BASHIR GARBA V. FEDERAL REPUBLIC OF NIGERIA

Legalpedia Citation: (2023-07) Legalpedia 17831 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Wed Apr 5, 2023

Suit Number: CA/K/211/C/2019

CORAM

CHIDI NWAOMA UWA JCA

AMINA AUDI WAMBAI JCA

MUSLIM SULE HASSAN JCA

PARTIES

BASHIR GARBA

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The Prosecution at the trial court presented four witnesses and their claim was basically captured by the PW1 who was the officer on patrol and who arrested the Appellant himself. The PW1 in his testimony stated that while on patrol on the 28th day of October, 2015 along kaduna-Katsina Axis, they intercepted one IVECO TRUCK with Registration No. XF 428 DKA suspected to be carrying contraband smuggled into the country. After conducting examination, they discovered the vehicle was carrying 362 Bales of second hand clothing. They arrested the vehicle, the content and the Appellant and one Abdulhameed Umar who is now at large at Kabala-Doki, and after documentations, they handed the Appellant and Abdulhameed to the legal unit.

The Appellant in his defence at the trial court claimed that he did not carry any contraband second hand goods as the goods in the truck are not his but that of Abdulhameed Umar who was arrested along with him in the truck. The Appellant said the goods are not his and he equally denied his statement which was tendered as he does not know how to write in English.

The trial court ruled in favour of the prosecution and the Respondent was dissatisfied with the said judgment hence this appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether the Learned Trial Judge rightly assumed jurisdiction to entertain an amended charge filed without leave of the court?

Ø Whether the Learned Trial Judge was right when he convicted and sentenced the Appellant and ordered the forfeiture of IVECO TRUCK with Plate Registration No. XF 428 DKA under Section 47 (1) (b) of Custom and Excise Management Act 2004?

RATIONES DECIDENDI

CHARGE – POWERS OF THE COURT TO ALTER, AMEND OR ADD TO ANY CHARGE

The Administration of Criminal Justice Act (ACJA) 2015 is the applicable procedural law in the Federal High Court.

Section 216 of the ACJA 2015 provides-

(1) ‘’A court may permit an alteration or addition to a charge or framing of a new charge at any time before judgment is pronounced.

(2) An alteration or addition of a new charge shall be read and explained to the defendant and his plea to the amended or new charge shall be taken.

(3) Where a defendant is arraigned for trial on an imperfect or erroneous charge, the court may permit or direct the framing of a new charge, or an addition to, or the alteration of the original charge.

(4) Where any defendant is committed for trial without a charge or with an imperfect or erroneous charge, the court may frame a charge or add or alter the charge as the case may be having regard to the provisions of this Act.’’

Section 217 further provides-

(1) Where a new charge is frame or alteration made to a charge under the provisions of section 216 of this Act, the court shall call on the defendant to plead to the new or altered charge as if he has been arraigned for the first time.

(2) The court shall proceed with the trial as if the new or altered charge had been the original charge.’’

The provisions of Sections 216 and 217 of the ACJA 2015 quoted above empowers a Court to alter, amend or add to any charge before it at any time before judgment is given in the case and as rightly submitted by learned counsel for the Respondent these Sections did not make leave a condition precedent to amendment of a charge but ensures that the amended charge is read out and explained to the Defendant. – Per M. S. Hassan, JCA

FEDERAL HIGH COURT – MODE OF INSTITUTING CRIMINAL PROCEEDINGS BEFORE THE FEDERAL HIGH COURT

The Federal High Court is a Court of summary jurisdiction in criminal trials, thus Section 33 (2) of the Federal High Court Act provides-

‘’Notwithstanding the generality of subsection (1) of this section, all criminal causes or matters before the Court shall be tried summarily.’’

From the above provision there is no doubt at all that the mode of instituting Criminal Proceedings before the Federal High Court is by summary trial procedure i.e. by preferring a charge, as was done in this case, it simply means that whenever the Prosecution decides to amend a charge already before that Court, it can do so by filing the amended charge in the Registry of that Court and serving a copy of same on the defence counsel. Leave of Court is not a condition precedent to amendment of a charge before the Federal High Court as erroneously contended by the Appellant’s Counsel. – Per M. S. Hassan, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL TRIALS

Generally, in criminal trials, the onus of proof lies on the prosecution to prove the charge against the defendant beyond reasonable doubt. This onus rests on the prosecution throughout the trial, as it is generally not the duty of the defendant to prove his innocence. – Per M. S.Hassan, JCA