ganiyu Muhammed, thus, contravening Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007. It is the further contention of counsel that although objection was raised to the Charge at the

trial Court and argument canvassed in the final address on the failure of Yewande Oyediran (Mrs) to affix her stamp to the Charge under reference, at no time was this regularized until judgment was delivered. Counsel also contends that despite his arguments at the lower Court, his lordship countenanced the Charge all the same on the simple reason that the matter before him was a criminal one. It is the submission of counsel thatRule 10(1), (2), and (3) of the Legal Practitioners Rules of Professional Conduct, 2007did not make any distinction between processes filed in criminal charges and those in civil suits. On the effect of failure to attach a stamp to a process, learned counsel cited Yaki vs. Bagudu (2015) 18 NWLR (Pt. 1491) 288; Hon. Segun Adewale vs. Hon. Solomon Olamilekan Adeola (2015) LPELR-25972.

He, therefore, urged this Court to hold that the charge is incompetent and therefore issue 1 should be resolved in favour of the Appellant.

On issue two, it is the position of counsel that the prosecution must prove its case beyond reasonable doubt and that any doubt raised in the course of trial must be resolved in favour of the accused

person, the Appellant. It is the contention of learned counsel that of all the six witnesses called by the prosecution, none of them were eyewitnesses to the alleged shooting of the deceased by the Appellant and as such none of them could testify as to the circumstances under which the shooting took place. It was the assertion of Appellant counsel that the trial Court apparently believed the evidence of the Appellant especially that the act of shooting the deceased was not intentional but rather accidental. He made reference to lines 1-4 of page 71 of the record of appeal. It is the firm and emphatic submission of counsel that based on that finding the lower Court should have not found the Appellant guilty for Manslaughter by upholding the defence of accident. Counsel relied on Maigari vs. State (2010) 16 NWLR (Pt. 1220)( 439 at 479; Okeke vs. State (1999) 2 NWLR (Pt. 590) 246; Oguonzee vs. State (1998) 5 NWLR (Pt. 551) 521 and Section 24 of the Criminal Code of Oyo State. It is the submission of learned counsel that nowhere throughout the trial did the prosecution discharged the burden on the defence of accident raised by the Appellant. Learned counsel

finally urged this Court to hold that having found that the defence of accident was successfully made out by the Appellant, the trial Court ought to have discharged and acquitted him. Issue 2 counsel submitted must be resolved in favour of the Appellant.

In conclusion, learned counsel urged this Court to allow the appeal, set aside the conviction and sentencing of the Appellant as contained in the judgment on appeal and discharge and acquit the Appellant.

The Respondent brief filed 25/2/2020 deemed on 29/4/2020 was settled by H.M. Awosemusi (Mrs.), Assistant Director in the Ministry of Justice in Oyo State. Counsel raised three issues for determination from the 6 grounds of appeal as follows:
1. Whether affixing the Nigerian Bar Association Stamp of another officer other than the officer who signed the charge upon which the Appellant was convicted, invalidates the charge and or the proceedings.
2. Whether defence of accident is available to the Appellant in the face of his gross negligence in handling the gun in his possession.
3. Whether the trial Court was right in holding that the Respondent proved its case against the Appellant

beyond reasonable doubt.

On issue one, it is the submission of the Learned Assistant Director that in relation to the argument of Appellant counsel on the purport of Rule 10(1), (2) and (3) of the Legal Practitioners Rules of Professional Conduct, 2007, Yewande Oyediran (Mrs) who signed the charge as Principal State Counsel of the Oyo State Ministry of Justice acted for the then Director of Public Prosecutions, AbdulGaniyu Muhammad Tajudeen, whose stamp was affixed to the charge. It is the further submission of counsel that the Courts have taken judicial notice of the fact that whoever signs the charge on behalf of the Attorney General is a qualified legal practitioner and an officer of the Attorney General or a private legal practitioner who has secured a fiat from the Attorney General to so do. Counsel relied on MPPP vs. INEC & Ors (2015) 10 SCM 89 @ 96 in arguing that the Appellant submission that failure to affix her Nigerian Bar Association duly issued stamp throughout the proceedings invalidates the charge is not a proper representation of the law. Counsel further relied on Section 167 of the Criminal Procedure Law, Cap 39, Vol. II Laws of Oyo State 2000;

Osareren vs. FRN (2018) 7 SCM 133 at 149 and Section 169 of the Evidence Act, 2011 in submitting that equity restrains a party from insisting on a right he has waived; as the Counsel to the Appellant did not raise any objection at the time of the Appellant’s arraignment only for him to raise it at the address stage.

It is the argument of learned counsel that the argument of Appellant counsel borders on technicality which the Courts have frown against and emphatically stated cannot override substantial justice placing reliance on Lawan Abdullahi Buba Wassah & Ors vs. Tukshahe Kara & Ors (2014) 12 SCM 258 @ 271; Wike Ezenwo Nyesom vs. Hon. (Dr.) Dakuku Adol Peterside & Ors (2016) 5 SCM 81 @ 111-112; Egbele Austin Eromosele vs. Federal Republic of Nigeria (2018) 4 SCM @ 49-50.

On issue two, it is the position of counsel that a man is presumed to intend the natural consequences of his act and when an event is said to have occurred by accident it is implied that it was totally unexpected by the doer of the act and it was not reasonable expected by an ordinary person and that the act was done in the course of doing a lawful

act in a lawful manner and with proper care and caution citing Olusegun vs. The State (2017) 10 SCM 29 @ 43. It is the contention of counsel that the admission of counsel that he killed the deceased though unintentionally still makes him liable because he failed in the duty of care he owed the deceased having known that the gun was loaded. Respondent counsel relying on Egwim vs. State (1999) 13 NWLR (Pt. 635) 338 @ 353 stated that negligence of the Appellant may be proved either by direct evidence or indirectly. Counsel urged this Court to find issue two in favour of the Respondent.

On issue three, it is the submission of counsel that an extra-judicial confession that is proved to have been made voluntarily, being positive and unequivocal, amounting to an admission of guilt will suffice to ground a finding of guilty relying on Alufohai vs. State (2014) 12 SCM (Pt. 2) 122 @ 139; Chibuike Ofordike vs. The State (2019) 3 SCM 132 @ 149. Further relying on the provisions of Section 317 of the Criminal Code, Cap 38 Vol. II Laws of Oyo State of Nigeria, 2000, and the case of Haruna vs. A.G Federation (2012) 3 SC (Pt. IV) 40 @ 57, it is the submission of counsel

that the prosecution has successfully proved the charge of manslaughter against the Appellant. In conclusion, it is the submission of counsel that the Appellate Court should be loathe to interfere with or reverse the findings of fact made by a trial Court unless such findings are perverse. She placed reliance on Haruna vs. A.G Federation (supra) and urged this Court not to disturb the findings of facts of the trial Court which heard and observed the witnesses’ demeanors, including the Appellant during the course of the trial. She further urged this Court to dismiss the appeal and affirm the judgment of the lower Court.

The Appellant counsel formulated two issues for determination, while the Respondent counsel on the other hand formulated three issues for determination. Both counsel have formulated and argued issues that best address their concerns. It is now left for this Court to critically analyze these issues and make a considerable pronouncement on them. In doing this, this Court is permitted by law to either adopt the issues formulated by parties or formulate its issues, in so far they arise from the grounds of appeal. See Okereke vs. State

(2016) LPELR-26059 (SC); Ogiren vs. Olufunmilayo & Ors (2015) LPELR-24259 (CA); Asalu vs. Dakan (2006) LPELR-573 (SC).

I am tempted to formulate my issues for determination but I decided not to fall for the temptation. I will rather adopt the two issues for determination formulated by the Appellant as in my opinion, they cover the field adequately as it relates to the grounds of appeal. I reproduce them here for ease of reference:
1. Whether the Charge on which the Appellant was tried and convicted not having been affixed with the Nigerian Bar Association issued practice stamp of the officer who signed it, was not defective as to render it incompetent and rob the Court of jurisdiction.
2. Whether having found that the Appellant has shown that the act of shooting the deceased was accidental and without any criminal intent, the learned trial Judge was not in error when he held the Appellant negligent in the handling of the gun that killed the deceased instead of resolving all reasonable doubts in favour of the Appellant as to entitle the Appellant to a discharge and an acquittal for the offence of manslaughter for which he was charged.

On issue one, it is not in doubt that the charge was signed by one Yewande Oyediran (Mrs) described as Principal State Counsel for Director of Public Prosecutions; whereas the same charge has the NBA issued stamp of one AddulGaniyu Muhammed Tajudeen affixed to it. It is the submission of counsel to the Appellant that this contravenes the provisions of Rule 10(1), (2) and (3) of the Rules of Professional Conduct 2007.

The lower Court after hearing the argument on the objection of the Appellant overruled the objection after holding thus:
“There is no dispute to the fact that the amended charge was signed by Mrs. Yewande Oyediran and the NBA stamp affixed on same is that of ABDULGANIYU TAJUDEEN MOHAMMAD.
I disagree with the learned state counsel that section 10(1) and (3) of the Legal Practitioner Rules of Professional Conduct permits counsels to affix a stamp different from the person who signs the process.
The essence of the Law is to ensure that every counsel pays his practicing fees and affix his/her stamp on all processes filed.
The rule does not give room for counsels to use, borrow or steal each other’s stamp.
Be that

as it may, this is a criminal matter.
On 19th December, 2016, the amended charge with the stamp of ABDULGANIYU TAJUDEEN MOHAMMAD was read over to the accused person in open Court and he pleaded not guilty.
All hearing in a criminal matter must be to the hearing of the accused person.
The above to me supersedes the objection to the stamp affixed on the charge.
In as much as I strongly condemn the act of counsels using each other’s Nigerian Bar Association (NBA) stamp as done on the amended charge as well as on the final address of the prosecution, same does not in any way affect the validity of the amended charge filed in Court.”

The Appellant has posited that the lower Court countenanced the charge despite its holding, on the sole reason that the matter before the lower Court was a criminal one. At this junction, I believe it becomes expedient to reproduce the said Rule 10 of the Rules of Professional Conduct, 2005. The said rules provide thus:
“(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any Corporation, shall not sign or

file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any other similar documents.
(3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in Sub-rule 2 of this Rule, and in any of the capacities mentioned in Sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.”
I have taken a look at the rule and it must be stated that the rule makes for no exception; be it a criminal or a civil case, the rule on failure to attach a lawyer’s stamp remains the same. It can however be argued as Respondent did that the rule did not state specifically that the document must have the stamp of the person who signed same. Once there is an NBA stamp that will be sufficient. This argument is quite exciting but the point must be made that each case must be decided on its facts before

it and a case will serve as a precedent for subsequent cases and have binding force when the facts are materially the same. As interesting and exciting as such an argument could be I do not agree with the Respondent that the stamp must not necessarily be that of the person who signed. If that argument is taken, the whole essence of the rule will be defeated. There must be a connection between the stamp and the signature. The Supreme Court in Tanimu vs. Rabiu (2018) 4 NWLR (Pt. 1610) 505 made this point clearly in these words:
“Keeping with the effort to weed out impostors and charlatans in the legal profession, the provision of Rule 10(1) (2) and of the Rules of Professional Conduct in the Legal Profession 2007 is directed at the legal practitioner to provide evidence of his qualification to practice law in Nigeria, in addition to his name being on the roll at the Supreme Court of Nigeria. It saves the time that would have been expended in conducting a search at the Supreme Court to determine whether the legal practitioner is so qualified. It is therefore a means of authenticating the claim of the signatory of a legal document to being a legal

practitioner whose name is on the roll. In effect, the mere presence of the stamp and seal of the Nigeria Bar Association on a document without linking it to the signature endorsed thereon is not sufficient proof that the stamp and seal belongs to the person who signed the document, or conversely that the signature that appears on the document belongs to the person whose stamp and seal is affixed thereto.”
The general position of the law is that the non-affixing of the stamp to any legal document does not necessarily make the document illegal or incompetent but rather the documents become voidable meaning it is an irregularity which can be corrected subsequently in the proceedings. In Wike Ezenwo Nyesom vs. Hon. (Dr) Dakuku Peterside (2016) 7 NWLR (Pt. 1512) 452, the apex Court referring to Gen. Bello Sakin Yaki vs. Senator Abubakar Atiku Bagudu (supra), a case referred to by the Appellant held that failure to affix approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. This Court per Sankey, JCA exhaustively

addressed this in Abba vs. Yusuf & Ors (2015) LPELR-42414 (CA) while explaining the effect of failure to attach a lawyer’s stamp to a process. In the said judgment, my lord made reference to the position of the various Justices of the Supreme Court on the effect of a legal document presented by a lawyer for filing without affixing his stamp. The effect is that such a document is voidable. Though a long quote it will be worth the while since the position of various Justices on the subject matter was stated therein. Let us go.
“Rule 10 of the Rules of Professional Conduct for Legal Practitioners (supra) provides as follows: “Rule 10: (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. (2) For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any other similar documents. (3)

If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in Sub-rule 2 of this Rule, and in any of the capacities mentioned in Sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.” Learned Counsel for the Applicants/1st and 2nd Respondents, majorly relied on the Judgment of the Supreme Court in Appeal No. SC/722/2015, between General Bello Sarkin Yaki V Senator Abubakar A. Bagudu & 2 Ors, Judgment delivered the on 27th October, 2015….The sole issue before the Apex Court for resolution in the Cross-Appeal of the 2nd Respondent was: “Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent…” In the Appeal before the Supreme Court, just like in the instant Appeal, the documents in question purported to be signed and filed by a lawyer in his capacity as legal practitioner, did not bear “a seal and stamp approved by the Nigerian Bar Association.”

In a unanimous decision, the Apex Court unwavering and staunchly held that legal documents caught in this infraction are deemed not to have been properly signed or filed in accordance with the Rules, and are therefore voidable…. Delivering the lead Judgment of the Court, Ngwuta, JSC pronounced forthrightly, inter alia as follows: “What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that “…the document so signed or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor V Nweke (2007) 10 NWLR (Pt, 1043) SC 521 cited by the learned Silk for the 2nd Respondent/Cross Appellant. The document, in terms of the Rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd Respondent assumed. It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of time

allowed by the rules or extended by the Court. In such cases, the filing of the process can be regularised by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the Court cannot take cognizance of a document not properly filed and the filing not regularised.” (Emphasis mine)
My lord, Sankey, JCA in the same judgment referred to the contribution of his lordship Onnogen, JSC (as he then was) in these words:
“Expounding the law further, Onnoghen, JSC, eruditely pronounced thus at pages 6-8 of his Contribution to the lead Judgment: “What Sub rule (3) supra is saying is that such noncompliance renders the document so signed or filed voidable that is why it is said the document is “deemed not to have been properly signed or filed.” In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production

and fixing of the seal. That is what My Lord, NGWUTA, JSC meant by saying that the situation is like filing a document out of time which can be subsequently remedied… However, the consequence of the said noncompliance renders the document so filed voidable, not void which is subject to regularization upon application, even orally in Open Court at any stage in the proceedings involved, even on appeal… It follows, therefore, that the provisions of the Rules of Professional Conduct, 2007 is directed at the Legal Practitioner to provide evidence of his qualification to practice law in Nigeria in addition to his name being in the Roll at the Supreme Court of Nigeria. It therefore saves time needed for a search at the Supreme Court to determine the authenticity of the claim of the Legal Practitioner for being so qualified… In the circumstances it is only fair to the client, the legal profession and in the interest of justice that the Legal Practitioner involved be given an opportunity to prove his call to the Bar and enrollment at the Supreme Court of Nigeria by affixing his seal to the document involved at any stage of the proceeding including appeal or

whenever an objection to the authenticity of the document is raised under the provisions of the said Rules of Professional Conduct, 2007.” (Emphasis mine)
The contribution of his lordship, Rhodes-Vivour, JSC was represented in these words by Sankey, JCA:
“In making the Judgment even more comprehensive and all-embracing, Rhodes-Vivour, JSC, in his contribution to the lead Judgment of the Court, examined the decision of the Apex Court in Appeal No. SC. 665/2015 between Mega Progressive Peoples Party V INEC & 3 Ors rendered on 12th October, 2015. He intoned imperially at pages 3-5 thereof as follows: “In SC.665/2015 Mega Progressive Peoples Party V INEC & 3 Ors. decided on 12th October, 2015, on the issue of affixing seal, stamp to legal documents, etc, this Court said that: “Failure to affix the Nigerian Bar Association stamp cannot invalidate processes filed in Court.” The clear interpretation of the above is that processes without the Nigerian Bar Association Stamp etc are valid. Is there a conflict with the decision in this appeal? In this appeal this Court says that legal processes without stamp or seal are voidable. That is to say

such documents are deemed not to have been properly signed and not that they are invalid. Such documents are redeemed and made valid by a simple directive by the judge or relevant authority at the time of filing the voidable document for erring counsel to affix stamp and seal as provided for in Rule 10 of the Legal Practitioners Act. The 2nd Respondent cross appeal was allowed because an objection to the validity of the process, it being without stamp, etc was made, and it was not rectified. It therefore becomes abundantly clear that there is no conflict between SC.665/2015 and this appeal. This Court has remained consistent. Failure to affix stamp, seal to a legal process, renders such a process voidable. A voidable legal process is made valid when counsel affixes the stamp and seal to the said legal process.” (Emphasis mine)
On the effect of non-fixing of counsel stamp on notice of appeal, his lordship made reference to the position of Peter-Odili, JSC in the case under reference:
“For the avoidance of any doubt on the status of a Notice of Appeal vis a vis Rule 10 of the Rules of Professional Conduct (supra), Peter-Odili, JSC, in her own

contribution to the lead Judgment at pages 52-53 thereof, amplifies further in these terms: “A Notice of Appeal is the originating process at an appellate Court and the Notice of Appeal is clearly within the ambit of legal documents described in Rule 10(2) as “any similar documents” which must be signed, stamped and sealed. Therefore, a Notice of Appeal not found with these components is an incompetent Notice of Appeal depriving the Court of the jurisdiction to determine the Appeal on the merit.” (Emphasis mine)
While addressing the appeal before his lordship, Sankey, JCA held:
“The Supreme Court having spoken, the position of the law in relation to Rule 10 of the Rules of Professional Conduct of Legal Practitioners, 2007 which came into effect in April, 2015, is now cast in stone! We, in this Court, must bow to the superior wisdom of the Supreme Court and apply the rule to the letter. Following this comprehensive, decisive and conclusive interpretation by the Apex Court of the land given to Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, Legal Practitioners within the definition of the Legal Practitioners Act, 2004, shall

affix to all Court processes filed in any Court in Nigeria, the Nigerian Bar Association seal and stamp thereto and same shall be duly signed by the Legal Practitioner so filing. Any default in full compliance renders such legal process voidable. Such legal documents may however be remedied upon due application by Counsel, both at the trial Court and even at the appellate Courts on appeal. With respect, that is the purport of the decision of the Apex Court. By the principle of judicial precedent, otherwise known as stare decisis, all Courts in the hierarchy of Courts in Nigeria, (and in particular, the Court of Appeal, for our purposes in this application), are bound to strictly follow this decision, there no longer being any uncertainty and/or ambiguity on the interpretation of the law as it pertains to the application of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007. In applying this decision to the instant Appeal, I take note that it is not the position of the Appellant/1st Respondent that the seal and stamp of the NBA is affixed to the Notice of Appeal. It clearly is not. His argument is only that the Circular by the Hon. Chief

Justice of Nigeria enjoining all Courts in Nigeria to enforce the application of Rule 10 of the Rules of Professional Conduct (supra) is not a Practice Direction since it is contained in a mere circular; and also that the Judgment in Mega Progressive Peoples Party V INEC (supra) was delivered after the Notice of Appeal was filed and it does not have retroactive effect. Clearly, from the reliefs sought in the application before this Court, the Applicant prayed for the dismissal of the Notice of Appeal based on Rule 10 of the Rules of Professional Conduct (supra), and not based on the circular from the Hon Chief Justice. This is notwithstanding the fact that the Circular was annexed as an Exhibit to the affidavit of the Applicant. Secondly, it is immaterial that the Judgment in Mega Progressive Peoples Party V INEC (supra) was delivered after the Notice of Appeal was filed, since what was always before the Supreme Court for interpretation was Rule 10 of the Rules of Professional Conduct (supra) which came into effect since April, 2015. A close examination of the Notice of Appeal filed on 4th October, 2015 discloses that it is clearly in violation of

Order 10 of the Rules of Professional Conduct (supra) in that the signature of learned Senior Counsel is not accompanied by the stamp and seal of the Nigerian Bar Association. That being the case, by virtue of the Judgment of the Supreme Court in General Bello Sarkin Yaki V Senator Abubakar A. Bagudu & 3 Ors (supra), the document so filed is deemed not to have been properly filed, having not fulfilled the condition precedent to its filing, and there being no application to regularize the said document now objected to?It is a legal document improperly filed and therefore, voidable. Thus, the jurisdiction of this Court has not been invoked to take cognizance of the improperly filed Notice of Appeal, the filing having also not been regularised. In the circumstance, the application is bound to succeed.”
If the process is not subsequently regularized until the end of the case, the document becomes incompetent. See Africa Songs Ltd vs. Adegeye (2019) 2 NWLR (Pt. 1655) 335; Redeemed Christian Church of God (Hagiazo Parish) vs. Akadiri & Anor (2019) LPELR-46780 (CA); Tarzoor vs. Ioraer & Ors (2015) LPELR-25975 (CA). In Wayo vs. Nduul (2019) 4 NWLR (Pt.

1661) 60 the apex Court drove home this point per Peter- Odili, JSC in these words:
“The essence of Rule 10(3) of the Rules of Professional Conduct 2007 is that non-compliance renders the document so signed or filed voidable. The document is deemed not to have been properly signed or filed. In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal. In the instant case, the appellant did not apply to regularize the documents objected to. Consequently the notice of appeal and the appellant’s brief of argument were not properly filed. [Yaki v. Bagudu (2015) 18 NWLR (Pt. 1491) 288 referred to and applied] (Pp. 69-70, paras. H-A; B)”
In the same judgment, Peter-Odili, J.S.C. at page 74 paras. B-C held:
“Therefore the appellant not having done the needful by regularizing the defective notice of appeal and the appellant’s brief, the defect remained and since the processes were voidable and in view of the objection of the 1st respondent they remained defective and produced the incompetence of the appeal as being espoused by the 1st

respondent. It follows that there is no way of wriggling out of the authority of Yaki v. Bagudu (2015) 18 NWLR (Pt. 1491) 288 in which the Supreme Court had laid down what is to be in the event of a document filed by a legal practitioner without the legal seal and stamp of that practitioner.”
I can go on and on but it would only amount to a mere repetition as this principle is reiterated over and over again in a number of cases. It is now appropriate to relate the above case law to the facts of the case in determining whether the judgment of the lower Court can be overturned for that reason. Is the charge sheet on page 17 of the record of appeal incompetent? I certainly will not commend the State for not remedying the irregularity. Due diligence demands that the Respondent should have regularized it before judgment even though the objection was only raised at the time of address. I have gone through the record and did not see anywhere the Appellant raised that objection until the stage of address. I do not think it would have cost any demand to the Respondent’s case if it had regularized it. The Respondent attempted that when in the written

address the said AbdulGaniyu Muhammed Tajudeen whose stamp appeared in the charge and the written address signed the written address. That notwithstanding can this Court nullify the proceedings at the lower Court and quash the conviction of the Appellant on that ground alone. I do not think so.
Looking at the charge again, that appears to me as an escape route for the Respondent. The counsel that signed it is Yewande Oyediran, a Principal State Counsel in the Ministry of Justice Oyo State. She signed for the Director of Public Prosecution. The name on the stamp on the charge is AdbulGaniyu Muhammad Tajudeen. The Respondent in the brief of argument submitted that he was the DPP at that time. The said Yewanda Oyediran (Mrs.) did not sign the document as the originator of the document. She signed for the DPP, meaning therefore it is not her personal document but the document of the office of the DPP. It is therefore the document of the office and she only signed the charge as a member of the staff of the office. The stamp bears the name of her boss. They are all employees of the ministry of justice who are the prosecutors in the lower Court. In the

circumstance it is my firm opinion that there is nothing irregular or incompetent about the charge. I am fortified in this my position by the Supreme Court case of Mr. Gideon Ogunpehin vs. Nucleus Venture (2019) LPELR-48772 (SC), where Justice Peter-Odili, JSC at pages 7-8 held when a similar objection like what the Appellant is raising was raised as follows:
“Learned counsel for the respondent/Objector contended that the brief of argument of the appellant was signed by Timothy O. Adewale Esq. whereas the stamp of Oladosu Ogunniyi Esq. was affixed to the process and so the brief was incompetent and should not be considered. He cited All Progressive Congress v General Bello Sarkin Yaki LER (2015) SC.722/2015.
This preliminary objection is an example of technicality taken to the point of absurdity. The appellant’s brief of argument was signed by Timothy O. Adewale Esq. whereas the stamp of Oladosu Ogunniyi Esq. was affixed on the process and for that respondent/objector urges the Court to declare the brief of argument as invalid. The circumstances of the case herein does not warrant the angle put forward by the objector because the appellant’s

brief had the names Oladosu Ogunniyi, Timothy O. Adewale Solicitors for appellant. It was written thus:-
OLADOSU OGUNNIYI
TIMOTHY O. ADEWALE
Solicitors for Appellant
Oladosu Ogunniyi and Co.
No. 6, Segilola Street, Off Pero Bus Stop
Agege, Lagos State.
The signature was that of Timothy O. Adewale as indicated and it can be seen that both counsel are of the same chambers therefore the fact that the stamp is that of Oladosu Ogunniyi has not changed anything and the process is regular.
This objection is lacking in merit and I dismiss it so one can go into the merit of the case before Court.”
The Appellant counsel as I had mentioned above did not raise this objection until the address stage. Is it not a bit too late to make that an issue at the address stage of the trial? Even if no full objection was taken at the plea stage I do not think that it would offend the ACJA if the Appellant had mentioned the objection even if it is for noting during the proceeding. It is too late in the day for the Appellant to have brought the objection to the charge at the stage of the final address. The Appellant had

undergone the whole gamut of a full trial and to wait till the end of the case to ambush the Respondent I do not think that will fly. Such objection to the defect in the charge should have been raised timeously; at the point of the Appellant taking his plea. In Obinna John vs. The State (2019) LPELR-46936 (SC) the apex Court per Nweze, JSC in postulating on when an objection to a formal defect to charge is to be raised had this to say:
“…It is this same impression that led to the extensive arguments in the appellant’s brief on the absence of signature in the charge. Now, just like Sections 166, 167 and 168 of the old Criminal Procedure Law, Section 382 of the Criminal Procedure Code, which was applicable in Plateau State, at the relevant time, dealt with the effect of errors, defects or omissions in charges at the trial Court, Okewu v FRN [2012] 1 NWLR (pt. 1305) 237, 369; John Agbo v State [2006] 1 SCNJ 332, 335-337; Uwaekweghinya v State [2005] 3 SCNJ 32, 42. Thus, in order to accentuate the irrelevance of the submissions of the appellant’s counsel, it is necessary to adumbrate on the import of this section of the Criminal Procedure Code (supra). By

virtue of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with any offence shall be entitled to be informed, promptly, in the language he understands, and in detail, of the nature of the offence. Only one or two cases may be cited here to illustrate this point, Amala v State [2004] 12 NWLR (pt. 888) 520; Ezeze v State [2004] 14 NWLR Pt 894) 491; Okeke v The State [2003] 15 NWLR (pt. 842) 25; Madu v The State (2012) LPELR -7867 (SC); Solola v The State [2005] 11 NWLR (pt 937) 460. Ostensibly therefore, the statutory prescription that every charge shall state the offence for which the accused person is standing trial stems from this constitutional mandate. Occasionally however, charges so drafted may contravene any of the rules of drafting charges, such as the rules against ambiguity; duplicity; misjoinder of offenders and misjoinder of offences, see generally, Bob Osamor, Fundamentals of Criminal Procedure Law in Nigeria (Ojodu, Lagos: Dee-Sage Nigeria Limited,2004) 188; O. Doherty, Criminal Procedure in Nigeria Law and Practice (London; Blackstone Press Limited, 1999) 227;

O.Onadeko,The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd, 1998). This is the context in which Section 383 (supra) has to be viewed. By Section 383 (supra), any objection to a charge for any formal defect [surely, an allegation bordering on the absence of the signature of a known legal practitioner is a formal defect] on the face thereof shall be taken immediately after the charge had been read over to the accused person and not later. Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea, Ogunye v The State [1999] 5 FWLR (pt.604) 545; Adeniji v The State[2001] 13 NWLR (pt.730) 375; Okeke v The State (2003) 5 SCM 131, 185-186; Solola and Anor v The State (2005) 6 SCM 137, 147; Okewu v FRN(2012) 1 NWLR (pt 1305) 327, 369. Where he fails to do so, he is presumed to have understood the charge preferred against him, Ogunye v The State (supra); Adeniji v The State (supra); Okeke v The State (supra); Solola and Anor v The State (supra); Okewu v FRN (supra). Simply put, therefore, the learned DPP for the respondent was right in his submission that since counsel for the appellant did not

raise any objection to the alleged defect in the charge, he cannot now canvass it here, Uwaekweghinya v State (supra); Timothy v FRN [2013] 4 NWLR (Pt 1344) 213, 231 -243; Agbo v State (supra).”
This trite principle of law was also reiterated in Friday Ameh vs. The State (2018) LPELR-44463 (SC) thus:
“Notwithstanding the above scenario, the appellant did not challenge the competence of the charge when or before plea was taken. The law is quite clear that objection to the charge must be taken before or at the time plea is to be taken, and not thereafter. See Section 167 of the Criminal Procedure Act, Cap 43. This Court, in Adio v. The State (1986) 3 NWLR (PT. 31) 714, also reported in (1986) LPELR – 184 (SC) at pages 27 – 28 paragraphs G – D held as follows: “The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise the objection is taken as having been waived – (See S. 167 Criminal Procedure Act, Cap 43). Similarly a want of jurisdiction which ordinarily could be raised at any stage of the trial is better raised before plea

is taken. See R V. Adiukwu (1939) 5 WACA 132. The plea of the accused may, if it is one of guilty of the offence charged, result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary – (See S.218 Criminal Procedure Act, Cap 43). This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information – See R. V. Hayes (1951) I K.B. 94….” See also Attah v. The state (2010) LPELR – 597(SC), Agbo v. The State (2006) 6 NWLR (pt. 977) 545, Adekunle v. The State (2006) 14 NWLR (pt. 1000) 717. The law is trite that a convict cannot hang on mere irregularity of Procedure (if any) to gain acquittal unless he can show that such irregularities in procedure led to substantial miscarriage of justice. The Court below held this much. Miscarriage of justice simply means justice miscarried or failure of justice. In Gbadamosi v. Dairo (2007) LPELR – 1315 (SC) at pp.23 23 – 24 paras G -8, this Court defines miscarriage of justice as follows: “Miscarriage of Justice connotes decision or outcome of legal proceeding that is

prejudiced or inconsistent with the substantial rights of the party. Miscarriage of Justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the injustice has been miscarried.” As was rightly held by the Court below, the appellant herein has failed to show how he was cheated in the proceedings. The Appellant had a duty to show how the charge signed by a person who did not file the application to file the information has affected him. He had the onerous duty to show that had the charge been signed by the particular person who filed the application, the result would have been different. This he failed to do. Let me make one last sentence in respect of this issue before I end it. There is no doubt that issue of jurisdiction is a threshold issue. It is so fundamental that the absence of it would rob the Court of the power to hear and determine a matter. It can be raised at the trial Court, Court of Appeal or even in this Court for the first time. See Elelu – Habeeb v. Attorney General of Federation v. Ors

(2012) 13 NWLR (pt.1318) 423; Madukolu v. Nkemdilim (1962) 2 SC NLR, 341, Odofin v. Agu (1992) 3 NWLR (pt. 329) 350. Section 167 of the Criminal Procedure Act provides that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. This provision is mandatory in view of the word “shall” used in the provision that connotes mandatoriness. See Tabik Invest. Ltd & Anor v. GTB PLC (2011) 17 NWLR (pt.1276) 240, Umeanadu v. Attorney General Anambra State & Anor (2008) 9 NWLR (pt. 1091) 175. Therefore, where a party fails to object to any formal defect on the face of the charge immediately after the charge has been read to the accused person, and takes part in the hearing of the case to conclusion, he is deemed to have forfeited that right to object. The appellant herein, having failed to comply with Section 167 of the Criminal Procedure Act before the trial Court, sought to invoke issue of jurisdiction which does not avail him as the Court below held clearly that G.P Olorunnuhe Esq., was in as good position as Mrs. Deborah Ajayi to sign the charge, both

being law officers in the chambers of the Attorney General of Kogi State. This issue does not avail the appellant at all.”
The Appellant has waived his rights and equity aids the vigilant and not the indolent. See AG Rivers State vs. Ude & Ors (2006) LPELR-626 (SC); Ajayi vs. Osunuku & Ors (2008) LPELR-8332 (CA); Federal University of Technology, Yola vs. Nkire (2014) LPELR-24202 (CA).
I will also like to point out the fact that the mere fact that there is a defect in a charge will by no means entitle the Appellant to an acquittal, except he can prove to this court that by reason of the defect on the charge, he has suffered a miscarriage of justice in his trial. In Ogbomor vs. State (1985) LPELR-2286 (SC) the apex Court per Oputa, JSC had this to say:
“The important thing about “the charge” in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case” –

Section 151(4) of the Criminal Procedure Act Cap.43 of 1958. The charge must not therefore have defects or errors which could, mislead the accused. The emphasis is not, on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact mislead the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known a offence:see R. v. Ijoma& Ors (1962) All N.L.R. 402; Mgbemene v. I.G. of Police (1963) 1 All N.L.R. 321; Omisade & Ors v. R (1964) 1 All N.L.R. 233.”
See also John vs. State (2019) LPELR-46936 (SC); Awusa vs. Nigerian Army (2013) LPELR-22618 (CA).
In my opinion, I do not see the act of the Respondent affixing the stamp of a lawyer different from the lawyer who signed the charge, capable and sufficient enough in misleading the Appellant; as to cause him a miscarriage of justice. In the circumstance I cannot see my way clear in holding for the Appellant. This issue is resolved against the Appellant and in favour of the Respondent.

Having resolved issue one in favour of the

Respondent, I will now go on to resolve issue two.

On issue 2, it is the contention of the Appellant counsel that from all the surrounding circumstances and the evidence before the lower Court, the facts point to one conclusion that the event that transpired on the 20/11/2014 was purely accidental and as such, there is no evidence to ground the conviction of the Appellant for manslaughter; more so the lower Court having made such finding. At this stage, it becomes necessary to restate the facts again for a better understanding.

The Appellant together with the deceased person were neighborhood security men employed by the landlord’s association of Gbekuba, Ibadan, Oyo State. On 20/11/2014, the Appellant was found to have killed the deceased while they were at their duty post. The Appellant while narrating the turn out of the event said while he picked up the loaded gun from the ground where they kept it, it fell from his hand, hit the floor and the bullet was discharged; which hit the deceased on the head causing him to die on the spot. The Appellant claimed it was an accident. Armed with the facts of the case, can it be said that what

transpired on that day was an accident absolving the Appellant from criminal liability? This is what this Court is here to determine.

The temptation is to go ahead to consider the defence of accident. Falling for that temptation will be putting the cart before the horse. Progress cannot be made that way. It is a wrong order. Considering the defence right away will be the wrong order. The proper order in criminal cases is to consider the burden and standard of proof and it is only when the Prosecution has discharged the burden and standard of proof successfully that the Court can then proceed to consider all conceivable defences raised by the Accused person. See Njokwu vs. State (2013) 2 S.C. (Pt. 1) 1.

reasonable doubt but rather proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would have been said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond

reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State

(2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
Similarly in Nwaturuocha vs. State (2011) 6 NWLR (pt 1242) 170, the apex Court held:
“Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”

Having

established the burden and standard of proof required, it is now appropriate to look at the ingredients of the offence the Appellant was charged with and determine whether the Respondent has proved the ingredients beyond reasonable doubt. The offence of Manslaughter is defined in Section 317 of the Criminal Code: “A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of Manslaughter. See Apugo vs. The State (2006) 2 ANLR 1. In Popoola vs. The State (2018) 10 NWLR (Pt. 1628) 485 the offence of Manslaughter was defined as the unintentional killing of another or killing that was not premeditated but accidental. The Supreme Court in the case of Chukwu vs. State (2013) 4 NWLR (Pt. 1434) 1 stated the ingredients of the offence of manslaughter and what the prosecution is expected to prove beyond reasonable doubt before it secures conviction for Manslaughter against an accused. The apex Court held:
“An accused person may be found guilty of manslaughter under Section 317 of the Criminal Code if it is proved: that he intentionally did an act which was
(a)unlawful; and
(b)that that act inadvertently

caused death.
It is the duty of the prosecution to adduce sufficient evidence in proof of the offence of manslaughter. In the instant case, the appellant had engaged the deceased in an unlawful act of fighting which resulted in the death of the deceased. Therefore, sufficient evidence had been disclosed to convict the appellant of the offence of manslaughter under Section 317 of the Criminal Code instead of the offence of murder for which he was convicted and sentenced to death.”
One or two more cases in this regard will not be harmful. In Idowu vs. the State (2000) 7 S.C (Pt. II) 50; (2000) LPELR-1429 (SC) per Wali, JSC held:
“An accused person will be found guilty of manslaughter if it is proved that he intentionally committed an act which was unlawful and dangerous and which inadvertently caused death. The test is an objective one. In judging whether the act is rash, dangerous, and unlawful, the test is not that the accused recognized its danger. See: R v. Larkin (1942) Cr. App. R. 18; R V.Church (1966) 49 Cr. App. R. 206; (1966) 1. Q.B. 59 and D.P.P. v. Jones (1976) 62 Cr. App.R. 291.
However, the evidence adduced proved an unlawful

act caused by the accused not amounting to murder, and where such is the case, and following the decisions in Nameri and Gabriel (supra), I find the accused not guilty of murder but guilty of manslaughter by virtue of Section 179 of the Criminal Procedure Act applicable in Ogun State.
See: Nwachukwu John v. The State (1966) All NLR 496.” (Underline supplied)
Finally on this point I will refer to the Supreme Court case of Amayo vs. The State (2001) 12 S.C (Pt. 1) 1, Uwaifo, JSC held:
“One of the elements of murder as provided for in S. 316(a) or (b) is that the act done must be with the intent to kill or to inflict grevious bodily harm. This is what is known as “specific intention” which is necessary for sustaining a murder charge: see D.P.P. v. Newbury (1977) AC 500 at 509; (1976) 2 All ER 365 at 369 per Lord Salmon who said inter alia:-
“… in manslaughter there must always be a guilty mind. This is true of every crime except those of absolute liability. The guilty mind usually depends on the intention of the accused. Some crimes require what is sometimes called a specific intention, for example murder, which is killing with

intent to kill or inflict grevious bodily harm. Other crimes need only what is called a basic intention, which is an intention to do the acts which constitute the crime. Manslaughter is such a crime.”
The authorities of R. v. Larkin (1943) 29 Cr. App. R. 18 and R v. Church (1966) 1 Q.B. 59, to which I shall refer later in this judgment, were cited in D.P.P. v. Newbury and approved. It is clear that if that specific intention is unable to be established beyond reasonable doubt by the prosecution, then the Court will be unable to find the accused guilty of murder. It follows that a Judge who decides to convict for murder and nothing else must be very sure that there are no facts that might justify the jury in returning a verdict of manslaughter: See Kwaku Mensah v. R. (1946) AC 83; Sharmpal Singh v. R. (1962) AC 188.”
To secure a conviction for Manslaughter from the cases cited above, the Respondent needs to prove that the Appellant intended to do an unlawful act that amounts to a crime. It is not just enough as the lower Court seems to show that any form of negligence will not necessarily make the killing amount to manslaughter. The negligence

must be criminal negligence. The question now is did the Respondent prove any criminal negligence or that the Appellant had the intention to do any act which is unlawful or a crime? There is no such evidence before the lower Court. None of the 6 prosecution witnesses could prove the intention of the Appellant to commit an unlawful act. In the circumstance, I hold that the prosecution at the lower Court (Respondent in this appeal) had not proved any criminal intention on the part of the Appellant to enable the lower Court to convict the Appellant. On this ground alone, the appeal succeeds and it is allowed.

If for any reason I am wrong in my finding and decision above, let me now consider the defence of accident that the Appellant presented at the lower Court. The Appellant in the course of the trial at the lower Court had pleaded not guilty and also raised the defence of accident. The lower Court having heard the testimonies of the witnesses, on page 71 of the record of appeal (page 17 of the judgment) held thus:
“There is no doubt that the accused person has shown that the act of shooting of the deceased was accidental.
-The accused

person has also shown that there was no criminal intention when the deceased was shot.
-The accused person also had shown that the shooting occurred during his legitimate job as a security guard and which to me is a lawful act.”

The lower Court rightly found that from the facts of the case before the Court, the Appellant had successfully established the defence of accident, which would have availed him an acquittal as the defence of accident if successful is a complete defence. Having so held above, the lower Court still held the Appellant guilty on the premise that the Appellant was careless and negligent in handling the gun which caused the death of the deceased. The Court held thus:
“From the above, no doubt the accused person was aware that the gun was loaded on that day the incident occurred.
A loaded gun ought to be treated with proper care and caution because of the danger it possess if it is shot as a life lost can never be recovered.
That takes me to the issue of proper care and caution.
The accused person told the Court that he tried to pick the gun when a motorcyclist was approaching the gate.
If proper

care had been taken to treat the loaded gun with extra care the deceased would not have lost his life in the unfortunate way it occurred.
In view of the above, I hereby found the accused person guilty of manslaughter.”

The defence of accident has in a plethora of cases been explained both by this Court and the apex Court. In Maiyaki vs. State (2008) LPELR-1823 (SC); (2008) 7 S.C 128 the apex Court in explaining the general nature of the defence of accident, held in so much words thus:
“In considering the defence of accident in the case of Paul Onye v. The State (1984) 10 SC 81 at 86 under Section 24 of the Criminal Code , Oputa JSC defined it thus” An accident is the result of an unwilled act and means an event without the fault of the person alleged to have caused it See, also Chukwu v. The State (1992) 1 NWLR (pt.217) 255; Bello & Ors v. Attorney General of Oyo State (1986) 5 NWLR (pt.45) 828 and Iromantu v. The State (1964) 1 ANLR304.
In Chukwu v. The State (supra) Karibi-Whyte, JSC. has in the same vein defined accident as some sudden and unexpected event taking place upon the instant not as a result of the act intended by the

accused. In other words, by the import of the provisions of Section 48 an offence in the nature of the instant one cannot be committed accidentally in that “intention” or ” mens rea ” as an ingredient of the same is not present i.e. it is absent that is to say, in crimes as the instant one requiring intention or mens rea to consummate the offence. These definitions clearly encompass the defence of accidental discharge as pleaded by the appellant here. This is even more so by the definition of accident as per Stephens CR.143 to the effect that:-
“An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought in the circumstances in which it is done, to take reasonable precautions against it.”
The same principle was upheld in the case of Oladipupo vs. State (1993) LPELR-2549 (SC) where the Court per Karibi-Whyte, JSC held inter alia:
“I shall now first dispose of the defence of accident which on the facts seem easily disposable. The defence of accident as provided by

Section 24 of the Criminal Code is as follows – “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.” Very simply stated, where an event has resulted from an act or omission independent of the exercise of the will of a person, or where such event is the result of an accident, the criminal law does not hold the actor criminally responsible. An event which is neither intended nor foreseen by the actor, is said to be an accident.”
Similarly, in Amaremor vs. State (2014) ALL FWLR (Pt. 736) 406, the Supreme Court recognizing accident as a complete defence held per Mohammed, JSC thus:
“Section 24 of the Criminal Code in contention reads –
“24. Subject to the express provision of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for any event which occurs by accident.”
The defence being raised under this Section as clearly stated by the

learned Counsel to the Appellant in the Appellant’s brief of argument was limited or confined only to the second leg of the Section which deals with the question of whether the Appellant could be convicted for causing the death of the deceased which was an event which occurred by accident. Section 24 of the Criminal Code in relation to the part being relied upon by the Appellant, does not deal with an ‘act’ but with an ‘event.’ The event within the meaning f the Section is that follows from an act. See Audu Umaru v. The State (1990) 3 NWLR (Pt. 138) 363 at 370 and Chukwu v. The State (1992) 1 NWLR (Pt. 217) 255 at 269. Thus, for an event to qualify as accidental under the Section relied upon by the Appellant in this case, it must be a surprise to ordinary man of prudence. That is to say, a surprise to all sober and reasonable people. In other words the test is always objective. See Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 692 – 693, Aliu Bello & 13 Ors. v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828 and Iromantu v. The State (1964) 1 All N.L.R. 311, where this Court stated the law that where a

person discharges a firearm unintentionally and without attendant criminal malice or negligence, he will be exempted from criminal responsibility both for the firing and for its consequences.”
The above interpretation of the defence of accident in the case law simply means that a person is not criminally liable for act which happens independently of the exercise of the will of a person. For an offence to have been committed except for strict liability offence there must be the meeting of the mens rea (the mental element of the offence) and the actus reus (the physical element of the offence). The prosecution to secure conviction must prove both elements of the above beyond reasonable doubt. In Braide vs. State (1997) LPELR-800 (SC), the apex Court puts it in these words:
“It is not necessary here to go into the remote history of mens rea except to say that in common law offences, there are always present two essential elements:- (a) a guilty conduct and (b) a mind at fault. It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea”. Probably from there, the legalists got the now popular latin maxim

actus non facit reum nisi mens sit rea. No man, (including the 1st appellant), should according to this maxim be convicted of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element – a mind at fault, a mens rea. The intent and the act must both concur to constitute the crime: Fowler v. Padget (1797) 7 T.R. 509 at p.514. And as Stephen. J., observed in R v. Tolson (1889) 23 Q.B.D. 168 at p.187: “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.”
The law is that if there is any doubt whatsoever it will be resolved in favour of the accused person, now Defendant and sounding more specific, the Appellant. See FRN vs. Mohammed Abubakar (2019) LPELR-46533.
Section 24 has two elements, that is if it is an act, such an act must be unintentional but if an event it must be an accident. This means that the Appellant in law will not be held responsible criminally if the act is unintended and the event is accidental. If the Appellant was able to prove that, then the law will declare him not guilty. The lower Court has made as a finding that the death which is the

event following the act of shooting was accidental. The act was not intended and the event or the result following was not deliberate. This is the finding of the lower Court that I had reproduced above, and I, therefore, will not repeat it. I agree with the finding of the lower Court to the effect that the act was unintentional and the event accidental and indeed, the law is trite that I cannot replace the finding of the lower Court with mine except if such finding does not correspond with the evidence adduced, which in law is said to be perverse. See Atung Zaga vs. Uli Aman (2005) 10 NWLR (Pt. 933) 299; MTN Nigeria Communication Ltd vs. Corporate Communication Investment (2019) LPELR-47042 (SC).

There is nothing perverse about the finding as the evidence disclosed in the record of appeal is clear on that. The Appellant did not deny that and in fact he made a confession to others and indeed in his statement to the police admitted he killed the deceased. The circumstance of the killing none of the Prosecution witnesses could give. The only eye witness was the Appellant. His conduct that followed the incident tends to show that he was not intentional about

that. The lower Court was right in so holding.

The act of the Appellant in reporting himself can only mean one of two things; that he is either insane or that the act that occasioned the death of the deceased was carried out without a criminal intention. In my opinion, I do not think the Appellant is insane. It therefore, leaves me with only one conclusion, that is, that the act of the Appellant that resulted in the death of the deceased was carried out without criminal intention or knowledge.

This finding should have ended the case in favour of the Appellant but Section 24 of the Criminal Code makes the defence of accident subject to negligence act by the Appellant. The lower Court held that the Appellant should have been more careful in handling firearms and he was negligent. This was the turning point in the lower Court. I will now consider whether the Appellant can be caught by the dragnet of negligent act. The best place to look is the Criminal Code to know what actions will constitute negligence to be an exception to the defence of accident. While negligence cannot be proved directly but circumstantially, the point must be made that the level

of negligence required to convict a person for manslaughter is much higher than that required in traffic offence. The negligence must be of a very high degree. See Egwim vs. State (1999) 3 NWLR (Pt. 635) 335. I must hasten to add that the mere fact that a firearm was discharged on the face of it does not make the negligence criminal. In Adesina vs. People of Lagos State (2019) 8 NWLR (Pt. 1673) 125, the apex Court drove home this point in these words:
“Where a person discharges a firearm unintentionally and without attendant criminal malice or negligence, he will be exempted from criminal responsibility both for the firing and for its consequences. The rule will only be relevant if there is no finding of criminal negligence or recklessness on the part of the accused.”
The lower Court in my view was wrong in coming to the conclusion that the Appellant was negligent in handling the gun and therefore the defence of accident did not avail him. After a review of the evidence and the position of the law, I am firm in holding that the defence of accident under Section 24 of the Criminal Code Law of Oyo State avails the Appellant. I resolve this

issue in favour of the Appellant.

After reviewing the evidence on record, the grounds contained in the notice of appeal, as well as the issues formulated by counsel in this appeal and the arguments canvassed by the respective counsel juxtaposed with the law, I come to the conclusion that this appeal has merit and it is allowed. The judgment of Hon. Justice Bayo A. Taiwo of the Oyo State High Court delivered on 16/5/2016 in Suit No: 1/80C/2015. The State vs. Akosile Lekan is hereby set aside. The appeal is allowed and the conviction of the Appellant in the lower is hereby quashed and the Appellant is declared not guilty.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother EBIOWEI TOBI JCA. I agree with His Lordship’s reasoning and conclusion that the appeal is meritorious and should be allowed. The doctrine of res ipsa loquitor cannot be used to make a finding of criminal negligence as the learned trial judge appears to have done in this case. Appeal Allowed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ebiowei Tobi, JCA.

Appearances:

ADEWALE ADEGOKA ESQ., For Appellant(s)

H.M. AWOSEMUSI (MRS.) For Respondent(s)