UDEKWE v. STATE
(2021)LCN/15742(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, September 17, 2021
CA/A/84C3/2017
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
CHRISTOPHER UDEKWE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHEN AN OBJECTION TO A CHARGE FOR ANY DEFECT IS TO BE TAKEN
It is a settled law that any objection to a charge for any kind of defect on its face shall be taken immediately after the charge has been read over to the accused person, not later. JOHN V STATE (2019) LPELR-46936 (SC).
In this particular case as in the case of JOHN V STATE (supra) the Appellant’s timing of making his objection is his greatest undoing after all the charge actually contained all that a charge should contain, as required by Section 201 — 202 Criminal Procedure Code. It has fully described an offence recognized by law. It was read to the Appellant, he understood same. He pleaded not guilty and at that time neither the Appellant nor his counsel objected to the alleged defect in the charge. It is now too late in the day to raise any objection.
In fact, S. 206 of the criminal procedure code has provided that no error in stating either the offence or the particulars required to be stated in a charge and no omission to state the offence or their particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a miscarriage.
It is obvious that the appellant was not in any way misled with the manner this charge was couched as he pleaded not guilty to the charge defended himself on the allegation he gave evidence as DW16 at the trial where he gave his own account of the events leading to the charge against him. It is too late in the day for the Appellant to turn around to complain about him not being charged for the offence of culpable homicide punishable with death under S. 221(a) of Penal Code. PER BASHIR, J.C.A.
THE POSITION OF LAW WHERE TWO OR MORE PERSONS ARE CHARGED WITH THE COMMISSION OF AN OFFENCE
While it is indeed the law that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar to the extent that the evidence is inextricably woven around all the accused persons, then the discharge of one must affect the discharge of the others; but where there is an additional evidence incriminating one particular person or persons such a person with additional incriminating evidence may be convicted alone, discharge of others against whom there is no additional incriminating evidence will not benefit him. See ADELE V. STATE (1995) 2 NWLR (Pt. 377) 269 where it was held that:
“For the purpose of exculpating an Appellant from criminal responsibility, conviction and sentence there must be no additional evidence incriminating the Appellant”.
See also UMANI V. STATE (1988) 1 NWLR (Pt. 70) 274.
Where the evidence led by the prosecution is not interwoven in all material respect but separate, then it does not automatically follow that an acquittal of one set of co-accused persons will lead to the acquittal of others. The guilt of each accused shall be determined on its merit; with the evidence of the additional evidence in the nature of confessional statement and ipsi dixit of the eye witnesses against the individual accused persons, the case of each of the accused persons in this matter including that of the Appellant must be resolved on its merit. PER BASHIR, J.C.A.
WHETHER OR NOT OBJECTION TO A CHARGE MUST BE TAKEN BEFORE THE PLEA IS TAKEN
Even if in situations where there are some defects in the face of the charge the law is very clear that objection to the charge must be taken before or at the time plea is to be taken. ADIO V STATE (1986) 3 NWLR (Pt. 31) 714.
Where a party fails to object to any formal defect on the face of the charge and then take part in the hearing of the case to its conclusion, he is deemed to have forfeited the right to object. See AMEH V STATE (2018) LPELR – 44463 (SC). PER BASHIR, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): The Appellant was the 18th Accused person charged before the High Court of Kogi State holden at Idda before Hon. Justice E. Haruna on 5 heads count of charges namely:-
(1) Conspiracy under S. 97 of the Penal Code.
(2) Mischief by fire punishable under Section 337 of the Penal Code.
(3) Threat to cause injury to persons with intent to cause harm, grievous hurt and death.
(4) Voluntary causing of hurt by means of gun, axes, matchet and other dangerous weapons, punishable under Section 248(2) of the Penal Code.
(5) Culpable homicide punishable with death.
The fact of this case is that on the 8th day of November, 2011 at Omabo village, Ibaji Local Government Area Kogi State, the Appellant and several others conspired together went on rampage, invaded and attacked Chief James Onyekwe in the early hours of the day in his residence. They set several houses ablaze, shot and killed Chief James Onyekwe and 6 other members of his family wounding and maiming several others in the process.
At the end of the full scale trial in which 5 witnesses testified for the prosecution; 14 out of the 19 original accused persons were discharged and acquitted for want of evidence while four of the accused persons including the Appellant were found guilty by the trial Court and convicted on all the 5 counts in a judgment delivered on 26th September, 2016.
They were all sentenced to various terms of imprisonment including death by hanging.
The Appellant filed this appeal challenging the decision of the lower Court vide a notice of appeal dated 7th day of October, 2016 containing one omnibus ground to which 17 other grounds were added by leave of this Court bringing the total grounds of appeal to 18 in all.
The 18 grounds of appeal eventually dovetails into 5 issues for determination as formulated by the Appellant’s learned senior counsel Mr. Aliyu M. Abdullahi (SAN) in his brief of argument dated 29/6/2020 which goes thus:-
(1) Whether the failure by the trial Judge to take a fresh plea of the Appellant after altering the charge has rendered the entire trial and conviction of the Appellant nullity.
(2) Whether in view of the fact that the Appellant was not charged for the offence of culpable homicide punishable with death, his subsequent trial and conviction for that offence has not rendered the entire trial a nullity for want of jurisdiction and breach of Appellant’s right of fair hearing.
(3) Whether it was proper in the circumstance of this case for the learned trial Judge to use the same evidence to acquit some persons jointly charged along with the Appellant and convict the Appellant when the evidence against all the accused was inextricably woven around all of them such that what is true of one accused is also true of the other.
(4) Whether upon a calm and careful consideration of the legally admissible evidence adduced at the trial, the learned trial judge was right to hold that the prosecution had proved it case beyond reasonable doubt.
(5) Whether count one on the charge sheet is not incompetent for being bad for duplicity.
Learned counsel for the Respondent Mr. Badama Kadiri Esq. Acting Director Corporate Affairs Kogi State Ministry of justice, in his Respondent’s brief of argument adopted in whole, the five issues formulated by the Appellant’s counsel as itemized above.
RESOLUTION OF ISSUES<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Issue one simply challenged the judgment of the trial Court on the ground that upon the removal of the name of the 6th accused person Raphael Egwatu who died during the trial the failure of the trial Court to take a fresh plea from the remaining accused persons has rendered the trial a nullity.
In his own view Mr. Abdullahi Aliyu SAN learned senior counsel for the Appellant the striking out of the name of the 6th accused person which necessitated a change in numbering of the accused persons by making the 7th accused person to bear No. 6 on the charge sheet with the number of the remaining accused changing by one number which the trial Judge actually acknowledged in his judgment. This amounts to an alteration or amendment of the charge.
Where an amendment to a charge is effected, counsel argued the new charge shall be read and explained to the accused person and his plea be taken afresh. He cited some judicial authorities including AMOS BUDE V. THE STATE (2013) 17 NWLR (Pt. 1384) 585.
He also made reference to Section 208(2) of the Criminal Procedure Code.
Learned senior counsel submitted that the entire proceedings before the trial Court was a nullity by reason of the failure to read the altered charge to the Appellant for a new plea.
The learned Respondent’s counsel Mr. Badama Kadiri submitted that the removal of the name of the 6th accused person which was at the instance of the prosecution was only meant to discontinue the case against the 6th accused person and no more. There was no amendment of the charge as will require the taking of a new plea as the subsisting accused persons were neither prejudiced nor misled by the act of the removal of the 6th accused person which has not occasioned any miscarriage of justice. After all, it did not affect the evidence given prior to or subsequent to the withdrawal of the name. He relied on Section 209 of the Criminal Procedure Code and case of NKEMJIRIKA V I.G.P (2019) LPELR-47786 (CA) to support his argument and urged this Court to resolve the issue against the Appellant.
The word charge denotes a formal accusation of an offence as a preliminary step to a prosecution. See OKOYE & ORS VS. C. O. P & ORS (2015) LPELR-24075.
Therefore, the formal accusation in writing is what constitutes the charge.
Where there is more than one statement of offence (as in this case) each and every one of the statement of offence is easily a charge and any or all of them may be altered or amended. They may also be added to, in such situation it will be mandatory on the Court to call on the accused person to plead to the altered or amended count or the new charge. There will be no need for the accused (Appellant) to plead again to any charge or count not affected by the alteration or amendment. See ATTAH V. STATE (1993) LPELR-598 (SC).
After all a charge for all purposes means a count or an accusation only. ATTAH V. STATE (supra).
From the above state of things, it is very clear that names of the accused listed on an information sheet is not an allegation. YOUNGMAN V. COP (1949) 4 FSC 283.
Merely removing the name of a deceased person from amongst the accused person in an ongoing trial will not amount to an amendment or alteration of a charge as this act will not add or reduce anything from the substance of the charges.
Section 208(2) of the Criminal Procedure Code which makes it mandatory to read and explain and take a fresh plea from the accused person upon effecting a change on a charge envisaged an alteration to the substance, to or an additional new allegation on the existing charges and not otherwise.
See also Section 209 of the Criminal Procedure Code and the case of NKEMJIRIKA V. IGP (2019) LPELR-47786 (CA). The rigidity of Section 208 which requires a new plea be taken when there is an amendment has been mitigated even in other instances of amendments for the charge by allowing the trial Judge to use his discretion if he is of the opinion that the accused person against whom the amendment is made will not be prejudiced, to continue with the trial as if the altered charge were the original one.
The fact that a fresh plea has not been taken from the accused person upon the removal of the name of the 6th accused person in this case has not in any way rendered the trial a nullity. Issue 1 is therefore resolved against the Appellant.
With respect to Issue No. 2 the argument of the Appellant’s counsel is that the conviction of the Appellant for the offence of culpable homicide punishable with death was wrongful as he was not charged with any such offence.
He submitted that under Count 5 where culpable homicide was alleged, the allegation was against only Sunday Eguda Ajodo whereas the Appellant on that count was only accused of forming intention with Sunday Eguda Ajodo who was said to have shot the deceased persons.
Since there is no charge for culpable homicide against the Appellant, counsel submitted that the Court had no jurisdiction to try him for the offence in the first place. NWOLISA V. STATE (2015) LPELR—24371 cited and relied upon.
Learned counsel finally said that a person cannot be convicted for an offence with which he was not charged, referring to the case of BALA JAMES NGILARI VS. THE STATE & ORS LPELR-46985 (CA).
The Respondent’s counsel on this point submitted that the Appellant’s counsel’s submissions on this issue are misleading and erroneous, that regardless of how the charge containing culpable homicide was couched there is nothing to show that the Appellant was misled and no miscarriage of justice was occasioned. It is therefore according to him far late in the day for the Appellant to feign ignorance of the charge of culpable homicide against him. Bearing in mind that the Appellant was informed of the charges against him at the police station and that upon his arraignment in Court the charge containing culpable homicide punishable with death was read and interpreted to him in the language he understands is not in doubt. So all the authorities relied upon by the Appellant’s counsel he submitted are not applicable here.
Finally, learned Respondent’s counsel argued that even if the 5th head of charge is bad still, it does not vitiate the trial, as the Appellant ought to have raised the objection at the earliest stage before the commencement of the trial. Counsel relied on ATTAH V STATE (2010) 10 NWLR (Pt. 1201) 190 and case of GEORGE V F.R.N (2011) 10 NWLR (Pt. 1254) 1 at 65 where it was held:-
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later”.
Having defended himself on this charge shows he was not misled.
In his Appellant’s reply to Respondent’s brief, the Appellant’s counsel only succeeded in further rearguing his previous points.
To resolve this issue, all that is necessary and important to be noted about a charge in a criminal matter is that the charge must tell the accused person just enough for him to know the case alleged against him and prepare his defence. See OGBOMOR V STATE (1985) 1 NWLR (Pt. 2) 223 wherein Oputa, JSC further explained that the fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled …. The charge must not therefore have defects or errors which could mislead the accused. The emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not the defence was actually misled thereby. Subject to that, a defect, error or omission which does not prejudice the defence is not a ground for quashing a conviction. See JOHN V STATE (2019) LPELR—46936 (SC).
In this appeal, the Appellant is complaining about the manner the 5th head of the charge was couched which seemed to charge only Sunday Eguda Ajodo with culpable homicide to the exclusion of the Appellant yet he was tried and convicted for the offence as well.
At page 5 of the record of proceedings, the 5th head of charge is found there and it goes thus:-
That you, Sunday Eguda Ajodo on or about the 8th day of November, 2011 at Omabo, Ibaji L. G.A within Kogi State Judicial Dvision had formed a common intention with Emmanuel Agobie, Monday Johnson, Keneth Okwufe, Geophry Onuh, Rapheal Egwatu, Peter Omachonu, Lucky Ajodo, Ejuma Monday emmanule, Ajodo Emos, Ojodomo Friday, Okwute Godstime, Abel Ajodo, Simeon Ajodo, Denis Abujah, Godwin Chebe Ebemeke, Keneth Egwuche, Samson Onuh and Christopher Udekwe to commit an offence namely culpable homicide punishable with death in furtherance of which you did the following act: You shot late Chief James Onyekwe, late Victor Onyekwe, late Thank God Onyekwe, late Joseph Onyekwe, late Hycenth Offor, late Mary Offor, and late Julius Adinor with guns with the intention of causing their death an offence punishable under Section 221(a) of the Penal Code read along with Section 79 of the penal code.
Looking at the above charge from the purview of Sections 200, 201 and 202 of the Criminal Procedure Code, it contains all the necessary ingredients prescribed for a valid charge.
From the records, all the charges including the 5th containing allegation of culpable homicide punishable with death was read and interpreted to the accused in the presence of his counsel. He pleaded not guilty in the proceedings of 22nd May, 2013.
Before the charges were read and interpreted to the Appellant upon the grant of the application of the prosecution counsel by the trial Court to commence proceedings against the accused persons. The following dialogue took place between the prosecuting counsel Mr. Kadiri and the defence counsel Mr. Ocheja in the open Court:-
Kadiri: The accused persons have now been served with the charge. I apply that the charge be read to them and their plea be taken.
Ocheia: We do not have any objection. We have the charge served on the accused person. It is not a new case. My appearance is also for the 19th accused person.
NIB: The 19th accused person is the Appellant here.
After the above dialogue then this took place between the Court and the Appellant (19th accused person). After the charges were duly read and interpreted to him this is how it goes:-
Court: Are you guilty of the 5th charge read and interpreted to you?
19th Accused: I am not guilty of the 5th charge.
This dialogue in the Court room in the presence of his counsel shows that the Appellant really understood the contents of the charge he pleaded not guilty to, same having being read, explained and interpreted to him. He was never misled or under any mistake that he was facing a case of culpable homicide punishable with death.
His counsel had all the opportunity to raise his objection at the time but seem contented with the contents of the charge. I do not think there is a room left to complain at this eleventh hour.
It is a settled law that any objection to a charge for any kind of defect on its face shall be taken immediately after the charge has been read over to the accused person, not later. JOHN V STATE (2019) LPELR-46936 (SC).
In this particular case as in the case of JOHN V STATE (supra) the Appellant’s timing of making his objection is his greatest undoing after all the charge actually contained all that a charge should contain, as required by Section 201 — 202 Criminal Procedure Code. It has fully described an offence recognized by law. It was read to the Appellant, he understood same. He pleaded not guilty and at that time neither the Appellant nor his counsel objected to the alleged defect in the charge. It is now too late in the day to raise any objection.
In fact, S. 206 of the criminal procedure code has provided that no error in stating either the offence or the particulars required to be stated in a charge and no omission to state the offence or their particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a miscarriage.
It is obvious that the appellant was not in any way misled with the manner this charge was couched as he pleaded not guilty to the charge defended himself on the allegation he gave evidence as DW16 at the trial where he gave his own account of the events leading to the charge against him. It is too late in the day for the Appellant to turn around to complain about him not being charged for the offence of culpable homicide punishable with death under S. 221(a) of Penal Code.
The trial Court evaluated and put the two accounts on the scale of justice arrived at a verdict hereafter. Appellant did not raise an objection there. It is therefore too late in the day for the Appellant at this appellate stage to turn around and shout that he was not charged with culpable homicide punishable with death or that only the 1st accused was so charged in the 5th head of the charge. I do not agree with this and all the submissions of the Appellant’s counsel on this issue come to naught. So issue No. 1 is hereby resolved against the Appellant.
Issue No. 3 deals with the question whether it was proper for the Judge to use the same evidence to convict some and acquit others who are jointly charged. According to the Appellant’s counsel what is true of one accused is also true for the other. Formulated from grounds 3, 4, 5, 6 and 7 of the grounds of appeal.
The long and short of the submissions of the learned Appellant’s counsel is that in this case the entire evidence adduced against all the accused persons is one and the same. Yet the trial Court proceeded to convict some and acquitted others. To be more specific counsel argued that the Appellant was charged along with 18 others for the commission of all the offences alleged against them and in all 5 witnesses testified at the trial with PW1 —PW4 being eye witnesses. Their evidence according to the learned counsel against all the accused persons is the same and so inseparable. Counsel took time to reproduce some portions of the evidence of all the PW1 to PW4 which he said are similar against all the 19 accused persons. So he concluded by submitting that where two or more persons were charged with the commission of an offence and the evidence of all the accused persons are similar and woven around all the accused persons, discharge of one must as a matter of law, affect the discharge of the others. Quoting from the decision of the Court of Appeal in AYUBA ABDULLAHI V. STATE (2014) LPELR-24007 and the Supreme Court in EBRI V. THE STATE (2004) 5 SC (Pt. 11) 29 at 35 per Tobi, JSC.
The Appellant’s learned senior counsel urged this Court to set aside the decision of the trial Court and substitute same with an order of discharge and acquittal in favour of the Appellant.
The learned counsel for the Respondent in his response argued that it is very clear from the judgment of the trial Court that the evidence used in convicting the Appellant is not the same nor similar to the evidence against the other accused persons who were discharged.
The counsel submitted further that the Appellant’s confessional statement (Exhibit TTQ) which sealed his fate is personal to him and it is not in any way interwoven with the evidence against any other accused persons; citing ANTHONY OKORO V STATE (2012) LPELR – 7346 (SC).
He therefore urged us to uphold the conviction.
The major issue raised by the learned Appellant’s counsel is that since the trial Court has discharged and acquitted some of the Appellant co-accused persons, the conviction and sentence of the Appellant cannot stand in law in view of the similarity of the evidence against them.
From the records of the trial Court, 19 persons were arraigned for all the 5 counts of offences and 5 witnesses testified for the prosecution most of the witnesses especially PW1—PW4 are eye witnesses, while the 5th is the investigating police officer, through whom extra-judicial statement of the individual accused persons were tendered on the strength of the said evidence, the Court convicted 4 out of the 18 remaining accused persons and discharged the rest. Among those convicted was the Appellant. With respect to the Appellant, in addition to the oral evidence of the 4 witnesses PW 1 some of whom practically saw him perpetrating the crime, in fact PW 1 in her evidence identified him specifically as the one who hit her head with a hammer.
In short for the Appellant, there is a confessional statement Exhibit TTQ whose voluntariness was tested through a lengthy trial within trial and found to be admissible having been made voluntarily according to the ruling of the Court. There is also the direct evidence of the prosecution witnesses most pointedly PW1 and PW4 both of whom were very clear and unambiguous with respect to the role played by the Appellant in the attack on the residents and residence of late Chief James Onyekwe on the day of the incident where several persons were killed and many others wounded and maimed with number of houses set a blazed. These pieces of evidence stand the Appellant out as a major culprit; it also shows that there is a separate and independent evidence applicable exclusively to the Appellant alone to the exclusion of other accused persons which will entitle the Court to hold him responsible and guilty without necessarily robbing in any other or all the co-accused persons, because this particular pieces of evidence being independent and exclusive to the Appellant alone cannot be used against other persons charged along with him.
While it is indeed the law that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar to the extent that the evidence is inextricably woven around all the accused persons, then the discharge of one must affect the discharge of the others; but where there is an additional evidence incriminating one particular person or persons such a person with additional incriminating evidence may be convicted alone, discharge of others against whom there is no additional incriminating evidence will not benefit him. See ADELE V. STATE (1995) 2 NWLR (Pt. 377) 269 where it was held that:
“For the purpose of exculpating an Appellant from criminal responsibility, conviction and sentence there must be no additional evidence incriminating the Appellant”.
See also UMANI V. STATE (1988) 1 NWLR (Pt. 70) 274.
Where the evidence led by the prosecution is not interwoven in all material respect but separate, then it does not automatically follow that an acquittal of one set of co-accused persons will lead to the acquittal of others. The guilt of each accused shall be determined on its merit; with the evidence of the additional evidence in the nature of confessional statement and ipsi dixit of the eye witnesses against the individual accused persons, the case of each of the accused persons in this matter including that of the Appellant must be resolved on its merit.
With respect to whether the names of the Appellant was mentioned by the witnesses at the police station or not, it should be clear that the Supreme Court in the case of ABUDU V THE STATE (1985) 1 NWLR (Pt. 1) 55 did not hold that a Court cannot convict on the evidence of eye witness which omits to mention at the earliest opportunity the name(s) of the person(s) seen committing the offence. What the Supreme Court said is that the Court must be careful in accepting this evidence, where a satisfactory explanation is given for the failure or omission to mention the name or names of the persons who commit the offence then a Court is entitled to convict on the evidence. See EBRI V STATE (2004) LPELR-996 (SC).
With respect to whether PW1 mentioned or omitted to mention the name of the Appellant in her statement to the police which was the earliest opportunity to do so. The answer she gave counsel to 8th and 17th accused person during cross-examination gave an account of her senses and condition at the time of her statement to the police she said thus:-
“At the time I made statement to the police and mentioned names, I was not myself and I told them that there are more names I will tell them”.
Apparently, this shows that she was in a trauma at that time arising from the violence that led to the death of her husband and relatives and the burning of their house by a mob, having herself suffered some injuries inflicted by the mob. Certainly a person in this condition must be excused for not remembering everything immediately after the incident. She will surely need time to overcome the trauma and then remember everything.
PW3 actually mentioned the name of the Appellant in his first statement to the police made on 20/11/2012 which the counsel to the Appellant dismissed because it was submitted, he made over one year after the incident; so it cannot be said to have been made at the earliest opportunity.
There is no evidence that PW3 had had an earlier opportunity but failed to mention the name of the Appellant prior to 26/11/2012 to that extent. Therefore, it must be taken that this was his first and earliest opportunity which he well and properly utilized to mention the names of the persons involved in the commission of the crime among whom is the Appellant.
In this case and in this circumstance, the question is not whether there is the same type and kind of evidence against all the accused persons. This has since been debunked. The question now is whether there was sufficient evidence against the Appellant to warrant his conviction and sentence. And incidentally that is the question Issue No. 4. The Appellant’s counsel in his brief of argument is seeking to address.
Even at that the credible, cogent and direct evidence led by PW1 and PW4 and indeed all the remaining eye witnesses which has vividly described the role of the Appellant in the mayhem pining him to the scene of crime and the effect of the Appellant’s confessional statement, the guilt of the Appellant as found by the trial Court stand sacrosanct and unimpeachable.
Criminal offence is usually proved through (1) direct evidence of an eye witness (2) confessional statement and (3) circumstantial evidence. IGABELE V STATE (2006) 6 NWLR (Pt. 975) 100 SC.
On the strength of the evidence adduced through PW1—PW4 and the effect of the voluntary confessional statement of the Appellant. The trial Court was on a sound footing to have convicted the Appellant; because eye witness evidence is always reliable. UDO V STATE (2018) LPELR-43707 (SC).
And whereas there is no evidence stronger than a person’s own admission; a free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive is sufficient proof of guilt and it is enough to sustain conviction. DIBIE V STATE (2007) 9 NWLR (Pt. 1030) 30 SC; SOLOLA V STATE (2005) 11 NWLR (Pt. 937) 460 SC.
This therefore settles issues 3 and 4 all I need to add to make it more comprehensive is that issues relating to the voluntariness of the confessional statement of the Appellant has been dealt with adequately in the ruling of the trial Court after the trial within trial where the trial Judge concluded that he was convinced that the confession was voluntarily made and admitted it in evidence as exhibiting. If the Appellant is not satisfied with the ruling, he had the right to appeal against that ruling having failed to so appeal he cannot be heard to complain. OJOH V STATE (2020) LPELR- 50458.
Issues Nos. 3 and 4 are hereby resolved against the Appellant.
On Issue 5 the Appellant asked, whether count one of the charge sheet is not incompetent for being bad for duplicity. Taken from Ground 14 of the Amended Notice of Appeal.
The learned Appellant’s counsel argued that by virtue of Section 212 of the Criminal Procedure Code Law 1960, every distinct offence of which a person is accused of shall be filed in a separate charge and tried separately that a perusal of the first head of the charge on page 3 of the record of appeal will reveal that the Appellant was charged with conspiracy to commit 4 distinct offences which are not similar namely:-
(1) Conspiracy to commit mischief by fire.
(2) Conspiracy to commit intimidation.
(3) Conspiracy to commit causing hurt and
(4) Conspiracy to commit culpable homicide.
According to the learned Appellant’s counsel each of these conspiracies constitute a distinct offence under the law. Accordingly, he submitted further that having not charged the Appellant with conspiracy to commit the above offences under different and distinct heads of charge/count the first head of the charged is bad for duplicity, incompetent and ought to be struck out. So he urged us to strike out the 1st head of charge.
The Respondent’s counsel on the other hand submitted that the Count No. 1 of the charge sheet is not duplicitous as erroneously claimed by the Appellant. That what is contained in the count is a statement of all the offences the accused persons conspired to commit and nothing more. So the only offence contained in the count is conspiracy.
In Appellant’s reply brief, the Appellant’s counsel further contended that charge was not only bad but has misled the Court in the course of sentencing thereby leading to miscarriage of justice.
One thing that is palpably clear here is that the allegation against the Appellant in Count one is only for conspiracy simpliciter and no more.
A person may conspire with others to commit several offences or wrongs but the fact still remain the offence is conspiracy to commit those offences. It will certainly not be correct to argue that because the accused persons are alleged to have conspired to commit more than one offence in one head of charge will amount to duplicity. I tend to go with the submission of the learned Respondent’s counsel that what is contained in count one here is a statement of all the offences the accused persons conspired to commit and nothing more.
Even if in situations where there are some defects in the face of the charge the law is very clear that objection to the charge must be taken before or at the time plea is to be taken. ADIO V STATE (1986) 3 NWLR (Pt. 31) 714.
Where a party fails to object to any formal defect on the face of the charge and then take part in the hearing of the case to its conclusion, he is deemed to have forfeited the right to object. See AMEH V STATE (2018) LPELR – 44463 (SC).
In this matter, the Appellant has not raised the objection at the appropriate time he took part in the trial from beginning to end after his full trial and subsequent conviction. He has lost the right to object, most especially here where there is no evidence of miscarriage of justice whether as a result of the manner the charge was made or howsoever.
In the final analysis therefore Issue No. 5 also fails and it is resolved against the Appellant.
Having resolved all the 5 issues for determination against the Appellant, all that is left is to dismiss the entire appeal for lacking in merit.
Accordingly, this appeal is hereby dismissed for lack of merit. The judgment of the Kogi State High Court of Justice delivered on 26th September 2016 in Case NO: ID/4C/2013 is hereby affirmed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Bashir, JCA. I agree with his reasoning and conclusion that this appeal totally lacks merit and ought to be dismissed. It is accordingly dismissed by me too. I abide by all the consequential orders in the lead judgment.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege to read in draft, the leading judgment just delivered by my learned brother Y. A. Bashir, JCA, I agree with reasons and conclusion that the appeal lacks merit and should be dismissed,
I hereby dismiss the appeal and abide by the consequential orders made in the lead judgment.
Appearances:
…For Appellant(s)
…For Respondent(s)
