ALHAJI SAHEED IBRAHIM MASSALA V INSPECTOR GENERAL OF POLICE
In the Supreme Court of Nigeria
Thursday, February 15, 2018
Case Number:SC. 578/2015
MARY UKAEGO PETER-ODILI
MUSA DATTIJO MUHAMMAD
KUMAI BAYANG AKAAHS
AMINA ADAMU AUGIE
PAUL ADAMU GALINJE
ALHAJISAHEED IBRAHIM MASSALA
INSPECTOR GENERAL OF POLICE
(DELIVERED BY MARY UKAEGO PETER-ODILI. JSC)
The accused/appellant was charged for forgery contrary to Section 364 of the Criminal Code Act in Charge NO: CR/36/12. Upon service on him of the charge, the appellant through counsel raised a preliminary objection seeking to quash the charge on grounds of lack of jurisdiction for non compliance with Section 185 (B) of the Criminal Procedure Code, non disclosure of offence in the proof of evidence against the accused/appellant and abuse of process;
The learned trial judge in a considered ruling after listening to the parties dismissed the objection holding that he had jurisdiction to try the appellant charged.
Dissatisfied, the appellant appealed to the Court of Appeal or court below or lower court against the decision of the trial court vide the Notice of Appeal filed on 21st February, 2013.
The court below dismissed the appeal, hence this approach to the Supreme Court vide Notice of Appeal filed on 7th day of August, 2015.
On the 27th day of November 2017 date of hearing, learned counsel for the appellant, Ogechukwu Onwugbufor Esq. adopted appellant’s brief of argument filed on 27/10/15 and a reply brief filed on 11/2/2016 and deemed filed on 27/11/17. In the brief of argument, the appellant distilled three issues for determination which are thus:-
a.Whether having held that the respondent did not comply with Section 158 (B) of the Criminal Procedure Code and Rule 3 (2) of the Criminal Procedure (Application for Leave to Prefer a Charger in the High Court’s) Rules 1970 by failing to state the reason why it is desired to prefer a charge without taking proceedings under Chapter XVII of the Criminal Procedure Code, the court below was right in failing or refusing to quash the charge against the appellant for want of compliance with Section 158 (B) of the CPC and the Rules which are mandatory. (Distilled from ground 1).
b.Whether the court below was right to have placed reliance on English Cases of R v LAMINIG 90 CR APP R. 450 and SEAL v CHIEF CONSTABLE OF WALES POLICE 2005 1 WLR 3183 to hold that Section 185 (B) of the criminal Procedure Code is discretionary or permissive when the Supreme Court has already held that that section is mandatory. (Distilled from ground 2).
c.Whether having regards to the fact that the proof of evidence disclosed group forgery and did not contain the resolution paper containing the alleged forgery or the forensic report of expert, the court below was right to hold that the proof of evidence discloses a prima facie case of the offence charged and a probable link between the appellant and the offence. (Distilled from ground 3).
Learned counsel for the respondent, Emmanuel Esene Esq. adopted his brief of argument filed on 23/12/15 and deemed filed on 12/4/17. He also adopted the issues as formulated by the appellant which are apt and I shall utilise them in the determination of this appeal.
ISSUES 1 AND 2;
1.Whether having held that the respondent did not comply with Section 185 (b) of the Criminal Procedure Code and (Rule 3 (2) of the Criminal Procedure Code (Application for leave to prefer a charge in the High Court’s) Rules 1970 by failing to state the reason why it is desired to prefer a charge without taking proceedings under chapter XVII of the Criminal Procedure Code, the court below was right in flailing or refusing to quash the charge against the appellant for want of compliance with Section 185 (b) of the CPC as the rules which are mandatory. (Distilled from ground 1).
2.Whether the court below was right to have placed reliance on English Cases R v LAMING GOR CR APP R. 450 CA and SEAL v CHIEF CONSTABLE OF WALES POLICE 2005 1WLR 3183 to hold that Section 185 (b) of the Criminal Procedure Code is discretionary or permissive when the Supreme Court has already held that the section is mandatory. (Distilled from ground 2).
Learned counsel for the appellant submitted that the court below was in grave error when it failed to quash the charge against the appellant since the non compliance amounts to an infraction of Section 185 (b) of the CPA. That the court below was wrong not to have quashed the charge after finding that respondent did not comply with Rule 3 (2) of the Criminal Procedure (Application for leave to prefer a charge in the High Court Rules) 1970. He cited Owhoriole v FRN (2002) 2 NWLR (Pt.176) 189; Ugwu v State (2013) 14 NWLR (Pt.1374) 257; FRN v Wagbara (2013) 5 NWLR (Pt. 1347) 331 at 348 – 349.
That the provisions of Section 185(B) CPC and Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 on the judicial authorities cited above are mandatory and requires total compliance before leave to prefer a charge is granted by the High Court. That Rule 3 provides for particular methods, requirements or conditions every application for leave to prefer a charge in the High Court must comply with. That where a statute provides for a particular method of performing an act or duty regulated by law, that method and no other method must be adopted in the performance of that act or duty. He relied on Amoshima v State (2011) 14 NWLR (Pt. 1268) 530 at 554; C.C.B. (Wa.) Plc v A. G. Anambra State (1992) 8 NWLR (Pt.261) 528 etc.
Learned counsel for the appellant stated that the reasons adduced or relied on by the court below to refuse or decline to quash the charge by reason of non compliance with Rule 3 (2) of the Rules are tenuous and misconceived. That the charge is incompetent having regard that leave was granted by the trial court in violation of the mandatory provisions of Rule 3 of the Rules in which case no competent proceedings should have commenced against the appellant.
In responding, learned counsel for the respondent contended that the respondent had complied with Section 185 (b) of the CPC and Order 3 Rules (1) and (2) (a) and (b) and proof of evidence. He cited FRN v Wagbara (2013) 5 NWLR (Pt.1347) 331 at 349. That the trial court granted the leave to prefer the charge based m the facts and law presented before it and so that discretion having been properly exercised it is not for the Court of Appeal to change it by substituting its own views over those of the court of first instance. He referred to Hadmor Production Ltd v Hamilton (1983) l AC 191 at 120, Oyeyemi v Ike Wole Local Government (1993) 1 NWLR (Pt.270) 262; Ugwu v State (2013) 14 NWLR (Pt.1374) 257 at 276.
The stance of the appellant is that the court below was wrong in refusing to quash the charge by reason of non compliance with Rule 3 (2) of the Rules as the charge was incompetent.
Respondent’s opposing position is that the lower court properly exercised its discretion and granted leave to the prosecution to prefer a charge against the appellant and so this appeal holds no substance.
In this instant case, the offence was committed in the Northern part of Nigeria and the applicable law as at the time of the offence and trial the Criminal Procedure Code and Section 185 (b) precisely which provides thus:
(a) No per 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”.
The interpretation to Section 185 (b) of the Criminal Procedure Code (CPC) and Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 given by the Supreme Court would give the clear view useful for our purpose. See Ohworiole v FRN (2003) 2 NWLR (Pt. 803) 176 at 190 per Kalgo JSC stated as follows:-
“It must also be understood that the provisions of Section 185 (B) of the CPC must be read with those contained in the Rules governing the application to prefer a charge, as in this case, and any application to quash the charge preferred by leave of the High Court must necessarily involve the consideration of those provisions”
Also in the case of FRN v Wagbara (2013) 5 NWLR (Pt.1347) 331 at 348 – 349 per Muhammad JSC stated thus:-
“The records therefore bear out the respondents that the witnesses’ statements have not been attached to the appellants application for leave. But this fact does not mean that learned counsel are correct in supporting the lower courts finding that the appellants failure to annex the statement of witnesses is fatal… A community reading of the clear and unambiguous provisions of Section 185(B) of the Criminal Procedure Code and Order 3 Rules (1) and (2) (a) and (b) reveals clearly that the application has complied with the criteria an applicant is required to fulfil to be entitled to the leave he seeks. Nowhere in the applicable Rules has the annexure of witnesses statements to the application for leave been made a necessary requirement.”
The learned JSC continued at para. H:
“Learned counsel for the respondent’s contention that there is the necessity to attach statements of witnesses and serve same on the respondent is therefore misconceived.”
The learned justice of the Supreme Court then concluded thus at page 348 B – C:
“The respondents appealed to the court below has been the assertion, and same has been upheld by the court, that since the appellant has not met the criteria stipulated under Order 3 Rules (1) (2) of the relevant Rules of the trial court regarding its application, the leave necessary for the preferment of the charges against the respondents is improperly acquired. Competent proceedings against the respondents is impossible as both the improperly acquired leave and the illegally preferred charges against them must be quashed.”
It is to be noted that the procedure to obtain leave from a judge of a High Court to prefer charge are provided for under the Criminal Procedure (Application for leave to prefer a charge in the high court) Rules 1970 is a discretionary power of the judge. When the application is made and it must be supported by the following:-
(a)The charge in respect of which leave is sought.
(b)Affidavit by the applicant that the statement contained in the application are true.
(c)A statement on whether or not any proceeding have been undertaken under chapter XVII of the Criminal Procedure Code, and
(d)The result of such application or proceeding if any.
On whether or not the applicant complied with the provisions of the said Rules the Court below had this to say in the affirmative, thus:-
“It is my view that even though the complainant/applicant did not give reasons why he did not go by way of preliminary objection inquiring he nevertheless has complied substantially with Rule 3 of the application to prefer a charge in the High Court Rules 1970.”
The Court of Appeal held that the proof of evidence links the applicant to the offence.
I shall refer to what this apex court said on this point of leave to prefer a charge. See Gaji v The State (1975) NWLR (Pt.98) 112:
“Judges who exercise the power of granting leave under the provision of Section 183 (b) of the Criminal Procedure Code should ask for and insist on seeing the proof of evidence which it is intended to urge in support of the prosecution. It is not open at that stage to an accused person to be invited into the scene and moreover to be supplied with copies of the statement of potential witness.”
In FRN v Wagbara (supra) at page 349 thus:-
“The leave granted the appellant by the trial court must be appreciated, is on the basis of applicant’s ex parte application to the court, respondents are not put on notice. The extant procedure put in place only require the appellant to provide the court with adequate materials from which to infer whether or not it is just to put respondent on trial. The court has insisted that it is oppressive and unconstitutional to put a person on trial unless the court approach to grant the leave is satisfied that the material accompanying the application disclose enough facts to warrant a trial, learned counsel for the respondent’s contention that there is the necessity to attach statement or witness and serve same on the respondent is therefore misconceived. It is worth to know that proofs of evidence are not the same as statement of the witness the appellant would call at the trial. Proofs of evidence are summaries of the statement of the witness to be called at the trail by the appellant. It is for that reason that the rules require on affidavit from the appellant the evidence against the respondents as summarized in the proof of evidence prepared by the appellant will be evidence against the respondents in respect of whose trial the court is urged to grant leave to prefer a charge. Even at the trial, the respondents on the authorities are only entitled to access the statements of the prosecution’s witness on the fulfilment of certain conditions.”
Fabiyi JSC in FRN v WAGBARA (supra) stated at page 38 as follows:-
“It has been variously held by this court that proof of evidence should only disclose prima facie case which literally means evidence on its face value. See the case of ABOJEDE v THE STATE (1996) 5 NWLR (Pt.448) 378; AJIDAGBA v IGP (1958) SCNLR 60.
The proof of evidence and the statements of the respondents annexed to the application constitute prima facie case as dictated by the law, read along with the applicable rules……”
The Supreme Court in FRN v Wagbara (supra) commenting on the case of Ohirovoriole v FRN (supra); Abacha v State (2002) 11 NWLR (Pt.779). The Supreme Court further stated as follows:-
“From the foregoing it is thus not the decision of this court in the two cases that leave pursuant to an application under and by virtue of Section 185 of the criminal procedure code and Order 3 Rules 1, 2 (a) and (b) of the 1970 rules succeeds only where, in addition to other requirements the applicant has annexed to the application, the statement of the prosecution witness. The court only insists that before the leave is granted, the judge to whom the application is made must ensure that the materials before him justify putting the person in respect of whose prosecution the leave in being sought to trial. In the case at hand, from the proof of evidence and the cautionary statement of the respondent, the appellant annexed to its application, it must be reiterated the applicant law fulfilled the conditions the law placed on it…”
I am in total agreement with the respondent that the lower court granted leave to prefer a charge based on the fact and the law presented before it. The fact and the law were properly placed before it. The lower court properly exercised its discretion and it is not for the appeal court to substitute its views for that of the lower court when it comes to substitute its views to the exercise of its discretions. See HADMOR PRODUCTION LTD v HAMILTON (1983) 1 C 191 at 120, SACANKE v AJIBOLA (1969) 1 NWLR 253, OYEYEMI v IKE WOLE LOCAL GOVERNMENT (1993) 1 NWLR (Pt.270) 262.
ARIWOOLA JSC in UGWU v STATE (2013) 14 NWLR (Pt. 1374) 257 at 276 stated as follows:-
“The application for leave of court must also contain information to the court that no application for such leave has been made previously in the case and no preliminary inquiry is being conducted in the matter by any Magistrate Court. Upon receipt of the application by virtue of the rules, the trial judge has the discretion to grant or refuse the application. See OHWOVORIOH v FRN & others (2003) 2 NWLR (Pt. 803) page 176 at 189….”
Ariwoola JSC in Ugwu v State (supra) at 278 stated thus:
“Perhaps my lord, it must be clearly stated again that the act of applying for and the grant of leave to prefer a charge against an accused person is both an official and judicial act. In this respect Section 150 (4) of the Evidence Act provides as follows;
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that former requisites for its validity were complied with.”
Also to be said our courts are at liberty to utilise foreign judicial authorities where they are helpful to the court.
There is no gainsaying that the issues I and 2 are resolved against the appellant.
Whether having regard to the fact that the proof of evidence disclosed group forgery and did not contain the resolution paper containing the alleged forgery or the forensic report of an expert, the court below was right to hold that the proof of evidence discloses a prima facie case of the offence charged and probable link between the appellant and the offence.
Learned counsel for the appellant contended that the proof of evidence shows the statements of the witnesses who stated that the said forgery was committed by a group which they referred to as “Massalla and Co”, or Massalla and group”, “Massalla and Cohorts” or “dissident members of APGA” and there was no witness who stated who forged what. That notwithstanding the above deficiencies and lapses contained inthe proof of evidence the court below dismissed the appellant’s application holding that the proof of evidence disclosed a prima facie offence of forgery against the appellant and that the appellant was linked with the offence charged.
He stated that since the resolution paper containing the forgery and the police forensic report to establish the nexus between the signature of the accused and the signature(s) of the accused as contained the resolution paper were not included in the proof of evidence the offence of forgery has not been established. He relied on Abacha v State (2002) 11 NWLR (Pt. 779) 437 at 480 etc.
That the materials before the court are insufficient and cannot establish the element of forgery and cannot therefore establish a prima facie case against the accused/appellant because the evidence and materials before the court at the time of granting the leave is such that if uncontradicted and if believed, the evidence is not sufficient to prove the case against the appellant. That what is available leads to speculation as to the involvement of the appellant in the offence. He cited Uwagboe v State (2008) 12 NWLR (Pt.1102) 621 at 647; U. T. B. (Nig.) v Ozoemena (2007) 3 NWLR (Pt.1022) 448 at 487.
In response, learned counsel for the respondent said from the proof of evidence it is a prima facie case of the offence of forgery and same can be established if trial is done. That the respondent substantially complied with the relevant rule to enable him be granted the leave to prefer a charge. He cited Nyame v FRN (2010) 1 NWLR (Pt.1193) 344; Awuse v Odili (2004) 8 NWLR (Pt.876) 481 etc.
The posture espoused by the appellant is that from the proof of evidence, document and statement attached to the proof of evidence no prima facie offence of forgery was disclosed against the appellant. Also as stated by the appellant, a mere witness statement that an accused person forged a document without more if evidence cannot provide a prima facie evidence of forgery in the absence of forensic report of an expert and the resolution containing the alleged forgery.
The respondent disagreed with that stance of the appellant taking a contrary stand.
From the proof of evidence at this instance, it is clear that there is a prima facie case of the offence of forgery and same has a chance to be established if the trial is done. There is evidence in the Ruling of the court below where the witness denied in the proof of evidence being the owner of the said signature.
For a fact from the proof of evidence, there is shown enough from which the appellant can make a clarifying response. That is what I see as having a case to answer to. It does not mean that by what is placed in the proof of evidence the accused/appellant without more is guilty but what is needed is that there should be sufficient material therein necessitating the appellant to say something to dispel the said allegation or failing which would be seen that he really had nothing to put across in exculpation. I refer to some Court of Appeal cases which dealt effectively with the issue whether the evidence disclosed a prima facie, when if uncontroverted and believed will be sufficient to prove a case against the accused person. See Adewale v Olaifa (2012) 17 NWLR (PU330) 498 at 521; Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158 at 207; Yau v State (2003) 5 NWLR (Pt.917) 1 at 22; Aminu v State (2000) 2 NWLR (Pt.909) 180 at 191 per Galadima “JCA (as he then was).
I do not hesitate to say that the lower court was right when it stated that the respondent had substantially complied with the relevant rule to enable him to grant the leave to prefer a charge.
Indeed substantial compliance means considerable compliance and that it is enough to satisfy the provisions of the Rules. The word “substantial” was defined to mean having substance, being a substance, essential, actually existing, material, solid and ample massy and stable.
See Olujimi v E. S. A. A. (2009) 11 NWLR (Pt.1153) 464 at 482 per Nweze JCA (as he then was) applying the Supreme Court case of Angbazo v Ebye (1993) 1 NWLR (Pt. 268) 133.
From the foregoing it is clear that there is no merit in this
appeal and I have no difficulty in dismissing the appeal as I uphold the judgment of the Court of Appeal, affirming the decision High Court in refusing the quash the charge against the appellant,
MUSA DATTIJO MUHAMMAD, JSC: I read in draft the lead judgment just delivered by my learned brother MARY UKAEGO PETER-ODILI JSC and I agree with the reasoning and conclusion therein that the appeal being bereft of any merit be dismissed, I dismiss same and endorse all the consequential orders made therein.
AMINA ADAMU AUGIE. JSC: I, have had the privilege of reading in draft the judgment just delivered by my learned brother – Peter-Odili, JSC. I, too, agree with the reasons and conclusion that the appeal lacks merit and should be dismissed. I abide by the consequential orders therein contained; inclusive of that relating to cost.
PAUL ADAMU GALINJE, JSC: I have had a preview of the judgment just delivered by my Learned brother Peter-Odili JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.
The appeal is devoid of any merit and deserves to be dismissed. I dismiss same and endorse all the consequential Orders made therein.
OGECHUKWU ONWUGBUFU ESQ. with Gerald Ajoku for the Applicant.|EMMANUEL I. ESENE, with Ambros Okhiria for the Respondent.|