DEFINITION OR PENALTY SECTION: IN SEARCH OF THAT SECTION OF THE PENAL LAW THAT WOULD METAMORPHOSE A SUSPECT INTO AN ACCUSED



1.       Introduction
Case law is no doubt one of the major sources of law in the jurisprudential firmament of the Nigerian Legal System. Hence, microscopic and clinical analysis should be made of decisions of courts (particularly, those of the Supreme Court and the Court of Appeal), when need be, in order to keep the decisions of such courts on even kneel and raise necessary discourse on perceived inconsistencies. It is from the plank of the foregoing, that the theme of this article springs. Its main thrust evolves around the decision of the Court of Appeal in Olatunbosun v. State.[1] Many issues arise from this decision; however, the focus of this article is on that part of the decision where the court held that the appropriate section that should be used in charging an accused person in an information is the definition and not the penalty section, which we believe ought to be the contrary.

  
2.       Facts of the Case

The gist of the events that led to this decision is that the appellant therein was arraigned before the High Court of Ekiti State for the offence of murder. It was alleged that the appellant murdered one Joy Faith Olubodun, a child of about two months, on or about the 28th day of June, 2003 at the All Christian Fellowship Ministry Church, Ode-Ekiti, Ekiti State. At the conclusion of the trial, the trial court found the appellant guilty of murder and sentenced him to death by hanging. This was despite the fact that the appellant was arraigned under section 319(1) of the Criminal Code Law, rather than section 316 of the same law.[2] Hence, the appeal to the Court of Appeal.
In arriving at its decision, the Court of Appeal set out the following issue among others for its determination:
     
Whether or not charging the appellant for the offence of murder under section 319(1) of the Criminal Code instead of under section 316 of the same law is sufficient to vitiate the trial and sentence of the appellant and to discharge and acquit the appellant.

Flowing from the above, and purportedly following the Supreme Court’s decisions in Adekunle v. State[3] and Ogbodu v. State,[4] the court held albeit inferentially, that an accused ought to be charged against the definition section and not the penalty section. The court posited that an appellant who impugns his trial and conviction for the offence of murder on the sole ground that the information against him was preferred under section 319(1) of the Criminal Code, instead of section 316 of the code, has a fourfold burden to discharge before such a trial could be set aside, viz:

a)                  He must show that he was misled in two respects, namely that he was either misled by the description of the offence and the ingredients thereof as stated on the information or that he was misled in the preparation of his defence.
b)                 He is also under an obligation to demonstrate the prejudice he suffered in that trial as a result of the misstatement of the section of the code.
c)                  Where he is unable to point to the miscarriage of justice which that irregularity occasioned in respect of his trial and conviction, an appellate court would not upturn such a trial and conviction on the sole ground of the said misstatement of the section of the code.
d)                 Finally he must show, from the record, that either he or his counsel objected to the information before he (the accused person) took his plea.

The court further held, per Denton West, J.C.A, that there is no offence of murder committed under section 319(1) of the Criminal Code that would require the prosecution to prove the offence of murder against the appellant beyond reasonable doubt. Since there is no offence of murder under this provision of the law, there could not be proof of same beyond reasonable doubt.[5]


3.       Case Review

In examining the decision of the court, it would be apt to set out the provisions of the Criminal Code that form the fulcrum of this discourse. Section 315 provides:

Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.

Section 316:

Except as hereinafter set forth, a person who unlawfully kills another, under any of the following circumstances, that is to say… is guilty of a murder.

Section 319(1):

Subject to the provisions of this section, any person who commits the offence of murder shall be sentenced to death.

It should be noted that Ekiti State is in Southern Nigeria and hence covered by the Criminal Procedure Act (CPA). Doherty[6] opines that, under the CPA, a charge in the State High Court is by way of information. The information may be filed by a law officer in which case it can be referred to as public information. It may also be filed by a private person whereby it is referred to as private information. She also states that the constituent parts of a public information are as follows:

Heading: A public information is headed and the heading is that of the court in which the case is to be tried. The heading also contains the judicial division within the state where the case is to be tried.[7]

The Charge Number: A public information bears a charge number.[8]

The Title: A public information is titled ‘State’ against the ‘accused person or accused persons’. The names of the accused persons are written out in full. It is permissible but not mandatory to indicate gender of the accused.

The Preamble: The body of a public information is preceded by a preamble known as an information. The Attorney-General informs the court of the offence or offences with which the accused is charged. Since the power of the Attorney-General to institute proceedings can be delegated to officers of his department, the information can be validly filed by an officer of the Attorney-General’s department. Thus, the Director of Public Prosecutions could inform the court of the offences alleged against an accused person.[9]

The Body: The charge is stated in two paragraphs. The first paragraph is known as the statement of offence.[10] As the name implies, it states the offence alleged against the accused. It also states the section of the enactment and the enactment allegedly contravened.[11] The second paragraph is known as the particulars of the offence and follows the statement of offence.[12] The particulars of offence consists of: the names of the accused person; the date on which the offence was alleged to have been committed; the place where the offence was alleged to have been committed; the judicial division within which the place is situated; and the person or thing against whom or which the offence is alleged to have been committed.

If the accused is alleged to have committed more than one offence, each offence must be in separate and distinct paragraphs. That is, in a separate statement of offence and particulars of offence. Each set of paragraphs is referred to as a count,[13] which must be numbered consecutively.[14]

The signature: A public information is usually signed by a law officer.[15] However, a public officer, who is not a law officer, may be authorized by the Attorney-General to sign a public information.

Precedents of charges by way of information are provided for in section 463 of the CPA and particularly for the offence under discourse, in Form 3 of its Third Schedule. A cursory look at the precedent shows that the offence of murder is to be charged contrary to the penalty section of the Criminal Code. In fact, nothing is stated as regards the definition section. In support of this, the learned authors of Brett and MacLean’s, ‘The Criminal Law and Procedure of the Southern States of Nigeria’,[16] in their commentaries, posit that, where one section defines an offence and another prescribes the penalty, the precedents in the second and third schedules to the Criminal Procedure Act uniformly follow the practice of referring to the section prescribing the penalty.[17] Hence, it is our submission, that both charges in Adekunle v. State and Olatunbosun v. State are perfect. In fortification of the above submission, reference is made to section 151(3) of the Criminal Procedure Act, which provides that “the written law and the section of the written law against which the offence is said to have been committed shall be set out in the charge”. Going by the precedent earlier referred to, the section of the written law alluded to in section 151(3) CPA, in the circumstances of this case, ought to be the penalty section.
The charge in Adekunle v. State is not reproduced in the report for examination and consideration. It is however further submitted that the case of Adekunle v. State did not lay down the principle that a charge or information must be against the definition section. What it held is that “the trial of the accused person for murder under section 319(1) alone cannot be vitiated where the accused was not misled by the description of the offence and the ingredients thereof in the charge or where he was not misled in the preparation of his defense.” In Ogbodu v. State on the other hand, the issue had to do with a mis-description of facts contained in the particulars of offence as against a mis-statement of the appropriate section of the law in the statement of offence which is the issue under consideration. In fact, Karibi- Whyte JSC, said in that appeal that:

…It was submitted that although the statement of offence properly referred to the offence as Murder punishable under section 319 (1) of the Criminal Code Law, Volume 11 Cap. 48, Laws of Bendel State of Nigeria 1976, the particulars of offence stated that the accused unlawfully killed the deceased….Concisely stated, the complaint is that the words “unlawfully killed” in the particulars of the offence has the effect of misleading the accused notwithstanding that he was charged with the offence of murder under section 319 (1) of the Criminal Code. (Italics ours for emphasis)

Osamor[18] avers that in choosing the relevant section of the law for use in a charge or count, attention must be paid to the following:

Where a section of a law contains the definition of the offence while another section of the same law contains only the penalty for such offence, in such a case, only the latter section which contains the penalty for the alleged offence need be stated. For instance, section 383(1) of Criminal Code Act provides as follows:

“A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.”

However, section 390 of the Criminal Code Act provides as follows:

“Any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years.”

In this case, section 390 of the Criminal Code Act is the relevant section to be stated in a count alleging stealing.

The above, we assert is not in breach of section 36(12) of the 1999 constitution (as amended) because the constitutional provision only forbids an accused person from being charged for an offence which is not in written law and its punishment so prescribed. It however, does not state the form or format the written charge should take. As earlier stated, this is provided for in the Third Schedule to the CPA and it gives statutory backing to the opinion of the learned author. It is settled law, that a schedule is as much a part of an enactment as the section by which it is introduced.[19]
In answer to the decision in Adekunle v. State on the word “alone”, it is proposed that the definition and punishment section may only be necessary in an information where as Osamor[20] states, a section of a law or several sections of a law may define various offences without stating the penalties for their violation while a latter section of the same law may state the penalty for a violation of any one of all the offences defined in all the previous sections of the law. For example, for the five different offences of misuse of identification mark or licence, section 32 of the Road Traffic Act, Laws of the Federation provides as follows:

A person who:-

(a)          forges or fraudulently defaces, alters, mutilates or adds anything to a licence or identification mark: or
(b)         exhibits or uses a licence which has been forged, defaced, altered, mutilated or added as specified in paragraph (a) of this section; or
(c)          lends or allows to be used by any other person a license or identification mark; or
(d)         uses a driving licence belonging to another person or exhibits or uses any licence upon which figures or particulars have become illegible or exhibits or uses any colorable imitation of any licence, is guilty of an offence.

Section 32 defines five possible offences under the Road Traffic Act without stating the penalty for a violation of any of the offences. However, section 45 of the same Road Traffic Act provides a general penalty for any or all of the offences as follows:

A person guilty of a breach of or failing to comply with any of the provisions of the law or who commits an offence against this Act for which no special penalty is provided shall be liable for a first offence to a fine of one hundred naira, or for a second or subsequent offence to a fine of one hundred naira or to imprisonment for six months or both such fine and imprisonment.

In cases like this, he asserts that one must state in his count of allegation both the section of the law, which defines the particular offence, and the latter section of the law, which states the penalty for its violation. For the offence defined in paragraph (a) above, the count of allegation must state that the accused person committed the offence of forgery of a licence contrary to section 32(a) and punishable under section 45 of the Road Traffic Act.
The use of both the definition and the penalty sections of the law in the count alleging forgery of a licence ensure that the count does not violate the rule against ambiguity. The use of only section 45 (the penalty section of the law) in the count will make it impossible for the alleged offender to know which particular one of the offences defined in section 32(a) of the Road Traffic Act he is being charged for contravening.[21]
Finally, it is our take on this issue, that where an information is drafted against the definition section alone as seemingly urged by the court in the case under consideration, (depending on the circumstances), such information should be quashed as same is fundamentally defective.[22] Akeredolu[23] amply encapsulates our concern on this discourse thus:

Our jurisprudence has been undoubtedly enriched by the age-long doctrine of stare decisis. The establishment of courts is always considered on the basis of hierarchy within the court system. Our law developed through the adherence to this principle. It allows the law to be ascertainable. It affords both lawyers in practice and the academia to have a robust platform for cross-fertilization of ideas. Astute litigants too are able to follow court decisions with appreciable ease….A situation which leaves lawyers uncertain as regards the position of the law is deplorable. The Bar has noticed with increasing discomfiture the conflicting decisions emanating from our appellate courts. The Court of Appeal has found itself in an embarrassing       quagmire arising from the disparate pronouncements on matters which are, as lawyers will say, “on all fours” with earlier decisions reached by the same court. The Supreme Court appears not to be immune from this current crisis. Legal practitioners are deeply frustrated by this development. The Bar states that the situation is unacceptable. The office of the CJN should look into this as a matter        of urgency.


4.       Conclusion

Conclusively, we are of the view that the theme of this article is not one devoid of relevance to practical realities. Students of the law school on attachment to courts and law offices often complain that what they are taught in the law school is sometimes different from what they observe in practice. In an era where everyone is concerned about standards in the legal profession, we say that an increase or fall in standards is not only attributable to the educational system but also to the practice of law and the administration of justice system. Where senior lawyers draft processes inelegantly, what do students learn? Where judgments of superior courts set down decisions which are inconsistent with each other and long established precedents, then young lawyers learn nothing but a confused state of the law. It is hoped that there would be a further appeal to the Supreme Court in order to allow it re-state correctly the position of the law on the issue discussed above.


[1] (2011) All FWLR (Pt. 555) 304 at 333.
[2] Section 316 Criminal Code defines the offence of murder while section 319(1) of the same law provides for the punishment.
[3] (2006) All FWLR (Pt.332) 1452, (2006) 14 All FWLR (Pt.1000) 717.
[4] (1987) 2 NWLR (Pt.54) 20, (1987) 1 NSCC 429.
[5] Supra at page 360.
[6] Oluwatoyin Doherty, Criminal Procedure in Nigeria: Law and Practice, (London, Blackstone Press Limited, Aldine Place, W12 8AA, 1990), 170.
[7] C.P.A, s.337.
[8] Form No.1, First Schedule to the CPA.
[9] See Ibrahim & Anor v. The State (1986) 1 NWLR (Pt.18) 650.
[10] C.P.A, s.338 (1) (c)
[11] Ibid.
[12] Ibid., s.338 (1) (d).
[13] Ibid., s.338 (1) (a).
[14] Ibid., s.338 (1) (e)
[15] Ibid., s.341 (1).
[16] 2nd Edition at page 88
[17] See AG FED. v. Dr. Clement Isong (1986) 1 Q.L.R.N 75 at 92-93. See also Akinola Aguda, The Criminal Law and Procedure of the Southern States of Nigeria, (Sweet & Maxwell, London, 1982), pp.1002-2131.
[18] Bob Osamor, Fundamentals of Criminal Procedure in Nigeria, (Abuja, Ella-B Ventures Nigeria Limited, Wuse II, Nigeria, 2004), pp. 178-180.
[19] See 7up Bottling Co. v. Abiola & Sons (1996) 7 NWLR (Pt. 463) 714 at 732. See also Board of Customs & Excise v. Barau (1992) 10 S.C. 48 at 126.
[20] Bob Osamor, supra pp.179-180.
[21] Ibid p.180.
[22] See AG FED. v. Isong, supra, at page 93 and Atterton v. Browne (1945) K.B. 122.
[23] Akeredolu Oluwarotimi, “Voice of the Bar”, Vol. 2, A Compendium of Speeches of Oluwarotimi Akeredolu Esq, SAN, President of the Nigeria Bar Association, 2008-2010 p. 72. A Publication of the Office of the Publicity Secretary, Nigerian Bar Association. Mutahed Printers No.2, Gwari/Muri Road, Kaduna, 2010.
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