ALHAJI SADEEQ IBRAHIM MASSALA v. INSPECTOR GENERAL OF POLICE
(2015)LCN/7875(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of May, 2015
CA/A/229C/2013
RATIO
PRACTICE AND PROCEDURE: WHETHER IT IS THE METHOD OF PERFORMING A DUTY PROVIDED BY A STATUTE THAT MUST BE ADOPTED AND NO OTHER METHOD
It is indeed the law, as submitted by appellant’s counsel, that where a statute has provided for a particular method of performing a duty regulated by the statute, that method and no other method must be adopted. See AMOSHIMA V. STATE (2011) 14 NWLR (1268) 530, 554. per. JOSEPH E. EKANEM, J.C.A.
PRACTICE AND PROCEDURE; APPLICATION FOR LEAVE TO PREFER A CHARGE; WHAT IS REQUIRED OF AN APPLICANT FOR LEAVE TO PREFER A CHARGE AND THE MANDATORINESS OF STATING THE REASON (S) WHY IT IS DESIRED TO PREFER A CHARGE WITHOUT UNDERGOING PRELIMINARY INQUIRY
Regarding the second arm of the complaint it is pertinent for me to refer to the case of FEDERAL REPUBLIC OF NIGERIA v. WABARA (2013) 5 NWLR (1347) 331, 335 where I. T. Muhammed, JSC summarised what is required of an applicant for leave to prefer a charge as follows:
“(a) The charge in respect of which leave is Sought;
(b) Affidavit by the applicant (if not an Attorney-General or his representative) that the statements contained in the application are true;
(c) A statement on whether or not any application has previously been made under these Rules.
(d) A statement on whether or not any proceedings have been undertaken under Chapter xvii of the CPC, and
(e) The result of such application or proceedings if any”.
As can be seen above, His Lordship did not mention or emphasise the mandatoriness of stating the reason (s) why it is desired to prefer a charge without undergoing preliminary inquiry. This also features in the case of OHWOVORIOLE V. FEDERAL REPUBLIC OF NIGERIA (2002) 2 NWLR (803) 176, 189 where Kalgo, JSC, stated that,
“The applicant must also inform the court that no application for such leave has been made previously in the case and that no preliminary inquiry is being conducted in the matter by any Magistrate Court”.
In the case of UGWU V. STATE (2013) 14 NWLR (1374) 257, 276, ARIWOOLA, JSC, stated that,
“The application for leave must also contain information to the court that no application for such leave has been made previously in the case and that no preliminary inquiry is being conducted in the Magistrate Court”. per. JOSEPH E. EKANEM, J.C.A.
PRACTICE AND PROCEDURE: APPLICATION FOR LEAVE TO PREFER A CHARGE; THE ESSENCE OF AN APPLICATION FOR LEAVE TO PREFER A CHARGE, WHAT A PLAINTIFF SEEKING TO PREFER A CHARGE AGAINST A PERSON MUST ESTABLISH AND THE MEANING OF “PRIMA FACIE”
The essence of an application for leave to prefer a charge is to ensure that a person is not oppressed by passing him through the burden of a trial which he ought not to face in the first place. To do otherwise will be oppressive. It follows therefore that when the prosecution seeks to prefer a charge against a person, it must be established prima facie that an offence was committed, that the person is linked with that offence and that the trial will not amount to an abuse of process. Where the deposition in support of the information or charge did not disclose the commission of an offence or link the person with the offence, the information is liable to be quashed. See EGBE V. STATE (1980) 1 NCR 341, IKOMI V. STATE (1986) 3 NWLR (803) 176 and OHWOVORIOLE V. FEDERAL REPUBLIC OF NIGERIA (2003) 2 NWLR (803) 176. “Prima Facie” means “on the face of it subject to further evidence or information”. See EHINDERO V. FRN (2014) 10 NWLR (1415) 281, 308. In respect of leave to prefer a charge it simply means that there is ground for proceeding. See AJIDAGBA V. INSPECTOR GENERAL OF POLICE (1958) 3 FSC 5. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
ALHAJI SADEEQ IBRAHIM MASSALA Appellant(s)
AND
INSPECTOR GENERAL OF POLICE Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): On the 29th day of October, 2012, the respondent filed an application for leave to prefer a criminal charge against the appellant, without holding a preliminary inquiry, under Section 185 (b) of the Criminal Procedure Code (CPC) pursuant to Rule 3 of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970. The application was supported by an affidavit attached to which were a copy of the charge in respect of which leave was sought, a copy of the proof of evidence to be relied upon at the trial, a copy of the list of witnesses, a copy of the list of exhibits and copies of statements of witnesses and the appellant’s statement. The charge contained ten (10) counts of forgery contrary to Section 364 of the Penal Code and one (1) count of fraudulent and dishonest use as genuine of a forged resolution contrary to Section 366 of the Penal Code.
The application was filed at the High Court of Justice of the Federal Capital Territory (“the lower Court”) and was numbered CR/36/12. Upon the grant of the application, the filing of the charge and service of the same with its accompaniment on the appellant, he through his counsel, filed a motion on notice praying for an order of the lower court to quash the charge on the grounds that;
(a) The court had no jurisdiction to try the appellant of the offence charged;
(b) The proof of evidence accompanying the charge did not disclose any prima facie case against the appellant to warrant his trial;
(c) The charge did not comply with the provisions of the Criminal Procedure (Application for Leave to prefer a charge in the High Court) Rules 1970 thus rendering void the leave to prefer the charge;
(d) There was no evidence in the proof of evidence linking the appellant with the offence charged; and,
(e) The charge was vexatious, malicious, frivolous and a flagrant abuse of legal process.
The application was supported by a 6 – paragraph affidavit deposed to by one Uchenna Aghadiuno, a counsel in the law firm of Tochukwu Onwugbufor SAN and Co., counsel for the appellant. Attached to the affidavit are Exhibits A and B. The respondent responded by filing an 11 – paragraph counter – affidavit deposed to by Supol Dada Adejube.
After hearing counsel on both sides, the lower court dismissed the application.
Aggrieved by the decision, the appellant has appealed to this court by way of a notice of appeal containing six grounds of appeal. In the appellant’s brief of argument settled by Tochukwu Ongwugbufor (SAN) of counsel, six issues are formulated for the court’s determination of the appeal. The issues are;
“1. Whether the trial Judge was right in law in refusing or declining to quash the charge of forgery preferred against the accused/appellant when the application to prefer the charge against the accused/appellant did not comply with the provision of S. 185 B of the Criminal Procedure Code and the Criminal Procedure (Application for leave to prefer a charge in the High Court Rules) 1970. (Distilled from Ground 1 of the Notice of appeal filed on 21/2/12)
2. Whether the principle of substantial compliance which is inapplicable to criminal proceeding and afotiori to the provisions of the Criminal Procedure Code and the Rule can be invoked to cure non compliance with a mandatory provision of S. 185 B of the Criminal Procedure Code and the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 (Distilled from Ground 2)
3. Whether the learned trial Judge ought not to have quashed the charge when it was clear from the proofs of evidence documents and statements attached to the proof of evidence that no prima facie offence of forgery was disclosed against the accused/appellant (Distilled from Ground 3).
4. Whether a mere witness statement that an accused has forged a document without more can provide a prima facie evidence of forgery in the absence of both forensic report of expert and the resolution paper containing their alleged forgery.
5. Whether from the proofs of evidence filed there is in existence any evidence linking the accused/appellant with the offence of forgery charge (Distilled from Grounds 4 and 5)
6. Whether in consideration of the facts of this case the charge is not liable to be quashed as being defective and abuse of process (Distilled from Ground 6).”
In his brief of argument, Emmanuel Esene, Esq; of counsel, for the respondent adopted the appellant’s issues for determination.
It is observable that though in issues 1, 2, 3, 5 and 6, the grounds from which they are distilled are stated, that is not the case in respect of issue four. It is of course not mandatory (though it is desirable) that the grounds from which issues are distilled should be set out against the issues. However, in this instance all the six grounds of appeal have been married to five issues as follows;
(a) Issue 1 -Ground 7
(b) Issue 2 -Ground 2
(c) Issue 3 -Ground 3
(d) Issue 5 -Ground 4 and 5
(e) Issue 6 -Ground 6.
There is therefore no ground of appeal left upon which issue 4 can be hoisted. Thus issue four has no foundation to stand on and I accordingly strike out the same.
Upon a consideration of the six grounds of appeal, it is my view that two issues arise for the determination of the appeal. The issues are;
(1) Whether or not the lower court was right in refusing to quash the charge preferred against the appellant based on the complaint that the application to prefer the charge did not comply with Section 185 B of the Criminal Procedure Code and the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970.
(2) Whether or not the lower court ought not to have quashed the charge on the basis that there was no prima facie case against appellant.
ISSUE 1
The arguments of Senior Counsel for the appellant under this issue spreads across his arguments in respect of issues 1 and 2 which he argued together in his brief. Learned Senior Counsel referred to Section 185 (b) of the Criminal Procedure Code (C.P.C.) Rule 3 of the Criminal Procedure (Application to prefer charge in the High Court) Rules 1970 and the case of OHWOVORIOLE V. FRN (2003) 2 NWLR (803) 176, 190. He submitted that an application to prefer a charge in the High Court must be in total compliance with the provisions of the above stated law and rules failing which any charge so preferred is null and void, and therefore liable to be quashed.
He further submitted that the word “shall” when used in a statutory provision is a form of command or mandate, implying that something must be done and so Rule 3 (c) (iv) of the Rules is mandatory and requires a compulsory and complete obligation and not substantial or partial obedience. He set out paragraphs 3, 4 and 5 of the affidavit in support of the application for leave to prefer the charge and submitted that they did not comply with Rule 3 (1) (b) and (2) of the Rules in that it was not stated whether or not any proceedings have been taken under Chapter xvii of the CPC and the result of any such application or proceedings neither did the affidavit state the reason why it was desired to prefer a charge without such application or proceedings.
Learned Senior Counsel noted that the learned trial judge acknowledged in his ruling that the respondent did not give reasons why he did not go by way of preliminary objection (sic, inquiry) but held that there was substantial compliance with Rule 3. He submitted that the principle of substantial compliance cannot apply in this case being a criminal charge where the liberty of an individual is involved. He added that mandatory and total compliance is required.
In his response, counsel for the respondent referred to Section 185 (b) of the CPC and the Criminal Procedure (Application for Leave to prefer a charge in the High Court) Rules 1970. He set out the requirements in an application for leave to prefer a charge and submitted that the respondent fully complied with the requirements. He relied on FRN V. WABARA (2013) 5 NWLR (1347) 331. He was of the view that the lower court exercised its discretion properly and that it is not for an appellate court to substitute its view for that of the lower court. In support, he cited and relied on several cases including UGWU V. STATE (2013) 14 NWLR (1374) 257, 276. He concluded on this issue by submitting that being a judicial act, there is a presumption of validity pursuant to Section 150 (1) of the Evidence Act.
In his reply, Senior Counsel for the appellant submitted that the case of FRN V. WABARA is distinguishable from the instant case. He further submitted that presumption of regularity does not avail the respondent as the appellant has not submitted to trial.
Section 185 (b) of the C.P.C. provides as follows:
“No person shall be tried by the High Court unless –
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court …”
An application for such leave is made pursuant to the provisions of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. Rule 3 (1) and (2) provides as follows:
“3 (1) Every application, other than an application made under rule 2 shall be in writing signed by the applicant or his counsel and
(a) Shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney – General, shall also be accompanied by an affidavit by the applicant that the statement contained in the application are, to the best of the deponent’s knowledge, information and belief, true; and
(b) Shall state whether or not any application has previously been made under these rules and whether or not any proceedings have been taken under Chapter xvii of the Criminal Procedure Code, and the result of any such application or proceedings.
(2) Where no proceedings have been taken under chapter xvii of the Criminal Procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
(a) There shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge; and
(b) The application shall include a statement that the evidence showing the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is, to the best of the knowledge, information and belief of the applicant, a true case.”
It is indeed the law, as submitted by appellant’s counsel, that where a statute has provided for a particular method of performing a duty regulated by the statute, that method and no other method must be adopted. See AMOSHIMA V. STATE (2011) 14 NWLR (1268) 530, 554.
The complaint of the appellant is two – fold, namely;
(i) That the affidavit of the respondent in support of the application for leave to prefer a charge did not state whether or not any proceedings have been taken under Chapter xvii of the CPC and the result thereof; and
(ii) That the said affidavit did not state the reason why it was desired to prefer the charge without such proceedings.
I think I should quickly and straightaway deal with the first complaint. The proceedings under Chapter xvii referred to in Rule 3 (1) (b) of the rules is the conduct of a preliminary inquiry by a Magistrate before any person is committed for trial to the High Court. In paragraph 3 of the affidavit in support of the application for leave, it is deposed,
“That no preliminary inquiry is being conducted in any Magistrate Court in respect of this case”.
The above satisfies the requirement of Rule 3 (1) (b) of the Rules for a statement as to whether or not any proceedings have been taken under Chapter xvii of the CPC.
Regarding the second arm of the complaint it is pertinent for me to refer to the case of FEDERAL REPUBLIC OF NIGERIA v. WABARA (2013) 5 NWLR (1347) 331, 335 where I. T. Muhammed, JSC summarised what is required of an applicant for leave to prefer a charge as follows:
“(a) The charge in respect of which leave is Sought;
(b) Affidavit by the applicant (if not an Attorney-General or his representative) that the statements contained in the application are true;
(c) A statement on whether or not any application has previously been made under these Rules.
(d) A statement on whether or not any proceedings have been undertaken under Chapter xvii of the CPC, and
(e) The result of such application or proceedings if any”.
As can be seen above, His Lordship did not mention or emphasise the mandatoriness of stating the reason (s) why it is desired to prefer a charge without undergoing preliminary inquiry. This also features in the case of OHWOVORIOLE V. FEDERAL REPUBLIC OF NIGERIA (2002) 2 NWLR (803) 176, 189 where Kalgo, JSC, stated that,
“The applicant must also inform the court that no application for such leave has been made previously in the case and that no preliminary inquiry is being conducted in the matter by any Magistrate Court”.
In the case of UGWU V. STATE (2013) 14 NWLR (1374) 257, 276, ARIWOOLA, JSC, stated that,
“The application for leave must also contain information to the court that no application for such leave has been made previously in the case and that no preliminary inquiry is being conducted in the Magistrate Court”.
I agree with learned senior counsel for the appellant that in FEDERAL REPUBLIC OF NIGERIA V. WABARA supra., the issue of substantial compliance or non- compliance relating to applicant’s failure to state whether a preliminary investigation has been conducted and, if not, why he failed to do so, did not arise. It is however difficult to ignore the above dicta of the apex court of the land as set out above.
In the English case of R. V. LAMING, 90 CR. APP. R. 450 CA, (referred to at P.114 Par. 1-196 of Archbold’s Criminal Pleading, Evidence And Practice, 2007) it was said that the requirements of the Indictment Rules 1971 are directory only (though the word “shall” is used). The Indictment (Procedure) Rules 1971 contain provisions in pari materia with our Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. In yet another English case of SEAL v. CHIEF CONSTABLE OF WALES POLICE (2005) 1 WLR 3183, it was also decided that in the present day, the courts will strive anxiously to interprete procedural provisions flexibly where that furthers the interest of Justice but that where Parliament has made it absolutely clear what the consequences are of a failure to take a particular step, it is not for the court to import a discretion or flexibility that is not there.
It is not always that where the word “shall” is used that a mandate is implied. The framers of the Rules did not make clear the consequence of failure to state reasons as required. In the light of the Supreme Court authorities and the English cases highlighted above, it is my view that failure to state the reasons why it is desired to prefer a charge without taking proceedings under Chapter xvii of the CPC is not sufficient by itself to warrant the quashing of a charge or indictment.
The lower court was therefore not wrong in stating that there was substantial compliance with the Rules.
I therefore answer issue one (1) in the affirmative and resolve it against the appellant.
ISSUE 2
The issue is as to whether or not the lower court ought not to have quashed the charge on the basis that there was no prima facie case against the appellant and that there was an abuse of process of court.
Learned Senior Counsel for the appellant submitted that the court must consider only the statements of the witnesses, the accused person’s deposition and other documents contained in the proof of evidence. He further submitted that any evidence or document which the prosecution intends to call or tender in future during the trial is not relevant. He cited and relied on EGBE V. STATE (1980) 1 NLR 341, among other cases, to support his submission.
It was his argument that, in the circumstance of this case, the proof of evidence must contain (a) the forensic report of the expert (b) the resolution paper containing the alleged forgery to facilitate the comparison of the signatures thereon with the signatures of the complainants (c) the statements of the Investigating Police Officer/s and the exhibit keeper/s which were lacking. This, he said, is because a mere statement that a document was forged does not constitute prima facie evidence of forgery. He cited and relied on EGBE V. STATE supra, ABACHA V. STATE (2002) 11 NWLR (779) 437 and AITUMA V. STATE (2006) 10 NWLR (989) 452 in support.
Learned senior counsel noted that in the proof of evidence the forgery was said to have been committed by Alhaji Masalla & Co. or Alhaji Massalla & group with no positive statement that it was the appellant who forged all the signatures on the resolution paper. This he said did not disclose forgery as there cannot be a group forgery nor was the appellant linked with the offence. It was his view that the charge amounted to an abuse of process which the court has an inherent power to prevent.
On his part, counsel for the respondent submitted that from the proof of evidence, there was a prima facie case of forgery. He noted that the witnesses denied their signatures on the documents and submitted further that at this stage the issue is not whether the accused is guilty or not but whether there is a prima facie case which if left uncontroverted and believed will be sufficient to prove a case against the appellant. He cited and relied on YAU V. STATE (2005) 5 NWLR (917) 1, 22 to buttress his point. It was his further view that the charge did not amount to an abuse of process.
In his reply, learned senior counsel for the appellant submitted that mere denial by the witnesses of their signatures on the forged document, without more, does not constitute a prima facie case against the appellant as there must be evidence linking the appellant with the offence.
As earlier stated, the appellant was charged with ten (10) counts of forgery of signatures of certain persons on a resolution paper contrary to Section 364 of the Penal Code and fraudulently and dishonestly using forged resolution to suspend Chief Victor Umeh and Alh. Sani Abdullahi Shinkafi, National Chairman and National Secretary of the All Progressive Grand Alliance (APGA) contrary to Section 366 of the Penal Code.
In the instant case, the respondent obtained the leave of the lower court to file the charge against the appellant. The lower court in granting the leave was thus exercising its discretion. Appellant courts are reluctant to interfere in the exercise of the discretion of lower courts except there is perversity or miscarriage of Justice. See FEDERAL REPUBLIC OF NIGERIA V. WABARA (2013) 5 NWLR (NWLR (1347) 331, 354 and 356.
The essence of an application for leave to prefer a charge is to ensure that a person is not oppressed by passing him through the burden of a trial which he ought not to face in the first place. To do otherwise will be oppressive. It follows therefore that when the prosecution seeks to prefer a charge against a person, it must be established prima facie that an offence was committed, that the person is linked with that offence and that the trial will not amount to an abuse of process. Where the deposition in support of the information or charge did not disclose the commission of an offence or link the person with the offence, the information is liable to be quashed. See EGBE V. STATE (1980) 1 NCR 341, IKOMI V. STATE (1986) 3 NWLR (803) 176 and OHWOVORIOLE V. FEDERAL REPUBLIC OF NIGERIA (2003) 2 NWLR (803) 176.
“Prima Facie” means “on the face of it subject to further evidence or information”. See EHINDERO V. FRN (2014) 10 NWLR (1415) 281, 308. In respect of leave to prefer a charge it simply means that there is ground for proceeding. See AJIDAGBA V. INSPECTOR GENERAL OF POLICE (1958) 3 FSC 5.
In the instant case, from the proof of evidence filed in support of the application for leave to prefer the charge, the witnesses stated that their signatures on the resolution paper were forged by the appellant and his group. The witnesses denied signing the document which was said to have been sent to the Independent National Electoral Commission by the appellant and his group. In his petition to the respondent written by his solicitors, and which he adopted in his statement to the police, the appellant stated that the witnesses signed the resolutions.
In the light of the above, it is my view that there is a prime facie evidence of the commission of the offences alleged and that there is a probable link between the appellant and the offences.
In the case of IKOMI V. STATE supra 360 NNAMANI, JSC, stated that,
“The question ought to be this. From these deposition, is it probable that the accused persons are linked with the offence in the information?
It must be remembered that what the information and the documents attached must disclose is not certainty of the guilt of the accused but a prima facie case. The evidence for this purpose may be direct or circumstantial. In the latter case, it is immaterial that there are other circumstances which could weaken inference of the involvement in the crime as that is a matter for the trial.
Learned senior counsel for the appellant submitted that no prima facie case was disclosed because of the absence of the forensic report, the resolution paper, the statements of the Investigating Police Officer and the exhibit keeper. It is my view that this point goes to the proof of the guilt of the appellant and does not arise at this stage in the circumstance of this case.
Besides, it is not set in concrete that a forensic report must be tendered to prove forgery. See AKINBISADE v. STATE (2006) 17 NWLR (1007) 184, 203.
It must be emphasised that a court will not quash an indictment simply because an examination of the deposition has led it to the conclusion that the prosecution will or may not succeed. See IKOMI V. STATE supra. 359, 375 and FEDERAL REPUBLIC OF NIGERIA V. IBORI (2014) 3 NWLR (1423) 108, 220.
In the case of R. V. THOMAS 32 C. A. R. 50 quoted in IKOMI V. STATE supra. 358, a count charging unlawful obtaining of rationed food contrary to Article 4 of the Food Rationing (General Provisions) Order, 1946, was added to an indictment. Objection was taken to the adding of the count on the ground, inter alia, that the offence was not disclosed in the deposition as the statutory Rule and Order had not been produced. The Lord Chief Justice of England overruled the objection on the ground that a food enforcement officer had given evidence that the articles of food found in the appellant’s possession were rationed food and concluded that,
“That shows therefore on the face of the depositions, an offence, although the evidence, to justify a conviction would have to be reinforced by the purely formal matter of producing the Statutory Rule and Order”.
The above appears to answer the complaint of the appellant as to the absence of certain documents. The persons whose signatures were allegedly forged stated that their signatures were forged by the appellant and co; thus a prima facie case was disclosed even though the documents may have to be produced to justify a conviction.
The case of EGBE V. STATE supra relied upon by learned senior counsel for the appellant is inapplicable to this case as in that case there was a total non – existence of a crime.
The lower court therefore acted rightly in not quashing the charge.
I therefore answer issue 2 in the negative and resolve it against the appellant.
Having resolved the two issues against the appellant, I come to the inexorable conclusion that the appeal lacks merit. I accordingly dismiss the same and affirm the decision of the lower court.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother, Joseph E. Ekanem, JCA just delivered.
I agree with the reasoning and conclusions of my learned brother that this appeal lacks merit. I also dismiss it and affirm the decision of the trial court.
TANI YUSUF HASSAN, J.C.A.: I have read in advance, the Judgment just delivered by my learned brother, Joseph E. Ekanem, JCA.
I agree with the reasoning and conclusion therein, I also hold the appeal unmeritorious and it is dismissed.
Appearances
Tochukwu Ongwugbufor (SAN) (With him, Uchenna Aghadiuno, Esq;) Collins Marshall, Esq; and Charles Seleme Esq)For Appellant
AND
E. I. Esene, Esq; (With him, Miss Peace Ojemen)For Respondent
