Sylvester Ogbomor V. The State (1985)
LawGlobal-Hub Lead Judgment Report
G. KARIBI-WHYTE, J.S.C.
This case was argued on the 22/11/84. The Court on that day unanimously dismissed the appeal. I therefore proceed to state my reasons for dismissing the appeal which I indicated I would do today.
The only point of law taken, and which embraces the two grounds of appeal filed and argued, is whether by virtue of the description of the law under which appellant was charged, the appellant had been charged and tried with offences under a non-existing law, thus rendering the conviction illegal and unconstitutional and in contravention of Section 33 (8) of the Constitution of the Federation 1979 and section 4 of the Criminal Code of Bendel State.
(Italics mine)
Grounds of Appeal and the Information
The grounds of appeal in this Court are as follows:
GROUND 1:
“The conviction of the Appellant, as affirmed by the Court of Appeal, is illegal and unconstitutional and ought to be quashed because it was in contravention of Section 33(8) of the constitution of the Federation 1979 and S. 4 of the Criminal Code of the Bendel State”.
PARTICUALRS OF ILLEGALITY
The Appellant was convicted of an alleged offence which was not prescribed by any enactment or other written law as framed in the charge.
GROUND II:
“The conviction of the Appellant, as affirmed by the Court of Appeal ought to be quashed because the conviction was affirmed under a Section of the Act which does not exist”.
It is pertinent to what I will say hereafter to reproduce the information filed by the Attorney-General of Bendel State against the appellant as reproduced in the record of proceedings.
STATEMENTOFOFFENCE- COUNT 1:
Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms Act 1970 (italics mine).
PARTICULARS OF OFFENCE
Sylvester Ogbomor (m) on or about the 28th day of March 1981, along Benin-Auchi Road, at Agbede, in the Auchi Judicial Division, robbed one Emmanuel Usoegbu ofthe sum of N12:00K and at the time of robbery you were armed with an offensive weapon to wit: a locally made pistol.
STATEMENT OF OFFENCE – COUNT 2
Conspiracy. contrary to Seclion3A (B) and punishable under Section 1(1) of the Robbery and Firearms Act 1970 – (Italics mine).
PARTICUALRS OF OFFENCE
Sylvester Ogbomor (m) on or about the 28th day of March, 1981, along Benin-Auchi Road, at Agbede, in the Auchi Judicial Division, conspired with other person unknown to commit the offence of robbery.”
This is the information containing the offence with which appellant was charged, tried and was convicted by the learned trial Judge.
The Synopsis of the case in the courts below
It is relevant to pause and make some observation on the synopsis of the trial. Appellant pleaded not guilty to the information and made his defence. At the conclusion of the case for the prosecution, counsel for the accused now appellant, submitted that the accused had no case to answer. The submission was entirely based on the inadequacy of the evidence adduced by the prosecution, and contradictions in the evidence of prosecution witnesses. There was no complaint as to the defect in the information as laid. In his ruling on the submission, the learned trial Judge stated as follows-
“The accused is charged on information in two counts with the offences of Robbery punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and conspiracy contrary to Section 3A(b) of the same Act. He pleaded not guilty to each count of the information.” (Italics mine)
Thus ex facie the information as reproduced in the record of proceedings at p.1, charged appellant with the offences of Robbery, punishable under Section 1(2) (a) of the Robbery and Firearms Act, 1970, and Conspiracy, contrary to section 3A (B) and punishable under Section 1(1) of the Robbery and Firearms Act, 1970. But in the ruling of the learned trial Judge on the no case submission made by Counsel for the appellant, after the prosecution’s case, he said, appellant had pleaded not guilty to the information charging appellant with offences under Sections 1(2)(a) and 3A(B) of the Robbery and Firearms (Special Provisions) Act, 1970. This is the correct title of the statute. Also in his judgment convicting appellant, at p.50 of the record of proceedings, the learned trial Judge presumably referring to the information before him and reproduced in his ruling, said:
“I am satisfied that the charges of conspiracy and armed robbery as laid in the information have been proved by the prosecution beyond all reasonable doubt. I therefore find the accused guilty as charged on each count of the information. He is accordingly convicted on each count of the information.”
The learned trial Judge then proceeded to impose the sentence of death prescribed for conviction of the offence. The accused appealed to the Federal Court of Appeal, now the Court of Appeal, Division at Benin City. Initially, two grounds of appeal were filed. Subsequently, leave of the Court was sought and obtained to file and argue two additional grounds. During argument, Counsel for the appellant abandoned all but one of the grounds of appeal, i.e. ground 3 of the additional grounds of appeal, which reads-
“3. The learned trial Judge erred in law in convicting the appellant of a non-existing law in the statute book.
PARTICULARS OF ERRORS
(a) Count 1 as charged on the information did not disclose any offence at all.
(b) Count 2 as charged on the information did not disclose any offence on the existing law of the Federation.”
ARGUMENTS OF COUNSEL IN THE COURT OF APPEAL
In his argument, Mr. Ajayi, Counsel for the appellant, for the first time, and in the Court of Appeal, raised the point of law which counsel for the e appellant has adopted in this Court. This is that the appellant was charged with an offence in a non-existing law. He submitted that the law in the statute book in respect of the offence with which appellant was charged is the Robbery and Firearms (Special Provisions) Act 1970, (as it was then known) but now as Decree No. 47 of 1970 and not Robbery and Firearms Act 1970.
Accordingly the sections of the law under which appellant was charged did not exist. It was submitted, therefore, that the conviction was irregular and ought to be set aside. Counsel relied on Commissioner of Police v. Aburime (1978) 11 & 12 S.C. 145 at p. 146. Counsel for the respondent in the Court of Appeal, and before us has admitted the omission of the phrase “Special Provisions” but submitted that the omission made no difference to the description of the law.
He contended that the omission did not mean that appellant did not commit an offence known to the law. It was submitted that with the commencement of the 1979 Constitution, the words “special provisions” in the Robbery and Firearms (Special Provisions) Decree became a mere surplusage. It was finally submitted that since appellant was not misled by the omission, there was no miscarriage of justice. Sections 166, 168 Bendel State Criminal Procedure Law, and Commissioner of Police v. Okoye v. (1964) 1 All NLR 305, R. v. McVitie and Saka v. The State (1981) 11-12 S.C. 65 were cited and relied upon.
DECISION OF THE COURT OF APPEAL
In dismissing the appeal, the Court of Appeal held that the omission of the words “special provisions” in the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970, in describing the applicable law in the information under which appellant was being charged was a mere mistake on the part of Counsel who drafted the information; and that it was a defect which could have been cured by amendment. The Court distinguished Commissioner of Police v. Aburime (Supra) relied upon by appellant from the appeal before it on the ground that in Aburime, the law under which appellant was charged did not exist at the time of the indictment and trial. Appellant has further appealed to this Court.
ARGUMENTS OF COUNSEL IN THIS COURT
I have already reproduced the two grounds of appeal filed and argued before this Court. The briefs of argument filed by both Counsel for the appellant and of the respondent are similar to the argument addressed to the Court below.
Mr. Shola Rhodes, Counsel for the appellant stated the pith of appellant’s case in paragraphs 7 and 9 of his brief in part as follows –
“7. In this appeal, it is not a case of an offence not known to the law, but a case where the law under which the accused is charged as framed in the information does not exist. It is conceded to the Court of Appeal that the two charges which are armed robbery are known offences, but there is no law in the Act, as stated in the charge – thus: Robbery and Firearms Act 1970 s. 1(2)(a) and s. 3A(B) – See Meek v. Powell ante Garfield Maddocks (1974) QBD 7.
“9. I must emphasise again, that the point in dispute is not whether the Appellant was misled, but that he has been charged under a non-existent law, and thereby occasioned substantial miscarriage of justice…….”
THE ISSUE AT STAKE
The question which arise here are-
(i) Whether the Statute under which appellant was charged was incorrectly described or stated
(ii) If the answer is in the affirmative, what is the effect on the trial and conviction of the appellant
It was rightly conceded by the respondents that the correct designation of the Statute under which appellant was charged is the Robbery and Firearms (Special Provisions) Decree, 1970. This is clearly stated as its short title by S.10(1) of the Decree. Section 10(2) repealed earlier Decrees and Edicts dealing with the same subject matter such as-
I. The Suppression of Robbery Decree No.2 of 1967 of the Federation.
- The Robbery (Summary Trial and punishment) Edict No.3 of 1967 of the former Western Region.
- The Robbery (Special Provisions) Edict No. 1 of 1968.
- The Robbery (Special Provisions) (Amendment) Edict No. 1 of 1970, both 3 & 4 are of Lagos State.
Thus on the repeal of all these laws, the only laws extant governing the offence as at the date of the trial, are –
- Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.
- Robbery and Firearms (Special Provisions) (Amendment) Decree No. 48 of 1971.
- Robbery and Firearms (Special Provisions) (Amendment) Decree No.8 of 1974.
- Robbery and Firearms (Special Provisions) (Amendment) (No.2) Decree No. 29 of 1974.
- Sections 401 and 402 of the Criminal Code of Bendel State, Cap. 48, Vol. II Laws of Bendel State 1976.
POSSIBLE DILEMMA OFTHE APPELLANT
Although there is no law known as Robbery and Firearms Act, 1970 as was stated in the information; on a careful examination of the provisions of the Decree under which appellant was charged, i.e. section 1(2)(a) for Robbery, and conspiracy under section 3A(B), it is quite clear that the offences so described are identical with the offences under s.1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.The offence of conspiracy under s.3A(b) was made part of the principal decree by s.2 of the Robbery and Firearms (Special Provisions)(Amendment) Decree No. 48 of 1971, which amended s.3 of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 by the insertion of section 3A. It came into force on the 14th October, 1971. Again by s.1 of the Robbery and Firearms (Special Provisions) Decree No.8 of 1974 which was made retrospective and came into force on the 8th August, 1970, the decree emphasised the mandatory nature of the penalties prescribed in the principal decree.
The Robbery and Firearms (Special Provisions) (Amendment) (No.2) Decree No. 29 of 1974, apart from varying the ranks of members of the Police Force or Armed Forces in the tribunals, the decree by s. 1 inserting a new section 6 to the principal decree, empowered the Attorney-General of the Federation to make rules relating to the procedure to be adopted in the prosecution of offences under the principal decree, Section 1confers a right of appeal to the Supreme Court, by inserting a new s.7 in the principal decree. Thus an offence under the Decree is only by trial in the Tribunal, and on conviction involves a punishment of death. But a right of appeal to the Supreme Court was provided.
On the other hand, the offence of Robbery with violence under sections 401, 402 of the Criminal Code, similar to the Robbery and Firearms (Special Provisions) Decree offences is triable in the regular Courts and attracts a maximum punishment on conviction of imprisonment for life. This seems to me the essential difference between offences of robbery with violence under the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 and under provisions of the Criminal Code. Thus, depending upon the facts and the circumstances, an offence of Robbery with violence is triable either by the tribunal and involves, on conviction, the death penalty; or in the regular Courts, which on conviction involves life imprisonment. The prosecution has a choice depending on the aggravating circumstances of the Robbery. It is therefore important for the accused to know under which provision he is standing trial.
in the appeal before us the sections of the law under which appellant was charged points quite clearly to the fact that the law in contemplation is the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended by the provisions of s.2 of the Robbery and Firearms (Special Provisions) (Amendment) Decree No. 48 of 1971. This is because there is no law repealed or extant which is titled Robbery and Firearms Act 1970. Furthermore the particulars of the offence as charged in the information fall clearly within the provisions of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. The question to be answered now is whether there was a misdescription, and if there was. whether it has occasioned a miscarriage of justice.
THE QUESTION OF MISDESCRIPTION AND EFFECT
Counsel for the respondent has contended that it was an inadvertent omission which is innocuous. It was also argued that the words omitted are a surplusage which in any event has not occasioned a miscarriage of justice. The contention of appellants that the offence charged was brought under a non-existing law relies entirely on the misdescription of the offence in the information. There is clearly no doubt that there has been a misdescription of the law as laid in the information. Although it has not been contended before us that the misdescription in the information is the result of a typographical error in the compilation of the record of appeal, the following reasons give credence to such assumption. First, the learned trial judge in his ruling on a no case submission (which I have already referred to in his judgment) correctly described the offence with which appellant was charged, as Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. He also in his judgment found the appellant guilty as charged. Again, the point now being taken was not taken by counsel for the accused at the trial. It would appear to me that the point did not arise as there was no defect in the information filed as the learned trial Judge correctly described the law under which the information was laid. In order to sustain such a contention it will be necessary to adduce evidence of the nature and correctness of the information as laid. Since there is no such evidence before us, and this was not the contention of Counsel, I do not wish to pursue that line of reasoning. – see State v. Gwonto & Ors. (1983) 3 S.C. 62 at pp. 105 – 109.
THE QUESTION WHETHER THE INFORMATION CHARGED OFFENCES IN AN EXISTING LAW
However, if it is argued that the information as laid and pleaded to at p.1 of the record of proceedings was the one under which appellant was tried and convicted, the question is whether the information has charged offences in an existing law The answer to this question rests on the answer to the effect of the misdescription of the Decree under which appellant was charged. The view taken in the Court of Appeal was that the omission of the words “special provision” in the description of the Decree was a mistake on the part of Counsel who drafted the charge and that this could be cured by amendment of the information. It was also said that the information merely stated the law under which appellant was charged imperfectly and that it was open to appellant to raise objection as soon as the charges were read. The Court of Appeal concluded that appellant was not misled by the misdescription and there was therefore an offence in an existing law. It was consequently held there was no miscarriage of justice in the trial and conviction of the appellant.
Counsel for the appellant has relied on the argument that because of the misdescription of the law, the offences charged in the information are not contained in an existing law. He has relied on the provisions of section 33(8) of the Constitution 1979, and section 4 of the Criminal Code, which provide as follows-
Section 33(8) of the Constitution 1979-
“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence; and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”.
Section 4 of the Criminal Code Act which is similar and identical in effect, provides –
“No person shall be liable to be tried or punished in any Court in Nigeria for an offence except under the express provisions of the code, or some other Act, or some Law, (or of some Order in Council made by her Majesty for Nigeria) or under the express provisions of some statute of the Imperial Parliament which is in force, in, or forms part of the law of Nigeria; Provided that in the case of an offence committed before the commencement of this Act the offender may be tried and punished either under the law in force when the offence was committed or under the code, provided that the offender shall not be punished to any greater extent than was authorized by the former law.” Section 11 also provides that –
“A person cannot be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred”.
AN INTERPRETATION OFTHE PROVISIONS
These two provisions relate to the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law. – See Aoko v. Fagbemi (1961) 1 All N.L.R. 400. It does not cover the trial and conviction of any person for any criminal offence which is defined, and the penalty thereof is prescribed in a written law. It cannot seriously be contested that, on the facts, the acts alleged to have been committed by the appellant did not constitute an offence at the time of their commission. Section 33(12) of the Constitution 1979 provides for such cases. For the sake of completeness, I reproduce s.33(12) which is as follows-
“Subject as otherwise provided in this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this sub-section, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law,”
A combined reading of the provisions of 5.33(8) and s.33(12) of the constitution 1979 suggest that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence, which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus it is clear that a mere misdescription of the law under which a charge has been brought, does not necessarily render the offence charged one not known to the law at the time of its’ commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any misdescription of the law under which the charge was laid.
As I have stated in this judgment the missing element in the information is the words “special provisions” in the title of the statute creating the offence. Otherwise the essential ingredients of the offence created by the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 are complete. In my opinion the omission of the words complained of in the statute amount to a misdescription which could have been dured by amendment during the trial. it is well settled that the trial Judge can, under Sections 162, and 163 of the Criminal Procedure Act amend the charge under which any person is being tried so long as the provisions of section 164 and 165 of the Criminal Procedure Act are complied with. – Queen v. Ogunremi 1961 1 All N.L.R. 467. Joseph Okosun v. The State (1978) 2 L.R.N. 314. Echeazu v. Commissioner of Police (1974) 2 S.C. 55. There is nothing to show that the information as laid was amended at any stage of the proceedings up to conviction. Indeed, it was assumed on all sides, both in the court of Appeal, and before us that there was no effort to amend. I do not think the Court of Appeal was in a position to amend the information because it could not have complied with the provisions of s.163, 164 of the Criminal Procedure Act, which is mandatory.
THE NATURE OF THE MISDESCRIPTION
The respondent regards the omission as a trivial mistake, which did not involve a miscarriage of justice. This was the view of the court of Appeal. Mr. Sho1aRhodes for the appellant’s contention is that there has been a substantial miscarriage of justice because appellant has been charged under a non-existent law. He relied for this proposition on S. 151(3) of the Criminal Procedure Act and the English cases of Meek v. Powell (1952) 1 K.B. 164, 167; Rex v. Taylor (1924) 40 T.L.R. 836, R. v. Tuttle (1929) 21 Cr. App. R. 85. I consider this a misconception of the nature of the error, and its effect on the trial and conviction of the appellant. Section 151(3) of the Criminal Procedure Act, 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.”
The meaning of this sub-section of section 151 is, in my opinion, unambiguous and free from doubt. It lays down that the information or charge shall state the statute and the section of the statute under which the information or charge is being laid. It is clear that there was effort to comply with these requirements. The information has stated both the written law and the section of the written law against which the offence is said to have been committed. Although the requirement of s.151(3) would seem to be mandatory, the provisions of s.166 of the Criminal Procedure Act, which is in the same part, (Part 18) of the Criminal Procedure Law, (Cap 49 of Laws of Bendel State), indicates the contrary. Section 166 provides that-
“No error in stating the 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 infact misled by such error or omission.”
Thus error in stating the statute or the section of the statute under which the information or charge is laid per so will not be regarded as material unless the accused is misled by such omission or error. However, where the omission or error is sufficient so as to mislead the accused in his defence, of the charge, such omission or error is material and would in my opinion, vitiate the trial. Thus the law distinguishes omissions or error which are trivial and not material and will not vitiate a trial, and those which are material and will vitiate the trial. Where the omission or error is material to the charge it necessarily misleds and will vitiate the trial. For instance where the information refers to a repealed enactment, and there is no similar offence known to the law, the error would be regarded as material and fundamental, and will undoubtedly mislead the accused. – See R. v. Ogunremi (1961) 1 All N.L.R. 467.
In R. v. Taylor (1924) 18 Cr. App. R. 105, appellant was charged under s.74 of the Municipal Corporations Act, 1882. This section created the criminal offence of delivering to a Town Clerk any forged nomination paper with knowledge that it was forged. Section 20 of the Forgery Act, 1913 and the Schedule to the Act had repealed the words in s.74 of the 1882 Act creating the offence. Thus the offence was no longer created by s.74 of the Municipal Corporations Act, 1882. Consequently, it was held that the indictment which cited s. 74 of the Municipal Corporations Act 1882 was bad, the wrong section having been mentioned in the indictment.
Rex v. Tuttle, 28 Cox C.C. 610 is a decision of the English Court of Criminal Appeal, where the indictment was defective because the wrong statute i.e. s. 21 of the Larceny Act, 1916 which had not come into force at the date of the offence had been inserted. During the trial, the indictment was amended by inserting the new statute s.80 of the Larceny Act 1861 which was defined in almost the same words as the earlier statute. It was held at p. 615 by Avory l. that the appellant could not have been prejudiced by the amendment, nor could injustice be done to any defence he might have given since the words of the sections under which the appellant was tried after the amendment were identical to those of the section of the statute he was charged in the original indictment.
Meek v. Powell (1952) 1 KB. 164, heavily relied upon by Mr. Shola Rhodes for the appellant was also a decision of the English Court of Criminal Appeal. Like R. v. Taylor (supra) and R. v. Tuttle (supra), it also dealt with the question of amendment of a defective indictment. Like R. v. Taylor, the question was whether the indictment, having not been amended during the trial could be amended an appeal. The Court of Criminal Appeal, Byrne J, Lord Goddard C. J. and Parker J. following R v. Taylor (supra) held that if the conviction took place without the indictment being amended, the Court of Criminal Appeal would have no option but to quash the conviction. Mr. Rhodes quoted in his brief at p. 5, the view expressed by Lord Goddard C. J. in this case, that,
“If this were a conviction on indictment and the indictment had charged an offence under a wrong section although the Court had power to amend the indictment before the trial and put the right section in, it seems clear that if the conviction took place without the indictment being amended, the Court of Criminal Appeal would have no option but to quash the conviction.”
It is fairly clear from the cases cited and relied upon that they all deal with the situation where the indictment charged either a repealed offence or a section different from the one creating the offence. Where the indictment remained unamended, the conviction was quashed on appeal. Where it was amended, it has been held to be valid and not in prejudice of the appellant.
In Clifford Nelson (1977) 65 Cr. App. R. 119, the Court of Criminal Appeal considered all the above cases, and also the question of the failure to comply with the Indictment Rules 1971. The facts of the case are that appellant was charged inter alia, with possessing an offensive weapon (count 7). The statement of offence in respect of this count, in the indictment did not state the statute which appellant was alleged to have contravened (i.e. section 1(i) of the Prevention of Crime Act 1952). At the end of the trial, Counsel for the appellant moved for the arrest of judgment on the ground that the indictment on that count was defective. The trial judge refused to
amend but proceeded to convict and sentence the appellant. It was argued on appeal that the defect at the trial rendered the trial a nullity. It was held that the indictment was not a nullity, but was merely defective. The Court would not merely on this ground quash the proceedings on the ground that there had been a nullity. Nevertheless, the summing up was held to be defective because the jury was not properly directed on how to approach Count 7. The verdict on that count was unsatisfactory and the conviction in respect of it was quashed.
In coming to their decision, the Court said that the very fact that the judge could have amended the indictment indicated that the indictment was not a nullity, but was merely defective. It was also said that although the Court had no powers to amend the indictment, it clearly had the power to consider a case where there has been a defect in the indictment because there has been a failure to comply with the indictment rules. The court had power where there was a defective indictment to apply the proviso. Where the indictment is a nullity the Court has no power to apply the proviso.
The appeal before us is different in important respects. The issue of amendment of the information did not arise during the trial or at any time thereafter. Furthermore, the question in issue is the effect where there was a non-compliance with the provisions of s.151(3) of the Criminal Procedure Act. There was the attempt to set out in the information the written law and the section of the written law against which the offence is said to have been committed. The crux of the matter is whether the omission of the words “special provisions” in the statement of the written law is fatal to the information as laid Counsel for the appellant submitted that the offence as described was unknown to the law. Counsel for the respondent argued that the words were mere surplusage and do not affect the information. I do not share the view that the words “special provisions” in the: Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 is a mere surplusage which may be dispensed with ab convenienti. The phrase is part of the short title of the Decree provided in its s.10(1) and intended for its identification. As was stated in Vacher & Sons Ltd. v. London Society of Compositors (1931) A.C. at pp. 128-129,
“…. it is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title. It is not legitimate…..to use it for purposes of ascertaining the scope of the Act. Its object is identification and not description.”
This view was repeated in National Telephone Co. Ltd. v. Postmaster General (1913)A.C. at p. 560.
In in Boaler, Vexations Action Act 1896 (1915) 1 KB. 21 at 27, Buckley L.J. said,
“As to title the matter is governed by the title placed at the head of the Act, and that is “An Act to prevent abuse of the Process of the High Court or other Courts by the institution of Vexations Legal Proceedings.” That is the governing title. The fact that for the purpose of identification only and not of enactment also authority is given to identify the statute by a particular name in which the word “action” occurs is, I think, immaterial. The words “This Act may be cited as the Vexatious Actions Act, 1896,” effect nothing by way of enactment. They do no more than create a name, and whether it is as a matter of description accurate or not is immaterial.”
Since the short title of the Decree which is merely for its identification and not its description is what has been wrongly stated, this, is in my opinion, merely a defect in the information which could have been cured by amendment. The amendment was not sought and appellant was convicted on the defective information. There is no doubt that since the amendment during the trial could have cured the information, the trial was valid. The issue then arises whether the defect in the information would have misled the appellant in his defence as provided in S.166 of the Criminal Procedure Act cited above.
Miscarriage of Justice
I do not think appellant was misled by the omission of the phrase “special provisions” in the identification of the written law under which the offence with which he was charged was laid. Appellant was throughout the trial represented by counsel who is presumed to appreciate the difference between a trial by a Tribunal under the Robbery and Firearms (Special Provisions) Decree, and trial by the regular courts under the provisions of s.402 of the Criminal Code. Furthermore, appellant was charged under the provisions of s.1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended bys.2 of the Robbery and Firearms (Special Provisions) Decree No. 48 of 1971 which corresponds completely with the offence as laid in the information.
It is pertinent to critically examine the ipsissima verba of sections 4, 11 of the Criminal Code Act, and sections 33(8),(12) of the Constitution 1979. The effect of these sections which have already been reproduced in this judgment is that a person can be tried and convicted for any offence under the law in force when the act or omission constituting the offence was committed. The penalty in respect of conviction shall not be heavier than the penalty in force when the offence was committed. This is so even where the statute creating the offence was misdescribed. If the essential ingredients of the offence known to the law, as in this appeal, the accused is charged with an offence known to the law. If the defence of the accused, as in this case, clearly shows that he was not misled by the incorrect description of the statute creating the offence, the trial and conviction is in my opinion valid. The constitutional prohibitions in s.33(8),(12) speak of acts or omissions which did not at the time of their taking place constitute such an offence. The rnisdescription of the statute creating an offence does not remove the acts or omissions in the information from the category of offences known to the law; where such offences already exist. There is no doubt that the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 is such a law as prescribed under s.33(12) of the Constitution 1979. There is also no doubt that it create the offences under which appellant was charged. It is in the circumstance of little moment to contend that the statute stated in the information did not create any offence. What is material, in my opinion, is whether appellant was charged with an offence known to the law. As long as appellant was not misled by the omission, no miscarriage of justice has occurred and the conviction is right.
In the appeal before us, it has not been contended that the offence with which appellant was charged does not exist. The contention is that the statute indicated in the information as creating the offence charged does not exist. This is beside the point.
I agree entirely with the Court of Appeal that the error did not affect the trial and conviction of the appellant and did not lead to a miscarriage of justice.
Conclusion
In the circumstances, the non-compliance with the provisions of s.151(3) of the Criminal Procedure Act, is not such an error as is material to mislead the appellant in his defence of the charges against him. Appellant knew at the time he was arraigned before the Armed Robbery Tribunal that he was standing trial before such a Tribunal. I do not think that the omission of the words “special provision” in the description of the Decree creating the offence under which he was charged, altered either the character of the Tribunal, or the nature of the offence under which he was charged. I agree with the Court of Appeal that there was no miscarriage of justice, and the appeal ought to be dismissed.
These are my reasons for dismissing this appeal.
A. O. OBASEKI, J.S.C. (Presiding): After hearing the argument of counsel in this appeal on the 22nd of November, 1984, I dismissed it and reserved my reasons till today.
The two grounds of appeal argued raised the issue whether the conviction of the appellant for the offences of armed robbery and conspiracy could be sustained having regard to the fact that the offences were laid under a non-existent statute, the Robbery and Firearms Act 1970.
There is a statute – The Robbery and Firearms (Special Provisions) Act 1970 which prescribes the two offences charged in the sections quoted for the non-existent statute. The said two grounds of appeal read:
“1. The conviction of the appellant as affirmed by the Court of Appeal is illegal and unconstitutional and ought to be quashed because it was in contravention of section 33(8) of the Constitution of the Federation 1979 and section 4 of the Criminal Code of the Bendel State.
Particulars of Illegality
- The appellant was convicted of an alleged offence which was not prescribed by any enactment or other written law as framed in the charge.
The conviction of the appellant as affirmed by the Court of Appeal ought to be quashed because the conviction was affirmed under a section of the Act which does not exist.”
An examination of section 33(8) of the Constitution of the Federal Republic of Nigeria 1979 shows that the provisions were carefully worded. It reads:
“No person shall be held guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”
The offence in count 1 of the information states briefly that the appellant:
“on the 28th day of March………… robbed one Emmanuel Usoegbu of the sum of N12.00k and at the time of the robbery you (the appellant) were armed with an offensive weapon to wit a locally made pistol.”
The offence charged in count 2 was that the appellant
“conspired with other persons to commit the offence of robbery” The statement of offence in count 1 reads: “Robbery ….” and the statement of offence in count 2 reads: Conspiracy…..” The 1st question that arises in the light of section 33(8) of the Constitution is whether the act of robbing someone and whether the act of conspiring with someone to rob constitute an offence of robbery and an offence of conspiracy to rob on the 28th day of March, 1981.
The short answer to the question is in the affirmative, i.e. that they were offences cognizable under the Robbery and Firearms (Special Provisions) Act 1970 and under the Criminal Code Cap 48 Vol. 11 Laws of Bendel State 1976.The defence and the prosecution fought the case on the understanding that the offences were laid under the Robbery and Firearms (Special Provisions) Act 1970 which makes the act a criminal offence. The conviction of the appellant for those acts was therefore neither illegal, nor unconstitutional.
Learned counsel for the appellant quite correctly and properly made the point that the Robbery and Firearms Act 1970 under which the offences were laid did not exist in our statute book under that title. It is Robbery and Firearms (Special Provisions) Act 1970 that exists in our statute book. Although it does no credit to the prosecution to describe or set out incorrectly the title of the Act under which an offence is charged, it will be falling into serious error in law and unreasonable depth of technicality occasioning grave miscarriage of justice to hold that the offence does not exist by virtue of the misdescription.
The questions for determination have been given detailed examination in the Reasons for Judgment just delivered by my learned brother, Karibi Whyte, J.S.C. a draft of which I had the privilege of reading in advance. I agree with all the opinions expressed therein. It was for the above reasons and those reasons so lucidly set out by my learned brother, Karibi-Whyte, J.S.C. that I dismissed the appeal.
A. N. ANIAGOLU, J.S.C.: I have had a preview in draft of the reasons for judgment given by my learned brother, Karibi-Whyte, J.S.C., and I am in agreement with those reasons and thereby adopt them as mine own. I have also been privileged to read in draft those of my learned brother, Oputa, J.S.C.
I agree.
The case the subject-matter of the charge was one of broad day light (about 11 a.m.) armed robbery at Agbede farm, along Auchi/Benin Road, on 28th March 1981. The facts of the case were not contested in this appeal nor was any other point of law raised than the omission of the words “Special Provisions” in the setting out of the Statute under which the appellant was charged, namely, the Robbery and Firearms (Special Provisions) Act 1970. Section 166 of the Criminal Procedure Law of Bendel State demands that a trial court should not let off an otherwise guilty accused person by reason only of an existence of a trivial error in the setting out of the charge on which the accused person is being tried. The section reads:
“166. No error in stating the offence or the 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.”
It is necessary to emphasise in that section the three words “infact misled.” Counsel for the appellant, Mr. Sola Rhodes, clearly stated before us that the appellant was not misled by the error or omission of the words “Special Provisions.” The appellant obviously knew he was charged with armed robbery which was an offence known to the law on 28th March, 1981, the date alleged to be the date of the commission of offence – an offence provided for in the Criminal Code of Bendel State as well as the Special Provisions Decree, 1970. It was certainly not a case of an offence not known to the law as contemplated by s. 33(8) of the 1979 Constitution. The decided authorities have been set out by my learned brother, Karibi- Whyte, J.S.C. in his reasons for judgment and 1 need not go over them here.
The dictates of justice which command that the guilty be punished and the innocent set free, after a fair hearing under procedural regularity, do not permit the acquittal of an otherwise guilty accused person upon fanciful errors contained in a charge. The law always aims at substantial justice. It was for this reason, for example, that in R. v. Mc Vitie (1960) 2 All E. R. 498, in a charge of possessing explosives contrary to S.4(1) of the Explosive Substances Act, 1883 – an enactment which made it a felony for a person “knowingly” to have in his possession an explosive substance in the particular circumstance, the appellant, who pleaded not guilty and admitted he knew that the contents of a bag in his possession, at the time on the alleged offence, were explosives, was convicted. On appeal the court, in dismissing the appeal, while holding that the particulars of the offence ought to contain the word “knowingly” decided that the omission did not make the indictment bad but only defective or imperfect, and since knowledge, which was an essential ingredient of the offence, was established at the trial, no embarrassment or prejudice had been caused to the appellant by the omission. That reasoning had earlier been adopted by the West African Court of Appeal in Rex v. Nelson Asiegba (1937) 3 W.A.C.A. 142 in which the charge was open to objection on the ground of duplicity but no objection was taken; the acts constituting the offence were admitted, the appellant was neither prejudiced nor embarrassed, and there was, to the satisfaction of the Appeal Court, no miscarriage of justice.
The appeal had clearly no merit. It was for that reason and the wider reasons given by my learned brother, Karibi-Whyte, J.S.C., that I dismissed the appeal on 22nd November, 1984.
S. KAWU, J.S.C.: We dismissed this appeal on 22nd November, 1984 and indicated that we would give our reasons for doing so today. I have had the advantage of reading in draft the reasons for judgment just read by my learned brother, Karibi-Whyte, J.S.C. and I respectfully adopt those reasons as mine.
C. A. OPUTA, J.S.C.: The appellant was charged with the offences of Conspiracy and Robbery. He was tried in Auchi by Amissah, J. of the Auchi Judicial Division of the Bendel State High Court, found guilty of both offences and sentenced to death by hanging. His appeal against the above conviction and sentence was dismissed by the Court of Appeal Benin Division. He now appeals to this Court. After listening to oral arguments advanced by learned counsel on both sides in elaboration of the material points in their respective Briefs, the Court on 22/11/84 dismissed the appeal, indicating that reasons for the dismissal will be given today 15/2/85. Hereunder are my reasons.
Learned counsel for the appellant, Shola Rhodes Esquire, did not contest the facts nor the findings offact of the trial court. His main attack was; in the court below, and is in this Court, against the charge of Armed Robbery as framed. This is abundantly revealed by the two additional grounds which he argued together and which were the only grounds argued.
Ground 1 complained that:-
“The conviction of the appellant, as affirmed by the Court of Appeal, is illegal and unconstitutional and ought to be quashed because it was in contravention of Section 33(8) of the Constitution of the Federation 1979and Section 4 of the Criminal Code of the Bendel State.”
Particulars of Illegality
“The appellant was convicted of an alleged offence which was not prescribed by any enactment or other written law as framed in the charge.”
Ground 2 then concludes that:-
“The conviction of the appellant, as affirmed by the Court of Appeal ought to be quashed because the conviction was affirmed under a Section of the Act which does not exist.”
What really is the complaint in these grounds It is this -that there is a law known as and called “The Robbery and Fire Arms (Special Provisions) Act 1970.” It was conceded by Mr. Shola Rhodes that robbery is an offence known either to the Criminal Code or to the Robbery and Fire Arms (Special Provisions) Act 1970. The only complaint is that in charging the appellant, the 1970 Act was not fully described as the “The Robbery and Fire Arms (Special Provisions) Act 1970.” It was also conceded by Mr. Rhodes, that the appellant was in no way either misled or prejudiced in his defence by this failure to describe fully the Act under which the appellant was charged, tried, convicted and sentenced.
Both in his brief and his oral argument in court, Mr. Rhodes referred to, and relied on Section 33(8) of the 1979 Constitution of the Federal Republic of Nigeria. That section states:
“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no “penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”
This section will be relevant and pertinent, if it is shown that “on or about 28th March 1981” when the appellant was alleged to have done the acts leading to the offence charged, there was no offence known to any written law as “Robbery” Mr. Rhodes had earlier on conceded that “Robbery” had all along been an offence in Nigeria including Bendel State. Under the Criminal Code, the punishment for Robbery simpliciter is fourteen years and for “Armed Robbery” imprisonment for life. Under the Robbery and Firearms (Special Provisions) Act 1970 the punishment is death. By 1981 when the appellant was charged, tried and convicted there was both sentence of life Imprisonment and a dath penalty for the same offence. The trial court and the Court below therefore, did not in any way, offend against or contravene the provisions of Section 33(8) of the 1979 Constitution.
Now what is the legal effect of the omission of the words (Special Provisions) in describing the Robbery and Firearms Act 1970 in the charge The Court below dealt with this issue and held, rightly in my view, that:-
“It is clear also to me that the omission of the words Special Provisions (in Bracket), from the statute under which the charges were brought, was a mere mistake on the part of counsel who drafted the charge. It was a defect which could have been cured by amendment. In this regard Section 168 of the Criminal Procedure Law Cap. 49, Laws of Bendel State, becomes relevant.”
Section 166of Cap. 43, Laws of the Federation or (Section 166 Cap. 49, Laws of Bendel State):-
“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any time of the case as material unless the accused was in fact misled by such error or omission.”
It is agreed on both sides that there was an omission to include the words (Special Provisions) in bracket, in the charge as laid. The important thing about “the charge” in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case” – Section 151(4) of the Criminal Procedure Act Cap.43 of 1958. The charge must not therefore have defects or errors which could, mislead the accused. The emphasis is not, on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact mislead the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known a offence: see R. v. Ijoma & Ors. (1962) All N.L.R. 402; Mgbemene v. I.G. of Police (1963) 1 All N.L.R. 321; Omisade & Ors. v. R (1964) 1 All N.L.R. 233. With Mr. Rhodes conceding that the defence was neither misled nor prejudiced by the omission, the bottom seems to be knocked off the two grounds of appeal filed and argued which must then fail.
Where the defence was in fact prejudiced by any error, defect or omission in the Charge, an appellate court will not hesitate in allowing the appeal Thus in the case of Hassan Shallabi & Adib Sahih v. Rex (1935) 2 W.A.C.A. 363 at p. 336 the West African Court of Appeal in allowing the appeal observed:
“We are convinced that the error in law in charging the offence under Section 276 caused such confusion at the trial and resulted in such serious misdirection to the jury that the conviction on this count cannot be allowed to stand.
As I observed earlier on, and on the authority of the cases quoted in support, the proposition is that defects, errors or omissions; in framing a charge will be no ground for quashing a conviction on a charge known to the law unless the defence was prejudiced thereby. Mr. Rhodes urged, rather feebly, that because of the omission to include the words “Special Provision” in brackets in describing the Robbery and Firearms Act 1970 in the Charge the appellant was convicted of an offence unknown to the law, an offence “which was not prescribed by any enactment or other written law as framed in the charge.”
There is a confusion of thought here. The offence of armed robbery is known both to the Criminal Code (Sections 401 and 402) and to the Robbery and Firearms (Special Provisions) Act 1970. If there was a mistake in describing the Act of 1970 that does not make the offence of armed robbery an offence unknown to the law or a charge that does not contain the full title of the Act of 1970 as amended by Act No. 48 of 1971 and Act No. 29 of 1974, a charge unknown to the law. An example of a charge for an offence unknown to law is Taiwo Aoko v. Adeyeye Fagbemi & D.P.P. (1961) All N.L.R. 400.
In that case the applicant, Taiwo Aoko, had on 21/2/61, been convicted and sentenced to one month imprisonment or to pay a fine of 2 pounds:10s. by a Grade “D” Customary Court for an alleged offence (to a charge to which she pleaded guilty) of committing adultery by living with another man without judicial separation. There was an application to the High Court on her behalf to quash the said conviction and set aside all consequential orders based on it. Since there was no written law which she had violated, her conviction was contrary to the provisions of subsection 10 of section 21 of the Constitution of the Federation 1960 which provides:
“No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.”
In allowing the application and quashing the conviction Fatayi-Williams, J. (as he then was) observed at p. 402:-
“It seems to me that the conviction of the applicant, following the rather unusual procedure adopted, is in direct violation of the rights of the applicant as guaranteed by the Constitution.”
Now adultery is not a criminal offence known to the Criminal Code or any other wirtten law. We cannot say the same of armed robbery.
In the final result, it is for all the reasons given above and for the more detailed reasons given by my learned brother Karibi-Whyte, J.S.C. in the lead judgment that I dismissed this appeal on the 22/11/84.
Appeal Dismissed
SC.127/1984
