SAMANJA v. COP, PLATEAU STATE COMMAND (2020)

SAMANJA v. COP, PLATEAU STATE COMMAND

(2020)LCN/15461(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/J/209C/2018

RATIO

JUDGMENT OF COURT: CONSIDERATIONS TO DETERMINE WHETHER THERE HAS BEEN MISCARRIAGE OF JUSTICE

It is trite that the test of determining whether there has been miscarriage of justice is to see whether on a proper direction the trial judge would have come to the same conclusion he had earlier reached. ARUMA V STATE (1990) 6 NWLR (Pt. 115) 125. In the case of OSUOLALE V THE STATE (1991) 8 NWLR (Pt. 212) 770 at 773, it was held that:
“There is miscarriage of justice not only when a Court comes to the conclusion that a conviction was wrong, but also when it is of the opinion that the error or omission in the Court below may reasonably be considered to have brought about the conviction.”
See also the case of WAZIRI V THE STATE (1997) 3 NWLR (Pt. 496) 689.PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

EFFECT OF AN ORDER OF COURT STRIKING OUT A CASE: WHETHER A PLAINTIFF CAN RELIST A SUIT WHICH HAS BEEN STRUCK OUT

My understanding of the foregoing is that when a matter is struck out, it temporarily removes the matter from the Court. Though it gives the Plaintiff or complainant the liberty to relist the matter. In the case of KEYSTONE BANK LTD V GHALI AMMANI (2015) LPELR – 40761 this Court has this to say per Adefowope Okojie JCA:
“….. the striking out of any case, brings the life of that case to an end and no further order can be validly made in the same matter. See IYOHO V EFFIONG (2007) 11 NWLR Part 1044 page 31, WAZIRI V ALI (2009) 4 NWLR (Pt. 1044) page 31, UBA V ETIABA (2010) 10 NWLR (Pt. 1202) page 343.”
In the case of FRANCIS ADOMA OKPA & ANOR V OJUKWA ODONG OKPA & ANOR (2013) LPELR – 20396, this Court on effect of striking out has this to say.
“On the effect of an order of Court striking out a suit, it was held in the case of Y.S.G. MOTORS LTD V OKONKWO (supra) at p. 539 that “Striking out of a suit or a case in general connotation is the act of discontinuance or termination of the life span of that suit or case either temporarily or permanently,” see also OHAKIM V AGBASO (2010) 19 NWLR (1226) 172. An order striking out an action does not preclude, estop or debar the Plaintiff from filing a fresh action, or applying to relist the action later. PWT (NIG) LTD V J.B.O. INT’L (2010) 19 NWLR (1226) 1, HB (NIG) PLC V LODIGIANI (NIG) LTD (2010) 14 NWLR (1213) 330.”
See also the following cases PANALPINA WORLD TRANSPORT (NIG) LTD V J.B. OLANDEEN INTERNATIONAL ORS (2010) LPELR- 2902 (SC), JOLIMAIR NIGERIA LIMITED & ANOR V LIBERTY BANK PLC (2016) LPELR – 41459.
From all the foregoing, it is clear and unambiguous that when a matter is struck out, it snuffs out life from that action even though it also gives the opportunity to the Plaintiff or complainant whose matter was struck out the liberty to relist the matter. If that is so, it then means that when the learned trial judge struck out the charge of culpable homicide punishable under S. 221 of the Penal Code Law, there was no charge before the Court. That matter has being brought to an end temporarily by the Court. See SHABE ALH. GALADIMA V STATE (2017) LPELR – 41911 (SC), ALAMU V THE STATE (2009) 4 SCNJ 159/160, SEBASTINE ED V THE STATE (2017) LPELR – 42834. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

DALAYA SAMANJA APPELANT(S)

And

COMMISSIONER OF POLICE PLATEAU STATE COMMAND RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): On the 26th day of January, 2016 the Appellant was arraigned before the High Court of Justice of Plateau State sitting in Langtang on a one count charge of culpable homicide punishable with death contrary to and punishable under Section 221 of the Penal Code. I herein under reproduce the charge thus. (See page 3 of the Record of Appeal.
“CHARGE”
“COUNT 1”
“That you Dalaya Samanja “M” aged 50 years, on or about 6/4/2015 at about 2200hrs, at Zanya Village, Wase Local Government Area of Plateau State within the jurisdiction of this Honourable Court did commit an illegal act to wit: Culpable Homicide Punishable with death, when you hit one Fajina “M” with stick on his forehead, knowing that the death of the deceased is the consequence of your act. You thereby committed an offence contrary to and punishable under Section 221 of the Penal Code of Northern Nigeria.”

The Accused/Appellant pleaded not guilty to the charge. Prosecution called two witnesses and tendered exhibits admitted and marked as follows:
(1.) Exhibit “1”: A stick tendered through Sgt. Dung Gabriel.
(2.) Exhibit “2”: Statement of the Accused.
(3.) Exhibit “A”: Application to receive the corpse of the victim by his father dated 6th April, 2015.
(4.) Exhibit “B”: Photograph of the deceased.

In defence of the charge against him, the accused testified as DW1 and called no other witness. He tendered no exhibit.

The gist of the matter leading to the trial of the Accused/Appellant as can be captured from the record and as succinctly laid down by the learned trial Judge and which I consider as accurate and adopt that on the 6th of April, 2015 at about 22.30 hours one Lokdom binkap male of Kadarko Village in Langtang South Local Government Area of Plateau State had reported to the police at Kadarko that one Dalaya Samanja (Accused Appellant) of Zanya village within the same Langtang Local Government hit his son by name Vajin Binkap as a result of which he fell down unconscious and later died on his way to the Hospital after being taken to a clinic.

In the end, the learned trial Judge in his wisdom found that the count charge under Section 221 of the Penal Code is not sustainable, discharged him of that count and struck out the charge. He did not stop there, but proceeded to find the Accused Appellant guilty, convicted and sentenced under Section 224 of the Penal Code to life imprisonment.

Miffed by the outcome of the trial, the convicted Appellant vide his notice of Appeal filed on 14th august, 2017 challenged the conviction and sentence on three grounds of Appeal.

Consequent upon the transmission of the record of appeal on 14th May 2018, though out of time, same was regularized vide the order of this Court granted on the 31st day of October, 2018 after a due consideration of the application filed on behalf of the Appellant to that effect.

Counsel filed and exchanged their respective brief of argument. The Appellant’s brief of argument dated 7th day of February, 2019 was filed on the 8th of February, 2019. Same was deemed as properly filed and served on 9th day of October, 2019. The following issues are submitted for the determination of the Appeal.
(i) Whether having struck out the only charge against the Appellant in the case, the learned trial Judge was not functus afficio and lacked the jurisdiction to proceed to find the Appellant guilty and convicted him under Section 224 of the Penal Code Law. (Ground 1).
(ii) Whether, in the circumstance of this case, the learned trial Judge was not wrong in finding the appellant guilty under Section 224 of the Penal Code law. (Grounds 2 and 3)

The Respondent’s brief is dated and filed on the 17th day of June, 2020. He submitted the following issues for the determination of this appeal:
(1) Whether the prosecution proved the charge against the Accused to warrant his conviction by the trial Court. (Ground two)
(2) Whether the trial Court was right in convicting the Accused on a lesser offence under Section 224 of the Penal Code than Section 221 that he was charged. (Ground one)
(3) Whether the exhibits tendered in evidence by the prosecution be said to be dumping of Evidence. (Ground three)

I have compared the two sets of issues submitted by respective Counsel. Considering the complaint of the Appellant as condensed in his Grounds of Appeal from where the issues are formulated, and I consider it appropriate to adopt the issues formulated by the Appellant for the determination of the appeal.

ISSUE ONE
“Whether having struck out the only charge against the Appellant in the case, the learned trial judge was not functus officio and lacked the jurisdiction to proceed to find the Appellant guilty and convict him under Section 224 of the Penal Code Law. (Ground 1.)

On the foregoing issue, it is the contention of the learned Counsel representing the Appellant that the trial Court having struck out the only charge against the appellant in the case, the learned trial judge became functus officio and lacked the competence/jurisdiction to proceed from there, to find the Appellant guilty and to convict him under Section 224 of the Penal Code Law. He reiterated that the Appellant stood trial on a lone count charge of culpable homicide punishable with death under Section 221 of the Penal Code Law. The learned trial Judge in his judgment after a review of the evidence tendered by the prosecution found that the charge of culpable homicide against the Appellant under Section 221 of the Penal Code was unsustainable and concluded as follows:
“In conclusion based on the facts before me, as presented by the prosecution, I am unable to find that charge against the accused under Section 221 of the Penal Code is sustainable. Accordingly, the accused is hereby discharged on that ground and the said charge under Section 221 is accordingly struck out.”

Based on the foregoing finding of the trial Court, he contended that having struck out the only count charge against the Appellant, there was nothing left before the learned trial judge upon which he could proceed to convict the Appellant under the law. He added that having made the order discharging the Appellant and striking out the charge, the Court is functus officio and without any other power(s) left to proceed under Section 217 of the Criminal Procedure Code Law to convict the Appellant for any offence under the law. Further, he argued that from the non-subsistence of any charge against the Appellant, none of the two conditions justifying a trial, Court’s invocation of Section 217 of the Criminal Procedure Code to convict an accused for a lesser offence was present in this case. He submitted that the law is settled that a trial Court may apply the provision of Section 217 of the CPC to convict for a lesser offence with which the accused is not charged, provided
(a) It had been doubtful which of the several different offences of fact which could be proved would constitute, and
(b) Such doubt applied only to the law and not the facts, that is to say the facts charged must have given the accused person notice of the offence with which he is to be convicted.

He referred to the case of IDOKO V. THE STATE (2018) 6 NWLR (Pt. 1614) 117 at 133 to 134. He submitted that there was no justification for the Court to invoke the provision of Section 217 of the CPC to convict the Appellant after the striking out of the charge against him.
He urged the Court to resolve the issue against the Respondent.

In his reaction to the foregoing arguments by the Appellant in respect of issue one, the learned Counsel representing the Respondent provided an affirmative answer to the question and submitted that the learned trial judge was right in convicting the Appellant on a lesser offence proved. He argued that it is long established principle of criminal jurisprudence that a Court can convict an accused person for a lesser offence. He relied on the cases of AKOGWU V STATE (2018) 3 NWLR (Pt. 1605) 137 at 154, MARTINS V STATE (2020) 5 NWLR (Pt. 1716) 58 at pp. 89-90 paras. F-C, AKPAN V STATE (2020) 6 NWLR Pt. 1720) 297 at pp. 330-331. He submitted that the decision of the trial Court was not perverse and that it was a decision arrived at after a review of the evidence led before the Court. He referred to the case of JIBRIN V FRN (2020) 4 NWLR (Pt. 1714) 315 at 344 paras C-D. He provided the circumstances where a decision could be said to be perverse and argued that the Appellant has not shown by any scintilla of evidence that the decision of the trial Court was perverse to warrant this Court to interfere with the said finding. On the other hand, he argued that assuming without conceding that the learned trial judge did not follow the procedure for convicting on a lesser offence, if actually a procedure exist, as to whether the charge be struck out first or left hanging. He contended that it is a procedural irregularity and cannot nullify a proceeding of the present nature. He relied on the case of IDI V STATE (2019) 14 NWLR (Pt. 1696) 448 at 473 paras A-C on issue of technicalities. See also the case of MOHAMMED V STATE (supra). Further, he argued that the contention of the learned Counsel representing the Appellant in paragraph 4.01 of his brief that the learned trial judge became functus officio and lacked the competence/jurisdiction to proceed in convicting the Appellant under Section 224 of the Penal Code Law having struck out the only charge against the Appellant is misconstrued and misplaced. He added that the judgment of the trial Court cannot be broken into pieces as it remains a whole for the purpose of determining the legal principle of functus officio. He relied on the case of DASUKI (RTD) V FRN (2018) LPELR – 43969. The term functus officio connotes that the task has been performed with regards to an office. It is a scenario where the judge has no duty or function left to perform in that regard, and therefore no legal competence or authority to revisit the matter. He relied on the case of ALOR V NGENE (2007) 2 SC 1. He contended that the principle is not applicable in the instance case where the learned trial judge performed the duties of his office by convicting the Appellant of a lesser offence to which ingredients were proved by the prosecution beyond reasonable doubt. Referring to the finding of the learned trial judge on page 78 of the record, cannot warrant the application of the principle of functus officio. He added that the invocation of Section 217 of the Criminal Procedure Code (CPC) to convict the Appellant was in consonance with the law and cannot be faulted. Added that the provision of Section 217 of the CPC which is procedural law, does not contemplates a framing of a new charge by either the prosecution or the judge in his judgment. He argued further that it is the guiding principle of interpretation to give words used in a statute of plain and ordinary meaning. He cited the following cases TEGWONOR V STATE (2007) LPELR – 4674, OMATSEYE V FRN (2017) LPELR – 42719, KANO STATE PUBLIC COMPLAINT AND ANTI CORRUPTION COMMISSION & ANOR V SALISU & ORS (2019) LPELR – 47107.

He urge the Court to hold that the principle of functus officio as contended by the Appellant’s Counsel is inapplicable in the circumstance of this case.

He reproduced Sections 221, 222 and 224 of the Penal Code Law of Northern Nigeria and submitted that the learned trial Court was within his power and he acted right in convicting the Appellant for a lesser offence as all the ingredients of the lesser offence were proved by the evidence led by the prosecution. Finally, he urged the Court to resolve this issue against the Appellant and affirm the judgment of the trial Court and dismiss the appeal in its entirety for lacking in merit.

Consequent upon a sober reading of the respective submission of Counsel for and against, it dawned on me that the pertinent question that is yearning for answer is whether after striking out the charge under Section 221 of the Penal Code Law and discharging the Appellant, the Court could proceed to convict the Appellant under Section 224 of the Penal Code Law.

On page 78 of the record of appeal, the learned trial judge in his wisdom concluded as follows:
“In conclusion, based on the fact before me, as presented by the prosecution, I am unable to find that charge against the accused under S. 221 of the Penal Code is sustainable. According, the accused is hereby discharged on that ground and the said charge under Section 221 is accordingly struck out.”

The contention of the Appellant is that the Court having come to the foregoing conclusion, is functus officio and can no longer proceed to convict the Appellant under Section 224 of the Penal Code Law more so when he has discharged the Appellant of the charge under Section 221 of the Penal Code Law. The question now is what is the effect of an order striking out. In the case of THE YOUNG SHALL GROW MOTORS LTD V AMBROS O. OKONKWO AND ANOR (2010) LPELR – 3235, the Supreme Court per MUHAMMAD JSC (now the Chief Justice of Nigeria) said thus on meaning of striking out:
“Striking out a thing, simpliciter, means to remove that thing by drawing a line through it, that is, crossing it out. Striking out a suit/case in its general connotation is the act of discontinuance or termination of the life span of that suit/case either temporarily or permanently.”

On the invocation of Section 217 of the CPC, I agree the trial Court has the vires to invoke the provision of the Criminal Procedure Code (i.e. Section 217). But having discharged the Appellant and struck out the charge under Section 221 of the Penal Code, there is no platform upon which the Court would exercise its powers under Section 217 of the Criminal Procedure Code. By striking out of the charge and discharging the Appellant, he has thrown away the baby with the bath water. The learned trial judge misdirected itself by striking out the charge and discharging the Appellant and there after proceeding to pronounce the Appellant guilty and convicted under Section 224 of the Penal Code. This has occasioned a miscarriage of justice. In the case of BIBHABATI DAVI V KUMA RAMENDRA NARAYAN ROY (1946) AC 501 at 521 Lord Thankerson defined miscarriage of justice thus:
“A departure from the rules which permeates all judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all.”
In the case of MORA V NWALUSI & ORS (1962) 2 S.C.N.L.R 114, the Nigeria Apex Court said thus:
“——The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be correct the finding cannot stand; or it may be the neglect of some principles of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Court could arrive at their finding as such is a question of law.”
It is trite that the test of determining whether there has been miscarriage of justice is to see whether on a proper direction the trial judge would have come to the same conclusion he had earlier reached. ARUMA V STATE (1990) 6 NWLR (Pt. 115) 125. In the case of OSUOLALE V THE STATE (1991) 8 NWLR (Pt. 212) 770 at 773, it was held that:
“There is miscarriage of justice not only when a Court comes to the conclusion that a conviction was wrong, but also when it is of the opinion that the error or omission in the Court below may reasonably be considered to have brought about the conviction.”
See also the case of WAZIRI V THE STATE (1997) 3 NWLR (Pt. 496) 689. Considering the circumstance that led to the conviction and sentence of the Appellant in the appeal at hand, I have no doubt in my mind that miscarriage of justice has been occasioned. This issue is therefore resolved in favour of the Appellant and against the Respondent.

In the light of the foregoing conclusions, the need to consider issue two which is
“Whether in the circumstance of this case, the learned trial judge was wrong in finding the Appellant guilty under Section 224 of the Penal Code Law.”
becomes otious, same having being answered while resolving issue one. Issue two is also resolved against the Respondent.

In conclusion therefore, this appeal is meritorious and is hereby allowed. The conviction of the Appellant under Section 224 of the Penal Code Law is hereby set aside and the sentence is quashed. The Appellant to be released forth with from the Correctional Centre.

TANI YUSUF HASSAN, J.C.A.: I am in agreement with the reasoning and conclusion reached in the lead judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read in draft the lead judgment just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A.; I am in agreement with his reasoning and conclusion. I have nothing useful to add.

Appearances:

…For Appellant(s)

…For Respondent(s)