P.C. JAMES EGIGIA V. THE STATE (2013)

P.C. JAMES EGIGIA V. THE STATE

(2013)LCN/6010(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of March, 2013

CA/K/420B/C/2008

RATIO

CRIMINAL LAW AND PROCEDURE: WHEN THE HIGH COURT DOES NOT HAVE THE JURISDICTION TO TAKE A CHARGE

Section 185 of the Criminal Procedure Code Laws of Jigawa State, Cap. 30, 1998 provides:
“185 – No person shall be tried by the High Court unless:
(a) a charge is preferred against him in the High Court by the Attorney-General;
(b) a charge is preferred against him by a prosecutor other than the Attorney-General, by leave of the High Court
(c) a charge of contempt is preferred against him in accordance with the provision of Section 314 or 315″.
A literal interpretation of the provisions of Section 185 of the Criminal Procedure Code Laws of Jigawa State, the High Court can only try an offender if a charge is preferred against him (a) by the Attorney-General himself or (b) by any other prosecutor other than the Attorney-General by leave of the High Court (c) a charge of contempt is preferred against him in accordance with the provisions of Section 314 or 315.PER ABDU ABOKI, J.C.A.

CRIMINAL LAW AND PROCEDURE: OBTAINING LEAVE TO PREFER A CHARGE AGAINST AN ACCUSED PERSON IS A CONDITION PRECEDENT WHICH MUST BE FULFILLED BEFORE THE SAID COURT CAN ASSUME JURISDICTION

RE-TRIAL ORDER: WHEN IS IT MADE

JUSTICE IN CRIMINAL PROCEEDINGS
The appellant also deserves justice to be meted out to him as justice is neither one nor two way traffic but a three way traffic i.e justice for the victim of the crime, the accused person as well as the society. See Godwin Josiah v. State (1985) 1 NWLR (pt. 1) 125.
This is a proper case where a retrial should not be ordered.
See Umaru v. The State (2009) 8 NWLR (Pt. 1142) page 134 at 143 -149;
Okeke v. State (2001) 2 NWLR (Pt. 697) page 397;
Barmo v. State (2000) 1 NWLR (Pt. 641) page 424;
Adeoye v. State (1999) 6 NWLR (Pt. 605) page 74;
Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385;
Okoduwa v. State (1988) 2 NWLR (Pt. 76) page 333;
Okegbu v. State (1979) 11 SC 1;
Okosun v. State (1979) S SC 36;
Owoh v. Queen (1962) 2 SCNLR 409;
Ogunremi v, Queen (1961) 2 SCNLR 198. PER ABDU ABOKI, J.C.A.

Before Their Lordships

ABDU ABOKIJustice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUAJustice of The Court of Appeal of Nigeria

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

Between

P.C. JAMES EGIGIAAppellant(s)

AND

THE STATERespondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Jigawa State High Court No. 8 delivered on 3rd day of April, 2007 by Umar. M. Sadiq J.
The summary of the facts that gave rise to this appeal are that the appellant who is a policemen on or about the 16th day of February, 2006 at Ayama Village in Auyo Local Government Area of Jigawa State was alleged to have seriously beaten and fractured one Samaila Dodo who later died as a result of the fracture.
At the trial, the prosecution (hereinafter called the respondent) called six witnesses and tendered one exhibit while the appellant gave evidence in his defence and tendered no exhibit.
The appellant was found guilty by the lower Court and was accordingly sentenced to 5 years imprisonment without an option of fine.
Dissatisfied with the judgment of the lower Court, the appellant appealed to this Court. Pursuant to a notice of appeal dated 24/2/2010 and filed 20/10/2011.
The appellant in his brief of argument dated 20/10/2010 and filed 20/10/2011 distilled three issues for determination to wit:
“1. Whether the whole trial or proceeding before the Court leading to the conviction of the appellant (sic) not amount to a nullity for lack of jurisdiction.
2. Having regards to the totality of the evidence before the lower Court, whether the prosecution could be said to have proved the case beyond reasonable doubt.
3. Whether it is not a misdirection on the part of the trial judge to speculate on the cause of death”.
The respondent on the other hand in its brief of argument dated 22/12/2011 and filed on 23/12/2011 distilled two issues for determination and they are adumbrated as follows:
“(i) Whether proper procedures were followed in preferring the charge, trying and convicting the appellant by the trial Court.
(ii) Whether the learned trial judge was right when he convicted and sentenced the appellant under Section 225 of the Penal Code Cap. 107 Laws of Jigawa State of Nigeria, 1998 (hereinafter referred to as the Penal Code)”.
The issues 1 and 2 as couched by both parties to this appeal are identical. The appellant’s issue 3 can be subsumed in issue 2. I adopt issue 1 and 2 of the appellant for the determination of this appeal.
Issue One
“Whether the whole trial or proceeding before the Court leading to the conviction of the appellants did not amount to a nullity for lack of jurisdiction”.
It has been submitted on behalf of the appellant that the lower Court erred in law when it convicted him without fulfilling a condition precedent to the preferment of a charge.
Learned counsel for the appellant argued that since the application for leave to prefer a charge that was filed by the respondent before the lower Court had neither been moved nor granted by the Court, the Court lacked the jurisdiction to hear the case against the appellant.
He referred the Court to the provision of Section 185 of the Criminal Procedure Code of Jigawa State and Olowu v. Nigerian Navy (2007) All FWLR (Pt. 350) 1278.
Learned counsel insisted that the lower Court ought not to have convicted the appellant because the respondents had failed to establish the essential ingredients of the offence he was alleged to have committed.
Learned counsel to the appellant referred the Court to the provision of Sections 191 and 194 of the Criminal Procedure Code of Jigawa State and the case of Abdul v. The State FCA/K75/78.
It has also been submitted on behalf of the appellant that the lower Court erred in law when it accorded the respondent the opportunity to make a reply after to the appellant’s address.
Learned counsel insisted that since the appellant had neither called any witness nor tendered any exhibit, the respondent was not entitled to any right to reply.
The Court was referred to the provision of Section 191(2) of the Criminal Procedure Code and the cases of
Agoma Achaji & others v. Commissioner of Police (1963) NNLR (Pt. 714) 486 – 487 and State v. I.O. Falade & Ors (1971) NNLR 109.
In conclusion, learned counsel urged the Court to resolve this issue in favour of the appellant.
Learned counsel to the respondent on the other hand argued that the failure of the respondent to seek and obtain the leave of the lower Court before preferring the charge against the appellant was not fatal to the proceeding that culminated in the conviction and sentencing of the appellant by the lower court.
Learned counsel maintained that the Attorney-General could exercise the power conferred upon him by Section 185(a) of the Criminal Procedure Code of Jigawa State to prefer a charge in the High Court without obtaining the leave of the Court either by himself or through an officer(s) in his department. Learned counsel contended that since the Attorney-General had delegated one Mairo Datti Birnin Kudu; Principal State Counsel, Ministry of Justice, Jigawa State with the authority to prefer the charge against the appellant, the said principal state counsel was not under any obligation to seek and obtain the leave of the lower Court before preferring the charge.
Learned counsel cited the provision of Section 7, 185(a) of the Jigawa State Criminal Procedure Code, Section 211(2) of the 1999 Constitution, and the cases of
Bature v. State (1999) 1 NWLR (Pt. 320) 267
Goni v. State (1996) 7 NWLR (Pt. 458) 111 at 120
He argued that the learned counsel to the appellant had failed to establish that the charge that was preferred against the appellant which he claimed to be defective had occasioned a miscarriage of justice. The Court was referred to the provision of Section 206 of the Criminal Procedure Code Cap. 39 Laws of Jigawa State 1998, and the cases of
Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) 1 at 46,
Buraima Ajayi & anor v. Zaria N. A. (1964) NWLR 61 at 65
Mangai v. State (1993) 3 NWLR (Pt. 279) 108 at 117,
Emenegor v. State (2010) All FWLR (Pt. 511) 884 at 936.
Learned counsel to the respondent argued that since the appellant was duly represented by a counsel throughout the duration of his trial, an objection to any defect contained in the charge could have been made before lower Court the moment the charge was read out to the appellant otherwise he will be deemed in law to have waived his right to challenge the defect contained in the said charge. It has been argued that the appellant’s counsel having failed to challenge the competency of the defective charge before the lower Court, he cannot now (sic)it before this Court. The Court was referred to the cases of
State v. Gwouto & Ors (1983) 14 NSCC 104,
Essien v. C.O. P (1996) 5 NWLR (Pt. 449) 489 at 500
Shehu v. State (2010) All FWLR (Pt. 523) 1841 at 1857 and Sections 167 and 206 of the Criminal Procedure Code Cap. 39 Laws of Jigawa State.
Learned counsel submitted that the lower Court did not err in law when it accorded learned counsel to the respondent the opportunity to present its final address. The Court was referred to the testimonies of DW1 – DW2 at pages 15 – 17, and the cases of
Hausa v. The State (1994) 6 NWLR (Pt. 350) 281 at 306
Peter v. State (1994) 4 NWLR (Pt. 34) 45,
Okoroh v. State (1990) 1 NWLR (Pt. 125) 128
Ichi & Ors v. State (1996) 9 NWLR (Pt. 470) 83 and
Ndu v. State (1990) 21 NSCC (Pt. 3) 505.
In conclusion, learned counsel to the respondent urged the Court to resolve the first issue in favour of the respondent.
Section 185 of the Criminal Procedure Code Laws of Jigawa State, Cap. 30, 1998 provides:
“185 – No person shall be tried by the High Court unless:
(a) a charge is preferred against him in the High Court by the Attorney-General;
(b) a charge is preferred against him by a prosecutor other than the Attorney-General, by leave of the High Court
(c) a charge of contempt is preferred against him in accordance with the provision of Section 314 or 315”.
A literal interpretation of the provisions of Section 185 of the Criminal Procedure Code Laws of Jigawa State, the High Court can only try an offender if a charge is preferred against him (a) by the Attorney-General himself or (b) by any other prosecutor other than the Attorney-General by leave of the High Court (c) a charge of contempt is preferred against him in accordance with the provisions of Section 314 or 315.
Whereas, the Attorney-General does not require the leave of the Court to prefer a charge against an accused person, a prosecutor other than the Attorney-General must seek and obtain the leave of the High Court before preferring a charge against an accused person.
The procedure to be followed by a prosecutor who is desirous of preferring prefer a charge against an accused person pursuant to Section 185(b) of the Criminal Procedure Code must comply with the provision to bring an application to prefer a charge in the High Court Rules,1970.

Obtaining the leave to prefer a charge against an accused person before a High Court constitutes a condition precedent which must be fulfilled before the said Court can assume jurisdiction to try the said accused person.
Hence in Bature v. State (1994) 1 NWLR (Pt. 320) 267, the Supreme Court on the effect of the failure of the State to obtain leave before filing a charge against an accused person opined that:
“Non-compliance with Section 185 of the CPC would, in my respectful view, come under the third category stated above by Bairamian F.J (that is, the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction). This being so, I find myself unable to accept the submission of the learned D.P.P. that non-compliance with Section 185 is an irregularity curable by Section 382 of the code”.
See Torri v. National Park Service of Nigeria (2009) All FWLR (pt. 495) 1779.
In the instant appeal, the charge against the appellant was drafted by one Mairo Datti B/Kudu; Principal State Counsel, Ministry of Justice, Jigawa State. The Principal State Counsel cannot by any stretch of imagination take the benefit conferred on the Attorney-General of Jigawa under Section 185(a) having drafted the charge in her capacity as a prosecutor other than the Attorney-General of Jigawa State.
I have painstakingly gone through the record and I have not seen where the said Principal State Counsel obtained the leave of the lower Court to prefer the charge against the appellant as provided for by the mandatory provision of Section 185(b) of the Criminal Procedure Code, Laws of Jigawa State. More so, the respondent had even insisted in its brief of argument that since the powers conferred upon the Attorney-General of Jigawa State by Section 211(1) of the 1999 Constitution of the Federal Republic of Nigeria had been delegated to the said Principal State Counsel, the latter was not under an obligation to seek and obtain the leave of the lower Court before preferring a charge against the appellant.
I found the said submission superfluous in view of the Supreme Court decision in Bature v. State (supra).
In a nutshell, where any prosecutor other than the Attorney-General of Jigawa State is desirous of preferring a charge against an accused person, the said prosecutor by virtue of the provisions of Section 185(b) of the Criminal Procedure Code must seek and obtain the leave of the lower Court.
Any trial conducted without obtaining the said leave of the High Court would be declared a nullity.
In conclusion therefore, the entire proceedings which heralded the conviction of the appellant by the lower Court is hereby declared a nullity. Where a Court declares a proceeding a nullity the proper order to make is to order for a rehearing de novo.

In Moshood v. State (2004) 14 NWLR (Pt. 893) 422 at 428 the Court of Appeal held that:
“A retrial order is made when there had been an error in law of an irregularity in the procedure that does not make the trial a nullity nor create a miscarriage of justice. The Court must be satisfied that:
(a) the evidence taken may otherwise disclose the commission of the offence substantially,
(b) there is no special circumstance that will render it oppressive to put the accused back on trial and that to refuse a retrial would result in a greater injustice”.
See Abodundu v. The Queen (1958) 4 FSC 70 at 73.
In the instant appeal, the appellant was sentenced to 5 years imprisonment. They have already exhausted the said term of imprisonment. Making an order for a retrial in the instant appeal will inevitably translate into subjecting the appellant to serve more than the 5 years imprisonment they had been sentenced to by the lower Court.
The appellant also deserves justice to be meted out to him as justice is neither one nor two way traffic but a three way traffic i.e justice for the victim of the crime, the accused person as well as the society. See Godwin Josiah v. State (1985) 1 NWLR (pt. 1) 125.
This is a proper case where a retrial should not be ordered.
See Umaru v. The State (2009) 8 NWLR (Pt. 1142) page 134 at 143 -149;
Okeke v. State (2001) 2 NWLR (Pt. 697) page 397;
Barmo v. State (2000) 1 NWLR (Pt. 641) page 424;
Adeoye v. State (1999) 6 NWLR (Pt. 605) page 74;
Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385;
Okoduwa v. State (1988) 2 NWLR (Pt. 76) page 333;
Okegbu v. State (1979) 11 SC 1;
Okosun v. State (1979) S SC 36;
Owoh v. Queen (1962) 2 SCNLR 409;
Ogunremi v, Queen (1961) 2 SCNLR 198
In conclusion, there is merit in this appeal and it is hereby allowed.
The decision of the Jigawa State High Court of Justice delivered on 3/4/2007 is hereby set aside.
The appellant is hereby discharged and acquitted.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: I completely agree with the judgment of this Court delivered by my learned brother, Abdu Aboki, J.C.A. I allow the appeal and abide by the orders made in the leading judgment.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading the lead judgment of my learned brother ABOKI JCA in this appeal and I agree with his reasoning and conclusion.
I think the general presumption that the Counsel on the Official Bar, who prosecutes criminal charges on behalf of the Government in the Ministry of Justice, is from the Chambers of the Attorney-General of the State, as contemplated by Section 211(2) of the 1999 Constitution (as amended), appears to have been defeated by the initial steps by the prosecuting Counsel, himself, when he filed an “Application For Leave To Prefer A Charge Pursuant To Section 185 (b) Of The Criminal Procedure Code” on 13/4/2006, but later abandoned it, without any reason and without informing the Court.
In the application, Mairo Datti B/Kude, Principal State Counsel, Ministry of Justice Jigawa State, had claimed to act
“By virtue of the powers conferred upon the Attorney-General of Jigawa State of Nigeria under Section 211(1) of the 1999 Constitution of the Federal Republic of Nigeria, which powers were delegated to me vide Section 211(2) of the same Constitution, I … do hereby, on behalf of the said Attorney-General, apply for leave to prefer the under mentioned charge against the above named accused person ” See page (i) of the Record of Appeal.
Normally, such application is heard, ex-parte by the Court.
As per the Records of Appeal (page 1), when the case came up on 3/05/06, instead of moving the application, the learned prosecuting Counsel M.A, Tahir, who appeared with Abba A. for the State, upon the Court noting that Accused persons were absent and unrepresented, told the Court:
“This is a new case. We are not sure of the accused persons whereabout. We therefore ask for a date for mention.”
The case was adjourned to 13/6/2006, and on that date all the accused persons were present. Still the prosecution did not make the application, and the case was adjourned, again, to 19/6/2006, to enable the accused persons secure legal representation from the Legal Aid Council.
On 19/6/2006 when the case came up, the Accused persons took their plea, on the application of the prosecution Counsel, thereby abandoning the application for leave to prefer the charge (See pages 1 and 2 of the Records).
Having made that application for leave, the prosecution had acknowledged and conceded their need to seek and obtain the leave of Court to prefer the charge. If they had reason to change their mind on that, they ought to have stated so and withdraw the application for leave, formally. The Respondent cannot therefore be heard to say, on appeal that the application for leave to prefer charge was no longer necessary, because the Attorney-General had powers to bring the charge, without leave of Court.
I think they are estopped from doing so. See Section 169 of the Evidence Act, 2011. Respondent had a duty to comply with the conditions precedent to taking the action, which they, themselves brought to the Court. See the case of BATURE VS. STATE (1994) 1 NWLR (Pt. 320) 267;
Where the Supreme Court held:
“Non compliance with Section 185 of the CPC would, in my respectful view, come under the third category stated above by Bairamian F,J (that is, the case comes before the Court initiated by due process of law, upon fulfillment of any condition precedent to the exercise of jurisdiction), This being so, I find myself unable to accept the submission of the learned D.P,P, that non-compliance with Section 185 is an irregularity curable by Section 382 of the code”.
With this and other reasons in the lead judgment, I too allow the appeal and abide by the consequential orders therein.

Appearances

Adamu AbubakarFor Appellant

AND

Suleh Umar (DCL) with M.A. Tahir (DLD)For Respondent