The State Vs. Jerry Gideon, Judgment Delivered by Habeeb Adewale Olumuyiwa Abiru JSC, In SC/CR/413/2020

SC/CR/413/2020

JUDGEMENT DELIVERED BY HABEEB ADEWALE OLUMUYIWA ABIRU, JSC

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Obande Festus Ogbuinya, JSC. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusion reached.

The Respondent was one of the five persons arraigned before the trial Court by the Appellant on five counts charge of criminal conspiracy, culpable homicide punishable with death, inciting disturbance, mischief by killing or maiming animals, and causing disappearance of evidence. The Respondent pleaded not guilty, and the matter proceeded to trial, and in course of which the Appellant called six witnesses in proof of the charge against the Respondent, and the Respondent testified as the sole witness in his defense. At the conclusion of trial and after the filing and adoption of final witness addresses by Counsel to the parties, the trial Court entered judgment wherein it convicted the Respondent on all the counts and sentenced him to death and terms of imprisonment.

The Respondent was aggrieved by the judgment and he caused an appeal to be filed against it to the Court of Appeal sitting in Yola, and the appeal was concretized in an amended notice of appeal containing seven grounds of appeal. One of the grounds of appeal questioned for the first time the competence of the motion to prefer a charge and of the charge by which the proceedings were commenced in the trial Court for the failure of the Counsel who filed the motion and the charge to sign either of them. Counsel to the Respondent distilled two issues for the termination of the lower Court in the appeal, and these were:

i. Whether the proceedings conducted before the trial Court was not a nullity.

Ii. Whether the prosecution proved the case against the Appellant to justify his conviction and sentence by trial Court.

The lower Court heard the appeal on the merits and it delivered a considered judgment wherein it deliberated on the first issue for a termination thus:

“Although the law is trite that a defect in a charge should be raised timeously, the Appellant in this appeal was granted leave on 31st January 2019 to amend his notice of appeal in order to raise a fresh issue of law, which according to him, touches on the issues of jurisdiction. It is the law that the issue of jurisdiction can be raised at any stage, even on appeal to the Supreme Court.”

The Courts are blind to any document that is not signed. That explains the provision of section 200 of the Criminal Procedure Code, CAP 39, Laws of Adamawa State, 1997, which provides as follows:

‘Charges may be as in the forms set out in Appendix B, modified in such respects as may be necessary to adapt them to the circumstances of each case.’

The zombie charges contained in Appendix B indicate that a charge must be signed or sealed. A criminal trial is not a tea party, but a grave responsibility entrusted on the State. It is for this reason that it is provided by the law that the charge against the accused person be signed. Any officer of the Ministry of Justice other than the Attorney General can validly sign a charge…

Even a hasty look at the application to prefer the charge and the charge itself against the Appellant and the other co-accused persons shows the names of two State counsel, but none of them signed either the application to prefer the charge against the accused persons or the charge itself. There was therefore a feature in the charge which prevented Court below from excising its jurisdiction to try the Appellant. The matter did not come to the Court initiated by due process of law and upon the fulfillment of a condition precedent to the excise of jurisdiction. The trial was therefore an excise in futility… The charge against the Appellant and the other accused persons was inflicted with a death wound by the learned State Counsel who failed to sign it and it was dead on arrival.”

The lower Court resolved the first issue for determination before it in favour of the Respondent. The lower Court thereafter proceeded to consider the second issue for determination, and it traversed through the oral and documentary evidence laid by the Appellant in proving the charge against the Respondent, and it found that the trial Court committed a deluge of errors in its evaluation of the evidence. The lower Court found that the evidence led by the Appellant on each of the five counts did not meet the threshold of proof beyond reasonable doubt required in a criminal charge, and it resolved the second issue for determination also in favour of the Respondent. The lower Court allowed the appeal and set aside the judgment of the trial Court, and it discharged and acquitted the Respondent.

The Appellant was dissatisfied with the judgment of the lower Court and it filed an appeal to this Court against it, and the notice of appeal contained six grounds of appeal. Counsel to the Appellant distilled three issues for this Court to determine in the appeal, and these were:

i. Was the lower Court not in error when it held that the matter was initiated before the trial Court by due process of law, and upon fulfillment of a condition precedent to the exercise of jurisdiction, thereby rendering the whole trial an exercise in futility, and yet went ahead and discharged and acquitted the respondent?

Ii. Was the lower Court not in error when it held that the failure of the Appellant to tender exhibits recovered from the scene of crime cast a heavy doubt in the case of the Appellant and on account of the said reason, went ahead and set aside the conviction and sentence by the trial Court?

III. Was the lower Court not in error when it held that there was no reliable evidence led by the Appellant to warrant the conviction of the Respondent who went ahead and set aside the decision of the trial Court when there was copious and abundant evidence before the trial Court to support the said judgment?

At the hearing of the appeal, the attention of Counsel to the Appellant was pointed to the fact that the second to the sixth grounds of appeal, and from which he distilled the second and third issues for determination, were at best grounds of mixed law and facts, and for which he did not obtain leave of Court to file, thereby rendering them incompetent. Counsel to the Appellant conceded the incompetence of the grounds of appeal, and he withdrew them, and the second and third issues for determination distilled from them, and they were all struck out. Counsel to the parties thus argued the appeal only on the first issue for determination formulated by Counsel to the Appellant.

The contention of Counsel to the Appellant on this first issue for determination was too pronged. Firstly, Counsel stated that in criminal cases, an allegation of a defect in a charge must be raised by an accused defendant or his Counsel timeously, and that the time the plea of the accused defendant is being taken. It cannot be raised after the commencement of trial of the charge or on appeal for the first time. Counsel stated that it is only where the defect in the charge is of such a nature that it misleads or misinforms the accused defendant of the nature of the allegations against him or of the offence or offences he is being charged with, and thus occasion of a miscarriage of justice that it can be raised after the commencement of trial or on appeal. Counsel stated that the Respondent was represented by counsel from the commencement of the case against him in trial Court to its conclusion, and that at no time did either the Respondent or his Counsel raise any issue with the non-signing of the charge sheet. Counsel stated that the Counsel to the Respondent did not show that the non-signing of the charge sheet misled or misinformed the Respondent of the charge against him and/or that it occasioned a miscarriage of justice. Counsel contended that the lower Court was thus in error in nullifying the proceedings conducted before the trial Court on the basis of the non-signing of the charge sheet.

Secondly, Counsel contended that assuming that the lower Court was right in nullifying the proceedings in the trial Court on the basis of the non-signing of the charge sheet, it should have ordered a retrial instead of acquitting and discharging the Respondent.

It is correct, as asserted by the Counsel to the Appellant, that the position of the law is that any defect in a charge must be raised timeously. It must be raised at the time of arraignment, immediately after the charge is read to the accused, and before he takes his plea, and not later. It is not an issue that can and should be taken up on appeal for the first time – John vs State (2019) LPELR – 46936 (SC) at 16-17, Jibrin vs State (2021) LPELR 56233 (SC) at 71-72, Mohammed vs State (2021) LPELR 58385 (SC) , Olugbemi vs State (2023) LPELR 60331 (SC). In Okewu vs Federal Republic of Nigeria (2012) 9 NWLR (pt 1305) 327 at 352E, my Lord, Ariwoola, JSC, (as he then was) made the point thus:

“If there had been any defect or ambiguity in the charge, the appellant should not have responded with his plea when the charge was read. He should have objected the reading of the charge. The appropriate time to complain or object to a charge as drawn up is at the time it is being read and before the plea.”

The issue of improper signing of the charge process was not raised in the trial Court and it was not pronounced upon by the trial Court in the judgment. However, the Supreme Court has held severally that the issue of signing and the endorsement of an originating process by a legal practitioner, where a party sues with one, as in the instant case, is a requirement of substantive law and not of procedural law; that it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such non-signing of the Court process and that it is an issue that can be raised even at the Supreme Court for the first time – see for example, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (pt 1346) 1, First Bank of Nigeria Plc vs Maiwada & Ors (2013) 5 NWLR (pt 1348) 444, Oliyide vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (pt 1622) 549.

Applying this principle to the sign of criminal charges under the provisions of the Criminal Procedure Code, the applicable law at the time the charge in the present action was filed by a noble Lord, Garba, JSC, who read the leading judgment in the case of State vs Isijiola (2023) LPELR 59935 (SC), stated at Page at the 26D-E thus:

“The law remains, though generally that a criminal charge which is not signed by the Honorable Attorney General or an authorized officer in his department, would be fundamentally defective for the purpose of institution or initiation of criminal proceedings before the trial court by the community effect of the provisions of Section 211(1) (a) and (2) of the constitution, and sections 185 (b) and 200 of the CPC, Niger State.”

It is essential to point out that in the case of State vs Isijiola supra, the Court, after making the above categorical statement, would go ahead to suggest that by virtue of the provisions of Section 381 and 382 of the Criminal Procedure Code, the failure to sign a charge can be overlooked where the accused person does not raise it at the time of taking his plea.

The above categorical statements of the law on the issue of signing of an originating process by the legal practitioner who filed same are adjunctive to the general statement of the law that an unsigned document does not have any efficacy in law, that such a document is worthless and commands no legal or judicial value, and is incapable of conferring any legal rights – Omega Bank Nigeria Plc vs O.B.C Ltd (2005) 1 SC (pt 1) 49, (2005) 8 NWLR (pt 928) 547, Ogudo vs The State (2011) 18 NWLR (pt 1278) 1, State vs Sa’idu (2019) LPELR – 47397 (SC). In light of these statements the first contention of the Counsel to the Appellant on the sole issue for determination must fail.

The second contention of the Appellant on the issue for determination that upon declaration, the proceedings in the trial Court null and void on the grounds of lack of jurisdiction, the lower Court should have ordered a retrial instead of acquitting and discharging the Respondent clearly overlooked and important aspects of the proceedings before the lower Court. The records of appeal show that, subsequently to the nullification of the proceedings, the lower Court proceeded to consider the appeal on the merits and found that the Appellant did not leave sufficient, cogent, and credible evidence to prove the charge against the Respondent. This approach of the lower court was in obedience to the admonition handed down by this Court in several cases that it is incumbent on a lower Court in the judicial hierarchy to resolve all the issues for determination raised or submitted by the parties before it for adjudication and not select one or some of the issues and decide the case thereon.

The rationale for this position is so that if it turns out on a further challenge that its findings on the selected issue or issues are wrong, the higher Court will have the benefit of its opinion on the other issues and not be faced with a dilemma of whether to remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits – Brawal Shipping Nig. Ltd vs F.I Onwadike Co Ltd (2006) 6 SCNJ 508 at 522, Honeywell Flour Mills vs Ecobank Nigeria Ltd (2018) LPELR 45127 (SC), Onwe vs State (2018) 5 NWLR (pt 1612) 217, Longterm Global Capital Ltd vs Stanbic IBTC Bank (No 1) (2022) 14 NWLR (pt 1851) 505. This principle remains true even where the issue so first resolved by the lower Court is on jurisdiction; it must still go further to resolve the other issues raised and canvassed by the parties – Arewa Paper Converters Ltd vs NDIC (Nigeria Universal Trust Bank Ltd) (2006) 7 SCNJ 457, Stowe vs Ben-Stowe (2012) 9 NWLR (pt 1306) 450, National Union of Road Transport Workers vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (pt 1307) 170, Sarki vs All Progressive Congress (2020) 1 NWLR (pt 1706) 515 at 546C-F.

Now, the principles guiding the court in ordering a retrial of a suit have been stated in various cases as being dependent on the circumstances of the particular case. Generally, it is agreed that an appellate court will be reluctant to order a retrial in the following instances:

i. A retrial will be ordered if it will satisfy the interests of justice. Therefore, where a retrial will result in injustice or a miscarriage of justice, an appellate Court will not order a retrial.

Ii. A retrial cannot be ordered as a mere course, routine, or fun; It must be based on varied procedural reasons.

III. It would be wrong to make an order of retrial if such an order would give the party that lost an opportunity of a second time to prove what he failed to prove. A retrial should not be made where the plaintiff fails to prove his case and there is no substantial irregularity apparent on the record.

Iv. An appellate Court will not order a retrial on the ground of irregularity or lapses in the conduct of the proceedings if the irregularity or lapses complained of can be corrected by the appellate Court. In other words, the retrial will not be ordered in cases where section 16 of the Court of Appeal Act or Section 22 of the Supreme Court Act can be invoked in the matter.

V. An appellate Court will not order a retrial if there are no special circumstances warranting the retrial. A special circumstance will not be determined in vacuo, but in the light of the facts of each case.

See the cases of Okomalu vs Akinbode (2006) LPELR 2470 (SC), Mafimisebi vs Ehuwa (2007) LPELR 1812(SC), Mohammed vs State (2013) LPELR 19822(SC), Wassah vs Kara (2014) LPELR 24212 (SC), Mbaka vs Mbaka (2022) LPELR 57818 (SC). Applying these principles to the circumstances of this case, it is crystal clear that having found on the merits that the Appellant failed to lead cogent and sufficient evidence in proof of the charge against the Respondent, the lower Court ordering a retrial would have amounted to a manifest injustice against the Respondent, as such an order would have only served to give the Appellant a second bite at the cherry. The lower court was thus on very firm ground when it failed to make an order of retrial.

It is for these reasons and the fuller exposition of the law in the lead judgment that I agree that there is no merit in this appeal and I too hereby dismiss same. I affirm the judgment of the Court of Appeal, Yola Judicial Division, delivered in Appeal No CA/YL/135c/2018 on the 25th of March 2020, and which set aside the judgment of the High Court of Adamawa State delivered in Charge No ADSY/55c/2017 on the 11th of June 2018.

HABEEB ADEWALE OLUMUYIWA ABIRU

JUSTICE, SUPREME COURT

 APPEARANCES:

Z.Y. Musa, Esq, SSCI, Ministry of Justice, Yola, Adamawa
State, for the Appellant.

S.S Obende, Esq; with him, Simon Wilson, Esq and W.S. Aboki,
Esq, for the Respondent.