AGU v. THE STATE (2017)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of July, 2017

CA/E/449C/2015

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria


Between

CHUKWU AGU Appellant(s)

AND

THE STATE Respondent(s)

…………………….A…………………….TOM SHAIBU YAKUBU, J.C.A.(Delivering the Leading Judgment):The appellant along with nine other persons from Oruku Community of Enugu State were alleged to have invaded Umuode Community, in same Enugu State, on 2nd April, 2010 and started shooting sporadically within a disputed Aguefi Land. Consequently, one Ikechukwu Ugwu of Umuode Community was hit by a bullet on his stomach. He was rushed to the hospital and subsequently died as a result of the injury that he had sustained, from the gun shot. Furthermore, the appellant and the same nine persons allegedly, damaged fence walls as well as landed property of some 40 persons in Umuode Community.
In consequence of the above narrative, on the 14th May, 2012, the appellant along with his nine colleagues were charged and arraigned on an amended Information containing the offences of conspiracy, murder, arson, promoting local war and malicious damages, thus:
Count 1:
Conspiracy contrary to Section 494 of Criminal Code Cap 30 vol. II Laws of Enugu State, 2004.
Count II:
Murder contrary to Section 274 of Criminal Code Cap. 30 vol. II Laws of Enugu State, 2004.
Count III:
Promoting local war contrary to Section 86 of the Criminal Code Cap. 30 vol. II Laws of Enugu State, 2004.
Count iv:
Arson contrary to Section 416(a) of the Criminal Code Cap. 30 vol. II Laws of Enugu State, 2004.
Count v:
Malicious damage contrary to Section 415(1) of the Criminal Code Cap. 30, vol. II Laws of Enugu State, 2004.
The trial/prosecution of the appellants, was conducted at the Enugu State High Court of Justice, holden at Enugu. The appellants pleaded not guilty to each of the charges against them. The prosecution and the defendants, called witnesses and thereafter, learned counsel for the prosecution and the defendants, addressed the court. In his judgment, the learned trial Chief Judge of Enugu State, Hon. Justice I. A. Umezulike, OFR, FCI ,Arb, on 5th October, 2015, discharged the appellant, but did not acquit him. The appellant, distraught with the decision of the trial Chief judge, appealed against the said decision, which was anchored on one ground, to wit:
The learned trial Chief Judge erred in law and fact when in the judgment now appealed against it struck out the information and discharged the appellant, but did not acquit him, after a full criminal trial, and this occasioned a gross miscarriage of justice in view of the provision of Section 284 of the Criminal Code Cap. 30 Laws of Enugu State of Nigeria.
Particulars of Error
1. The appellant was arraigned on an amended information dated the 2nd day of May, 2014, of five counts of conspiracy, murder, promoting local war, arson and malicious damage at the Chief Judges Court Enugu State.
2. The prosecution commenced its case on the 14th day of May, 2012 and called twelve (12) witnesses in proof of their case and tendered eleven exhibits (11).
3. The defence called twelve (12) witnesses and tendered twelve (12) exhibits in their defence of the charges against them. Defence closed on the 12th day of June, 2013.
4. The learned trial Chief Judge in its judgment held that the amended information was grossly discredited, faulty and incompetent, and only discharged the accused person, rather than to discharge and acquit him, after having undergone full trial and ought to have determined the case on the merits by availing himself of the provisions of Section 284

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of the Criminal Code Cap 30 Laws of Enugu State of Nigeria. This occasioned a miscarriage of justice against the appellant.
The appellant, in order to activate the prosecution of the appeal was armed with the appellants brief of argument, settled by Chike Ukoh, Esq., dated 13th June, 2016 and filed on 17th June, 2016; but deemed by this Court as properly filed and served on 6th December, 2016.
The Respondents brief of argument, settled by Chief M. E. Eze, ACI Arb., the Attorney General of Enugu State dated 22nd Feb., 2017 and filed on 23rd Feb., 2017 was deemed by this Court as properly filed and served on the same 23rd Feb., 2017. The appellants reply brief was thereafter, filed on 20th March, 2017.
The appellant, proposed a sole issue for the determination of the appeal, thus:-
Having conducted a full trial, is the appellant not entitled to be acquitted after being discharged?
The respondent also nominated a sole issue for the resolution of the appeal, thus:-
Whether the Appellant was entitled to be acquitted, after a full trial, when the trial Court struck out the charge for being incompetent.
It is apparent that each of the sole issues identified by the counsel herein, but for semantics, is similar. Therefore, I have chosen to go with the appellants sole issue, in my consideration and determination of this appeal.
The main thrust of the appellants contention, is to the effect that any discharge of an accused person who had undergone a full trial, amount to an acquittal. And that since the appellant had been put through a full trial for three years and five months, he was entitled to an order of acquittal, upon the striking out, of the Information against him which was declared by the learned trial Chief Judge, as being incompetent. He insisted that the learned trial Chief Judge on discovering that there were defects with the charges ought to have availed himself of the provisions of Sections 280 and 284 of the Criminal Procedure Law of Enugu State and cure the defects in the charges, suo motu and thereafter decide the case on its merits. He submitted furthermore, that the appellant was not misled by the duplicity in the charges. He referred to Onakoya v. FRN (2002) 6 SCNJ 404 at 420; Clement Nwali v. IGP Law Reports of Eastern Nigeria (1957) 1 at page 5; I. G. P. v. Sydney Marke (1957) (SC) N.R.N.L.R. 89 at 94.
The learned Attorney General, for the respondent, on his part, submitted to the effect that since the learned trial Chief Judge had found that the initiating process, that is, the charge/information against the appellant, was incompetent, the former had no longer any jurisdiction to make any order that would have touched on the merits of the case, hence he was right to have discharged but not acquitted the appellant. He placed reliance on Chief of Air Staff v. Iyen (2006) 8 QCCR 148 at 173 to 174. He furthermore, submitted that in the circumstances of this case, the trial was a nullity because the charge, which was the very foundation of the trial was incompetent. He referred to Adeoye v. State (1996) 6 NWLR (pt. 605) 74 at 87; Eyorokoromo v. State (1979) 6  9 SC 3. He insisted that since the charge/information against the appellant was incompetent by virtue of Section 209 of the Criminal Procedure Law and the learned trial judge did not determine the case on its merits, the order of discharge and not acquittal was proper, in the circumstances.
I have perused the submissions of appellants counsel, adumbrated in the appellants reply brief which dwelt

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largely and extensively on the question of a retrial of the appellant. However, it is the submission of the respondents counsel, at the last sentence of paragraph 2.4 on pages 4 to 5 of the respondents brief of argument, to wit:
If the charge was competent, we would have urged the Court to order a retrial as the case in the case of Chief of Air Staff vs. Iyen cited supra.
In effect, the respondent did not urge for a retrial of the appellant. Therefore, to my mind, the submissions of appellant’s counsel in the appellants reply bordering on retrial principles, went to no issue and are non sequitor. They are discountenanced.
Resolution:
The learned trial Chief judge, in his judgment, at pages 148  149 of the record of appeal, said:
As I begin to resolve the basic issues upon which the prosecution and the defence had locked horns I must first and foremost ascertain the competence of the information.
2. If the information is competent then the Court would proceed to evaluate 
the ingredient of each charge vis-a-vis the involvement of the accused person or persons charged there with.
Before evaluating the evidence before the Court as it relates to the accused persons, I have decided to ensure that the information is first and foremost competent. Section 209 of the Criminal Procedure Law Cap 31 of Enugu State enacts as follows:
The provisions of Sections 255 to 317 shall apply mutatis mutandis to counts of an information save that no charge shall be joined with a charge punishable with death and not more than one charge punishable with death shall be charged in the same information (Emphasis mine).
The above provision seems to have two major limbs, namely:
(1) No charge shall be joined in an information with a charge punishable with death.
(2) Two charges punishable with death cannot be lumped under one information.
If my understanding of Section 209 of the Criminal Procedure Law of Enugu State is correct, the conclusion seems obvious that the entire information is incompetent as it offends the provisions of the Section which requires that no other offence could be tried together with a capital 
offence and which also requires that no two capital offences be tried together under one information or charge sheet.
If I was remiss in my conclusion of law above, I shall now return to examine each count in the information..

Thereafter, his Lordship, considered and analyzed each of the counts against the appellant, as contained in the information, which he found had some yawning gaps and the lumping of the charge of murder with other charges in the Information. He then summed up his opinion at pages 151 to 152 of the record of appeal, inter alia:
As I hinted above the raps against the above charges are many. But the major one is their lack of sufficient particulars of the offence contrary to law.
The conclusion of all I have been saying is that the information upon which the accused persons were hauled before this Court and subsequently incarcerated is grossly discredited, faulty and incompetent. The duty of this Court is therefore, no more than to strike out the information and discharge all the accused persons. I so order. But they are not acquitted.
It is absolutely disappointing and disgusting that the accused 
persons have stood trial on a grossly incompetent information. Not even during the final arguments, adoption of final arguments and re-adoption of final arguments that spanned almost eighty months did the prosecution discover this apparent or gross blunder. It is not the duty of the court to descend into the arena to repair the blunder for the prosecution.

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I must pause here to point out to all the accused persons especially the 1st accused that they are being discharged but not acquitted. The implication is that they are being freed not upon the strength of their defence to the charge but because of the gross blunder of the prosecution in not formulating a competent information upon which they could be tried.
You therefore have the duty to live in peace and amity with your neighbouring communities including the complaints. This warning is necessary because if you find yourselves into our criminal trial and justice system again, the prosecution may not make as much blunder and you may not be as lucky.
The law is well settled that it is the taking of the plea of an accused person which kick starts the trial. That is, a trial in any criminal proceedings, commences when the accused person pleads to the charge(s) against him. Therefore, if there is any defect in a formal charge against an accused person/defendant, any objection to it must be taken before his plea is taken, otherwise, such an objection thereto is taken as having been waived. See S. 167, of the Criminal Code Act. Cap. 43. Per his Lordship, Karibi-Whyte, JSC in Adio v. The State (1986) 3 NWLR (pt. 31) 714; (1986) LPELR  184 (SC) at 28.
In the instant case, the appellant did not take any objection to the charges against him because according to learned counsel for him, the appellant was neither misled nor embarrassed with any of the charges against him. It was the learned Chief Judge, who, not at the taking of the appellants pleas to the charges against him, but at the end of the trial and in his judgment, found some defects in the said charges. His Lordship, was of the opinion that:-
it is not the duty of the Court to descend into the arena to repair the blunder for the prosecution.
I think that, that is where his Lordship, with respects, freaked. Having activated Section 209 of the Criminal Procedure Law, Cap. 31, Laws of Enugu State, in scrutinizing the charges in the information against the appellant, before arriving at the decision that the information was incompetent, I am of the considered and firm opinion that the learned trial Chief Judge, could not have been unaware of Section 284 of the same Law which empowered him suo motu, to amend the charge, even if the prosecution was oblivious of the defect in the charge. Section 284 of the aforementioned Law, provides that:-
When any person is arraigned for trial on an imperfect or erroneous charge, the Court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.
Perhaps, if the above law was activated in respect of the charges/information against the appellant, all that the trial Court ought to have done after an amendment or alteration of the charges, was to retake the pleas of the appellant formally, to the amended charges/information; consider the case on its merits and come to a decision on the culpability or otherwise of the appellant.
In Dominic Princent & Anor v. The State (2002) 18 NWLR (pt. 798) 49; (2002) 12 SC (pt. 1) 137; (2002) LPELR  (SC) at page 19, the Supreme Court, considered the question of amendment of charges pursuant to Section 208 of the Criminal Procedure Code, Laws of Northern Nigeria, 1963 which is in pari materia with Section 284 of the Enugu State Criminal Procedure Law, Cap. 31 and held, thus:
An amendment to a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code, Cap. 30 may be made at the instance of either the prosecution or, suo motu by the Court. However, once the charge is amended, a host of rights inure to the accused as carefully laid down in Sections 208(2), 209, 210 and 211 of the Criminal Procedure Code. Those rights, it seems to me, are inbuilt safeguards with a view to ensuring that an accused person, by virtue of an amendment, is not thereby prejudiced or misled, that no injustice is occasioned to him and that his constitutional right to fair hearing pursuant to the provisions of the Constitution is fully preserved. Per Iguh, JSC.
As I had said earlier in this judgment, all that the learned trial Chief Judge ought to have done,

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was to have first called the attention of the parties to the defect, in the charges and invited their views upon the matter, before coming to the desired decision of an amendment or alteration of those charges.
Furthermore, the Supreme Court in Young Ukanwa Uguru v. The State (2002) 9 NWLR (pt. 771) 90; (2002) 4 SC (pt. II) 13; (2002) LPELR  3325 (SC) considered the same principle on amendment of charges pursuant to Section 163 of the Criminal Procedure Law, Cap. 30 Laws of Eastern Nigeria, 1963 which is in pari materia, with Section 284 of the Criminal Procedure Law of Enugu State, Cap. 31. The said Section 163 of the Criminal Procedure Law Cap. 30, provides, inter alia:
Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.
In his lead judgment and with particular reference to Section 163 of the Criminal Procedure Law, supra, Kalgo JSC, at page 10 of the LPELR, succinctly stated thus:
This Section empowers the Court to alter, amend or add to any charge in any criminal case before it at any time before judgment is given in the case.
It does not give any condition precedent to its application but ensures that the amended charge be read and explained to the accused. This means that whenever the prosecution decides to amend the charge already before the Court, it can proceed to do so without asking for permission or leave to do so. It then applies to the Court to accept the amendment pursuant to Section 163 (ibid) and the Court after hearing the parties, may or may not accept or allow the amendment. If it allows the amendment, the amended charge shall replace the original charge and shall be read and explained to the accused as the new charge. If it rejects the charge, the original charge remains. This is what obtains in criminal matters pertaining to amendment of charges generally.
From the foregoings, the learned trial chief Judge, with respects, was clearly in error for not taking umbrage under Section 284 of the Criminal Procedure Law cap. 31 of Enugu State which mandated and empowered him to amend or alter the charges against the appellant. Therefore, he ought to have first called the attention of the prosecution to her blunder, invite addresses upon the same matter from both the prosecution and the defence counsel. Then do the needful by amending or altering the charges which would have been explained to the appellant whose plea on the amended charge was to be taken thereto. And then find out from the parties, if they needed to give further evidence or cross examine any witness because of the amended charge, before he considers the entirety of the evidence proffered in the case in order to come to a decision one way or the other.
The foregoings, notwithstanding, since the learned trial judge did not determine the case against the appellant, on its merits, but held that the information upon which the appellant was arraigned, was defective and incompetent, the resultant order which was made, to the effect that the appellant was discharged, but not acquitted, cannot be faulted. The decision of the Supreme Court in Onu Okafor v. The State (1976) All NLR 307; (1976) 5 SC 7; (1976) LPELR  2408 (SC) is apt. In that case, the appellant was arraigned for prosecution at the High Court of the Anambra State High Court, holden at Abakaliki, (then East Central State) upon an information preferred against him with leave of the
High court, Coram: Araka, J., pursuant to the provisions of Section 340(2)(a) of the Criminal Procedure Law, Cap. 31 vol. II of the Laws of Eastern Region 1963 edition, upon a charge of murder. He was convicted of that offence. In his appeal to the Supreme Court, it was contended that the leave granted by the High Court for the arraignment of the appellant for his trial, was not in compliance with the provisions of Section 18(2) of the Criminal Procedure Edict, 1974 which had amended Section 340(2) of the Criminal Procedure Law, 1963aforesaid. The question which arose for the consideration of the

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Supreme Court was what was the position of the information preferred against the appellant which was not in accordance with the provisions of Section 340(2) of Cap. 31 aforesaid as amended by Section 18(2) of the 1974 Edict, moreso, as the defence at the Lower Court, (the High Court) neither raised objection nor prayed that the said information be quashed? The Apex Court resolved that the information must be quashed and it was quashed, the fact that the defence not having taken an objection against it, notwithstanding. It further held that the information against the appellant was preferred without jurisdiction and that the trial was a nullity. The conviction of the appellant was quashed and the sentence of death slammed upon him by the High Court, Abakaliki, was set aside. And with the rider, that:
It is left to the prosecution to take what (if any) steps they may think fit and proper. – per Idigbe, JSC at page 9 of LPELR (supra)
Instructively, in the instant case, the Attorney General for the respondent, has submitted in the respondents brief of argument, to the effect that since the information upon which the appellant was arraigned for trial, was not competent, he could not press for the re-trial of the appellant. Therefore, just as the Apex Court, admonished in Okafor v. The State (supra), the next step (if any) to be taken, with respect to the fate of the appellant, in the circumstances, rests in the bosom of the respondent.
In sum, I resolve the sole issue in this appeal against the appellant. So, the appeal is dismissed. Hence, the judgment of I. A. Umezulike, C. J. in re  E/67c/2012 delivered on 5th October, 2015 is hereby affirmed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the lead judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA and I agree with his reasoning and conclusion that the appeal has to be dismissed. It is hereby dismissed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

Appearances

Chike Ukoh, Esq. For Appellant

AND

Chief M.E. Eze (Attor. Gen. Enugu State) with him, Dr. Anayo Edeh (Assistant Chief Legal Officer), U. O. Nebo, Esq. (Snr. Legal Officer) and Joseph Onugwu, Esq. (Legal Assistant to Attor. Gen. Enugu State). For Respondent

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