JULIUS BERGER NIGERIA PLC v. ALMIGHTY PROJECTS INNOVATIVE LIMITED & ANOR
April 11, 2025OLUMIDE BABALOLA V. ATTORNEY GENERAL FEDERATION & ANOR
April 11, 2025Legalpedia Citation: (2018) Legalpedia (SC) 71101
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Feb 15, 2018
Suit Number: SC. 578/2015
CORAM
PARTIES
ALHAJISAHEED IBRAHIM MASSALA APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
SUMMARY OF FACTS
The Accused/Appellant was charged for forgery contrary to Section 364 of the Criminal Code Act in Charge NO: CR/36/12. Upon service on him of the charge, the Appellant through his counsel raised a preliminary objection seeking to quash the charge on grounds of lack of jurisdiction for non-compliance with Section 185 (B) of the Criminal Procedure Code, non-disclosure of offence in the proof of evidence against the Accused/Appellant and abuse of process. The learned trial judge in a considered ruling after listening to the parties dismissed the objection and held that he had jurisdiction to try the Appellant charged. Dissatisfied, the Appellant appealed to the Court of Appeal against the decision of the trial court. The lower court dismissed the appeal, hence this approach to the Supreme Court.
HELD
Appeal Dismissed
ISSUES
Whether having held that the respondent did not comply with Section 185 (b) of the Criminal Procedure Code and (Rule 3 (2) of the Criminal Procedure Code (Application for leave to prefer a charge in the High Court’s) Rules 1970 by failing to state the reason why it is desired to prefer a charge without taking proceedings under chapter XVII of the Criminal Procedure Code, the court below was right in flailing or refusing to quash the charge against the appellant for want of compliance with Section 185 (b) of the CPC as the rules which are mandatory. Whether the court below was right to have placed reliance on English Cases R V Laming 90 CR App R. 450 and Seal V Chief Constable Of Wales Police 2005 1WLR 3183 to hold that Section 185 (b) of the Criminal Procedure Code is discretionary or permissive when the Supreme Court has already held that the section is mandatory. Whether having regard to the fact that the proof of evidence disclosed group forgery and did not contain the resolution paper containing the alleged forgery or the forensic report of an expert, the court below was right to hold that the proof of evidence discloses a prima facie case of the offence charged and probable link between the appellant and the offence.
RATIONES DECIDENDI
PREFERMENT OF A CHARGE – SECTION 185(B) OF THE CRIMINAL PROCEDURE CODE
“Section 185 (b) precisely which provides thus:
“185 –
(a) No per shall be tried by the High Court unless
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court”.
The interpretation to Section 185 (b) of the Criminal Procedure Code (CPC) and Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 given by the Supreme Court would give the clear view useful for our purpose. See Ohworiole v FRN (2003) 2 NWLR (Pt. 803) 176 at 190 per Kalgo JSC stated as follows:-
“It must also be understood that the provisions of Section 185 (B) of the CPC must be read with those contained in the Rules governing the application to prefer a charge, as in this case, and any application to quash the charge preferred by leave of the High Court must necessarily involve the consideration of those provisions”
APPLICATION FOR LEAVE TO PREFER A CHARGE – WHETHER A WITNESS STATEMENT IS A PRERQUISITE TO BE ANNEXED TO AN APPLICATION FOR LEAVE TO PREFER A CHARGE UNDER SECTION 185(B) OF THE CRIMINAL PROCEDURE CODE
“Also in the case of FRN v Wagbara (2013) 5 NWLR (PU347) 331 at 348 – 349 per Muhammad JSC stated thus:-
The records therefore bear out the respondents that the witnesses’ statements have not been attached to the appellants’ application for leave. But this fact does not mean that learned counsel are correct in supporting the lower courts finding that the appellants’ failure to annex the statement of witnesses is fatal… A community reading of the clear and unambiguous provisions of Section 185(B) of the Criminal Procedure Code and Order 3 Rules (1) and (2) (a) and (b) reveals clearly that the application has complied with the criteria an applicant is required to fulfil to be entitled to the leave he seeks. Nowhere in the applicable Rules has the annexure of witnesses’ statements to the application for leave been made a necessary requirement.”
APPLICATION FOR LEAVE TO PREFER A CHARGE- DOCUMENTS TO BE ATTACHED TO AN APPLICATION FOR LEAVE TO PREFER A CHARGE
“It is to be noted that the procedure to obtain leave from a judge of a High Court to prefer charge are provided for under the Criminal Procedure (Application for leave to prefer a charge in the high court) Rules 1970 is a discretionary power of the judge. When the application is made and it must be supported by the following:-
(a)The charge in respect of which leave is sought.
(b)Affidavit by the applicant that the statement contained in the application are true.
(c)A statement on whether or not any proceeding have been undertaken under chapter XVII of the Criminal Procedure Code, and
(d)The result of such application or proceeding if any.”
LEAVE TO PREFER A CHARGE- DUTY OF COURT IN EXERCISING ITS POWER IN GRANTING LEAVE TO PREFER A CHARGE
“I shall refer to what this apex court said on this point of leave to prefer a charge. See Gaji v The State (1975) NWLR (Pt.98) 112:
Judges who exercise the power of granting leave under the provision of Section 183 (b) of the Criminal Procedure Code should ask for and insist on seeing the proof of evidence which it is intended to urge in support of the prosecution. It is not open at that stage to an accused person to be invited into the scene and moreover to be supplied with copies of the statement of potential witness.”
PROOF OF EVIDENCE- PROOF OF EVIDENCE MUST DISCLOSE PRIMA FACIE CASE BEFORE LEAVE IS GRANTED
“Fabiyi JSC in FRN V Wagbara (Supra) stated at page 38 as follows:-
It has been variously held by this court that proof of evidence should only disclose prima facie case which literally means evidence on its face value. See the case of Abojede V The State (1996) 5 NWLR (Pt.448) 378; Ajidagba V IGP (1958) SCNLR 60. The proof of evidence and the statements of the respondents annexed to the application constitute prima facie case as dictated by the law, read along with the applicable rules…”
EXERCISE OF DISCRETION – WHETHER AN APPEAL COURT CAN SUBSTITUTE ITS VIEWS FOR THE EXERCISE OF DISCRETION OF THE LOWER COURT
“I am in total agreement with the respondent that the lower court granted leave to prefer a charge based on the fact and the law presented before it. The fact and the law were properly placed before it. The lower court properly exercised its discretion and it is not for the appeal court to substitute its views for that of the lower court when it comes to substitute its views to the exercise of its discretions. See Hadmor Production Ltd V Hamilton (1983) 1 C 191 At 120, Sacanke V Ajibola (1969) 1 NWLR 253, Oyeyemi V Ike Wole Local Government (1993) 1 NWLR (Pt.270) 262.”
APPLICATION FOR LEAVE OF COURT- CONTENT OF AN APPLICATION FOR LEAVE OF COURT
“Ariwoola Jsc In Ugwu V State (2013) 14 NWLR (Pt. 1374) 257 At 276 stated as follows:-
The application for leave of court must also contain information to the court that no application for such leave has been made previously in the case and no preliminary inquiry is being conducted in the matter by any Magistrate Court. Upon receipt of the application by virtue of the rules, the trial judge has the discretion to grant or refuse the application. See Ohwovorioh v FRN & others (2003) 2 NWLR (Pt. 803) page 176 at 189….”
“SUBSTANTIAL”- DEFINITION OF THE WORD “SUBSTANTIAL”
“The word “substantial” was defined to mean having substance, being a substance, essential, actually existing, material, solid and ample massy and stable. See Olujimi v E. S. A. A. (2009) 11 NWLR (PU153) 464 at 482 per Nweze JCA (as he then was) applying the Supreme Court case of Angbazo v Ebye (1993) 1 NWLR (Pt. 268) 133.”
CASES CITED
STATUTES REFERRED TO
Criminal Code Act|Criminal Procedure Code|Criminal Procedure (Application for Leave to Prefer a Charger in the High Courts) Rules 1970|Evidence Act|High Court Rules 1970|
