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.