ABIDOYE VS FEDERAL REPUBLIC OF NIGERIA

CORAM

JOHNAFOLABI FABIYI

PARTIES

CAPTAIN O. ABIDOYETHE FEDERAL REPUBLIC OF NIGERIA APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant and 5 others were charged severally and jointly for 68 counts at the trial Court laced with ‘intent to defraud’; an element which was not covered by an offence known to law. The trial Court found them guilty, convicted them for 61 counts and sentenced them to two years imprisonment. Dissatisfied with the judgment, the Appellant and the other Accused appealed separately to court of Appeal. The prosecution also cross-appealed against the judgment of the trial court challenging the discharge and acquittal of the appellants in Counts 1-7 of the amended information. The Court of Appeal dismissed both the main appeal and the cross-appeal and the Appellant further appealed to the Apex Court. The Supreme Court adopted its judgment in the case of Chief Olabode George v. FRN in suit No: SC.180/2012 and upheld the Appeal thus discharging and acquitting the Appellant.

HELD

Appeal upheld

ISSUES

1. The issues for determination in the sister case of Chief Olabode George v. FRN in suit No: SC.180/2012 were adopted ?

RATIONES DECIDENDI

CHARGE-EFFECT OF MISTAKE IN PARTICULARS OF OFFENCE-NATURE OF ELEMENTS/INGREDIENTS WHICH CONSTITUTES THE OFFENCE CHARGED

“Any mistake in the particulars of offence in a charge shall lead any conviction based on such charge to be quashed on appeal. See Okeke v. IGP (1965) 2 All NLR 81; The Queen v. Gbadamosi (1959) 4 FSC 181. The elements or ingredients which constitute the offence charged must be explicit and not left to speculation or inference. The requirement that essential elements be disclosed implies that non-essential ingredients be excluded from the particulars of the offence with which any person is charged”. PER NGWUTA, JSC

WRITTEN LAW- MEANING OF

And a “written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provision of a law.” PER NGWUTA, JSC

INGREDIENT OF AN OFFENCE-DUTY OF PROSECUTION THERETO

“It therefore follows that contrary to the views of the lower Court, the prosecution is bound to prove every ingredient of the offence as laid and not the ingredients of the offence as created, having jettisoned the latter in favour of the former”. PER NGWUTA, JSC

DUTY OF COURT -IN CONSIDERING WHETHER A CASE HAS BEEN PROVED

“In deciding whether or not the prosecution proved its case, the Court has to consider the totality of the evidence adduced for and against the accused person”. PER NGWUTA, JSC

CHARGE-AMENDMENT OF-DUTY OF COURT THERETO

“Without a formal amendment of the charge before it, a Court has no duty or right to edit the particulars of the offence to determine what element the prosecution should prove and what of the elements it need not prove. The duty of a Judge is limited to deciding the issue in dispute based on what is alleged and what is proved, bearing in mind the applicable law”. PER NGWUTA, JSC

ACCUSED PERSON-WHETHER COMPELLED TO GIVE EVIDENCE AT HIS TRIAL

“An accused person is a competent but not compellable witness at his trial. He cannot be compelled to give evidence and in the same vein, and on the facts of this case (see the presumption in s.151 (4) FCPL Lagos), he is not bound to raise objection to the charge laid against him. He is entitled to remain silent and demand of the prosecution a proof beyond reasonable doubt of every element constituting the offence with which he is charged irrespective of the element of the offence as created by Statute”. PER NGWUTA, JSC

ELEMENT OF AN OFFENCE-EFFECT OF INCLUSION OF ELEMENTS INTO PARTICULARS NOT REQUIRED BY LAW CREATING THE OFFENCE

“In my view, the inclusion of ingredients or elements in the particulars of offence which are not required by the facts of the case and particularly by the section of the law creating the offence is as bad as omission of ingredients required by the facts and section of the statute creating the offence”. PER NGWUTA, JSC

CASES CITED

STATUTES REFERRED TO

The 1999 Constitution of the Federal Republic of Nigeria, (as Amended)Corrupt Practices and Other Related Offences Act, 2000The Criminal Procedure Law of Lagos State Cap C18

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