Alhaji Saheed Ibrahim Massala V Inspector General Of Police (2018)

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MARY UKAEGO PETER-ODILI. JSC

The accused/appellant was charged for forgery contrary to Section 364 of the Criminal Code Act in Charge NO: CR/36/12. Upon service on him of the charge, the appellant through counsel raised a preliminary objection seeking to quash the charge on grounds of lack of jurisdiction for non compliance with Section 185 (B) of the Criminal Procedure Code, non disclosure of offence in the proof of evidence against the accused/appellant and abuse of process;

The learned trial judge in a considered ruling after listening to the parties dismissed the objection holding that he had jurisdiction to try the appellant charged.

Dissatisfied, the appellant appealed to the Court of Appeal or court below or lower court against the decision of the trial court vide the Notice of Appeal filed on 21st February, 2013.

The court below dismissed the appeal, hence this approach to the Supreme Court vide Notice of Appeal filed on 7th day of August, 2015.

On the 27th day of November 2017 date of hearing, learned counsel for the appellant, Ogechukwu Onwugbufor Esq. adopted appellant’s brief of argument filed on 27/10/15 and a reply brief filed on 11/2/2016 and deemed filed on 27/11/17. In the brief of argument, the appellant distilled three issues for determination which are thus:-

a.Whether having held that the respondent did not comply with Section 158 (B) of the Criminal Procedure Code and Rule 3 (2) of the Criminal Procedure (Application for Leave to Prefer a Charger in the High Court’s) Rules 1970 by failing to state the reason why it is desired to prefer a charge without taking proceedings under Chapter XVII of the Criminal Procedure Code, the court below was right in failing or refusing to quash the charge against the appellant for want of compliance with Section 158 (B) of the CPC and the Rules which are mandatory. (Distilled from ground 1).

b.Whether the court below was right to have placed reliance on English Cases of R v LAMINIG 90 CR APP R. 450 and SEAL v CHIEF CONSTABLE OF WALES POLICE 2005 1 WLR 3183 to hold that Section 185 (B) of the criminal Procedure Code is discretionary or permissive when the Supreme Court has already held that that section is mandatory. (Distilled from ground 2).

c.Whether having regards to the fact that the proof of evidence disclosed group forgery and did not contain the resolution paper containing the alleged forgery or the forensic report of expert, the court below was right to hold that the proof of evidence discloses a prima facie case of the offence charged and a probable link between the appellant and the offence. (Distilled from ground 3).

Learned counsel for the respondent, Emmanuel Esene Esq. adopted his brief of argument filed on 23/12/15 and deemed filed on 12/4/17. He also adopted the issues as formulated by the appellant which are apt and I shall utilise them in the determination of this appeal.

ISSUES 1 AND 2;

1.Whether having held that the respondent did not comply with Section 185 (b) of the Criminal Procedure Code and (Rule 3 (2) of the Criminal Procedure Code (Application for leave to prefer a charge in the High Court’s) Rules 1970 by failing to state the reason why it is desired to prefer a charge without taking proceedings under chapter XVII of the Criminal Procedure Code, the court below was right in flailing or refusing to quash the charge against the appellant for want of compliance with Section 185 (b) of the CPC as the rules which are mandatory. (Distilled from ground 1).

2.Whether the court below was right to have placed reliance on English Cases R v LAMING GOR CR APP R. 450 CA and SEAL v CHIEF CONSTABLE OF WALES POLICE 2005 1WLR 3183 to hold that Section 185 (b) of the Criminal Procedure Code is discretionary or permissive when the Supreme Court has already held that the section is mandatory. (Distilled from ground 2).

Learned counsel for the appellant submitted that the court below was in grave error when it failed to quash the charge against the appellant since the non compliance amounts to an infraction of Section 185 (b) of the CPA. That the court below was wrong not to have quashed the charge after finding that respondent did not comply with Rule 3 (2) of the Criminal Procedure (Application for leave to prefer a charge in the High Court Rules) 1970. He cited Owhoriole v FRN (2002) 2 NWLR (Pt.176) 189; Ugwu v State (2013) 14 NWLR (Pt.1374) 257; FRN v Wagbara (2013) 5 NWLR (Pt. 1347) 331 at 348 – 349.