The State Vs. Jerry Gideon, Judgment Delivered by Habeeb Obande Festus Ogbuinya JSC, In SC/CR/413/2020

SC/CR/413/2020

JUDGMENT DELIVERED BY OBANDE FESTUS OGBUINYA, JSC
This appeal ensures the rightness of the decision of the Court of Appeal, Yola Division ( hereinafter addressed as “the lower court”), coram judice: C.N Uwa, JCA ( now JSC), J.S. Abiriyi, JCA, and A.M Bayero, JCA, in Appeal No: CA/YL/138c/2018, delivered on the 25th March, 2020. The lower court, in its decision, set aside the decision of the High Court of Adamawa State (the trial court), in Charge No: ADSY/55c/2017, delivered by Abdul-Azeez Waziri, J., (now JCA), on the 11th June 2018, wherein the appellant was convicted and sentenced to death and terms of imprisonment.
The facts material of the case which metamorphosed into the appeal are submissive to the brevity and simplicity. Mohammed Siddi, Ori Sarti, Adamu Bello and others were headers of cattle in Kadamum village in the Demisa Local Government Area of Adamawa State. On the 18th January 2017, in the course of rearing their cattle, they got to a river where they wanted their cows to drink water. There was a nearby farm with a steaming generator.
Mohammed Siddi saw one person he did not know. He then told his fellow herders that the person was going to shoot at them. Then they started running away. They (not he now) pursued them. They (the herders) entered among the cows. But, Adamu Bello, who was ten years old, was caught by the people pursuing them. Mohammed Siddi, who was in front, heard Adamu Bello, crying. Then, he heard a gunshot. He then went and informed their father, Alhaji Buba, about what happened. After that, they went and lodged a report of the incident to the police. They went with the police to the place Adamu Bello was caught, where they found blood stain, a sign of dragging, and this cap with blood stain. They went to the riverbank but could not find his body. The Respondent and four others, Alheri Phanuel, Holy Bariface, Tari Sabagi and Jerry Giddeon, were arrested by the police.

After due investigation, they were arraigned before the trial court on a five-count charge/information for the offences of criminal conspiracy, culpable homicide punishable with death, inciting disturbance, mischief by killing or maiming animals, and causing disappearance of evidence punishable under Section 97 (1), 221(b),114 (1), 330/79 and 167/79 of the Penal Code Laws of Adamawa State 1997 respectively. They all pleaded not guilty to all the counts of the information.
Following the plea of not guilty, the trial court conducted a full-dressed determination of the case. The appellant called six witnesses, PW1-PW6. The respondent and four others testified each in defence of the case and called no witness. Documentary and tangible evidence were admitted as exhibits. At the closure of the evidence, the parties, through their respective counsel, addressed the trial court in the manner required by law. In a considered judgment delivered on the 11th June 2018, located at pages 102-148 of the record, the trial court found them guilty, convicted them of the offences, and sentenced each to death and terms of imprisonment.

The respondent was dissatisfied with the judgment of the trial court. Hence, on the 8th August 2018, the respondent lodged a five-ground notice of appeal, which was later amended to the lower court, which is copied at pages 168-173 of the record. The lower court duly heard the appeal. In a considered judgment delivered on 25th March 2020, lying at pages 269-289 of the record. The lower court allowed the appeal by declaring the trial a nullity for the non-signing of the charge.
The appellant was aggrieved by the judgment. Hence, on the 24th April 2020, the appellant launched a six-ground notice of appeal found at pages 290-295 of the record, wherein it prayed this court as follows:

(a) An order allowing the appeal.
(b) An order setting aside the judgment delivered by the Court of Appeal Yola in Appeal No: CA/YL/138c/2018 (JERRY GIDEON v. THE STATE) delivered on March 25th, 2020.
(c) An ORDER quashing of discharge and acquittal of the respondent and, in its place, affirm the judgment of the trial court delivered on the 11th day of June 2018 or, in the alternative
(d) An ORDER ordering for retrial before a High Court of Justice.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of criminal appeals in this court. The appeal was heard on the 28th March 2024.
During the hearing, learned counsel for the Appellant, Z.Y. Usman , Esq., adopted the appellant’s brief of argument, filed on the 30th September 2020 and the appellant’s reply brief filed on the 10th December, 2020, as representing his arguments for the appeal. He urged the court to allow it.
Similarly, learned counsel for the Respondent S.S. Obende, Esq., adopted the Respondent’s Brief of Argument filed on the 5th November 2020, as forming his reactions against the appeal. He urged the court to dismiss it.
In the appellant’s Brief of Argument, learned counsel distilled three issues for determination. At the hearing of appeal, he withdrew issues 2 and 3 and retained a solitary issue 1 for determination to wit.

1. Was the lower court not in error when it held that the matter was not 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 excise in futility, and yet went ahead and discharged and acquitted the appellant.

In the Respondent’s Brief of Arguments, learned counsel crafted two issues for determination. At the hearing of the appeal, he withdrew issue 2 and allowed a single issue 1 for determination, namely:

(a) Whether the lower court was right when it declared the trial of the respondent a futility, having held that the absence of any signature on the charge prevented the trial court from exercising jurisdiction to try the Respondent.
A close look at the two sets of issues shows that they are identical in substance. In fact, the Respondent’s issue can be conveniently subsumed under the appellant’s. For this reason of sameness, I will handle the appeal on the lone issue nominated by the appellant: the undoubted owner of the appeal.

Arguments on the issue:
Learned counsel for the appellant submitted that the lower court was not wrong when it declared that the trial an exercise in futility and discharged an acquitted respondent. He relied on Madukolu v. Nkemdilim (1962) All NLR 587. He asserted that the respondent did not raise objection to the charge timeously, as it was raised at the lower court as required by law. He posited that the respondent was not misled or misinformed by the defect in charge as to amount to a miscarriage of justice. He reasoned that the lower court ought to have ordered a retrial of the case. He cited Olugunpese v. State (2018) LPELR – 44135 (CA); Amadi v. FRN (2008) 12 SC (Pt. II) 15. He opined that the non-signing of the charge did not lead to a miscarriage of justice. He persisted that an objection to any formal defect in a charge must be taken immediately it is read to an accused especially where he is represented by a counsel.
He urged the court to resolve the issue in favour of the appellant.
On behalf of the respondent, learned counsel contended that issue of jurisdiction can be raised at any stage of the proceedings, and only a competent charge can confer jurisdiction on the trial court. He referred to Umanah v. Attah (2007) All FWLR (pt. 346) 40. He stated that a charge can only be competent if it is signed as it is a condition precedent to the arraignment and trial of an accused person. He opined that a legal process must be signed. He relied on Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Williams v. Adold/Slam Int’l (Nig) Ltd. (2017) 6 NWLR (pt. 1560) 1; Oliyede Sons Ltd v. O.A.U Ile-Ife (2018) LPELR -43711; Tsalibawa v. Habiba (1991) 2 NWLR (pt. 174) 461. He maintained that an originating process must be signed to be competent. He cited Lawal v. Beton Biu (Nig.) Ltd (2016) LPELR -41419 (CA). He noted that failure to sign a document renders it worthless.
He referred to Omega Bank (Nig.) Ltd v. O.B.C Ltd (2005) LPELR -2636 (SC); Raji v. Unilorin (2018) LPELR – 44692 (SC); Ogudo v. State (2011) LPELR -860 (SC). He insisted that the failure to sign the application and the charge went to the jurisdiction of the trial court to hear the case. He relied on Izi v. State (2016) LPELR -42064; A-G., Abia State v. Agbaraya (1999) 6 NWLR (pt.607) 362; Musa v. Nigerian Army (2016) LPELR -41595 (CA), which relied on Zakari v. Nigerian Army (2015) 17 NWLR (pt 1487) 77.

Resolution of the issue:
The appellant’s foremost agitation, which it erected as a sword to puncture the decision, is staked on the defect in the charge. The plinth of the appellant’s nursed grievance is that the respondent did not register his objection to the defect in the charge, non-signing of it, timeously, after it was read to him, and thereby trapped in the inescapable web of waiver of his right of opposition to it.

To start with, a charge denotes a formal accusation of an offence as a preliminary step to prosecution, see Idi v. State (2019) 15 NWLR (pt. 1696) 448. The primary purpose of a charge is to give an accused person good, sufficient, and clear notice of the case against him, see Olatunbosun v. State (2013) 17 NWLR (pt. 1382) 167; Idi v. State (supra). It is a rudimentary law that the appropriate time to object to any defects in a charge or an information is when it is being read and before plea. If an accused person delays or fails to register his opposition to a charge before plea is taken, the law deems him as having acquiesced in the irregularity and caught in the intractable vortex of waiver, see State v. Gwonto (1983) 1 SCNLR 142; Adekunle v. State (2006) 14 NWLR (pt 1000) 717; Attah v State (2010) 10 NWLR (pt 1201) 190; Olatunbosun v. State (supra); Abidoye v. FRN (2014) 5 NWLR (pt. 1399) 30; Ibrahim v. State (2015) 11 NWLR (pt. 1469) 164; Baalo v. FRN (2016) 13 NWLR (pt. 1530) 400; Amadi v. A-G., Imo State (2017) 11 NWLR (pt 1575) 92; Okpa v. State (2017) 15 NWLR (pt. 1587) 1; Oko v. State (2017) 17 NWLR (pt 1593) 24; Eze v. FRN (2017) 15 NWLR (pt. 1589) 433; Kolo v. Cop (2017) 9 NWLR (pt 1569) 118; Destra Inv. Ltd. v. FRN (2018) 8 NWLR (pt. 1621) 335; Mohammed v. FRN (2018) 13 NWLR (pt. 1636) 229; Mumini v. FRN (2018) 13 NWLR (pt. 1637) 568; Lanre v. State (2019) 3 NWLR (pt 1660) 506; John v. State (2019) 9 NWLR (pt. 1676) 160.

Indisputably, there is no grain of evidence on record, the soul of the appeal that the respondent or his learned counsel greeted the five-count charge with any iota of objection before the respondent’s plea of not guilty to all the counts in the information. Per contra, the objection to the charge was raised before the lower court. To this end, the respondent, in the mind of the law, unduly embraced indolence in his protestation to the irregularity in the charge.
However, the hallowed principle of law which is displayed above is flexible in application as it admits of an exception. The elasticity of the principle is located in the expansive sphere of jurisdiction.  Where the defect in a charge is so fundamental that it goes to the jurisdiction and competence of the court, the doctrine of waiver of right to objection vaporizes and takes to flight. Interestingly, the case of  Olugunpese v. State (supra), upon which the appellant placed high premium on the point, recognises this rider to the timely objection to a defect in charge. The reasons for the exception are rooted in the wide belly of the case law. An issue of jurisdiction, which is the blood, lifeline and habit of adjudication, can be raised at any stage of the proceeding, even for the first time in the Supreme Court. Indubitably, the parties cannot by waiver, consent, collusion, indolence, compromise, acquiescence or estoppel, or any guise, vest jurisdiction on courts where none exists or oust the court of jurisdiction which is bestowed on it, See FRN v Solomon (2018) 7 NWLR (pt. 1618) 201. These cardinal and ageless principles, which are pegged on the superiority of jurisdiction in any adjudication, with due reverence, demolish  the appellant’s dazzling argument on the belated objection to the defect in charge and the concomitant’s waiver, and renders it a footnote it cannot fly!

 That brings me to the casus belli of the stubborn issue. It chastises the propriety vel non of the lower court’s declaration of the proceedings in the trial court a nullity on the footing of the non-signing of the charge when the respondent was not misled nor suffered a miscarriage of justice thereby. In other words, the nucleus of the vexed issue orbits around the validity or otherwise of the trial of the respondent which was conducted and anchored on an unsigned charge. In law, a charge sheet commences a trial and serves as the originating process in a criminal trial.

It is now a settled elementary law that an originating process like writ of summons, originating summons, and notice of appeal must be signed by a legal practitioner who prepared it in order to infuse validity into it. A legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor, and whose name is on the roll of legal practitioners as decreed by the provisions of Section 2(1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004. In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act, is infested with incompetence with the attendant liability of expunction. The incompetence divests the court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (pt. 1625) 420. This position of the law applies with equal force, mutatis mutandis, to a charge/information which is an originating process in criminal law. Recently, in State v. Isijiola (2023) 7 NWLR (pt. 1884) 417, at 449, this court, per Garba, JSC, inclusively proclaimed:
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 or (sic) institution or initiation of criminal proceedings before the trial High 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.
In SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317, at page 337, Rhodes- Vivour, JSC, graphically, espoused the methodology for signing a court process in these illuminating words:
What then is so important about the way a counsel chooses to sign processes. Once it cannot be said who signed a process, it is incurably bad… All processes filed in court are to be signed as follows:

First, the signature of the counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the Legal Firm.
In due allegiance to the dictate of the law, I visited the record, the bedrock of the appeal, especially at the residence of the charge which is begging for salvation, or in heat of decimation, which monopolizes pages 5 – 8 of the record. It must be placed on record, pronto and perforce, that the charge and originating process midwife the appellant case against the respondent. I have given a clinical audit to the charge with the finery of a tooth comb. It was drafted by one Z.Y. Usman, Senior State Counsel II, and J.A Waya, State Counsel 1.Incontestably, there is a total absence of such contraption in the portion of the charge/information where the name of the appellant’s legal practitioner is written. In other words, I am unable to locate, even with the prying eagle-eye of this apex court, where the respondent’s counsel, Z.Y. Usman, Esq., who prepared it, signed it in due obeisance to the law. Worse still, the application for the commencement of trial which brought in the charge, drafted by the self-same U.Y. Usman was not signed in the manner dictated law. The law insists on the presence of name and signature of a legal practitioner so as to vest validity and viability in an originating process, see SLB Consortium Ltd v. NNPC (Supra). Put simply, the charge/information was not signed in the spirit and manner ordained by the law. Indubitably, lack of endorsement of a charge, an originating process like a notice of appeal by a lawyer is “…a defect that goes to the root of the proceedings and renders same void ab initio,” see Nigerian Army v. Samuel (supra) at 483, per Onnoghen, JSC (later CJN). By the same token, the long-established position of the law, endorsed by an avalanche of authorities, is that an unsigned document, a fortiori of an originating process commands no probative value as it cannot boast of the origin/source of its maker.
An unsigned document creates grave doubts as to its authenticity in law. See Fulani v. State (2019) 1 NWLR (pt. 1653) 237; State v Sa’idu (2019) 10 NWLR (pt. 1680) 308. This is another serious blight that bedevils the appellant’s unsigned charge/information. To this end, it will smell of judicial sacrilege to crown the charge/information upon which the respondent was tried, with the undeserved toga of validity. I, in an abiding loyalty to the law, declare that it was tainted with an indelible incompetence and invalidity.
It cannot be gainsaid that a charge/information, an originating process like a writ of summons, an originating summons, or a notice of appeal is the spinal cord of a criminal matter. It is the foundation upon which all other processes and proceedings are hinged on a criminal matter. In other words, all other processes and proceedings trace their paternity and validity to an originating process, the charge/information herein. It follows that the charge/information, which cries for survival, gave birth to all the other processes filed by the fueding parties and the proceedings in the action which transfigured into the appeal. Given this judicial relationship, the incompetence of the charge/information pollutes the purity of the other processes and proceedings, inclusive of the judgment, and ipso facto, render them incompetent. The reason is obvious. They have legal no parentage to perch and command any validity, see FRN v. Dairo (2015) 6 NWLR (pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (pt 1465) 518; Japhet v. State (2016) 6 NWLR (pt. 1509) 602. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; Aderibigbe v. Abidoye (2009) 10 NWLR (pt 1150) 592. The foregoing brief judicial survey on the signing of a charge as an orientating process, with due respect, punctures the appellant’s sterling argument on the issue and same is disabled by law.
Now in jurisdiction, which is numero uno in adjudication is the authority of a court to determine any dispute tabled before it by contending parties, see Dariye v. FRN (2015) 10 NWLR (pt 1467) 325; Mba v. State (2014) 10 NWLR (pt. 1415) 316. Hence, the law compels a court to treat first an issue of jurisdiction where it germinates from any proceeding.
A court of law is invested with jurisdiction to hear a matter when: “1. It is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition, precedent to the exercise of jurisdiction”. see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F.J.; Saraki v. FRN (2016) 3 NWLR (pt 1500) 531; Agbiti v. Nigeria Navy (2011) 4 NWLR (pt. 1236) 175; Mba v. State (supra); Mohammed v. FRN (2018) 13 NWLR (pt. 1636) 229; Amah v. FRN (supra); FRN v. Adeniyi (2019) 7 NWLR (pt. 167) 238. The three ingredients must co-exist in order to infuse jurisdiction into a court.

For the sake of completeness, I will marry the appellant’s, irremediably defective charge/information with the inelastic ingredients of jurisdiction chronicled above. The raison d’etre for the juxtaposition is simple. It is to ascertain the defective charge/information flouted or respected those sacrosanct ingredients of jurisdiction. Incontestably, the Appellant’s failure to sign the charge constitutes a serious feature in the case that drains the trial court of the requisite jurisdiction to entertain the criminal case. Moreover, the non-endorsement of the charge is an ample demonstration that the case was not initiated by due process and upon the fulfillment of any condition precedent for the exercise of the trial court’s jurisdiction over the appeal. In the legal hemisphere, a condition precedent is : “the one that delays the vesting of a right until the happening of an event”, see Atalegbe v. Awuni (1997) 9 NWLR (pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (pt. 1093) 493; A-G., Kwara State v. Adeyemo (2017) 1 NWLR (pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. co. Ltd. (2016) 15 NWLR (pt. 1536) 439.  The only way the appellant would have properly ignited the jurisdiction of the trial court, and by an extension that of the lower court, and this court was contingent upon its satisfaction of the twin conditions precedent. Their compliance is a prerequisite to the activation of the court’s jurisdiction. Alas, it does not act in due allegiance to the injunction of the law. In sum, the charge/information, which is the model of the criminal case against the respondent, defies the second and third inviolable ingredients of jurisdiction. These infractions constitute a serious coup de grace to the competence of the appellant’s case which meandered, with the millipede speed of the measured court process to this court. Where a court is disrobed of the jurisdiction to handle a matter, the proceedings, no matter the quantum of industry, artistry, dexterity, or transparency invested in it, will be marooned in the nest of nullity, see Agbiti v. Nigeria Navy (2011) 4 NWLR (pt. 1236) 175; Usman v. State (2014) 12 NWLR (pt. 1421) 207; Olowu v. Nigerian Navy (2011) 18 NWLR (pt. 1279) 659; Ado v. State (2017) 15 NWLR (pt. 0587) 65; Saraki v. FRN (supra); Dariye v. FRN (supra) Nweke v. FRN (2019) 10 NWLR (pt. 1679) 51.
In the eyes of the law, nullity denotes:  “Nothing; no proceeding;  an act of proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (pt. 1367) 133 at 146, per Ngwuta JSC. Nullity bears the badge of dismal consequences in law. If a decision or proceeding is smeared with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (pt. 199) 501; Bello v. INEC (2010) 8 NWLR (pt. 1196) 342. Furthermore, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who is armed with it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (pt 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt. 1184) 265. The bounden duty of a court is to set aside a null order ex debito justitiae in that it does not exist in law, see Oyeyemi v. Owoeye (2017) 12 NWLR (pt. 1580) 364.

My noble lords, flowing from this legal dissection of the essentiality of signing of a charge/information, an originating process done in due consultation with the law, the lower court’s declaration that: “The trial was, therefore, an excise in futility”, was in total alignment with the tenets of the law. It is apropos to add, in order to foreclose any ambiguity, that the lower court’s order at the terminus ad quem of the judgment, videlicet: “Appellant is discharged and acquitted” was offensive to the law. The trial court’s conviction and sentence of the appellant were integral part of the proceedings that were mired in the quicksand of nullity.

It is therefore, not in sync with the criminal jurisprudence to formally discharge and acquit the respondent, who had not gone through the crucible of criminal trial on the merits on the footing of proceedings that were enveloped in a nullity and, de jure, non-existent in the sight of the law. In the same vein, it would be ultra vires the authority of the lower courts to order a retrial on an invalid charge as supplicated by the appellant.

The proper order which the law clothed the lower court with the jurisdiction to make, was to strike out the case.

 Nevertheless, the appellant scored a barren victory for that, a minor error committed by the lower court. The unwarranted mistake, discharge and acquittal of the respondent, was/is a negligible error which is impotent to impregnate the naughty issue with any atom of success. In this wise, I take shelter and tap from the hollow doctrine of De minimis non curat lex – the law does not concern itself with triffles- and ignore the infinitesimal error. In due obeisance to the law, I strike out the case for want of jurisdiction of the trial court to entertain it. In the end, I have no choice than to resolve the sole issue against the appellant, and in favour of the respondent.

 On the whole, having resolved the solitary issue against the appellant, the fortune of this appeal is plain. It is devoid of any morsel of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, the judgment of the lower court delivered on the 23rd March 2020 in Appeal No. CA/YL/138c/2018, which set aside the judgment of the trial court for want of jurisdiction, delivered on the 11th June 2018 in Charge No. ADSY/55c/2017, is hereby affirmed. Appeal dismissed.

OBANDE FESTUS OGBUINYA

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.