Section 211(1) of the 1999 Constitution of the FRN (as amended) empowers the Attorney General of a State to institute and undertake criminal proceedings against any person before any Court of law. And by Subsection 2 thereof, the power conferred on the Attorney General of a State under Subsection one (1) may be exercised by him in person or through officers of his department.
Where for certain reason(s) the officer that prepares a charge is not the same as the one who signs the charge, will the charge be rendered invalid? This was one of the issues that the Apex Court had to consider in this present appeal; and according to OKORO, J.S.C. in holding such charge valid said, while delivering the leading judgment, as follows:
“Where one counsel in the office of the Attorney General has drafted an application for leave to proffer a charge against an accused person but before the charge is filed, the said counsel is either indisposed or has gone on leave or some other unforeseen incidents occur, will it be reasonable to put the process in the cooler pending when that officer will resume duties whereas there are other competent officers in the Ministry? I do not think that is the way to go. There is nothing legally wrong with the signing of the charge by G. P. Olorunnuhe, Esq., though it was drafted by his colleague Mrs. Deborah Ajayi, the two of them being law officers in the chambers of the Attorney-General Kogi State”
BRIEF FACTS OF THE CASE
The appellant alongside some other persons were charged with criminal conspiracy, voluntarily causing hurt to extort property and Armed Robbery under Sections 97(1), 298 (c) 250 (2) of the Penal Code respectively before the Kogi State High Court sitting at Ankpa.
At the trial, it was the case of the prosecution that the accused person and others broke into the apartment of PW1 on 3rd August, 2012 at about 2.00 a.m and inflicted injuries on her head, neck, arm and leg and robbed her of the sum of Thirty Thousand Naira. PW1 identified the appellant as her nephew and the other accused person as his friend.
The prosecution’s second witness- PW2 was the Police Officer at Ankpa where the case of armed robbery was lodged. He testified that he took pictures of the victim while she was at the hospital and later arrested the accused persons including the appellant on a tip off. The case was later transferred to the State C.I.D at Lokoja where PW3 received the case from Ankpa and also obtained the confessional statement of the accused person.
The case of the Appellant (then accused person) on the other hand while testifying as DW1, was that before his detention, he was living at Inye and that he was both an applicant and a farmer and that he did not know the other accused person until after his arrest on the 11th of August, 2012, when he was informed that he and others robbed Mrs. Elizabeth Wada on the 3rd of August 2012. According to him, on the date of the said robbery, he was away at Mubi in Adamawa State and only returned to Inye on the 6th of August, 2012. Under cross-examination, the Appellant said that while at the State C.I.D. Lokoja, a document was brought to him which he was asked to sign; that although he did not get to read the document, he signed same as directed. He confirmed that he knew the victim.
At the close of evidence, counsel for both parties filed and exchanged written addresses and in a considered judgment delivered on the 18th of September, 2013, the learned trial judge convicted the accused persons to 5 years imprisonment for the offence of conspiracy, 7 years imprisonment for the offence of voluntarily causing hurt to extort property and 15 years imprisonment for Armed Robbery earlier entered by the Trial High Court.
Aggrieved by the decision of the trial Court, the Appellant appealed to the Court of Appeal, Abuja and on the 26th day of June, 2015, the Court of Appeal delivered its judgment dismissing the appellant’s appeal and affirming the judgment of the trial Court.
Further dissatisfied with the judgment of the Court of Appeal, the appellant has appealed to this Court.
ISSUE(S) FOR DETERMINATION
The issues adopted by the Court for the just determination of this appeal are:
- Whether the learned Justices of the Court of Appeal were legally right in holding that no miscarriage of justice was occasioned by the charge drafted and signed by two different officers of the chambers of the Attorney General of Kogi State.
- Whether the learned Justices of the Court of Appeal were legally right to hold that Exhibit P2 satisfied the necessary legal requirement for ascription of probative value.
- Whether the learned Justices of the Court of Appeal were legally right in holding that the prosecution had proved its case against the appellant beyond reasonable doubt.
- Whether the learned Justices of the Court of Appeal were legally right in holding that the non tendering of the weapons of offence and medical evidence was not prejudicial to the case of the prosecution.
All the issues in this appeal were resolved against the appellant. Imperatively, the Supreme Court held that there was no merit in this appeal and same was accordingly dismissed. As a result, the concurrent judgments of the Court of Appeal and the trial High Court on the Appellant’s conviction and sentence were affirmed. Appeal was dismissed.
- APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Attitude of the Supreme Court to interference with concurrent finding(s) of fact(s) of Lower Courts
“The learned trial judge considering the statement of appellant, Exhibit P2 and the evidence of PW1 from which he found the corroboration and also the evidence of DW3, the mother of the second accused who stated that PW1 and herself worshiped in the same church i.e. Quo Iboe Church, Inye.
The above findings of the trial Court tallied with those of the Court of Appeal and therefore brings into operation the attitude of the Supreme Court followed in a long time of cases, not to interfere or disturb such concurrent findings well made without a miscarriage of justice in view. See Adekunle v State (2006) 5 LRCNCC 1; Jinadu v Esu Rombi-Aro (2009) 4 KLR (Pt. 265) 883.”Per PETER-ODILI, J.S.C. (Pp. 43-44, Paras. F-C)
- CRIMINAL LAW AND PROCEDURE – CHARGE(S): Who can sign a charge
“The main grouse of the appellant in this issue is that whereas Mrs. Deborah Ajayi drafted the application to proffer charge against the appellant, the charge which was eventually drafted was signed by G.P. Olorunde, Esq., both law officers in the chambers of the Hon. Attorney General of Kogi State. This complaint or objection by the learned counsel for the appellant was not taken at the stage when plea was taken. It was however taken in the address of counsel after plea had been taken and evidence obtained from both parties. By Section 211(1) of the 1999 Constitution of the FRN (as amended), the Attorney General of a State is empowered to institute and undertake criminal proceedings against any person before any Court of law, amongst other duties. And by Subsection 2 thereof, the power conferred on the Attorney General of a State under Subsection one (1) may be exercised “by him in person or through officers of his department”.
Both counsel agree that the two law officers are officers in the chambers of the Attorney General of Kogi State. I have no doubt whatsoever that either of them was legally qualified to initiate the proceedings or sign the charge. See FRN v. Adewunmi (2007) 10 NWLR (pt. 1042) 399. Also relying on this authority, the Court below held on page 136 of the record as follows:
“It is not in doubt that in the instant case, the application for leave was brought by one Deborah Ajayi (Mrs.) and signed by one G.P. Olorunnuhe Esq., both Legal Officers in the office of the Attorney General of Kogi State.
On the strength of the above cited Supreme Court authority, I hold the view that the charge in the instant case, is properly laid before the Trial Court to vest it with the jurisdiction to entertain the case. What is more, the Appellant has not cited any legal authority challenging the validity of the charge because it was proffered and signed by different persons in the office of the Attorney General.”
I agree entirely with the position taken by the Court below in this matter. My reason is not farfetched. Where one counsel in the office of the Attorney General has drafted an application for leave to proffer a charge against an accused person but before the charge is filed, the said counsel is either indisposed or has gone on leave or some other unforeseen incidents occur, will it be reasonable to put the process in the cooler pending when that officer will resume duties whereas there are other competent officers in the Ministry? I do not think that is the way to go. There is nothing legally wrong with the signing of the charge by G. P. Olorunnuhe, Esq., though it was drafted by his colleague Mrs. Deborah Ajayi, the two of them being law officers in the chambers of the Attorney-General Kogi State.”Per OKORO, J.S.C. (Pp. 10-13, Paras. F-B)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF ARMED ROBBERY: Ingredients that must exist to prove the offence of armed robbery; whether failure to tender the offensive weapon can result in the acquittal of the accused person
“The law is trite that to secure a conviction in a charge of armed robbery against an accused person, the prosecution must prove that:
(1). There was a robbery, or series of Robberies.
(2). That the accused person or persons were armed with offensive weapons.
(3). That the accused person participated or was one of the robbers.
Once the above ingredients are proved, the trial Court is well positioned to convict on the evidence available. As was stated by this Court in James Simon v. The State (2017) LPELR – 41988 (SC), there is nowhere in the law that the prosecution must tender weapons used in a robbery attack before an accused person can be convicted. That is not to say that the weapons, if recovered, cannot be tendered. It can be tendered but where it is not tendered, it cannot be a ground to set aside a conviction arising from such evidence.
In The State v. Odunayo Ajayi (2016) LPELR-40663 (SC), I made the point that once there is cogent, reliable and authentic oral and documentary evidence which the Court admits and believes, failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the prosecution. See also Gbadamosi v. The State (1991) 6 NWLR (pt. 196) 182, Olayinka v. The State (2007) 9 NWLR (pt. 1040) 561, Agugua v. The State (2017), LPELR-42021 (SC).
My Lords, all I have said above go to show that the Court below was right to affirm the judgment of the trial Court on the issue that failure to tender the weapon of the robbery did not vitiate the conviction and sentence of the appellant herein.”Per OKORO, J.S.C. (Pp. 27-28, Paras. B-E)
- CRIMINAL LAW AND PROCEDURE – CHARGE(S): Appropriate time to object to a formal defect in a charge; the consequence of failure to do so
“Also to be said is that this objection to the charge which appellant is clothing under jurisdiction is a concern that should have been raised timeously and not so far gone as this case where it is being raised at the counsel’s address. In fact the plea taking stage is most suitable. Placing a perceived irregularity to the level of a jurisdictional issue would not translate to a matter of jurisdiction being an issue that cannot go beyond an irregularity as it is not such under which the appellant can claim to have been deceived on what he is being called upon to defend.
A follow up to the above is that the appellant having been represented by counsel from the beginning and the purported irregularity not brought up, it is taken that the appellant had consented to the procedure and cannot at the Supreme Court complain when nothing has been shown to give the semblance of a miscarriage of justice. See Joshua v State (2000) 5 NWLR (Pt. 658) 591; Ohwovoriole v FRN (2001) 13 NWLR (Pt. 730) 428 (CA); Magaji v Nigerian Army (2008) 3 KLR (Pt. 251) 1249 at 1279; Akpa v State (2008) 4 KLR (Pt.252) 1563 at 1583; Okoroah v State (1990) 1 NWLR (Pt.130) (ft.140 – 141); Essien v COP (1996) 5 NWLR (Pt.449) 500.”Per PETERODILI, J.S.C. (Pp. 40-41, Paras. D-C)
- EVIDENCE – PROOF BEYOND REASONABLE DOUBT: Meaning of proof beyond reasonable doubt
“I need to reiterate the trite principle of law that proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability.
See Nwaturuocha v. The State (2011) 2-3 SC (pt.1) p.III, Lori & Anor v. State (1990) 12 NSCC p.269, Smart v. The State (2016) 1-2 SC. (pt. II) p.41, (2016) 9 NWLR (pt. 1518) 447, Oseni v. The State (2012) 5 NWLR (pt.1293) 351.”Per OKORO, J.S.C. (Pp. 22-23, Paras. E-A)
- EVIDENCE – TENDERING OF WEAPON OF CRIME: Whether failure to tender the weapons used in the commission of a crime will be fatal to the case of the prosecution
“On the hue and cry by the appellant on the none tendering of the weapons of the offences, that is not buttressed by the numerous pieces of evidence all aligned to the ingredients of the offences being made out as required by law and so that the prosecution did not tender the weapons would not fatally affect the case of the prosecution. See State v Usman (2007) 5 ACLR 34; Ikuomola v Oniwaya (1990) 4 NWLR (Pt.146) 617 at 624.”Per PETER-ODILI, J.S.C. (P. 45, Paras. C-D).
AMEH v. STATE (2018) LPELR-44463(SC)