Alhaji Sadeeq Ibrahim Massala V. Inspector General Of Police (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)

On the 29th day of October, 2012, the respondent filed an application for leave to prefer a criminal charge against the appellant, without holding a preliminary inquiry, under Section 185 (b) of the Criminal Procedure Code (CPC) pursuant to Rule 3 of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970.

The application was supported by an affidavit attached to which were a copy of the charge in respect of which leave was sought, a copy of the proof of evidence to be relied upon at the trial, a copy of the list of witnesses, a copy of the list of exhibits and copies of statements of witnesses and the appellant’s statement. The charge contained ten (10) counts of forgery contrary to Section 364 of the Penal Code and one (1) count of fraudulent and dishonest use as genuine of a forged resolution contrary to Section 366 of the Penal Code.

The application was filed at the High Court of Justice of the Federal Capital Territory (“the lower Court”) and was numbered CR/36/12. Upon the grant of the application, the filing of the charge and service of the same with its accompaniment on the appellant, he through his counsel, filed a motion on notice praying for an order of the lower court to quash the charge on the grounds that;

(a) The court had no jurisdiction to try the appellant of the offence charged;

(b) The proof of evidence accompanying the charge did not disclose any prima facie case against the appellant to warrant his trial;

(c) The charge did not comply with the provisions of the Criminal Procedure (Application for Leave to prefer a charge in the High Court) Rules 1970 thus rendering void the leave to prefer the charge;

(d) There was no evidence in the proof of evidence linking the appellant with the offence charged; and,

(e) The charge was vexatious, malicious, frivolous and a flagrant abuse of legal process.

The application was supported by a 6 – paragraph affidavit deposed to by one Uchenna Aghadiuno, a counsel in the law firm of Tochukwu Onwugbufor SAN and Co., counsel for the appellant. Attached to the affidavit are Exhibits A and B. The respondent responded by filing an 11 – paragraph counter – affidavit deposed to by Supol Dada Adejube.

After hearing counsel on both sides, the lower court dismissed the application.

Aggrieved by the decision, the appellant has appealed to this court by way of a notice of appeal containing six grounds of appeal. In the appellant’s brief of argument settled by Tochukwu Ongwugbufor (SAN) of counsel, six issues are formulated for the court’s determination of the appeal. The issues are;

“1. Whether the trial Judge was right in law in refusing or declining to quash the charge of forgery preferred against the accused/appellant when the application to prefer the charge against the accused/appellant did not comply with the provision of S. 185 B of the Criminal Procedure Code and the Criminal Procedure (Application for leave to prefer a charge in the High Court Rules) 1970. (Distilled from Ground 1 of the Notice of appeal filed on 21/2/12)

2. Whether the principle of substantial compliance which is inapplicable to criminal proceeding and afotiori to the provisions of the Criminal Procedure Code and the Rule can be invoked to cure non compliance with a mandatory provision of S. 185 B of the Criminal Procedure Code and the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 (Distilled from Ground 2)
3. Whether the learned trial Judge ought not to have quashed the charge when it was clear from the proofs of evidence documents and statements attached to the proof of evidence that no prima facie offence of forgery was disclosed against the accused/appellant (Distilled from Ground 3).
4. Whether a mere witness statement that an accused has forged a document without more can provide a prima facie evidence of forgery in the absence of both forensic report of expert and the resolution paper containing their alleged forgery.
5. Whether from the proofs of evidence filed there is in existence any evidence linking the accused/appellant with the offence of forgery charge (Distilled from Grounds 4 and 5)
6. Whether in consideration of the facts of this case the charge is not liable to be quashed as being defective and abuse of process (Distilled from Ground 6).”

In his brief of argument, Emmanuel Esene, Esq; of counsel, for the respondent adopted the appellant’s issues for determination.