Zanna Musa Hindi V. The State (1974)
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COKER, J.S.C.
The appellant was at the Magistrate’s Court, Maiduguri, convicted by the Chief Magistrate of an offence under Section 158 of the Penal Code. On his arraignment before the magistrate, a First Information Report (hereinafter referred to as F.I.R.) pursuant to the provisions of Section 117 of the Criminal Procedure Code was placed before the court. The F.I.R. states as follows:-
“Nature of Information Fabricating false Evidence on 15/3/73 Alhaji Zanna Musa Hindi of Bulabulin Ward Maiduguri fabricates false evidence before Yerwa Civil Court for the purpose of claiming 2 houses and one thousand naira (N1,000) said to belong to late Alhaji Zanna Laisu the late Waziri of Bornu by giving the sum of N40 to Alhaji Umar Shettima in order to bribe the members of the late Zanna Laisu’s family to come and give false evidence also he gave the sum of N100 to Alhajiya Shuwa who refused the money. The Area Court decided the case to be in favour of Alhaji Mai Deribe contrary to Section 158 (1) of the Penal Code.”
The F.I.R. was read over and explained to the appellant in the Magistrate’s Court and, in answer thereto, the appellant stated “it is not true.” He was thereafter granted bail and the hearing proceeded with the evidence of the 1st P.W., one Alhaji Mai Deribe, against whom the prosecution alleged that the appellant had fabricated evidence.
After this evidence, and on a subsequent date to which the further hearing of the case had been adjourned, learned counsel for the accused, now appellant, challenged the propriety of the F.I.R., submitting in effect that it was not properly before the court in as much as the provisions of Section 140(1)(b) of the Criminal Procedure Code had not been complied with.
The gravamen of the objection was and is that the F.I.R. having alleged “false evidence before Yerwa Civil Court” there should have been a complaint or a sanctioning of such complaint by the court concerned in order to ground jurisdiction in the Magistrate’s Court to try the appellant. In reply to this submission, the prosecution submitted that the case before the court was not dependent on Section 140 of the Criminal Procedure Code and that there being no reference to any court proceedings, it was not necessary for the prosecution to comply with the provisions of Section 140 (1) (b) of the Criminal Procedure Code. In a considered ruling, the learned Chief Magistrate overruled the preliminary objection and continued with the hearing of the case. Five witnesses thereafter gave evidence for the prosecution which then announced the close of its case. At this stage, the Chief Magistrate made an order in these terms:-
“Order – adjourned to 4/12/73 for ruling. Bail extended.”
On the 4th December, 1973, when hearing was resumed in the case, the learned Chief Magistrate gave his reserved ruling and the records show the following notes by the Chief Magistrate:-
“Ruling:-
I have carefully considered the evidence before me and I hold that the Prosecution has made out a prima facie case against the accused on which a charge should be preferred against him. I will therefore charge the accused.
I, Joseph Chuma PHIL-EBOSIE, Chief Magistrate, do hereby charge you ZANNA MUSA HINDI, as follows:-
That you, some time in February to March, 1973, in Maiduguri, in the North Eastern Magisterial District, fabricated false evidence for the purpose of its being used in a claim against Alhaji Mai Deribe, by giving various sums of money to Alhaji Umar Shettima and others in order that they might give evidence in the Upper Area Court No. 2, Maiduguri, in a proposed claim of shop, a house and the sum of N10,000 belonging to late Zanna Laisu, which the said Alhaji Mai Deribe had in his possession, knowing same to be false, and thereby committed an offence punishable under Section 158 (1) of the Penal Code.
Charge read over and explained to the accused.
Accused pleads – Not guilty.
Akinyemi for accused states he does not want any witness for prosecution who had given evidence recalled.”
The appellant then apparently gave evidence in his own defence calling three witnesses. After the address of learned counsel for both sides, the learned Chief Magistrate, in the course of a reserved judgment, convicted the appellant of the offence charged and sentenced him to imprisonment for three years. Although neither counsel in the course of his final address to the court referred to the competency of the proceedings by virtue of the provisions of Section 140(1)(b) of the Criminal Procedure Code, the learned Chief Magistrate, in the course of his judgment, made the following observations which are pertinent to that point:-
“After this testimony on 17th October, 1973, the learned counsel for the accused raised an objection stating that the F.I.R. is not properly before the Court as it did not comply with the provisions of Section 140(1)(b) of the C.P.C. The prosecution replied to this. On 25th October, 1973, the Court gave a ruling on this issue and over-ruled the objection of the learned counsel for the accused and held that the F.I.R. was properly before the Court and that the case for prosecution should proceed. I do not intend to go into the issue as regards to the provisions of section 140 (1)(b) of the C.P.C. at this stage, as in my opinion my Ruling on the issue is explicit and contained in the Records of Proceedings.”
The appellant thereafter appealed from the decision of the Chief Magistrate to the High Court of the North-Eastern State. One of the grounds of appeal entered in his Notice of Appeal before that court reads as follows:-
“3. Since an offence under Section 158 (1) of the Penal Code was alleged having been committed by the accused at the time when the Suit No. 62/73 at Yerwa Civil Court No. 1 was contemplated and was in fact started and disposed of in that Court, the learned Chief Magistrate has no jurisdiction either to take cognisance of or to try the said offence without receiving any complaint or a written sanction from said Court.”
At the hearing of the appeal, this ground of appeal was specifically abandoned by learned counsel for the appellant, partly because it appears to have been dealt with and disposed of by the High Court in the decision which concerned an Order of Prohibition sought by the appellant against the Chief Magistrate, Maiduguri, to prevent him from hearing the case. The appellant then made, before the High Court, two successive applications to amend his grounds of appeal, bringing in the same point subtly in the first of the applications and overtly in the second one. He did not argue it on the first of the amended grounds of appeal and, again, he specifically abandoned it in the course of arguing his application for leave to amend his grounds of appeal on the second application. As to the rest of the appeal, the respondent was not called upon to reply and the appeal was dismissed by the High Court, Maiduguri on the 7th of March, 1974. In the course of his argument before the High Court, learned counsel for the appellant, obviously striving to bring in argument on a ground which had been expressly abandoned by him, submitted, inter alia, that –
“It is an ingredient of Section 158 that at time when cognisance is taken there must be other judicial proceedings in progress in relating to which further evidence has been given.”
The High Court dealt with this submission for in the course of its judgment, and concerning the present issue, the High Court observed as follows:-
“Section 158 (1) of our Penal Code is expressed in the widest terms and includes no restriction. The meaning of the phrase “fabricates false evidence for the purpose of being used in any stage of a judicial proceeding” is discussed in relation to the corresponding Section 193 of the Indian Penal Code in Ratanlal’s Law of Crimes 22nd edition at page 500, paragraph 3. There the learned editor notes that “The word ‘fabrication’ refers to the fabrication of false evidence; and if the evidence fabricated is intended to be used in a judicial proceeding, the offence is committed as soon as the fabrication is complete; it is immaterial that the judicial proceeding has not been commenced.”
The wording of S.121 (b) differs from that of S. 158 (1) and we do not think that we should emasculate the latter by reading into it a restriction which is not there.”
As stated before, the appellant had now appealed to this Court and the only ground of appeal canvassed before us on his behalf is that the trial of the appellant by the Chief Magistrate, Maiduguri, was a nullity in as much as there had been non-compliance with the provisions of Section 140(1)(b) of the Criminal Procedure Code. When the appellant was charged before the learned Chief Magistrate with an offence under Section 158 (1) of the Penal Code, and considering the wording of the F.I.R., in the submission of learned counsel for the appellant, there should have been a compliance with the provisions of Section 140(1) (b) of the Criminal Procedure Code before the learned Chief Magistrate is entitled to take cognisance of the offence.
Strictly speaking, we should not have allowed learned counsel to argue this point for it is easily discerned from the complicated proceedings which had characterized this case that at no time during the appeal to the High Court was the point raised and the appeal before us is an appeal from the decision of the High Court. There are not two channels of appeal, It is only one channel and, in normal circumstances, an appellant would not be allowed to raise on a subsequent appeal a point which he did not raise at the stage of appeal which was immediately prior to the one in question. However, we consider that the point sought to be raised appertains to an area of the criminal law which is not free from doubt and in respect of which the law must be regarded as recondite.
The argument of learned counsel for the appellant is that Section 140 (1) (b) of the Criminal Procedure Code provides that where the offence created by Section 158 (1) of the Penal Code was committed in or in relation to proceedings in a court then a charge such as the one on the F.I.R. on which the appellant was tried could not be taken cognisance of by any court unless there be a complaint, or the sanctioning of such a complaint, by the court concerned. In reply to this submission, the learned Director of Public Prosecutions submitted that the case of the prosecution against the appellant was independent of the proceedings in the Yerwa Civil Court and that in any case the commission of the offence under Section 158 (1) of the Penal Code was completed by the appellant as soon as (according to the evidence of the prosecution witnesses who testified against him and whose testimony the learned Chief Magistrate believed and accepted) he called them together and solicited them to give the type of false evidence against the 1st P.W., Alhaji Mai Deribe, as these persons resented and reported to the police.
Section 158 (1) of the Penal Code provides as follows:-
“158(1) Whoever intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for the purpose of its being used in any stage of a judicial proceeding shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.”
Obviously, the offence created by this sub-section consists of intentionally giving false evidence during a judicial proceedings or “fabricating false evidence” for the purpose of such evidence being used “in any stage of a judicial proceedings.” The section deals with the actual employment of false or fabricated evidence at any stage of judicial proceedings (i.e. proceedings which must be then in existence) or the creation of such false or fabricated evidence for the purpose of its being used “at any stage of a judicial proceedings.” Manifestly, therefore, the second limb of the provisions of the section does not necessarily imply that such proceedings as are affected should be pending and clearly may be contemplated.
Now, Section 140 (1) (b) of the Criminal Procedure Code provides thus:-
“140(1) No court shall take cognizance-
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(b) of any offence punishable under Sections 155, 158, 159, 160, 161, 164, 165, 174, 175, 179, 180 or 182 of the Penal Code when such offence is committed in or in relation to any proceeding in any court, except with the previous sanction or on the complaint of such court.”
Section 158 of the Penal Code is certainly one of the Sections of the Penal Code affected by the provisions of Section 140(1) (b) of the Criminal Procedure Code and it is apparent that where the offence contemplated by Section 158 is committed “in or in relation to any proceedings in any court” then no court should take cognisance of the offence except “with the previous sanction or on complaint of such court” affected. The submission of learned counsel for the appellant is that the charge against the appellant was in relation to the proceedings of the Yerwa Civil Court as stated in the F.I.R. and so, the previous sanction or complaint of that court was necessary in order to entitle the Chief Magistrate to take cognisance of the offence on which the appellant was tried.
In the course of his judgment, the learned Chief Magistrate admirably summarised the case of the prosecution against the appellant which he had accepted as follows:-
“From the evidence before me I am satisfied that the accused knew that none of the properties of the late Zanna Laisu still remained with the 1st W/P, but he still fabricated that fact and that he did so intending that such fabricated evidence should appear in a judicial proceedings.
The testimonies of the 3rd W/P have in my opinion satisfactorily been corroborated by the 4th and 5th witnesses for prosecution and I have no reason to disbelieve them. I have also considered Exhibits E and E1.mExhibit E is the statement the 1st W/P made to the police at the early stages of the investigation. This was tendered through the 2nd W/P by the defence under cross-examination. From this statement it appears to me that this case before the Court has been hatched previously and the evidence that was fabricated by the accused in getting people to say that two houses and the sum of N10,000 belonging to the late Zanna Laisu, was malicious and was made with a motive.
I do not believe the accused and his witnesses for defence. This case was reported to the police and the accused was brought before the court was a result of police investigation. In my opinion this offence was committed in respect of proceedings in Court which were being contemplated, but which in fact had not started. To my opinion therefore no previous sanction or complaint of any Court as required by the provisions of Section 140 (1) (b) of the C.P.C. is required.”
These facts, accepted by the learned Chief Magistrate, demonstrate that the offence for which the appellant was tried related to contemplated proceedings and certainly not to any judicial proceedings pending at the time of the commission and completion of the offence. The action of the appellant in suborning the witnesses, Alhaji Umar Shettima (3rd P.W.), Mallam Turab (4th P.W.) and Hadja Shuwa (5th P.W.) and then offering them money to give false evidence against Alhaji Mai Deribe (1st P.W.), is the offence for which he was prosecuted. The offence was complete as soon as he organised these persons in the way he did and his subsequent action of giving them money to ensure their co-operation is further evidence of his criminal intention. One of them, the 5th P.W., refused to accept the money offered her and her evidence in this connection was supported by the testimony of the 6th P.W., Hadja Badderan.
Clearly, at the time when this offence was hatched and completed by the appellant, there were no judicial proceedings pending: there can be no doubt however that the false evidence fabricated and put into the mouths of the several persons concerned was supposed to be used in some anticipated judicial proceedings. That such proceedings were in fact contemplated was evidenced by the act of the appellant in taking those persons concerned, or some of them, to the Upper Area Court No. 2, Maiduguri. So long as the proceedings contemplated lie or rest in intention of the accused person only, there may be no evidence of such contemplation and it may be difficult if possible at all to establish the actual contemplation of such judicial proceedings. But when it is proved, as indeed is the case here, that the accused person actually went to the Upper Area Court No. 2 and applied for the issue of a summons against the victim of the fabricated evidence, it will be perverse to argue that the contemplation of judicial proceedings rested only in his own intentions.
We are being invited by the learned counsel for the appellant to hold that in this case the judicial proceedings relied on are the proceedings in the Yerwa Civil Court. We are unable to do this, for clearly the proceedings referred to in the charge in this case are contemplated proceedings before the Upper Area Court No. 2, and at the time when the offence was committed these proceedings were only contemplated. Section 140(1)(b) of the Criminal Procedure Code inhibits the jurisdiction of the court when the offence is committed in or in relation to proceedings in a court. The offences created by Section 158 (1) of the Penal Code must, of necessity, have reference to judicial proceedings and unless the antithesis between actual and contemplated judicial proceedings is postulated by Section 140(1)(b) of the Criminal Procedure Code, then the application of that section to the offence created by Section 158 (1) of the Penal Code is completely meaningless. We are satisfied that the submission of learned counsel for the appellant that the trial was a nullity in that the court ought not to take cognisance of the offence against the accused persons without the complaint or previous sanction of the Yerwa Civil Court, is untenable.
Section 140 (1) (b) of the Criminal Procedure Code is concerned with a number of Sections of the Penal Code and a cursory look at these other sections of the Penal Code reveals that the offences created by those sections are all such as could mislead a tribunal of justice or frustrate its judgments and, in many of the cases, the offences are such as could be committed either in respect of contemplated proceedings or in the course of actual judicial proceedings. Learned counsel for the appellant has drawn our attention to the case of The State v. Joseph Owasi (Appeal No. JD/20CA/1973, delivered by the High Court, Jos, on the 22nd December, 1973) and has submitted that the course taken by the High Court in that case should be taken by us in the present case. We do not agree with him. In the case of Joseph Owasi, supra, the charge was valid under Section 164 of the Penal Code. We do not know from that judgment the actual charge on which Owasi was tried but it is sufficient to observe that Section 164 of the Penal Code consists of the two sub-sections and whilst the offence in sub-section (1) could be committed in respect of contemplated or anticipated judicial proceedings, that in sub-section (2) contemplates that the false declaration has in fact been used in the manner described in the section. We think it fairly clear from the report of the case that the charge against the party concerned could only have been laid under Section 164 sub-section (2) an occasion which of necessity must fall within the provisions of Section 140 (1)(b) of the Criminal Procedure Code. This must be so, for in the course of the judgment of the High Court, the following observations occur:-
“Thus unless and until sanction to prosecute had been given by the court in which the offence was committed, the court could not take cognizance of the offence disclosed in the First Information Report, and a fortiori could not be conferred with any jurisdiction to try the case.”
and, later on in the course of the same judgment, the High Court observed as follows:-
“It is abundantly clear that the granting of probate or letters of administration is a matter for the court, and that in the instant case there were proceedings in the High Court. The previous sanction or complaint of such court was a sine qua non to the taking cognizance of an offence punishable under Section 164 Penal Code read with section 158 (2) Penal Code, and without such compliance the trial court had no jurisdiction to try the case.”
We could distinguish the case relied upon from the one in hand and would comment that we are respectfully in agreement with the views of the High Court in that judgment.
Besides all these, learned counsel for the appellant had overlooked the fact that what he had regarded as the charge was only the F.I.R. That, however, was not the offence for which the appellant was charged. By the provisions of Section 120 of the Criminal Procedure Code, which reads thus –
“120(1) After receiving the First Information Report the court may-
(a) direct that the police shall proceed with the investigation; or
(b) if it thinks fit proceed to hold an inquiry into or otherwise deal with the case as provided in chapter XV.
(2) In the event of the court electing to proceed in accordance with paragraph (b) of subsection (1) it shall forthwith inform the officer in charge of the police station of its intention so to do and thereupon the police shall act according to the direction of the court.” the magistrate is enjoined by law to make the investigation which by virtue of sub-section (b) thereof he indeed made before preparing the charge on which he eventually tried and convicted the appellant. That charge had nothing to do with the Yerwa Civil Court, even though, as we were told, the case instituted by the appellant against Alhaji Mai Deribe in the Upper Area Court No. 2 was the same one as was transferred for hearing to the Yerwa Civil Court.
Learned counsel for the appellant had no qualms about the charge framed by the Chief Magistrate pursuant to the investigation made by him under Section 120 of the Criminal Procedure Code and the powers conferred upon him by Sections 160 and 161 of the Criminal Procedure Code. The investigation revealed the substance of the offence and it is the charge that indeed charged him with any offence at all. It is not clear whether the F.I.R. could, at any stage, be considered a “complaint” as learned counsel for the appellant had submitted, for the definition of “complaint” in Section 1 of the Criminal Procedure Code excluded a police report and, in any case, neither Section 158 (1) of the Penal Code nor Section 140 of the Criminal Procedure Code is concerned with a “complaint”.
We have come to the conclusion that all the grounds of appeal canvassed and argued on behalf of the appellant fail and his appeal must therefore fail. The appeal fails and it is dismissed. The conviction and sentence of the appellant are affirmed.
Other Citation: (1974) LCN/1924(SC)
