IGP v. OGUNDIMU & ORS
(2022)LCN/16849(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, March 24, 2022
CA/IB/229C/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
INSPECTOR GENERAL OF POLICE APPELANT(S)
And
1. HON. GBOLAHAN OGUNDIMU ‘M’ 2. ALHAJA SILIFATU SHODIPO ‘F’ 3. ISIAKA LAWAL ‘M’ 4. MURITALA OSHO ‘M’ RESPONDENT(S)
RATIO
THE DUTY OF THE COURT WHERE A RESPONDENTS COMPLAINT IS ON THE COMPETENCE OF A GROUND OF APPEAL AND THERE EXISTS OTHER GROUNDS THAT CAN SUSTAIN THE APPEAL
The law is settled that where a Respondent’s complaint is on the competence of a Ground of Appeal and there exists other ground(s) that can sustain the appeal, the proper thing is for such Respondent to file a motion to strike out the incompetent Ground of Appeal. See ODUNUKWE VS. OFOMATA (2010) 18 NWLR (PT. 1225)404, MUHAMMED VS. MILITARY ADMINISTRATOR, PLATEAU STATE (2001) 16 NWLR (PT. 740)524, NIGERIA DEPOSIT INSURANCE CORPORATION VS. ORANU (2001) 18 NWLR (PT. 744)183.
The law is further settled that a Respondent who seeks to rely on an objection shall seek leave of the Court to move it before the hearing of the appeal. Where he fails to do so, such objection is deemed abandoned. See NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285, OKOLO VS. UNION BANK OF NIGERIA (1998) 2 NWLR (PT. 539) 618, AREWA TEXTILES PLC. VS. ABDULLAHI & BROTHERS MUSAWA LTD (1998) 6 NWLR (PT. 554) 508, AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248, NIGERIAN LABORATORY CORPORATION VS. PACIFIC MERCHANT BANK LTD (2012) 15 NWLR (PT. 1324) 505 AND ATTORNEY-GENERAL, RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008) 436. PER OJO, J.C.A.
THE DEFINITION OF THE WORD “CHARGE”
The word “Charge” is defined in the Black’s Law Dictionary 9th Edition as follows:
“As a noun: “A formal accusation of an offence as a preliminary step to prosecution.”
As a verb: “To accuse (a person) of an offence.”
From the two definitions above, it follows that a person is charged with a Criminal offence when he is formally accused of having committed an offence. The formal accusation is what constitutes the charge against him and once he is aware of the charge he is entitled to commence the preparation of his defense. See OKOYE VS. COMMISSIONER OF POLICE (2015) 17 NWLR (PT. 1488)276.
The law is that every charge shall contain the offence for which the accused person is standing trial. See Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 202(1) of the Administration of Criminal Justice and Other Related Matters Law of Ogun State, 2017.
Section 36(6)(a) (supra) provides thus:-
“Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in detail of the nature of the offences.”
Section 202(1) (supra) provides thus:-
“202(1) A Charge shall contain the following:
(a) the offence with which a Defendant is charged;
(b) where the law creating the offence gives it any specific name, the offence shall be described in the charge by that name only;
(c) where the law which creates the offence does not give it any specific name so much of the definition of the offence must be stated so as to give the Defendant notice of the particulars of the Offence with which he is charged; and
(d) The law, the Section thereof and may state the punishment in Section of Law against which the offence is said to have been committed.” PER OJO, J.C.A.
INGREDIENTS OF THE OFFENCE OF FORGERY
The substantive offence for which the Respondents were charged is that contained in Count II which is forgery contrary to Section 465 and punishable under Section 467 of the Criminal Code Cap. 38, Laws of the Federation of Nigeria, 2004 as applicable in Ogun State. It provides as follows:
“A person who makes a false document or writing knowing it to be false, and with intent that it may be used or acted upon as genuine, whether in the State or elsewhere, to the prejudice of any person or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document in writing.”
It has been settled in a long line of authorities that the ingredients of the offence of forgery that need be proved to sustain conviction for the offence are:-
1. That the document is in writing;
2. That the document or writing is forged;
3. That the forgery is by the accused person/Defendant;
4. That the accused person/Defendant knows that the document or writing is false;
5. That the accused person/Defendant intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine.
See DURU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (PT. 1632)20, AMADI VS. FEDERAL REPUBLIC OF NIGERIA (2008) 18 NWLR (PT. 1119)259, IDOWU VS. STATE (1998) 11 NWLR (PT. 574)354 AND ALAKE VS STATE (1991) 7 NWLR (PT. 205)567. PER OJO, J.C.A.
THE POSITION OF LAW ON PRIMA FACIE CASE
What the trial Court decided was not whether or not the Defendants were misled but that no prima facie case was disclosed against them in the charge. What then is a prima facie case?
It means that there is ground for proceeding with the trial. It is not the same as proof which is when a trial Court would decide the guilt of a Defendant. See ADAMA VS. STATE (2018) 3 NWLR (PT. 1605) 94, AJULUCHUKWU VS. STATE (2014) 13 NWLR (PT. 1425) 641, DARIYE VS. FEDERAL REPUBLIC OF NIGERIA (2015) 10 NWLR (PT. 1467) 325, AGBO VS. STATE (2013) 11 NWLR (PT. 1365)377 AND AJIDAGBA & ORS VS INSPECTOR GENERAL OF POLICE (1958) NSCC VOL.1 AT 20.
The law is that once a charge is laid, it is deemed that all the ingredients needed to prove the charge are included in the particulars. The prosecution is limited to proving only the particulars included in the charge. The prosecution would not be allowed to lead evidence to prove any ingredients omitted in the particulars. In other words, the prosecution cannot bring evidence to prove any ingredient not contained in the particulars provided in the charge. The ingredients of the offence provided in the particulars of the count are like averments in pleadings filed in a civil suit. It is elementary law that evidence led on facts not pleaded, go to no issue. In the same vein, the prosecution cannot lead evidence to prove any ingredients omitted in the particulars of the charge. See Section 203 of the Administration of Criminal Justice and Other Related Matters Law of Ogun State and the case of ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The Appellant acting pursuant to the provisions of Section 23 of the Police Act (as amended) applied to the Deputy Chief Registrar of the Ogun State High Court to file an information against the Respondents for the offence of conspiracy to forge and forgery contrary to Sections 516 and Section 465 of the Criminal Code Act Cap C 38 Laws of the Federation as applicable in Ogun State.
By a motion filed on the 13th of June, 2019, the Respondents sought an order of Court to quash the information/charge preferred against them. In a ruling delivered on the 13th of May, 2020, the lower Court quashed the two counts of the charge and went on to discharge the Respondents.
Dissatisfied with the ruling, the Appellant filed a Notice of Appeal containing four grounds on the 8th of July, 2020. The Record of Appeal was transmitted to this Court on the 7th of August, 2020.
Parties filed and exchanged their respective Briefs of Argument. The Appellant’s Brief of Argument settled by Anthony Iyeye, Esq., filed on 20th September, 2021 was deemed properly filed on 3rd of November, 2021. The 1st and 2nd Respondents’ Brief of Argument settled by L.O. Agbetu, Esq., was filed on 3rd of December, 2021. The brief of the 3rd and 4th Respondents settled by Y. O. Anikulapo, Esq., was filed on 1st of December, 2021.
The Appellant’s Counsel was not present in Court on the 13th of January, 2022 when this appeal came up for hearing. The Court satisfied that the Appellant’s Counsel was duly served with Hearing Notice deemed the appeal as duly argued pursuant to the provision of Order 19 Rule 9(4) of the Court of Appeal Rules 2021 which provides as follows:-
“When an appeal is called and the parties have been duly served with notice of hearing, but a party or any Legal Practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”
The following two issues were distilled for determination on behalf of the Appellant:-
1. Whether the lower Court was right in discharging the Respondents on the basis that there was no prima facie case of conspiracy and forgery against them (Grounds 1 and 3)
2. Whether the lower Court was right in holding that because the Criminal Code Act, Cap. 38 LFN 2004 was inapplicable in Ogun State, the information should be struck out against the Respondents for being charged under it (Ground 2)
For the 1st and 2nd Respondents, the following two issues were formulated:-
1. Whether or not the findings and conclusions of the lower Court that the charge discloses no prima facie case are right and justified the discharge of the Respondents. (Grounds 1 and 2)
2. Whether or not the Lower Court was right in striking out the charge having found that the Criminal Code Act, Cap. 38 LFN 2004 upon which it is predicated was inapplicable in Ogun State. (Ground 2)
Counsel to the 3rd and 4th Respondents identified two issues for determination to wit:-
1. Whether or not the learned trial Judge was right and justified in discharging the accused persons having found that the charge discloses no prima facie case against the accused persons. (Grounds 1 and 3)
2. Whether or not the learned trial Judge was right in holding that the Criminal Code Act, Cap. 38, LFN 2004 is inapplicable in Ogun State and thereby struck out the charge predicated thereon. (Ground 2)
Before going to the merits of the appeal, I note that the 1st and 2nd Respondents at page 4 of their Brief of Argument raised an objection to the competence of Ground 3 of the Notice of Appeal. The objection was argued at pages 4 to 7 thereof.
The law is settled that where a Respondent’s complaint is on the competence of a Ground of Appeal and there exists other ground(s) that can sustain the appeal, the proper thing is for such Respondent to file a motion to strike out the incompetent Ground of Appeal. See ODUNUKWE VS. OFOMATA (2010) 18 NWLR (PT. 1225)404, MUHAMMED VS. MILITARY ADMINISTRATOR, PLATEAU STATE (2001) 16 NWLR (PT. 740)524, NIGERIA DEPOSIT INSURANCE CORPORATION VS. ORANU (2001) 18 NWLR (PT. 744)183.
The law is further settled that a Respondent who seeks to rely on an objection shall seek leave of the Court to move it before the hearing of the appeal. Where he fails to do so, such objection is deemed abandoned. See NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285, OKOLO VS. UNION BANK OF NIGERIA (1998) 2 NWLR (PT. 539) 618, AREWA TEXTILES PLC. VS. ABDULLAHI & BROTHERS MUSAWA LTD (1998) 6 NWLR (PT. 554) 508, AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248, NIGERIAN LABORATORY CORPORATION VS. PACIFIC MERCHANT BANK LTD (2012) 15 NWLR (PT. 1324) 505 AND ATTORNEY-GENERAL, RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008) 436.
In the instant appeal, the 1st and 2nd Respondents who challenge the competence of only one ground of the Notice of Appeal did not bring the objection by way of a Motion on Notice. Furthermore, his Counsel did not seek the leave of Court to argue the objection at the hearing of the appeal. The objection is incompetent and also deemed abandoned. All arguments of Counsel at pages 4 to 7 of the 1st and 2nd Respondents’ Brief of Argument are hereby discountenanced.
I have carefully examined all the issues formulated on behalf of the parties and I find all of them to be substantially the same. I however find the issues formulated on behalf of the 3rd and 4th Respondents most elegant and would adopt them with some slight modifications as the issues for determination in this Appeal. The two issues which I shall resolve together are as follows:-
1. Whether or not the trial Judge was right to discharge the Defendants after finding that the charge filed disclosed no prima facie case against them. (Grounds 1 and 3 of the Notice of Appeal)
2. Whether the trial Judge was right when he held that the Criminal Code Act, Cap. 38, LFN 2004 is inapplicable in Ogun State and struck out the charge predicated thereon. (Ground 2 of the Notice of Appeal)
Issue No.1 questions the finding of the learned trial Judge to wit: that the charge is defective and does not disclose a prima facie case against the Defendants (instant Respondents).
The crux of the argument of Appellant’s Counsel under this issue is that the learned trial judge erred when he held that the charge filed did not disclose a prima facie case against the Respondents. He relied on the cases of MOHAMMED SANI ABACHA VS. THE STATE (2012) LPELR (INCOMPLETE CITATION) AND DARIYE VS. FEDERAL REPUBLIC OF NIGERIA (2015) EJSC (VOL. 13)1-209, P.70 AT P.90 on the meaning of prima facie case and submitted that the learned trial judge did not follow the principles laid down in precedents in arriving at his decision. He further relied on the cases of AJIDAGBA VS. IGP (1948) SCNLR 69, AGBOOLA VS. F.R.N. (2014) LPELR- 22932 (CA) AND TONGO VS. C.O.P. (2007) LPELR- 3257 (SC).
He referred us to processes and documents placed before the trial Court to submit that the learned trial Judge was more concerned with the manner in which the counts were couched and omitted to look at the statements and documents attached to the Information which according to him linked the Respondents with the commission of the offence.
It is further the argument of Appellant’s counsel that the Respondents were not in doubt as to the offences for which they were charged. He craved in aid of his submission the provisions of Sections 202, 203, 204(1) and 206 of the Administration and Criminal Justice and Other Related Matters Law of Ogun State which deals with what a charge should contain. He contended further that the two counts contained in the charge were drafted in compliance with Section 204(1) of the Administration of Criminal Justice and Other Related Matters Law (supra).
Counsel further submitted that no error in drafting will invalidate a Charge unless the Defendant was misled. He craved in aid of his submission the cases of AMIWERO VS. AGF (2015) ALL FWLR (PT. 802) 1742 AND TIMOTHY VS FRN (2013) NWLR (PT. 1344) AND ELIAS VS. FRN & ANOR (2016) NGCA 7.
He finally urged us to resolve this issue in favour of the Appellant particularly as the Appellant may be inclined to amend the charge.
Arguing per contra, learned Counsel to the 1st and 2nd Respondents referred us to excerpts of the ruling of the lower Court at pages 149 to 151 and 157 – 159 of the Record to submit that contrary to Appellant’s arguments, the learned trial Judge took cognizance of all processes filed by both the Appellant and the Respondents.
He relied on the case of OLUFEMI BABALOLA VS. THE STATE (1989) 4 NWLR (PT. 115)264 to submit that where the ingredients of the offence are not reflected in a count, it is impossible to show a prima facie case that would warrant putting the Defendants to trial.
On the submission of Appellant’s Counsel that the Appellant may still amend the charge and that the decision of the learned trial judge was premature, Counsel submitted that the submission of Appellant’s Counsel signifies an intention to amend and not an application to amend which does not amount to an amendment. He cited the case of ADEMESO VS. OKORO (2005) ALL FWLR (PT. 277)844 to support his submission.
He submitted that the reason why ingredients of an offence must be reflected in a charge is to give a Defendant sufficient notice of the case against him and craved in aid of his submission the case of IBRAHIM VS. THE STATE (2017) ALL FWLR (PT. 898)1.
For his part, learned Counsel to the 3rd and 4th Respondents repeated the submissions made on behalf of the 1st and 2nd Respondents. He submitted in addition that the law presumes every decision to be correct and that the duty to prove otherwise is on the party who alleges the contrary.
He submitted and urged us to hold that the decision of the trial Court represents the settled position of the law. He called in aid of his submissions the cases of F.R.N. VS. ISEGBOHI (2020) ALL FWLR (PT. 1034)900, ABIDOYE VS. F.R.N. (2014) ALL FWLR (PT. 722)1624; (2014) 5 NWLR (PT. 1399)30 AND IBRAHIM VS. STATE (2017) ALL FWLR (PT. 898)1 and urged us to resolve this issue in favour of the 3rd and 4th Respondents and against the Appellant.
Issue No. 2 revolves around the finding made by the learned trial Judge, that the Criminal Code Act, Cap. 38, Laws of the Federation, 2004 was not applicable to Ogun State.
In his argument under this issue, learned Counsel to the Appellant conceded that the substantive penal law applicable in Ogun State is the Criminal Code, Volume 1, Laws of Ogun State, 2006 and not the Criminal Code Cap.38 Laws of the Federation of Nigeria, 2004. He however submitted that the two legislations contain similar provisions and that charging the Respondents under the Criminal Code Cap. 38 Laws of the Federation is not fatal. He cited the case of YABUGBE VS. C.O.P. (1992) 4 NWLR (PT. 1458)152 in support of his argument.
He urged us to resolve issue no. 2 in favour of the Appellant and remit this case back to the trial Court for the trial of the Respondents before another judge.
Learned Counsel to the 1st and 2nd Respondents for his part submitted that since the Appellant has conceded that provisions of the Criminal Code Act, Laws of the Federation are not applicable all his further arguments under this issue have become academic for which no Court of law should dissipate energy. He submitted and urged us to hold that once a charge is found to be incurably defective, the proper order to make is one striking out the charge as the learned trial judge did.
He urged us to dismiss the appeal and affirm the decision of the trial Court.
The submissions made by Counsel to the 3rd and 4th Respondents on this issue are on the same footing as those made for the 1st and 2nd Respondents. I would not bother to repeat them.
Upon a careful reflection on arguments of all Counsel in this appeal, I find that the fulcrum of their argument is the validity of the charge filed against the Respondents as Defendants at the lower Court.
The word “Charge” is defined in the Black’s Law Dictionary 9th Edition as follows:
“As a noun: “A formal accusation of an offence as a preliminary step to prosecution.”
As a verb: “To accuse (a person) of an offence.”
From the two definitions above, it follows that a person is charged with a Criminal offence when he is formally accused of having committed an offence. The formal accusation is what constitutes the charge against him and once he is aware of the charge he is entitled to commence the preparation of his defense. See OKOYE VS. COMMISSIONER OF POLICE (2015) 17 NWLR (PT. 1488)276.
The law is that every charge shall contain the offence for which the accused person is standing trial. See Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 202(1) of the Administration of Criminal Justice and Other Related Matters Law of Ogun State, 2017.
Section 36(6)(a) (supra) provides thus:-
“Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in detail of the nature of the offences.”
Section 202(1) (supra) provides thus:-
“202(1) A Charge shall contain the following:
(a) the offence with which a Defendant is charged;
(b) where the law creating the offence gives it any specific name, the offence shall be described in the charge by that name only;
(c) where the law which creates the offence does not give it any specific name so much of the definition of the offence must be stated so as to give the Defendant notice of the particulars of the Offence with which he is charged; and
(d) The law, the Section thereof and may state the punishment in Section of Law against which the offence is said to have been committed.”
Furthermore, Section 204(1) of the Administration of Criminal Justice and Other Related Matters Law (supra) provides as follows:
“The charge shall contain only such particulars as to the time, date and place of the alleged offence and the Defendant, if any, against whom or the object, if any, in respect of which it was committed as are reasonably sufficient to give the Defendant notice of the offence with which he is charged.”
It is evident from the above quoted Statutory and Constitutional provisions that the main purpose of a Charge is to give an accused person/Defendant sufficient notice of the case against him. It is only a charge that is drafted in compliance with the provisions of the law that is competent to invoke the jurisdiction of a Court to try an Accused Person. See the cases of JIBRIN VS. THE STATE (2021) LPELR – 56233(SC), BELGORE VS. FEDERAL REPUBLIC OF NIGERIA (2021) 3 NWLR (PT. 1764)503, IBRAHIM VS. STATE (2015) 11 NWLR (PT. 1469)164, ODEH VS. FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR (PT. 1103)1, ATTAH VS. THE STATE (1993) 7 NWLR (PT.305) 257 AND ESSIEN V COMMISSIONER OF POLICE (1996) 5 NWLR (PT.449) 489.
The two count charge filed against the Respondents at the lower Court reads thus:-
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit Felony contrary to Section 516 of the Criminal Code, Cap 38, Laws of the Federation of Nigeria as applicable in Ogun State.
PARTICULARS OF THE OFFENCE
(i) Hon. Gbolahan Mudashiru ‘M’ (ii) Alhaja Silifatu Shodipo ‘F’ (iii) Isiaka Lawal ‘M’ and (iv) Muritala Osho ‘M’ sometimes in 2010 at No. 19, Iju Ishaga Water Works Road, Iju, Ogun State in the Otta Judicial Division did conspire to forge the signature of Alhaji Chief Yisa Lawal and thereby commit (sic) an offence contrary to Section 516 of the Criminal Code, Cap. 38, Laws of the Federation of Nigeria as applicable in Ogun State.
STATEMENT OF OFFENCE: COUNT II
Forgery contrary to Section 465 and punishable under Section 467 of the Criminal Code, Cap 38, Laws of the Federation of Nigeria as applicable in Ogun State
PARTICULARS OF THE OFFENCE
(i) Hon. Gbolahan Mudashiru ‘M’ (ii) Alhaja Silifatu Shodipo ‘F’ (iii) Isiaka Lawal ‘M’ and (iv) Muritala Osho ‘M’ sometimes in 2010 at No. 19, Iju Ishaga Water Works Road, Iju, Ogun State in the Otta Judicial Division did forge the signature of Alhaji Chief Yisa Lawal and thereby commit (sic) an offence contrary to Section 465 and punishable under Section 467 of the Criminal Code, Cap. 38 Law of the Federation of Nigeria as applicable in Ogun State.
The lower Court in its ruling found the charge did not disclose a prima facie case against the Respondents. He held at page 159 of the Record as follows:-
“Can it be said in respect of the Forgery charge in the instant case that it satisfies the provisions of the applicable Section 465 on the requisite ingredients of a forgery charge as to show a prima facie case sufficient in the words of BELGORE JSC that there are grounds for proceeding against the Defendants for the offence of forgery with which they have been charged.
I think not as it is clear that the charge of forgery only alleges that the Defendants forged the signature of one Chief Yisa Lawal without showing the requisite ingredient (ii) of the intention that the said writing be acted upon as genuine to the detriment of any person or the alternative ingredient (iii) that any person who thus believed that it was genuine had been induced to act or refrain to act.
Such a defective charge as laid cannot be said to show a prima facie case against the Defendants, this forgery count is thus liable to be quashed against the Defendants.
This defect must also necessarily affect the count relating to conspiracy as the count relating to the forgery and thus it ought to be accordingly quashed.”
The general principle in Criminal procedure is that in drafting a charge, the prosecution should follow the words used in the Section under which the count is laid. See ASUQUO VS. THE STATE (1967) 1 ALL NLR 123.
It is further settled that where a charge lacks precision and embarrasses a Defendant, a conviction made pursuant to such a charge shall be quashed. The ingredients which constitute the offence must be explicit on the charge and not left to speculation or inference. See RODA VS. FEDERAL REPUBLIC OF NIGERIA (2015) 10 NWLR (PT. 1468)427, ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30, ENAHORO VS THE QUEEN (1965) ALL NLR 132; OKEKE VS. INSPECTOR GENERAL OF POLICE (1965) 2 ALL NLR 81 AND THE QUEEN VS. GBADAMOSI (1959) 4 FSC 181.
The substantive offence for which the Respondents were charged is that contained in Count II which is forgery contrary to Section 465 and punishable under Section 467 of the Criminal Code Cap. 38, Laws of the Federation of Nigeria, 2004 as applicable in Ogun State. It provides as follows:
“A person who makes a false document or writing knowing it to be false, and with intent that it may be used or acted upon as genuine, whether in the State or elsewhere, to the prejudice of any person or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document in writing.”
It has been settled in a long line of authorities that the ingredients of the offence of forgery that need be proved to sustain conviction for the offence are:-
1. That the document is in writing;
2. That the document or writing is forged;
3. That the forgery is by the accused person/Defendant;
4. That the accused person/Defendant knows that the document or writing is false;
5. That the accused person/Defendant intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine.
See DURU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (PT. 1632)20, AMADI VS. FEDERAL REPUBLIC OF NIGERIA (2008) 18 NWLR (PT. 1119)259, IDOWU VS. STATE (1998) 11 NWLR (PT. 574)354 AND ALAKE VS STATE (1991) 7 NWLR (PT. 205)567.
I have carefully examined Count II of the charge filed against the Respondents and I agree with the trial judge that it falls short of the requirements of a charge that alleges the offence of Forgery. There is nothing therein to show that the Defendants knew the document or writing is false and that the act was done with the intent that the document be acted upon to the prejudice of the victim in the belief that it is genuine. I agree with the finding of the learned trial judge at page 159 of the record when he held as follows:-
“I think not as it is clear that the charge of forgery only alleges that the Defendants forged the signature of one Chief Yisa Lawal without showing the requisite ingredient (ii) on the intention that the said writing be acted upon as genuine to the detriment of any person or the alternative ingredient (iii) that any person who thus believed that it was genuine had been induced to act or refrain to act.”
The first count of the charge (Count I) suffers the same fate as there is nothing on it to show that the Respondents had a common intention to commit the alleged offence.
Learned Counsel to the Appellant in his submission reiterated the position of the law that an error in drafting a charge will not invalidate it except where the Defendant is misled. He relied on the cases of AMIWERO VS. AGF (2015) ALL FWLR (PT. 802)1742 AND TIMOTHY VS. FRN (2013) NWLR (PT. 1344). The law is settled that a decision is only an authority on what it decided and must be considered in light of its own peculiar facts and circumstances. See IGWE VS. STATE (2022) 1 NWLR (PT. 1810)111 AND TANKO VS. STATE (2009) 4 NWLR (PT. 1131)430.
I have read the cases of AMIWERO VS. AGF (supra) and TIMOTHY VS. FRN (supra) and I find them not relevant to the live issues in this appeal.
What the trial Court decided was not whether or not the Defendants were misled but that no prima facie case was disclosed against them in the charge. What then is a prima facie case?
It means that there is ground for proceeding with the trial. It is not the same as proof which is when a trial Court would decide the guilt of a Defendant. See ADAMA VS. STATE (2018) 3 NWLR (PT. 1605) 94, AJULUCHUKWU VS. STATE (2014) 13 NWLR (PT. 1425) 641, DARIYE VS. FEDERAL REPUBLIC OF NIGERIA (2015) 10 NWLR (PT. 1467) 325, AGBO VS. STATE (2013) 11 NWLR (PT. 1365)377 AND AJIDAGBA & ORS VS INSPECTOR GENERAL OF POLICE (1958) NSCC VOL.1 AT 20.
The law is that once a charge is laid, it is deemed that all the ingredients needed to prove the charge are included in the particulars. The prosecution is limited to proving only the particulars included in the charge. The prosecution would not be allowed to lead evidence to prove any ingredients omitted in the particulars. In other words, the prosecution cannot bring evidence to prove any ingredient not contained in the particulars provided in the charge. The ingredients of the offence provided in the particulars of the count are like averments in pleadings filed in a civil suit. It is elementary law that evidence led on facts not pleaded, go to no issue. In the same vein, the prosecution cannot lead evidence to prove any ingredients omitted in the particulars of the charge. See Section 203 of the Administration of Criminal Justice and Other Related Matters Law of Ogun State and the case of ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30.
I completely agree with the learned trial judge when he held that the particulars in the charge do not contain a prima facie case against the Respondents. The charge is fundamentally defective and liable to be quashed. To subject the Respondents to trial under such charge is a bus ride to nowhere.
Learned Counsel to the Appellant at Paragraph 3.06 at page 9 of the Appellant’s brief urged us to note the Appellant may want to amend the charge and went on to submit that the trial Court’s decision is pre-emptive, speculative and premature.
It is trite that a charge may be amended at any time prior to delivery of judgment. See PML (SECURITIES) COMPANY LIMITED VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1635)157 AND UGURU VS. STATE (2002) 9 NWLR (PT. 771)90.
The Appellant did not file any amended charge at the lower Court and no application to so do is pending. The law is settled that Courts of law do not act in vain but for a purpose and the purpose must exist and identifiable and identified. See ADEOGUN VS. FASHOGBON (2008) 17 NWLR (PT. 1115)149, EZENWAJI VS. UNIVERSITY OF NIGERIA (2006) 8 NWLR (PT. 967)325 AND BUHARI VS. OBASANJO (2003) 17 NWLR (PT. 850)587. There must be an existing application to amend upon which a Court would exercise its discretion and not an intention to amend.
In ADEMESO VS. OKORO (2005) 14 NWLR (PT. 945)308 AT 318, PARAGRAPHS E-F, the Supreme Court, per KATSINA-ALU, JSC held as follows:
“I must say straight away that a declaration of an “intention to amend does not amount to an amendment of the pleadings.”
In the instant appeal, the submission of the Appellant is not an application to amend a charge. To give it any consideration would amount to speculation. I cannot and would not do that. I agree with the trial judge that the charge filed against the instant Respondents disclose no prima facie case and he was right to have quashed it. Having quashed the charge, the Defendants were entitled to an order discharging them.
I therefore resolve issue no.1 in favour of the Respondents and against the Appellant.
Issue no. 2 centres around the finding of the learned trial Judge that the provisions of the Criminal Code Act, Cap. 38, Laws of the Federation of Nigeria is not applicable to Ogun State.
The learned trial judge in his judgment held as follows at page 156:-
“A scrutiny of the statement of the offences and the particulars laid against the Defendants show that it was also particularly tagged at the end of the Statement and the particulars- ‘as applicable in Ogun State’- (underlining is mine).
Although, this may not be more than inelegant drafting, if it was indeed a law that is inapplicable in Ogun State, the addition of the highlighted phrase would be unnecessary if the law was of general application like all other Federal Acts, as this simply shows an attempt to ensure and fit it as one applicable in Ogun State simply by addition of this phrase as I find that the addition of the highlighted words have no magic in them to make the law applicable in Ogun State.
In the light of the above, I thus hold that the offences provided for under the Criminal Code Act Cap. C38 LFN 2004 are offences created by a law inapplicable in the State and as such the Criminal Code Act Cap C38 LFN 2004 has become spent for purposes of creating a criminal offence in Ogun State upon the enactment of the Criminal Code Law of Ogun State and thus it is not a law that the Defendants can be tried upon before a State High Court.
Accordingly, a purported breach of any provisions of the Act does not constitute an offence cognisable by law and one under which the present Defendants can be tried under, as provided under Section 36(12) of the 1999 Constitution.
On this ground, this case is thus liable to be struck out against these Defendants.”
The Appellant is dissatisfied with the above finding and the conclusion reached thereon by the learned trial judge.
Section 2 of the Criminal Code Act, CAP. C38, Laws of the Federation of Nigeria 2004 provides as follows:
“(1) The provisions contained in the code of criminal law set forth in the schedule to this Act, and hereinafter called “the Code”, shall, except to the extent specified in Subsection (2) of this Section, be State Laws with respect to the several matters therein dealt with.
(2) The provisions contained in the code which relate to any matter contained in the First Schedule to the Constitution of the Federal Republic of Nigeria with respect to the several matters therein dealt with.”
The Criminal Code Act is deemed to be an Act of the National Assembly and it applies to offences committed on matters provided for in the exclusive legislative list in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Section 2 (1) of the Criminal Code Law, Laws of Ogun State provides as follows:
“2(1) The provisions contained in the Code of Criminal Law set forth in the Schedule to this law, and hereinafter called “the code”, shall, except to the extent specified in Subsection (2), be the Law of Ogun State with respect to several matters therein dealt with.”
The Criminal Code Law, Laws of Ogun State, 2006 is applicable to offences committed in Ogun State. Learned Counsel to the Appellant has argued that the fact that the charge was brought under the wrong law was not fatal to the case of the prosecution.
The law is settled that an accused can only be charged under the law that creates the offence. Such a law must be in force at the time it was committed. A trial conducted under a repealed law no matter how well the proceeding was conducted and no matter how sound the decision is, it is a nullity. See NWANKWOALA VS FEDERAL REPUBLIC OF NIGERIA (2018) 11 NWLR (PT. 1631)397, GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)1 AND ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA.
It is further the law that misdescription of the law under which a charge is brought is not fatal. In other words, where the offence charged is brought under a written law in existence at the time of the commission, such charge is merely defective and does not render the information invalid. See OLATUNBOSUN VS. STATE (2013) 17 NWLR (PT. 1382)167, EGUNJOBI VS. FEDERAL REPUBLIC OF NIGERIA (2013) 3 NWLR (PT. 1342)534, OGBOMOR VS. STATE (1985) 1 NWLR (PT.2) 223 AND FEDERAL REPUBLIC OF NIGERIA VS. ADAMU (2018) LPELR- 46024(CA).
It follows therefore that a charge laid against an accused person/Defendant under a wrong law is a mere misdescription which does not vitiate it and cannot be a basis for striking it out. It is not fatal.
Issue no. 2 is resolved in favour of the Appellant and against the Respondents.
I have earlier on resolved issue no. 1 against the Appellant and affirmed the decision of the lower Court quashing the two counts of the charge filed against the Respondents for failure to disclose a prima facie case against them.
Notwithstanding the resolution of issue no. 2 in favour of the Appellant, I still find no reason to disturb the decision of the learned trial judge quashing the charge laid against the Respondents at the lower Court for the reason that it did not disclose a prima facie case against them.
In conclusion, even though this appeal succeeds in part, I affirm the ruling of the Ogun State High Court in Suit No. HCT/91C/2018 delivered on the 13th of May, 2020 quashing the charge laid against the Respondents on the ground that it did not disclose a prima facie against them.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother, Folasade Ayodeji Ojo, JCA. just delivered.
I agree with the reasoning and conclusions of my learned brother. And for the very comprehensive reasons given by my learned brother, I also dismiss this appeal and affirm the decision of the trial Court.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, FOLASADE AYODEJI OJO, JCA just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and be dismissed. The Appellant challenged the decision of the lower Court in discharging the Respondents on the basis that there was no prima facie case of conspiracy and forgery against them. It is settled law that the term forgery denotes the act of fraudulently making a false document or altering a real one to be used as if genuine. It means a false or altered document made to look genuine with the intent to deceive. As defined by the Black’s Law Dictionary 9th edition, forgery is the act of fraudulently making a false document or altering a real one to be used as if genuine.
The trial Judge in judgment held that:
“…the charge before Court failed to satisfy the provisions of the applicable Section 465 on the requisite ingredients of a forgery such as the intention that the said writing be acted upon as genuine to the detriment of any person or that any person who thus believed that it was genuine had been induced to act or refrain to act as such the charge is defective and cannot be said to show a prima facie case against the defendants.”
I also agree with the trial Judge that a charge or information is the originating process by which a criminal proceeding is initiated in Court, and in drafting it, Counsel must be careful to ensure it complies with the law guiding it. See ANI v. STATE (2017) LPELR-42831 (CA) and KRONAGHEA V. FRN (2018) LPELR-43684(CA). And any substantial defect in the charge sheet or information will render it incompetent or defective and liable to be quashed at the end of the trial, if it is shown that same has prejudiced or misled the accused. See JOSHUA CHIBI DARIYE V. FRN (2015) LPELR-24398, OKEKE & ORS V. I.G.P. (1965) 2 ALL NLR PG, 81 and QUEEN V. GBADAMOSI (1959) 4 JSC PG. 181.
From the Record of Appeal, it is clear that the charge fell short of the essential requirements of a charge because there is nothing to show that the Respondents knew that (a) The document was forged (b) That the accused intended that the forged document be acted upon as original and genuine to the detriment of the victim i.e. to be induced to do or reframe from doing any act in the belief that the forged document was genuine. See ALAKE V. STATE (1991) 7 NWLR (205) 567, ADEKOLU V. STATE (2003) ACLR 117, AITUMA V. STATE (2006) ALL FWLR (318) 671, GARBA V. COP (2007) ALLFWLR (384) 260, UZOKA V. FRN (2010) 2 NWLR (1177) 118 and EYA V. OLOPADE (2011) 5 MJSC (PT. 11) 48.
Consequent upon the above and the more elaborate reasons advanced in the lead judgment, I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed.
Appearances:
Absent For Appellant(s)
L. O. Agbelu – for 1st and 2nd Respondents
Y. O. Anikulapo, with him, O. A. Ogunlade and S. Y. Abdul Hammed – for 3rd and 4th Respondents For Respondent(s)
