Legalpedia Citation: (2023-03) Legalpedia 25908 (SC)

In the Supreme Court of Nigeria

Fri Mar 31, 2023

Suit Number: SC.CR/555/2020

CORAM

MUSA DATTIJO MUHAMMAD JSC

CHIMA CENTUS NWEZE JSC

UWANI MUSA ABBA AJI JSC

MOHAMMED LAWAL GARBA JSC

HELEN MORONKEJI OGUNWUMIJU JSC

PARTIES

KEHINDE OLUGBEMI

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant sometime in June, 2013, while under the employment of the Ogun State Judiciary as Chief Bailiff in the Abeokuta Judicial Division sold a compressor, a property of the Court and corruptly benefitted N3,100,000.00 (Three Million, One Hundred Naira only). After the matter was reported to the police, the Appellant was arrested by the police, wherein he confessed where he sold the compressor. With his assistance, the compressor was recovered from Abia State back to the Ogun State High Court premises. The Appellant was subsequently arraigned and tried. After the trial, he was found guilty of the two count charges and sentenced to 7 years’ imprisonment. Dissatisfied, he appealed to the lower Court, which affirmed his conviction and sentence, hence this appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether by the circumstances and facts of the trial of the Appellant and by his confessional statement, the lower Court was not wrong to hold that the Respondent proved the charge of official corruption and stealing against the Appellant beyond reasonable doubt?

RATIONES DECIDENDI

CHARGE/INFORMATION – WHAT CONSTITUTES DEFECTS ON A CHARGE OR INFORMATION – DUTY OF THE DEFENCE TO RAISE OBJECTION TO DEFECTS ON CHARGE/INFORMATION AT THE TIME OF TAKING THE PLEA

Similarly, where on the Charge or Information, there are omissions or errors such as lack of details of the person who gave the Appellant bribe or who corrupted him or when such bribe or corruption was perpetrated or details of the owner of the property stolen or when the stealing/conversion took place; these constitute and amount to defects on a charge/information that the law expects the accused person to take immediate action for the correction of such defects or amendment thereof. It is definitely the duty of Counsel, particularly defence Counsel to carefully look at the charge sheet or information and raise objection to any defect therein, for it to be amended before proceeding to trial. See Per OGUNWUMIJU, JSC, in MOHAMMED V. STATE (2021) LPELR-58385(SC) (PP. 24 PARAS. C). This Court stressed it further when Per AUGIE, JSC, in IKPA V. STATE (2017) LPELR-42590(SC) (PP. 12-21 PARAS. D), held:

“In the instant case, there was no objection at the time of taking the Appellant’s plea about any defect in the charges against the Appellant. The Appellant was effectively represented by counsel throughout the proceedings. Assuming without holding that there was any defect in the charge against the Appellant, I agree with the Respondent’s Counsel that in all the circumstances of the case, the Appellant was not misled by the charge against him… The Appellant had reason to complain but it is the timing or the stage of making his objection that put the spanner in the works. Section 167 of the CPA says that any objection to a charge for any formal defect on the face of it shall be taken immediately after the charge has been read over to the Accused; not later. There is also nothing to indicate that Appellant was misled by the non-inclusion of the said definition Section in the Charge… The important question is whether the Appellant was misled by the error or defect in the charge… The Appellant was charged with an offence known in law and he was represented by counsel from Plea to judgment stage, and since there is no evidence that the Appellant was misled, no miscarriage of justice occurred and the conviction is right.”

Furthermore, the phraseology used in the Penal Code must not be used in the Charge/Information. It is immaterial that the phraseology used in the Penal Code has not been used in the First Information Report. What is important is that the facts supplied on the First Information Report depict the essential particulars or ingredients of the offence and same are understood clearly by the accused person before the offence. It is not the law that the First Information Report must use the words or phraseology used in the provision of the law for the particulars of the offence to be therein disclosed. It is sufficient if the facts so supplied provide and depict the needed particulars of the offence. See Per CLARA BATA OGUNBIYI, JSC, in KOLO V. C.O.P (2017) LPELR-42577(SC) (PP. 23-24, PARA. C-C). – Per U. M. Abba-Aji, JSC

CHARGE – WHETHER OWNERSHIP MUST BE DISCLOSED IN A CHARGE /INFORMATION

Nevertheless, the owner or possessor must not be stated in the charge/information to give effect or validity to the charge against the accused person. It does appear that, where not expressly provided, the owner of stolen property need not be included in the charge. Mis-description of ownership of goods stolen or converted may not be fatal to the case. See JOSHUA BURAIMOH V. C.O.P. (1968) N.M.L.R. 272. This is further confirmed that there must be evidence that the property is owned by a person, which person could be known or unknown but the property must be owned or capable of being owned. See Per GALADIMA, JSC, in ADEJOBI & ANOR V. STATE (2011) LPELR-97(SC) (PP. 29 PARAS. D).

In this appeal, the alleged owner/possessor of the stolen compressor has been identified as “Ogun State Judiciary’. See page 3 of the record under particulars of count 2. Moreover, the required ingredients of stealing by some decided authorities of this Court do not cover or include ownership or proof thereof. PER NWEZE, JSC, IN CHYFRANK NIGERIA V. FRN (2019) LPELR-46401(SC) (PP. 12-16 PARAS. B) listed the ingredients of the offence of stealing to include: (a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen; (c) that the accused was dishonest and (d) that the accused had unlawfully appropriated the thing stolen to his own use. In the same vein, on whether ownership is an essential ingredient of the offence of stealing, it was reasoned that “it is not necessary nowadays, except in a few cases, to allege or prove who is, in law, the owner of the goods or money stolen. Indeed, in an information, although it is the practice to do so, it is not essential to name any person in the information. See Per ADEMOLA, JSC, inADEWUSI V. THE QUEEN (1963) LPELR- 15449(SC) (PP. 5-7 PARAS. F).

To cap it all, Section 166 of the Criminal Procedure Law, Ogun State, 2006, provides that, “No error in stating the offence or particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission”. – Per U. M. Abba-Aji, JSC

 

CONFESSIONAL STATEMENT – EFFECT OF NOT OBJECTING WHEN A CONFESSIONAL STATEMENT IS ADMITTED

…confessional statements of the Appellant. At page 50 of the record, they were tendered and admitted without objection from the Appellant or his Counsel; although it is now contended by the Appellant that it was obtained under oppression and torture.

The objection or protest is meant to reveal the involuntariness, oppression or torture amidst and inbuilt the confessional statement. In order to test such, a trial-within-trial is staged or employed. This was absolutely not the case in the instant appeal.

Per RHODES-VIVOUR, JSC, in MUSA V. STATE (2018) LPELR-43846(SC) (PP. 13 PARAS. B), settled it thus: “Exhibit A is the appellant’s confessional statement. It was admitted in evidence without any objection from the appellant or his counsel. The effect of not objecting when his confessional statement was admitted is that the statement was voluntarily made.”

When a confessional statement is admitted without objection from the maker or his Counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntarily and it is the truth on his role in the crime.

See Per RHODES-VIVOUR, JSC, in SMART V. STATE (2016) LPELR-40728(SC) (PP. 21 PARAS. D). I add also that when a confessional statement is admitted without objection, the accused person is openly admitting that there is no element of involuntariness, oppression, torture or inadmissibility to it.

– Per U. M. Abba-Aji, JSC

CONFESSIONAL STATEMENT – WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

It is settled law that an accused person can be convicted solely on his confessional statement. If a Court of law comes to the conclusion that a statement made by an accused person satisfies all the legal requirements of a confessional statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt.

The reason is simply that the Court can and does convict an accused person solely on his confessional statement.

See Per ABOKI, JSC, in IBRAHIM V. STATE (2022) LPELR- 58001(SC) (PP. 51-52 PARAS. C).

– Per U. M. Abba-Aji, JSC

COURT – WHEN A COURT CAN RECALL AN ACCUSED OR ADMIT EVIDENCE AFTER THE CLOSE OF THE ACCUSED’S CASE

Generally, it is contrary to natural justice and against the spirit of the law for a trial Court to recall an accused person (or call a witness for that matter) after the close of the defence and addresses in order to clear up its doubts. For that would in effect be depriving the accused of the benefit of the doubt.

In the interest of justice however, it is sometimes considered. The reopening ought to be to enable the Court take in the interest of justice, important points of law and facts relating to the case. Each case ought to be dealt with on its own merit.

If the defendant adduces in his evidence new matter which the complainant could not foresee, the complainant may with the leave of Court, adduce evidence to rebut such first mentioned evidence.

See Per ONU, JSC, in ORISAKWE V. STATE (2004) LPELR-2764(SC) (PP. 52 PARAS. A), Per NNAMANI, JSC, in AWOYALE V. OGUNBIYI (1985) LPELR-661(SC) (PP. 18-19 PARAS. E- E), and Per PAUL ADAMU GALINJE, JSC, in KAJAWA V. STATE (2018) LPELR- 43911(SC) (PP. 7-13, PARA. C-C).

– Per U. M. Abba-Aji, JSC

COURTS – WHEN A TRIAL COURT CAN CALL A WITNESS AFTER THE CLOSE OF THE CASE OF THE DEFENCE

Pursuant to Section 200 of the Criminal Procedure Law, Eastern Nigeria, Cap. 31, the trial Judge is empowered to call a witness suo motu after the close of the case for the defence if and only if, the defence has set up a case ex improviso which no human ingenuity can foresee, and in doing so, the trial Judge must ensure that the evidence to be given is not such as is only calculated to do an injustice to the accused but one essential to the just decision of the case.

Justice is a two-way traffic and in a matter like this, it will only be injustice not to consider and give attention to the new defence of the Appellant that he got the compressor by auction and not stealing. Therefore, witnesses can be called to ascertain and affirm it or disprove same.

See Per ONU, JSC, in ORISAKWE V. STATE (2004) LPELR-2764(SC) (PP. 52 PARAS. A).

– Per U. M. Abba-Aji, JSC

CHARGE OR INFORMATION – PRIMARY ROLE OF A CHARGE OR INFRMATION

To begin with, it is elementary knowledge of criminal law that the primary role of the charge sheet, the cornerstone of any criminal case, be it FIR or Information, as in the instant case, is to precisely inform the accused person(s) of the nature of their accusations and allow them to prepare their defence. (See Olatunbosun v. State (2013) LPELR-20939 (SC), Kolo v. COP (2017) LPELR-42577 (SC); Akang v. State (1971) NSCC Vol. 7, 55, Ozo v. State (1971) NSCC Vol. 7, 101.)

It is not the law that the framer of the information must use the words or phraseology used in the provision of the law for the particulars of the offence to be therein disclosed. It is sufficient if the facts supplied provide and depict the needed particulars of the offence. (See Olatunbosun v. State (supra), Kolo v. COP (supra), Akang v. State (supra), Ozo v. State (supra).)

– Per C. C. Nweze, JSC

CHARGE – WHAT CONSTITUTES A MATERIAL ERROR OR OMISSION IN A CHARGE

More so, the provision of Section 166 of the Criminal Procedure Law, Ogun State, 2006, is material. By virtue of that provision, no error in stating either the offence or the particulars required to be stated in a charge, and no omission shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.

Thus, for the Court to consider any defect (if any) thereof, the appellant must prove that such error or omission has occasioned failure or miscarriage of justice to him. This, the appellant has woefully failed to show. (See Suleiman v. C O. P. (2008) 8 NWLR (pt. 1089) 298, Ajayi v. Zaria N. A. (1963) 1 SCNLR 205, Essien v. C.O.P. [1996] 5 NWLR (pt. 449) 489, Otti v. State [1991] 8 NWLR (pt. 207) 103.)

– Per C. C. Nweze, JSC

APPELLATE COURTS – DUTY OF APPELLATE COURTS

My Lords, it is settled that the duty of an appellate Court in our own jurisprudence is a re-hearing of the matter in order to determine if the Court below had reached a judicious conclusion after considering and evaluating the evidence brought before it. (See ESANGBEDO v. STATE (1989) LPELR-1163(SC), EGBE v. ADEFARASIN (1987) LPELR- 1032(SC), ACB LTD & ORS v. IHEKWOABA & ORS (2003) LPELR – 203 (SC).)

It is also trite that an appellate Court will not upset concurrent findings of fact unless they have caused miscarriage of justice due to perversity. (See OKOLI v. MORECAB FINANCE (NIG) LTD (2007) 14 NWLR Pt. 1053 Pg. 37, SUNDAY v. STATE (2018) 1 NWLR Pt. 1600 Pt. 251, WOLUCHEM v. GUDI (1981) 5 SC 291, OVERSEAS CONSTRUCTION CO (NIG) LTD v. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR Pt. 13 Pg. 407, ADEYE v. ADESANYA (2001) 6 NWLR Pt. 708 Pg. 1.)

– Per H. M. Ogunwumiju, JSC

OBJECTION – APPROPRIATE TIME TO RAISE AN OBJECTION TO A CHARGE

It is a trite principle of law in our judicial system that the appropriate time to raise an objection to a charge is at the time of arraignment. (See MUMINI v. FRN (2018) LPELR – 43904(SC), OKEREMUTE v. STATE (2021) LPELR- 55335(SC).)

The Rules of Court make it mandatory for the Appellant to be asked if he understood the contents of the charge read to him before taking his plea.

Per H. M. Ogunwumiju, JSC

CONSTITUTION – THE POSITION ND EFFECTS OF THE CONSTITUTION

The 1999 Constitution of the Federal Republic of Nigeria (as altered) remains the grundnorm and is supreme over every other law by virtue of Section 1(3) thereof.

The interpretation provided by that section of what is a public service or who is a public servant covers the field in relation to all organs of state mentioned in the Constitution.

Per H. M. Ogunwumiju, JSC

CRIMINAL JURISPRUDENCE – THE MODEL OF CRIMINAL JURISPRUDENCE IN NIGERIA

It is important to note that the criminal jurisprudence in Nigeria is based on the adversarial rather than the inquisitorial model. In the former, the judex cannot descend into the arena to find out the truth unless parties prove their case. In the later, the judex can inquire, summon additional witnesses, order arrest of other suspects not charged, etc., in order to get to the truth of the case. In our adversarial system, the Court must be moved by one of the parties to call further evidence, recall witnesses, etc. The power given to call additional evidence either suo motu or on the application of a party particularly the prosecution after close of defence must be exercised cautiously so as not to cause miscarriage of justice. See R v. ADEROGBA (1960) 5 FSC 212.

However, in GEORGE & OTHER v. THE STATE (1971) 1 All N.L.R 205, the appellants were convicted of murder and one of their grievances on appeal was that the trial judge erred in law in recalling one of the prosecution witnesses after the defence had closed its case.

It was held that in order that justice should be done to the defendant, the calling of a witness after the close of the defence must be exercised with caution and should be limited to matters raised for the first time by the defence. The Court can exercise its powers to call a witness after the close of the case for the defence where there are issues raised for the first time in the evidence of the defence. The jurisprudence should be to consider the circumstances of each case before arriving at the conclusion that the procedure adopted at trial though irregular, had caused gross miscarriage of justice before setting aside the judgment of the trial Court. That should be the watchword.

Per H. M. Ogunwumiju, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Code Law of Ogun State, 2006
3. Evidence Act, 2011
4. Criminal Procedure Law, Eastern Nigeria

CLICK HERE TO READ FULL JUDGMENT