Ojo Bolarinwa Theophilous V. Federal Republic Of Nigeria (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A, (Delivering the Leading Judgment)

On 7th June, 2011 this Appellant filed a Notice of Preliminary Objection at the Federal High Court sitting at Ado-Ekiti where he was defending some allegations of criminal nature in the case No FHC/AD/14C/2010. The Preliminary Objection was set down for hearing on 27th February, 2012. Before the said 27th February, 2012 the Respondent, through their counsel, filed on 13th JEJEMBI EKO, J.C.A, (Delivering the Leading Judgment): On 7th June, 2011 this Appellant filed a Notice of Preliminary Objection at the Federal High Court sitting at Ado-Ekiti where he was defending some allegations of criminal nature in the case No FHC/AD/14C/2010.

The Preliminary Objection was set down for hearing on 27th February, 2012. Before the said 27th February, 2012 the Respondent, through their counsel, filed on 13th July, 2011 Amended Charge containing a total of 11 counts alleging inter alia conspiracy to commit fraud, presenting a cheque with intent to defraud the Federal Government of Nigeria of some specified amounts etc, The Appellant is the 6th Accused person on the charge sheet. On 27th February, 2012, the day set down for the hearing of the Preliminary Objection filed on 7th June, 2011, Mr. Olukotun prosecuting counsel, moved the trial court, orally, to accept the Amended Charge filed on 13th July, 2011. Mr. Oso of counsel to 5th and 7th accused persons vehemently opposed the application. Mr. Obaro of counsel to 6th accused/Appellant adopted “in toto the submissions of the 5th and 7th accused persons” The substance of these protests is that the application to introduce amended charge ought not to have been made orally, but formally. The Ruling, the subject of this appeal, is at pages 348 and 349 of the Record. It is hereby reproduced herein below as follows:-

RULING

(Pp 348 and 349 Record)

I have considered the submissions of the prosecution counsel 5th and 7th accused and of course that of the 6th accused counsel on whether or not the court can accept the application by the prosecuting counsel made orally for the court to accept the amended charge. I am inclined to grant the application to accept the amended charge dated 12th July, 2011 even although no formal application was made by the prosecuting counsel in that respect. I think it will be superfluous to now ask the prosecuting counsel to go back and come formally to ask for an order of the court to amend the charge, I believe if the defence have any objection that can be made at the appropriate stage or if the defence need time to go the amended charge that too can be made after the acceptance of the amended charge,

As stated earlier, the amended charge dated 12th July, 2011 and filed on 13th July, 2011 is accepted as the subsisting charge and I so hold.

What is more-the 6th accused counsel submitted that the charge contained in the charge in respect of which he has filed a preliminary objection have been repeated on the face of the amended charge dated 12th July, 2011; in effect learned counsel has suffered no injustice by any nature neither has he been prejudiced in the circumstance. The jurisdiction of this court to determine its jurisdiction on whether the charge is properly before the court has not been foreclosed against the 6th accused person. The application to accept the amended charge dated 12th July, 2011 is hereby accepted and the amended charge shall be the subsisting amended charge before the court for now.

This shall be my ruling.

SIGNED

JUDGE

27th February, 2012

The 6th accused/Appellant, aggrieved by this ruling above, has appealed on 3 grounds of appeal. The grounds of appeal, shorn of their particulars, are herein below reproduced. That is:-

1. The Learned trial Judge erred in law and such has occasioned of miscarriage of justice when he allowed the prosecution’s amended charge whereas there is still an unheard subsisting preliminary objection challenging the court’s discretion

2, The Learned trial judge erred in law when he refused to hear and determine the appellant’s preliminary objection.