SAMUEL OLATUNJI v. THE STATE
(2019)LCN/13445(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/AK/60C/2014
RATIO
PRESUMPTION OF REGULARITY OF OFFICIAL ACTS
It is also instructive, that the law presumes in favour of the regularity of official acts. Once they are shown to have been done regularly, it is presumed that all conditions precedent for their validly had been satisfied; in this case, the dating and the signature of the learned counsel or law officer that proffered or filed the charge, appears in the record.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
WHETHER A JUDGMENT CAN BE SET ASIDE ON THE GROUND OF ANY IRREGULARITY IN A CHARGE
What is more, no judgment can be set aside on the ground of any irregularity in the charge that would have been amended if it had been objected to or raised at the trial but which was not so raised.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUDGMENT: WHETHER A JUDGMENT CAN BE SET ASIDE BASED ON FORMAL IRREGULARITY IN PROCEDURE
There can, indeed, be acquiescence and estoppel in the case of formal irregularity in procedure and so long as no miscarriage of justice is caused; the judgment cannot be set aside.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
CRIMINAL LAW AND PROCEDURE: WHERE IT CAN BE SAID THAT THERE IS A MISCARRIAGE OF JUSTICE IN CRIMINAL LAW
In Saraki v. FRN (2018) (Pt. 1646) 16 NWLR 405 602 Nweze, JSC held thus:
It is the law that the failure of the trial Court or Tribunal to administer justice between the parties, in criminal proceedings in the manner mandatorily required by law amounts to miscarriage of justice. Harunami v. Bornu N. A. – (1967) NWLR 19 PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
SAMUEL OLATUNJI Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellant along with one Holo Lanre (co-accused person) were charged and convicted on the charge thus:
At the session holden at Akure this 17th day of October, 2012, the court is informed by the Honourable Attorney General on behalf of the State that Samuel Olatunji and Holo Lanre are charged with the following offences:
COUNT I
STATEMENT OF OFFENCE
Conspiracy to commit murder, contrary to Section 324 of the Criminal Code, Cap 37, Vol. 1, Laws of Ondo State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Samuel Olatunji and Holo Lanre, on or about the 13th day of January, 2012 at Ago-Alaye in the Ore Judicial Division did conspire together with other persons now at large to commit murder.
COUNT II
STATEMENT OF OFFENCE
Murder, contrary to Section 319 of the Criminal Code, Cap 37, Vol. 1, Laws of Ondo State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Samuel Olatunji and Holo Lanre with some other persons now at large on or about the 13th day of January, 2012 along Ore ? Lagos Express Road near Oniparaga in the Ore
1
Judicial Division did murder one Adeoye Dowo and removed his hunch back for the purpose of money ritual.
Holo Lanre, the co ? accused/convict had appealed and lost.
Having transmitted the record of appeal and exchanged Brief as filed on 18 4 18 and 6 11 18 respectively, the parties, by their learned counsel adopted their respective Briefs of Argument at the hearing of the appeal on 7 3 19 and in support of their contention to allow the appeal and discharge and set aside the conviction or affirm the conviction and sentence as may be appropriate and applicable.
The Appellant formulated 3 issues for the determination of the appeal as arising from 5 Grounds set out in the Amended Notice of Appeal which was deemed filed and served on 8 ? 11 ? 2018 upon the motion filed on 18 ? 4 ? 2018.
Upon the 5 Grounds of Appeal, the Appellant distilled 3 issues for determination as set out in his Appellant?s Brief of Argument adopted at the hearing and they are viz;
1. Whether the jurisdiction of the trial Court was properly invoked when the charge sheet (originating
2
process) initiating this action was not dated and signed by a legal practitioner Ground 1.
2. Whether from the circumstances of the case and the totality of the evidence before the learned judge reasonable doubt has not be established to exonerate the Appellant from the commission of the offense charged which is void of proof of the ingredients. Grounds 2, 3, and 5.
3. Whether the trial court rightly exercised its discretion in admitting Exhibits A, A1, A2, and A3 Ground 4.
ISSUE I
Arguing issue one, the Appellant submitted that it was curious that the charge sheet upon which the Appellant was arraigned tried and convicted did not contain the signature of either the Attorney ? General or a Legal Practitioner in his office as required by law.
The learned counsel refers to page 2 ? 7 of the record of appeal. Counsel pointed out that the additional proof of evidence contained on pages 14 ? 15 of the record of appeal however contains the signature of the officer in the Attorney Generals office. That it is curious that the main charge sheet does not have any signature and date; that the error was
3
fundamental and goes to the jurisdiction of the trial Court.
Counsel contends that jurisdictional challenge should be decided first and on the authority of the cases of Tiza v. Begha (2005) ALL FWLR (pt. 272) 200, (2005) 15 NWLR (pt. 949) 6161 (2005) SC (pt. 11) @ 12; Umar v. White Gold Ginnery (Nig.) Ltd (2007) ALL FWLR (pt. 358) 1096, (2007) 7 NWLR (pt. 1032) 117 @ 134, the trite point that no matter how well conducted a trial without jurisdiction is, the trial is a nullity and on the authority of MBP v. D. (WA) Nig. Ltd (2015) ALL FWLR (pt. 781) 1443 @ 1461 pars F H was emphasized.
The learned counsel relies on the cases of S. L. B. Consortium Ltd v. NNPC (2011) 9 NWLR (pt. 1252) 317 @ 337 ? 338 to contend there was no signature on the charge sheet and therefore it was a worthless document. That there was no authorship and it was fundamentally defective; and the foundation of the prosecution?s case was faulty and must Crash. Alfa v. Zakari (2010) ALL FWLR (pt. 515) 283 @ 302 on unsigned document and submitted that reliance on the charge sheet was of no effect and value and that the trial judge wrongly assumed jurisdiction over
4
same and that it cannot form the basis of the trial of the Appellant.
It was also contended that the charge sheet was also undated, indetermination therefore, defective such that it could not be identified and could not also be waived as it had ousted the jurisdiction of the trial Court. That the additional proof of evidence as on page 14 – 15 and any other processes filed subsequent the unsigned charge sheet did not cure any defect as nothing can be built upon nothing; counsel relies on the case of Mcfoy v. UAC (1962) AC 152 at 160 for this contention. That the judgment was a nullity and issue I be resolved in favour of the Appellant.
The Respondent, on the above issue, has by his issue one which is whether or not the Appellant can validly complain as to any perceived irregularity on the information before the trial Court on appeal. Arguing this variant of the similar issue one, the Respondent?s counsel submitted in a nutshell that even if there were irregularities in the process filed at the trial, they had been cured by Section 168 of the Criminal Procedure Law of Ondo State Cap. 31 Vol. II, 1978 applicable at the time of the trial of
5
the Appellant, herein.
That the question of signature or date being absent in a charge was one which the Appellant had a duty to raise at his arraignment on the 20th day of December, 2012, as it related to defect associated with the charge and non other, that not having been raised at the time the plea was taken (as the records will show) this issue cannot be raised on appeal. Refers to page 16 of the records. The cases of Magaji v. Nigeria Army (2008) ALL FWLR (pt. 420) 603 at 629 on the taking objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure, to be taken immediately after the charge has been read over to the accused and not later and relying on Okaroh v. State (1990) 1 NWLR (pt. 125) 128 (1990) 1 SCN 124 per Ogbuagu, JSC was relied upon.
The learned counsel refers yet again to Section 168 of the Criminal Procedure Law of Ondo State, Cap. 31 Vol. II a, that ? ?No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress could have been amended by the Court.
?
6
That there was no objection to the charge on account of any defect as far as the record of appeal goes. That this Court acts on record. Relies on NPM Co. Ltd v. CNDETSS (1971) 223; Cemodohionus v. COP (1961) 4 ALL NLR 594; Q. v. Ogodo (1961) 4 ALL NLR 700; Q. v. Isa (1961) 4 ALL NLR 668 and Enekebe v. Enekebe (1964) NMLR 42/46.
That on page 16 of the record of appeal, the Appellant?s counsel stated at the arraignment and withdrawal of 1st information and filing of new/fresh one that he had ?no objection?.
The learned counsel contended, therefore, that in the absence of any evidence to the contrary there is a presumption of law as to regularity of the information/charge pleaded to by the Appellant and to which his counsel had stated that he had no objection on the 20th of December 2012 when the trial commenced. Counsel reproduced the ipsi dixit verba simat of the Respondent?s counsel as contained on page 16 of the record and emphasized that the plea was taken afterwards as on lines 9 and 13 of the said page 16 of the records; i.e after its substitution for an earlier one. That the Appellant was estopped; refers to Oyerogba v. Olaopa
7
(1998) 13 NWLR (pt. 583) 509 @ 519 par. A. per Belgore, JSC that Estoppel is now more than a Rule of practice and can be described as substantive rule of law; that estoppel exists where a party is precluded from saying a certain statement of fact is untrue, whether in reality it is true or not.
That Appellant had waived and acquiesced in his trial on the information. That the none signing of the charge by BV Falodun, even if it was so had not been shown to have occasioned any miscarriage of justice.Cyril Udeh v. State (1999) 7 NWLR (pt. 609) 1 SC per Iguh JSC was relied upon.
We have been urged to hold that page 16 of the record of appeal is at variance with the Appellant?s contention; and what is more the Appellant cannot benefit from his inaction, and that this issue be resolved against the Appellant.
RESOLUTION OF ISSUE ONE
The issue one which questions the jurisdiction of the trial Court in countenancing the charge on the ground that it was unsigned and therefore a worthless document being defective and cannot be waived or condoned finds answer in the fact that the alleged unsigned and undated document i.e charge or
8
information filed was withdrawn by the prosecution/respondent and replaced with a new one in substitution and to which the appellant pleaded to all the counts.
As can be seen on page 16 of record of appeal, a fresh information was filed; it is dated 10th December, 2012 and filed on 12th December, 2012 and the earlier one was withdrawn and reliance placed on the process filed on 12th December, 2012. It was not denied but admitted by counsel and his client pleaded; the Court is bound to the counts therein by the record of appeal and in this case, that the information/charge sheet had been replaced and the earlier one withdrawn because of noticeable error mutually noticed by the learned counsel for the parties as indicated on the page 16 of the record of appeal.
It is also instructive, that the law presumes in favour of the regularity of official acts. Once they are shown to have been done regularly, it is presumed that all conditions precedent for their validly had been satisfied; in this case, the dating and the signature of the learned counsel or law officer that proffered or filed the charge, appears in the record.
That it was B. V. Falodun Esq
9
on behalf of the Attorney ? General, was not in issue, as the Appellant?s counsel rightly concedes and acknowledges that the said B. V. Falodun indeed dated and signed Additional Proof of Evidence as found on pages 14 ? 15 of the record of appeal. I have also seen it to be so.
The said B. V. Falodun is a senior legal officer, who signed for the Hon. Attorney ? General and Commissioner for Justice; his signature is indicated and he indicates that the proof of evidence will be adduced at the trial of the ?above charge,? and which charge bears B. V. Falodun as the counsel named at the foot thereof. The Appellant was, therefore, is no way misled; more so that the charge had been clearly substituted. There was no complaint against the substitution; rather, there was a ?no objection? answer.
?Clearly, the Respondent is right that even if the information or charge was undated and unsigned, it was an irregularity that had been waived. The Applicable Section 168 of the Criminal procedure
