OFOEGBU v. STATE
(2020)LCN/15451(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, November 20, 2020
CA/AW/94C/2017
RATIO
JURISDICTION: WHETHER A COURT OF LAW MAY CONFER JURISDICTION UPON ITSELF
Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself, nor can parties by their mutual agreement also confer any jurisdiction. A defective Originating Process cannot activate the Court’s jurisdiction. As aptly found by the Court below the failure to sign the information in this case by a law officer properly so accredited would fundamentally affect the validity of the information and would render it incurably bad and incapable of being remedied by amendment and would, thus call the jurisdiction of the Court into question. Once it cannot be said who signed a process, that process is fatally defective, inchoate and legally non-existent – BUHARI v. ADEBAYO (2014) 10 NWLR (pt. 1416) 50 at 583, E – F; 585, B –F and 587, C –D. PER BITRUS GYARAZAMA SANGA, J.C.A.
WORDS AND PHRASES: “SHALL”
It is beyond doubt that the word “shall” is a word of command and one which must be given a compulsory meaning as denoting an obligation. It has the invaluable significance of excluding the idea of discretion and the significance of an imposed duty. Thus, if a statue provides that a thing “shall” be done, the natural and ordinary meaning is that a peremptory mandate is enjoined. See OLOWOLERE v. AFRICAN NEWSPAPERS LTD. (1993) 5 NWLR (pt. 583 at 600. PER BITRUS GYARAZAMA SANGA, J.C.A.
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
OBUMNEME OFOEGBU APPELANT(S)
And
THE STATE RESPONDENT(S)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant and four (4) others were arraigned before the High Court of Anambra State Onitsha Judicial Division IJEM ONWUAMAEGBU J., presiding in Charge No HID/64C/2013 with a one-count charge of Attempted Murder contrary to Section 275 (a) of the Criminal Code Cap. 36 Vol II Revised Laws of Anambra State of Nigeria, 1991 (as amended). The particulars of the offence are that the Defendants on or about the 5th day of November, 2012 at Ezennaja Village Oraukwu in Idemili Judicial Division did unlawfully attempt to kill one Gabriel Onyibalu, by using iron rods, sticks and matchets to cut him on the legs and mid lumber region at the back.
Each of the Defendants pleaded “not guilty” to the charge. In proof of the charge, the prosecution called five witnesses. At the close of the case of the Prosecution, learned counsel to the Defendants made a “No Case Submission”, which was overruled by the learned trial Judge. Defendants were ordered to enter their defence. Each Defendant testified on his/her own behalf and did not call other witness. The prosecution called five (5) witnesses and tendered several documents which were admitted in evidence by the learned trial Judge and marked as Exhibits A, A1, B, C, D-D6, E and ‘F’ respectively. The defendants also tendered documents which were marked as Exhibit G, H, J and K respectively. (The entire proceedings during trial is at Pages 159-201 of the Records). On 16/2/2017, the Defendants closed their case and the learned trial Judge adjourned to 28/3/2017 for adoption of final Written addresses. However, Final Written Addresses were adopted on 10th May, 2017 and the case was adjourned to 7/6/2017 for judgment. Judgment was delivered on 12/6/2017 wherein the learned trial Judge held as follows:
“Defendant have been found guilty of the offence of assault occasioning grievous bodily harm contrary to Section 258 of the Criminal Code Cap. 36 Volume II Revised Laws of Anambra State of Nigeria 1991. The said Section 258 thereof provides:
‘Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years’
The law is firmly settled that the Court has no power to reduce a sentence specifically and mandatorily imposed and prescribed for an offence by the statue creating and prescribing punishment for the offence… However, Section 358 (1) of the Anambra State Administration of Criminal Justice Law 2010 provides:
Subject to the other provisions of this section, where a Court has authority under any written law to impose imprisonment for any offence and has not specific authority to impose a fine for that offence, the Court may in its discretion impose a fine in lieu of imprisonment.
In considering the sentences to be imposed on the Defendant herein, the provisions of Section 258 of the criminal Code are specific and mandatory and leaves me with no choice other than to impose and pronounce the prescribed sentence but considering the fact that the Defendants and the complainant are all members of the same Umunnaja Village Oraukwu and for peace to reign in their community, I will make recourse to Section 358 (1) of the Anambra State Administration of Criminal Justice Law 2010 therefore each Defendant having been found guilty of the lesser offence of assault occasioning harm, is hereby sentenced to three years imprisonment with an option for each to pay a fine of N50,000.00 (Fifty Thousand Naira) in lieu of imprisonment.” (The entire judgment is at pages 231-252 of the additional record of appeal compiled and transmitted to this Court on 13/4/2018 but deemed as properly compiled and transmitted on 2/6/2020).
The 5th Defendant was aggrieved with this decision by the lower Court so she filed a Notice of Appeal on 08/09/2017 containing 5 grounds of appeal. The Record of appeal was compiled and transmitted to this Court on 14/12/2017 but deemed properly compiled and transmitted on 02/06/2020. The Appellant’s Brief of argument was prepared by U. R. Ukpabia Esq. It was filed on 02/06/2020. Learned counsel to the appellant also filed the Appellant’s Reply Brief on 23/09/2020. The Respondent Brief of argument was settled by C. G. Okonkwo-Okam Esq. (Assistant Director Ministry of Justice, Awka). It was filed on 13/07/2020.
U. R. Ukpabia Esq., of counsel to the Appellant formulated five (5) issues out of the five grounds as follows:
1. Whether the learned trial Court has the jurisdiction to hear and entertain Suit NO. HID/64C/2013 in view of the fact that the prosecuting counsel did not sign the information/charge which was read and interpreted to the Appellant before the Appellant took her plea at the Court below? (Grounds 5).
2. Whether the learned trial Court was right when she failed to resolve all the contradictions in the evidence presented before her in favour of the Appellant before convicting the Appellant? (Ground 1)
3. Whether the learned trial Court was right when she relied on the evidence of PW4 and Exhibits tendered through PW4 before convicting the Appellant? (Ground 2)
4. Whether the learned trial Court was right when she relied on the oral testimony of PW5 as against Exhibit ‘C’ which is documentary evidence prepared by the same PW5 before convicting the Appellant? (Ground 3)
5. Whether the learned trial Court was right in convicting the Appellant for assault when there were material contradictions in the evidence of the prosecution witness that were unresolved?
C. G. Okonkwo-Okom Esq., of counsel to the Respondent canvassed three (3) issues for determination as follows:
1. Does the trial Court have jurisdiction to entertain this suit in view of the fact that the Amended Charge dated 1/12/2014 and read to the defendants was inadvertently unsigned by the learned prosecuting counsel. (Ground 5)
2. On the totality of evidence adduced before the Court is the Appellant’s conviction of the offence of assault occasioning grievous bodily harm sustainable? (Grounds 3 and 4)
3. Material contradiction in prosecution’s evidence vitiates conviction thereon, is there contradiction in the prosecution’s case before the trial Court, if so, and is it material enough to vitiate the conviction of assault occasioning grievous bodily harm sustainable in this case? (Grounds 1 and 2)
Upon a careful consideration of the issues raised by learned counsel in their respective briefs, I observed that issues 1 of the parties are the same. The respondent argued issues 4 and 5 of the appellant together in their issue 2. The Respondent also argued issues 2 and 3 of the Appellant together in their issue 3. I will therefore adopt the issues formulated by the Respondent determining this appeal.
Issue 1 is:
Does the trial Court have jurisdiction to entertain this suit in view of fact that the Amended Charge dated 1/12/2014 and read to the Defendants was in advertently unsigned by the learned prosecuting counsel?
While arguing this issue, learned counsel to the Appellant submitted that Section 222 (2) of the Anambra State administration of Criminal Justice Law, 2010 provides as follows:
“An information shall be signed by a law officer or any person authorized by the Attorney General in that regard.”
Learned counsel submitted that the issue of unsigned charge/information arose for the determination of this Court in SUNDAY IZI v. THE STATE (2016) LPELR – 42064 (CA) where this Court per SAULAWA, JCA (now JSC) held inter alia that:
“The failure to sign the information in this case by a law officer properly so accredited would fundamentally affect the validity of the information and would render it incurably bad incapable of being remedied by amendment and would thus call the jurisdiction of the Court into question….”
That in the instant case, on 25/2/2014, the information filed by the Respondent on 4/12/2013 and signed by S. N. Nwanegbo Ezeaputa Esq., was read to the Appellant and her co-accused and they all pleaded “Not Guilty”. That on 1/12/2014, learned counsel to the Respondent filed a motion for leave to amend the Charge and for the Amended Charge to be read to the accused persons. The application was not opposed by learned counsel to the Appellant. While ruling in favour of the Respondent’s motion the learned trial Judge directed the respondent’s counsel to file a clean copy of the Amended Charge and serve the Appellant. The Respondent did complied with the directive by the lower Court on 1/12/2014. But learned counsel to the Appellant, upon being served with the Amended Charge on 1/12/2014 observed that it was not signed by counsel to the Respondent that on 3/12/2014 the unsigned Amended Charge was read to the Appellant and her co-accused and their plea taken. They all pleaded “Not Guilty”. Thus learned counsel to the Appellant is urging this Court to hold that the failure to sign the Amended Charge by the counsel to the respondent pursuant to Section 222 (2) of the Anambra State Administration of Criminal Justice Law, 2010 deprived the trial Court with the requisite jurisdiction to hear and determine the unsigned Amended Charge against the Appellant. He urged the Court to hold so and resolve this issue in favour of the Appellant.
In his submission while arguing this issue learned counsel to the respondent stated the “it is very unfortunate that the amended information was not signed”. That the Appellant was aware of the charge against her and her co-accused. That the essence of information/charge in a criminal proceedings is to inform the defendant the offence against him. Cited: ODEH v. FRN (2008) LPELR – 2205 (SC). That the omission to sign the information by learned prosecuting counsel is a mistake of counsel which ought not be visited on the party but rather be treated as a mere irregularity. That learned counsel to the Appellant ought to have objected to this anomaly earlier during trial so that the necessary correction can be made. That in OKOYE v. STATE (1972) LPELR – 2510 (SC), the apex Court held that it is the duty of counsel to raise an objection to any irregularity in the conduct of the proceedings especially so when it is clear that a particular step ought to have been taken or a particular thing done.
Learned counsel urged the Court to treat this as a mere irregularity and not fatal to the jurisdiction of the trial Court to hear and determine the case. That it is trite law that where there is an irregularity (as in the instant case) it is the duty of the Appellant to establish that the irregularity has led to a substantial miscarriage of justice. That where the appellant does not show that the presumption of irregularity has led to a miscarriage of justice, it will be assumed that there was none. Cited: UDEH v. STATE (1999) LPELR – 3292 (SC). That in AKANINWO & ORS v. NSIRIM & ORS (2008) LPELR – 321 (SC) the apex Court held thus:
“It must always be remembered that the objects of Court is to decide the rights of the parties and not to punish them for the mistakes which they may make in the conduct of their cases, deciding otherwise in accordance with their rights. If it is seen that the mistake made in the course of preparing the case of a party to litigation is not fraudulent nor is it calculated to overreach the opponent, the Court must be ready to correct such a mistake upon an application to it. After all, Courts do not exist for the sake of discipline but for the sake of deciding issues in controversy. See OJAH & ORS v. OGONI & ORS (1976) ALL N. L. R. (pt. 1) 346.”
Learned counsel to the respondent also cited and quoted the Supreme Court authority of OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR – 41903 (SC) on the need for Courts to do substantial rather than technical justice. He urged the Court to hold that since it was not established that non signing of the information occasioned a miscarriage of justice, the Amended Charge is valid, as such the trial Court has jurisdiction to hear and determine same. He urged the Court to resolve this issue in favour of the Respondent.
FINDING ON ISSUE 1
In determining this issue, I will once again cite and quote Section 222 (2) of the Anambra State Administration of Criminal Justice Law, 2010 which provides thus:
“An information shall be signed by a law officer or any person authorized by the Attorney General in that regard.”
It is beyond doubt that the word “shall” is a word of command and one which must be given a compulsory meaning as denoting an obligation. It has the invaluable significance of excluding the idea of discretion and the significance of an imposed duty. Thus, if a statue provides that a thing “shall” be done, the natural and ordinary meaning is that a peremptory mandate is enjoined. See OLOWOLERE v. AFRICAN NEWSPAPERS LTD. (1993) 5 NWLR (pt. 583 at 600. I have noted the submission by learned counsel to the respondent that failure to sign the Amended Charge by a law officer shall be considered a mere irregularity since it did not lead to a substantial miscarriage of justice and that it is a mistake of counsel that ought not to be visited on the litigant. This with due respect to learned counsel to the respondent is a criminal matter which deals with the freedom of the accused, therefore strict compliance with the Anambra State Administration of Criminal Justice Law, 2010 is mandatory more so that it provides that the said information “shall” be signed by a law officer. The respondent is not disputing the fact that the Amended Charge was not signed by a law officer, rather that the failure to sign is a mere irregularity that can be waived by this Court. As I stated above this submission ought to have attracted a sympathetic ear from this Court but that can not avail the respondent now in view of the holding by this Court in SUNDAY IZI v. THE STATE (supra) where it held thus:
“Undoubtedly, it’s the requirement of the law that for the Originating Process (the Charge/Information) or any process for that matter, to be valid and competent, it must be signed by a law officer, legal practitioner known to law, within the purview of the provision of Section 2 (1) and 24 of the Legal Practitioners Act (supra). What’s more Section 315 of the Criminal Procedure Law, Cap. 39, Volume 2 Laws of Akwa Ibom State, 2000, equally provides: 315. All information shall, subject to the provisions of Section 316, be signed by a law officer. The above statutory provisions have found credence in a plethora of veritable judicial authorities. See OKAFOR v. NWEKE (2007) LPELR – 2412 (SC); (2007) 10 NWLR (pt. 1043) 521; BUHARI v. ADEBAYO (2014) 10 NWLR (pt. 1416) 560 at 585… where the process fails to comply with the requirement of the law regarding its procedure, the Court cannot assume jurisdiction. Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself, nor can parties by their mutual agreement also confer any jurisdiction. A defective Originating Process cannot activate the Court’s jurisdiction. As aptly found by the Court below the failure to sign the information in this case by a law officer properly so accredited would fundamentally affect the validity of the information and would render it incurably bad and incapable of being remedied by amendment and would, thus call the jurisdiction of the Court into question. Once it cannot be said who signed a process, that process is fatally defective, inchoate and legally non-existent – BUHARI v. ADEBAYO (2014) 10 NWLR (pt. 1416) 50 at 583, E – F; 585, B –F and 587, C –D… In the circumstances, I hold that the Court below was not right in holding, as it did, that the Originating Process (Information) which was signed by a person whose name was not disclosed for another person, is competent.” Per, SAULAWA JCA (now JSC).
This holding by the erudite jurist bring to a screeching halt all other arguments on this issue since it touched on issue of jurisdiction. It held, in no uncertain terms, that failure to sign the originating process, to wit; the Amended charge, by a law officer in compliance with Section 222 (2) of the Anambra State Administration of Criminal. Justice Law, 2010 deprived the lower Court and by extension this Court, with jurisdiction. The law is trite that jurisdiction is the power by which a Court has to decided matters that are laid before it for litigation. See FIRST BANK OF NIGERIA PLC v. ABRAHAM (2008) 12 S. C. (pt. III) 108 at 123. All proceedings conducted without jurisdiction are null and void, no act of waiver, or act that may be seen to have that effect can confer jurisdiction to validate such proceedings. See FRN v. IFEGWU (2003) 5 SCNJ 217 at 252 – 253. An objection to the jurisdiction of the Court can be raised at any time; even when there are no pleadings filed and the party raising such objection need not bring it under any rule. See A. G. KWARA STATE v. OLAWALE (1993) 1 NWLR (pt. 272) 645 at 674 – 675. I resolve this issue in favour of the Appellant.
Upon my finding on issue 1 above, it is obvious that embarking on the determination of the other issues will be an exercise in futility since the lower Court lacks jurisdiction to hear the case against the appellant based on a defective Originating Process, to wit; the unsigned Amended charge. See MAISHANU v. MANU (2007) 7 NWLR (pt. 1032) 42 at 51. It is therefore the judgment of this Court that this appeal has merit and is hereby allowed. The judgment by the lower Court delivered on 12th June, 2017 wherein the Appellant was convicted and sentenced to three years imprisonment with an option of fine of N50,000.00 in lieu of imprisonment is hereby set aside want of jurisdiction by the said lower Court.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother, B. G. SANGA, JCA.
I agree that the appeal be allowed and Judgment of the trial Court set aside for want of jurisdiction reasons contained in the lead Judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also allow the appeal.
Appearances:
U. R. UKPABIA Esq. For Appellant(s)
OKONKWO-OKOM Esq. For Respondent(s)
