Between
JOHN BABANI ELIAS
and
1. FEDERAL REPUBLIC OF NIGERIA
2. AL-AKIM INVESTMENT NIGERIA LTD
JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
The Appellant herein was re-arraigned before the Federal High Court sitting in Yola on 19th May, 2015 on an Amended Charge No. FHC/YL/10C/2013 for the offence of intent to defraud the Government of Adamawa State punishable under Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004. He was charged along with two others, Mohammed Inuwa Bassi and Al-Akim Investment Nig. Ltd (the 2nd Respondent herein). After a full-fledged trial, Mohammed Inuwa Bassi, (1st accused person), having been found not guilty, was discharged and acquitted; while the Appellant and the 2nd Respondent (2nd and 3rd accused persons before that Court), were found guilty as charged, convicted and sentenced accordingly.
A synopsis of the facts of the case before the lower Court is as follows: The 1st Respondent, through the Economic and Financial Crimes Commission (EFCC), initiated an action vide a twenty-eight count charge against four defendants, namely: Boni Haruna (the former Governor of Adamawa State, Mohammed Inuwa Bassi (a one-time Legislative Aide to the former Governor, Boni Haruna, and former Member of the Adamawa State House of Assembly), John Babani Elias (a former Commissioner for Local Government & Chieftaincy Affairs in Adamawa State) and Al-Akim Investment Nig. Ltd (a limited liability company). All the defendants pleaded not guilty to the numerous counts of charge, and trial commenced. The 1st defendant, Boni Haruna, was subsequently discharged on a no-case submission, and trial continued in respect of the other three defendants on an amended four count charge. This Appeal is therefore predicated on the outcome of the trial on this amended four count charge.
The Amended Charge read as follows:
AMENDED CHARGE
That you, MOHAMMED INUWA BASSI on or about the 26th of November, 2002 at Yola within the jurisdiction of this Honourable Court did aid JOHN BABANI ELIAS and AL-AKIM INVESTMENT NIGERIA LIMITED to cause the payment of the sum of N31, 500, 000.00 vide a Habib Nigeria Bank Limited draft no: 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in your name, monies meant for Adamawa State Local Governments joint development project and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) of the same Act.
COUNT 2
That you, MOHAMMED INUWA BASSI on or about the 23RD of January, 2003 at Yola within the jurisdiction of this Honourable Court did aid JOHN BABANI ELIAS and AL-AKIM INVESTMENT NIGERIA LIMITED to cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no: 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in your name, monies meant for Adamawa State Local Governments joint development project and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) of the same Act.
COUNT 3
That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 26th of November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N31, 500, 000.00 vide a Habib Nigeria Bank Limited draft no. 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.
COUNT 4
That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 23rd of January, 2003 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no. 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.
When the charge was read to the accused persons, they pleaded not guilty. Thereafter, trial commenced with the prosecution adducing evidence in proof thereof through seven witnesses and twelve exhibits. In their defence, the accused persons also adduced evidence through four witnesses, (inclusive of the 1st and 2nd accused persons), and also offered documentary evidence in the form of two exhibits. At the close of trial, learned Counsel for the accused persons, as well as learned Counsel for the prosecution, in their final summations addressed the lower Court on the issues of facts and law arising there from on 6th July, 2015, and the case was thereafter adjourned for Judgment.
Subsequently, after the time constitutionally prescribed for the delivery of Judgment had lapsed, the learned trial Judge invited Counsel to re-adopt their written addresses on 17th November, 2015. The Judgment was finally delivered on 4th December, 2015. Therein, the learned trial Judge found that counts one and two of the Amended Charge against the 1st defendant had not been proved. She therefore discharged and acquitted him of the said two counts of Charge. For the 2nd and 3rd Defendants however, she found that the prosecution had succeeded in proving counts three and four against them. She therefore convicted them as charged. The 2nd Accused was sentenced to a term of ten years imprisonment without an option of fine on each count of charge, sentences to run concurrently, in addition to which he was ordered to refund the sum of N51, 500, 000.00 (Fifty-One Million Five Hundred Thousand Naira) to the coffers of the Adamawa State Government Joint Account Committee; while the 3rd accused, a limited liability company, was sentenced to a fine of N5, 000,000.00 (Five Million Naira), was ordered to be wound up by the Corporate Affairs Commission, and the proceeds from its assets were to be forfeited to the Federal Government of Nigeria.
Thoroughly piqued and dissatisfied by this decision, the 2nd accused person promptly filed an Appeal vide his Notice of Appeal, on 11th December, 2015. Therein, he complained on thirteen grounds. He however subsequently filed another Notice of Appeal on 18th January, 2016 wherein he complained on twenty grounds. Since the second Notice of Appeal was also filed within the time prescribed for filing of Appeals by the Rules of this Court, this Notice overtakes the first Notice; and the Appeal is said to be predicated on this latest Notice and the arguments in the Briefs of argument are based thereon. From paragraph 2 of the Notice of Appeal, the following reliefs are sought from this Court:
i. An order allowing the appeal;
ii. An order setting aside the judgment delivered on 4th December, 2015 by Honourable Justice Bilkisu Bello Aliyu of the Federal High Court, Yola Division in CHARGE NO. FHC/YL/10C/2013 between FEDERAL REPUBLIC OF NIGERIA VS MOHAMMED INUWA BASSI & 2 ORS;
iii. An order setting aside the conviction of the Appellant;
iv. An order setting aside the sentence of the Appellant to 10 years imprisonment and to return/refund the sum of N51.5 million to the Adamawa State Local Government Joint Account Fund.
v. An order discharging and acquitting the Appellant.
vi. And for such further or other order(s) as this honourable court may deem fit to make in the circumstances.
At the hearing of the Appeal on 07-04-2016, learned Counsel for the Appellant, Rickey Tarfa, S.A.N., appearing with J.O. Odubela Esq., Andrew Malgwi Esq., Rabi Buba (Miss), T.U Danjuma Esq. and A.A. Hamma Esq., adopted the Appellants Brief of argument filed on 20-01-2016, as well as the Appellant`s Reply Brief of argument filed on 07-03-2016 (but deemed filed 07-04-2016) as the Appellants submissions in the Appeal. He withdrew the first Notice of Appeal filed on 11-12-15 and argued the Appeal based on the second Notice of Appeal filed on 18-01-2016 contained in the supplementary Record of Appeal. In an additional submission, Counsel relied on the following additional authorities in respect of his submissions under issue one: Eguaba V FRN (2004) ALL FWLR (Pt. 2032) 1512 at 1520, paras B-E; and Sonoma V IGP (2013) LPELR-20833(CA) 1 at 32-33, paras D-G. He urged the Court to allow the Appeal and grant the reliefs sought.
On his part, learned Counsel for the 1st Respondent, Samuel Okeleke Esq., EFCC, appearing with Chris Mshelia Esq., adopted the 1st Respondents Brief of argument filed 04-03-2016 (and deemed filed on 07-04-2016), as the 1st Respondents arguments in opposition to the Appeal. He urged the Court to dismiss the Appeal as lacking in merit. Finally, U.D Silas Esq., learned Counsel for the 2nd Respondent who did not file any court process in the Appeal, did not oppose the Appeal.
The Appellant having withdrawn the Notice and Grounds of Appeal filed on 11-12-2015, it is accordingly struck out.
In their respective Briefs of argument, learned Counsel for the Appellant distilled seven issues from the twenty Grounds of Appeal for the resolution of the Appeal; and learned Counsel for the 1st Respondent, while agreeing with him on the substance of the issues, adopted them with slight modifications. Thus, being virtually identical in content, except for the expected slants from the angles of opposing parties to the Appeal, the issues crafted by the Appellant are adopted in the resolution of this Appeal. They are set out hereunder as follows:
i. Whether the trial Court had jurisdiction to have convicted the Appellant based on the Amended Charge dated 27th April, 2015 which did not contain/disclose all the ingredients of the offence, particularly forgery, prescribed under section 1(2) (b) of the Miscellaneous Offences Act CAP M17 Laws of the Federation of Nigeria, 2004. (Ground 4)
ii. Whether having regard to the ratio decidendi of Abidoye V F.R.N. (2014) 5 NWLR (Pt. 1399) 30, forgery is no longer part of the ingredients of the offence which ought to be proved by the prosecutor merely because it is not contained in the Amended Charge notwithstanding its prescription in the statute. (Grounds 1, 2, 3 and 5).
iii. Whether the Judgment of the trial Court ought to be set aside having been based on wrongfully admitted exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B to convict the Appellant in the instant appeal. (Grounds 12, 13 & 14).
iv. Whether there is any admissible evidence before the trial Court to establish the fact that the Appellant authorized the issuance of the two cheques (Exhibits 71A & 71B) if admissible at all in the instant appeal. (Grounds 7, 8, 9, 10 & 11).
v. Whether having regard to the entire circumstances of the Amended Charge, the Judgment of the trial Court delivered more than 90 days is reasonable, supported by weight of evidence and ought not to be set aside in the instant appeal. (Grounds 6, 15, 16, 17, 20 & 21).
vi. Whether the prosecutor proved each of the necessary ingredients of the offence on counts 3 and 4 of the Amended charge beyond reasonable doubt in the instant appeal. (Ground 18).
vii. Whether the conviction and sentence of the Appellant ought not to be set aside in the instant appeal. (Ground 19).
In the determination of the Appeal, the issues shall be considered in the following order: issues (i) and (ii) together; issues (iii) and (iv) together; issue (v) alone, and issues (vi) and (vii) together.
Issues (i) and (ii):
i. Whether the trial Court had jurisdiction to have convicted the Appellant based on the Amended Charge dated 27th April, 2015 which did not contain/disclose all the ingredients of the offence, particularly forgery, prescribed under section 1(2) (b) of the Miscellaneous Offences Act CAP M17 Laws of the Federation of Nigeria, 2004;
AND
ii. Whether, having regard to the ratio decidendi of Abidoye V F.R.N. (2014) 5 NWLR (Pt. 1399) 30, forgery is no longer part of the ingredients of the offence which ought to be proved by the prosecutor merely because it is not contained in the Amended Charge notwithstanding its prescription in the statute.
Under issue (i), learned Counsel for the Appellant submits that in a criminal suit, one of the basis of jurisdiction is that a competent charge must disclose all the ingredients of the offence contained in the statute creating the offence. Where a charge is deficient in such, it is incurably bad and does not disclose a prima facie case. Counsel contends that Counts 3 and 4 of the Amended Charge, under which the Appellant was convicted, omitted all the essential ingredients of the offence spelt out under Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation, in particular, the phrase that states as follows: by virtue of any forged or false cheque, promissory note or other negotiable instrument. He also contends that the two counts failed to state both the time and place in Yola when and where the offence was committed. Counsel submits that the combined effect of Section 36(6) (a) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) requires the 1st Respondent to state details of the nature of the offence as defined in the Act. The failure of the 1st Respondent to do so in the Amended Charge has rendered the charge speculative and as a result, is not a valid charge. Counsel therefore urged the Court to resolve this issue in favour of the Appellant. For these submissions, he relies on: Madukolu V Nkemdilim (1962) 1 ALL NLR (Pt. 2) 581 at 589-590; Oloruntoba-Oju V Abdulraheem (2009) 13 NWLR (Pt. 1157) SC 83; Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30 at 57; & M.D.P.D.T. V Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 237.
In responding to the submissions of the Appellant, learned Counsel for the 1st Respondent agrees that the essential ingredients of the offence must be disclosed in the charge, and that this is an inalienable right of an accused under Section 36(6) of the Constitution (supra). The Appellant and 2nd Respondent were jointly charged in counts 3 and 4 of the Amended Charge with the offence of causing the payment of money with the intent to defraud the Government of Adamawa State punishable under Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act (supra). He submits that the ingredients of the offence under which the Appellant was convicted and sentenced are:
i. knowingly/with intent to defraud the Government of Adamawa State
ii. cause delivery/payment to himself or any other person of any property or money
iii. by virtue of any forged or false cheque, promissory note or other negotiable instrument.
He submits that both counts 3 and 4 of the Amended Charge contain the time (date) and place of the alleged offence, the names of the Appellant and particulars of the offence, reasonably sufficient to give the Appellant notice of the offence with which he was charged, in conformity with Section 152(1) the Criminal Procedure Act. Any objection to a charge for any perceived irregularity shall be taken immediately after the charge is read over to the accused and not later. In the instant case, there is nothing on Record to show that the Appellant raised any objection when the charge was read to him and he pleaded to it. It is also the law that a charge must disclose the essential elements of the offence, and not all the ingredients of the alleged offence as canvassed by the Appellant. Further, that in disclosing the date and time of the offence in the charge, time connotes the date and not the time of the day in which the offence was committed. In addition, Counsel submits that in drafting a charge, no error in stating the particulars can invalidate the charge except where the accused person was misled, and thus, that the lower Court was right to have assumed jurisdiction. Counsel therefore urged the Court to resolve issue one against the Appellant. He relies on: Amiwero V AGF (2015) ALL FWLR (Pt. 802) at 1742; Timothy V FRN (2008) ALL FWLR (Pt. 402) 1136 at 1153; Timothy V FRN (2013) NWLR (Pt. 1344).
In the Appellants Reply Brief of argument, learned Counsel for the Appellant submits that the attempt by the 1st Respondent to make a distinction between essential and all the ingredients of the offence charged, is nothing but semantics. However, that by paragraphs 3.6 and 3.25 of the 1st Respondents Brief, it has been admitted that forgery is one of the essential ingredients of the offence charged. He also submits that, contrary to the submissions of the 1st Respondent, time does not connote date, and date and time are not one and the same thing.
In response to the submission that the Appellant pleaded to the incompetent charge without raising any objection thereto, Counsel submits that an issue of jurisdiction can be raised at any time by any of the parties or by the Court suo motu, and for the first time before this Court or even before the Supreme Court. He contends that the reliance on Timothy V FRN (supra) in support of the 1st Respondents position is totally inappropriate as the facts are not on all fours. Thus, the issue of whether the Appellant was not misled by the omission in the charge does not arise when the trial conducted is null ab initio. He argues that this is sufficient to base the assertion of miscarriage of justice as the Appellant was convicted based on an incompetent charge. He argues that the error in omitting the essential ingredients of forgery, time and place in the charge is not a mere irregularity, but a fundamental error which goes to the root of the Charge itself. For these submissions, Counsel relies on Olley V Tunji (2013) 10 NWLR (Pt. 1362) 275 at 321, para D; Sani V State (2015) 15 NWLR (Pt. 1483) 522 at 550, paras C-D; Petrojessica Enterprises Ltd V Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 at 693, paras E-F; Mpama V FBN Plc (2013) 5 NWLR (Pt. 1346) 176 at 204; & Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376 at 414, paras D-F.
Under issue two, learned Senior Counsel submits that all the parties before the lower Court agreed that one of the fundamental ingredients of the offence charged in counts 3 and 4 of the Amended Charge as stated/defined under Section 1(2) (b) of the Miscellaneous Offences Act (supra) is that money belonging to a Government must be paid by virtue of any forged or false cheque, promissory note or other negotiable instrument. Therefore, forgery must be alleged in the charge and also proved. However, contrary to this position taken by the parties on the issue in their final written addresses, the lower Court, relying on Abidoye V FRN (supra), suo motu raised and found in its Judgment that the 1st Respondent had no such burden to prove all the ingredients under Section 1(2) (b) of the Miscellaneous
Offences Act (supra) including forgery, except for the ingredients stated in the Amended Charge itself. Counsel contends that this was a new issue as none of the parties had argued that the ingredients of the offence that must be proved are only those contained in the Amended charge. This being a new point, the trial Court ought to have invited the parties to address on the issue before it went on to decide on it. He therefore contends that the finding reached by the lower Court without hearing from the parties runs afoul of the principle of fair hearing and the Appellant was prejudiced thereby. He relies on: Olatunji Adisa (1995) 2 NWLR (Pt. 376) 167 at 183-184; Oshodi V Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 352, paras E-H; INEC V Ogbadibo Local Government (2015) LPELR-24839(SC); & Leaders & Co. Ltd V Bamaiyi (2010) 18 NWLR (Pt. 1225) 329 at 341, paras G-H (SC).
As an alternative submission, Counsel submits that the ratio decidendi of Abidoye V FRN (supra) is that there was an additional ingredient added to the charge against the accused which was in excess of the offence as stated in the statute. Since the facts in the Abidoye case were not on all fours with the facts in the instant case, the lower Court erred in its finding thereon. He contends that the Appellants right to fair hearing has therefore been abridged as there was non-compliance with Section 36(6) (a) & (12) of the Constitution (supra) which requires the 1st Respondent to state details of the nature of the offence as defined in Section 1(2) (b) of the Miscellaneous Act in the Amended Charge; as well as non-compliance with Section 135 (1) of the Evidence Act.
It is further submitted that since the Appellant was charged and convicted under Section 1(2) (b) of the Act (supra), which included a forged negotiable instrument as one of the fundamental ingredients of the offence, the omission of forgery in the two counts of charge does not relieve the 1st Respondent of the burden of proving it. Since a forged negotiable instrument was not stated in the Amended Charge and it was not proved that the money was delivered by a forged negotiable instrument, Counsel urged the Court to resolve issue two in favour of the Appellant. He relies on Green V Green (2001) 45 WRN 90 at 118-119; (1987) 3 NWLR (Pt. 67) 480 at 500, paras H-D; Dairo V UBN Plc (2007) ALL FWLR (Pt. 392) 1846 at 1886, paras B-C & G; Omega Bank Plc V Govt. of Ekiti State (2007) ALL FWLR (Pt. 386) 658 at 688, paras G-H; Ojo V FRN (2009) ALL FWLR (Pt. 494) 1461 at 1497, paras B-E; Tanko V State (2008) 16 NWLR (Pt. 1114) at 636, paras D-F.
In response, learned Counsel for the 1st Respondent submits that the Appellant, in his final written address before the lower Court, argued that the prosecution must prove forgery in all its spheres and proceeded to rely on the case Nigeria Air Force V James (2002) 18 NWLR (Pt. 798) 295. In consequence, the trial Court relying on the principle of stare decisis, applied the decision in Abidoye V FRN (supra) to resolve the issue. By reason of this decision, the lower Court held that the prosecution does not need to prove forgery; and that all the prosecution needs to prove are the ingredients of the offence as specifically charged, irrespective of the provisions of the statute creating the offence. He therefore argues that the lower Courts reliance on Abidoye V FRN (supra) is not tantamount to raising a fresh issue suo motu; and further submits that the prosecution only needs to prove the charge as laid. For this, he places reliance on Section 151(4) of the Criminal Procedure Act, Cap C41 LFN 2004, which is in pari materia with Section 195 of the Administration of Criminal Justice Act, 2015. As a result, he contends that the case of Abidoye V FRN (supra) is applicable and was rightly applied by the lower Court. Counsel however submits in the alternative that, where the case of Abidoye V FRN (supra) is found not to be applicable, the 1st Respondent still did prove all the ingredients in the charge.
In a brief reply on point of law, Senior Counsel in the Appellants Reply Brief, submits that Section 151 (4) of the Criminal Procedure Act, which is equivalent to Section 195 of the Administration of Criminal Justice Act, 2015 does not say anything contrary to the state of the law.
Findings:
I have given a thorough consideration to the submissions of both learned Counsel before the Court. Issue one is premised on the state of the law as provided in Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria (as amended) which provides thus:
36(6) - Every person who is charged with a criminal offence shall be entitled to
(a) be informed promptly in the language that he understands and in detail of the nature of the offence.
This provision is quite clear and requires no further external aids to interpret it. Nevertheless, it has received judicial interpretation by many appellate Courts. The conditions set out in Section 36(6) (a) supra include the procedural step of reading over and explaining the charge to the accused in the language which he understands to the satisfaction of the court, which would then call upon him to plead thereto. See Ayodele V State (2010) LPELR-CA/B/291/2008. In Adeniji V State (2001) 13 NWLR (Pt. 375) 390, Katsina Alu, JSC (as he then was) pronounced thus in respect of Section 36(6) (a):
Once the record of the court shows that the charge had been read over and explained to the accused, and the accused pleaded to it before the case proceeded to trial, it is to be presumed that everything was regularly done.
In the instant case, the record of the trial Court (at page 186 thereof) shows that the plea of the Appellant was taken, after the charge was read and explained to him in English language to the satisfaction of the trial Court, and he stated that he understood it and pleaded not guilty thereto, before the trial of the accused/Appellant commenced. Consequently, on the authority of Adeniji V State (supra) the requirements of Section 36(6) (a) of the Constitution (supra) were complied with.
With all due respect to learned Senior Counsel, there is no requirement in Section 36(6) (a) of the Constitution that all the details of an offence must be set out or specified in a charge for a criminal trial to be valid. It is the law that in drafting a charge, its contents should include the name of the accused person(s), date of the commission of the offence, statement of the offence committed in its ordinary name (not technical), name of the person and of the thing against whom or in respect of which the offence was committed, the enactment and the section thereof allegedly contravened, and the signature of the person drafting the charge. In the instant case, the charge under which the Appellant was tried and convicted satisfied all these requirements of a valid charge. With regard to the submissions on Section 36(12) of the Constitution, the provision states as follows:
Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, written law refers to an Act of the National Assembly or a Law of a Staten any subsidiary legislation or instrument under the provisions of a law.
Having found that the charge is in compliance with the constitutional provisions relied on, I have gone on to examine the actual gripe of the Appellant with the charge. It lies on the assertion that whereas the word forgery is used in the provision of the law, it is not so stated in the charge.
Learned Senior Counsel for the Appellant has made a huge fuss over the absence of the word forgery as well as the use of the word draft instead of cheque in the Amended charge which, in his view, would bring it in line with the exact wordings of Section 1(2) (b) of the Miscellaneous Offences Act. With due respect, Senior Counsels submissions which, while intensely and brilliantly couched, cannot stand in view of the settled law on the issue. It is true that it is not part of our criminal justice system that the subject of a charge be a matter of speculation and inference, as rightly stated in the cases of Olowu V Nigerian Navy (2007) ALL FWLR (Pt. 350) 1278 at 1301, paras C-G (SC); Timothy V FRN (supra); Medical & Dental Disciplinary Tribunal V Okonkwo (2001) FWLR (Pt. 44) 542; (2001) 3 SCNJ 186. The question however is whether in the instant case, the charge was ambiguous and difficult for the accused person to locate the precise offence for which he was charged.
At pages 79 to 80 of the printed Record, the learned trial Judge in very clear terms on 07-03-2013, had the charge read out to the Appellant, who affirmatively confirmed that he understood same and pleaded not guilty to it. This process was repeated on 19-05-2015 when the charge was amended. The charge was again read out (at pages 184 to 186 of the Record) and he said he understood it. From all indications, there was no reason to infer or by any stretch of the imagination to suggest that the Appellant was left in any doubt as to the nature of the charge against him. This is also because, by his status as a former Commissioner in Government, he is no doubt a very enlightened person who was certainly aware of all the events happening around him. The case of Abidoye V FRN (supra) requiring the stating of the particulars of the offence in a charge, which was relied on by the learned Senior Counsel for the Appellant does not aid his case, as the circumstances in that case are distinguishable from the facts in the instant case. In other words, the charge herein is neither defective nor ambiguous.
Certainly, counts 3 and 4 of the Amended Charge under which the Appellant was tried and convicted is in respect of an offence known and well-defined by Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17, Laws of the Federation 2004, being an Act of the National Assembly.
For ease of reference, the said provision provides as follows:
1(1) Any person who -
(b) knowingly and by means of any false representation or with intent to defraud the Federal Government, the Government of any State or of any Local Government, causes the delivery or payment of to himself or any other person of any property or money by virtue of any forged or false cheque, promissory note or other negotiable instrument whether in Nigeria or elsewhere; shall be guilty of an offence and liable on conviction to imprisonment to a term not exceeding 21 years without an option of fine. (Emphasis supplied)
Also, the contents of the Amended Charge are set out hereunder:
COUNT 3
That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 26th of November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N31, 500, 000.00 vide a Habib Nigeria Bank Limited draft no. 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.
COUNT 4
That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 23rd of January, 2003 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no. 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.
(Emphasis supplied)
It is not a sine qua non of compliance that the exact words in the statute creating the offence must be used in drafting a charge. Where a charge is framed and broken down in words which are easily understandable and brings to the notice of an accused all the essential elements of an offence as spelt out in the law creating the offence, it suffices. Clearly, the substantive law under which the Appellant was charged stipulates that the offence should have been committe