Aimuamwehi Friday Osareren V. Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant was the 1st accused person in the charge No. FHC/B/57C/2011 before the Federal High Court, Benin City. The eleven (11) count charge alleged that the Appellant and two others conspired to commit the offence of obtaining money from an American, Cynthia Taylor (F), by false pretences, and that they committed various offences of obtaining by false pretences various sums of money on diverse dates between May and December, 2008. The Appellant and two others pleaded not guilty to the charges. Thereafter two witnesses testified and tendered several documents. At the close of the prosecution’s case, and before the accused persons opened their defence, the prosecution submitted amended charge to which the three accused persons, each, pleaded “not guilty” afresh to each of the 11 charges. Thereafter the accused persons, particularly the appellant as the 1st Accused, each entered his defence.

At the close of the defence and the final addresses of the respective counsel for the prosecution and the defence the trial Federal High Court reserved its judgment to 13th June, 2016. It

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delivered the reserved judgment on the said 13th June, 2013. The three accused persons were all convicted and sentenced to various terms of imprisonment. Finding that the prosecution had proved their case against the appellant herein, as the 1st Accused, on each of the 11 charges, the trial Court convicted him on all the 11 charges. The appellant lodged his appeal against his conviction on 20th June, 2013, on five grounds to the Court of Appeal (hereinafter called the “Court below”). The Notice of Appeal was subsequently amended with the grounds of appeal increased from 5 to 12 in the amended Notice of Appeal at the Court below.

The appellant’s appeal was heard by the Court below. It was on 16th July, 2014 dismissed in its entirety. The appellants conviction and sentence were affirmed by the Court below: hence this further appeal. The Notice of Appeal, filed on 3rd September, 2014, has 8 grounds of appeal. From these 8 grounds of appeal, the appellant’s counsel has formulated 4 issues for the determination of the appeal. They are:

1. Whether the decision of the Court below is not marred by unfairness and lack of fair hearing by their

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deliberate refusal to countenance and determine various germane issues laid before them by the Appellant [from grounds 1, 2 & 3] .

2. Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 8-11 of the charge [from ground 6]
3. Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 1-7 of the charge [from grounds 7 & 8]
4. Whether the learned justices of the Court below were right in refusing to declare the trial of the Appellant a nullity since the amended charge upon which it was based is an abuse of Court’s process [from grounds 4 & 5]

Issue 4, raising issue of the competence or otherwise of the proceedings of the trial Court culminating in the conviction and sentence of the appellant, shall be given its deserved prominence and precedence over the other issues. The implication of a defect in the competency of the Court is that any defect in the competence of the Court is fatal. It renders the proceedings a nullity no matter how well conducted the proceedings were: MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR

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(Pt. 4) 587; EGUNJOBI v. F.R.N. (2013) 3 NWLR (Pt. 1342) 257.

Appellants counsel submits that the Amended Charge before the trial Court, not initiated by due process of the law, was a nullity or void ab initio: and that the jurisdiction of the trial Court over it and him, on the basis of which the trial of the appellant proceeded was legally ousted, as such the proceedings are void ab initio. He called in aide OKORO v. THE STATE 14 WACA 370; ORUCHE v. C.O.P. (1963) 1 ALL NLR 262; THE STATE v. CHIEF MAGISTRATE ABOH MBAISE (1978) 1 LRN 316.

Learned counsel argues that the effect of Sections 162 and 163 of the Criminal Procedure Act (C.P.A.) is that every amendment to the charge after the accused had taken his plea to it shall be upon leave sought and granted; that the leave of Court for the prosecutor to amend the charge is a condition precedent to the validity of the amended charge; and that if the prosecutor proceeded to file amended charge without leave of Court first sought and obtained, the amended charge is fundamentally defective and invalid.

This objection, appearing to be posthumous, is predicated on the following facts.