By: Hameed Ajibola Jimoh Esq.
It is common in a criminal charge for the prosecution to frame a charge as follows using the words ‘on’ or ‘about’: for instance ‘”1st Count: That you, (1) Michael Akpegher (M) (2) Moavega Igba (M) on or about 19th October 2002 at about 17 00hrs along Gungur-Agia Road, Koshinsha Local Government Area of Benue State within the jurisdiction of this Honourable Court, agreed to do an illegal act, to wit: caused the death of one Kyernum Kerno (M) and that same act was done in pursuance of the said agreement and you thereby committed an offence punishable under Section 97 of the Penal Code.” (Underlining is mine for emphasis). This use of ‘on’ or ‘about’ might seem just of no importance to a reader of the charge or some lawyers. However, a close study of the case of MICHAEL ANKPEGHER v. THE STATE (2013) LPELR-45750(CA) delivered by the Court of Appeal, MAKURDI JUDICIAL DIVISION, on Tuesday, July 9th 2013, in Suit No: CA/J/90C/2008, before their Lordships: ADZIRA GANA MSHELIA – Justice of the Court Of Appeal; SAMUEL CHUKWUDUMEBI OSEJI – Justice of the Court Of Appeal and MOHAMMED AMBI-USI DANJUMA – Justice of the Court Of Appeal, would prove otherwise as to the meanings of this words, their implications and qualifications were clearly expressed by the appellate Court in this cited case. This paper is a reference to this case under citation for much more understanding of the importance of these words. Hence, this paper.
This case of MICHAEL ANKPEGHER v. THESTATE (supra) is an appeal against the decision of the High Court of Benue State sitting in Makurdi. At the High Court, the Appellant as 1st accused was charged with the offences of Culpable Homicide and Criminal Conspiracy. The case for the prosecution was that the deceased, Kyernum Kervo, was alleged to have stolen a piece of goat meat at a funeral. He was apprehended and given to the accused to take to the Police station, and the two, accused, instead of taking the said Kyernum Kervo to the Police station, took him to the riverside tied his hands and legs and set him ablaze after covering him with grass. PW3 gave the cause of death of Kyernum Kervo on 19/3/2002 in both his oral evidence and Exhibit ‘A’ as ‘severe burns’ caused by second-degree burns covering the entire body (100%). The two accused had averred on their part that after they arrested Kyernum Kervo (a.k.a Kwagh Kpala Hwange) for theft of goat meat the elders directed them to take the said Kyernum to the Police station. They obliged and as they were taking Kyernum to the Police station, the elders sent a counter instruction that did not go down well with the crowd following them. That the angry mob seized the deceased, Kyernum (a.k.a) Kwagh Kpela Hwange) from them and they fled home when the irate mob threatened them. It was their defence that they did not know who killed Kyernum. At the commencement of trial, both of them pleaded not guilty to the two-count charge. The prosecution called a total of 7(seven) witnesses in proof of its case and tendered various exhibits. The appellant testified on his behalf and called one witness in denial of the charge. In a well-considered judgment, Eko J. found 1st appellant guilty, was convicted and sentenced to death. Dissatisfied, the 1st Appellant appealed to the Court of Appeal. ISSUES: The Court determined the appeal on this sole issue couched as follows: “Whether the prosecution proved its case beyond reasonable doubt as required by Law.” DECISION/HELD: On the whole, the Court found no merit in the appeal and accordingly dismissed the same.
On pages: 1 – 2 of the Judgment, the charges against the accused were stated as follows: ‘ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): At the High Court of Justice Benue State, sitting in Makurdi the Appellant as 1st accused was charged with the following offences: “1st Count” That you, (1) Michael Akpegher (M) (2) Moavega Igba (M) on or about 19th October 2002 at about 17 00hrs along Gungur-Agia Road, Koshinsha Local Government Area of Benue State within the jurisdiction of this Honourable Court, agreed to do an illegal act, to wit: caused the death of one Kyernum Kerno (M) and that same act was done in pursuance of the said agreement and you thereby committed an offence punishable under Section 97 of the Penal Code. 2nd Count: “That you (1) Michael Ankpegher (M) (2) Moavega Igba (M) on or about 19th October 2002 at Gungur in Konshisha Local Government Area of Benue State within the jurisdiction of the Honourable Court did commit culpable Homicide punishable with death in that you caused the death of Mr. Kyernum Kervo by doing an act, to wit, you carried Kyernum Kervo to the side of a stream called Gbugu and tied his hands and legs and burnt him to death and you thereby committed an offence punishable under Section 221 of the Penal Code.” (Underlining is mine for emphasis).
On pages 7- 10 of the Judgment, it was stated that ‘Learned counsel (for the Appellant) submitted that prosecution could not establish the ingredients of the offence of conspiracy. None of the prosecution witnesses gave any evidence of a conspiracy between the appellant, his co-accused or where and how the conspiracy took place. Learned counsel contended that apart from the fact that PW1, PW3, PW4, PW5 and PW6 are not eyewitnesses, they gave a different date of the incident and which date is very far off from the date contained in the charge. Counsel urged the Court to discountenance the evidence of PW2 as same is not worthy of credibility. It was contended that the charge alleges that the offences were committed on or about 19th October 2002. That pre-supposes that the deceased died on or about 19/10/2002. That evidence outside this charge has not proved the charge before the lower Court. Counsel contended that in a charge, the prosecution is enjoined to furnish or supply particulars as to time, place and the person against whom the offence was committed. See S.202 C.P.C. and S. 36(6) (b) 1999 Constitution. That all the prosecution witnesses testified that the deceased died in May 2002. While accused was charged with killing him on or about 19/10/2002. That every averment in a charge must be proved as it is like a pleading. Therefore evidence that is contrary to the charge goes to no issue. That doing so will infringe on the rules of fair hearing under S. 36(1) of the Constitution. It is not a typographical error. That even the charge dated 27/5/2004 also carried the same date of 19/10/2002. The answering question under cross-examination PW1 said he would be surprised if he is told that his brother was dead in October 2002. That the words “on or about” do not carry the exactitude of the date. See Awopejo v. State 2000 FWLR (Pt. 4) 656 at 667. That the gap of 5 months is far beyond a little after. The discrepancies must be amended but the prosecution failed to do so even though their attention was drawn to it. Counsel urged the Court to hold that this is a serious lapse on the part of the prosecution. Reliance was placed on the unreported Court of Appeal decision delivered on 15/11/07 in Appeal No: CA/J/212C/06 between Emmanuel Gekpe v. The State on pages 9-10. Learned counsel argued that since the date on the charge reads 19th October 2002 and the evidence of witnesses dealt with the event of 19th May 2002, the prosecution has failed to prove a material ingredient of the offence. He urged the Court to discharge and acquit the accused/appellant. On the second count, learned counsel submitted that the date of the commission of the alleged offence is material and failure of proof in this regard casts serious doubt as to whether anybody was killed on that day let alone linking the appellant with the same. It is trite that where doubt exists in a criminal trial same must be resolved in favour of the accused. See State v. Kura (1975) 9 NSCC 25 at 28.’ (Underlining is mine for emphasis).
In resolving this issue as to the discrepancy created by the use of the words ‘On’ or ‘about’ in the Appellant’s charge, the appellate court has the following to say at pages: 17 – 22 of the Judgment thus ‘For the appellant the date of the commission of the alleged offence is material and failure of proof in this regard casts serious doubt, as to whether anybody was killed on that fateful day let alone linking the appellant with the same. The charge reproduced supra alleged that the offence of murder was committed on or about the 19th October 2002. I wish to note that all the prosecution witnesses i.e. PW1, PW2, PW3, PW4, PW5 and PW6 mentioned the date of the offence as 19/05/2002. The alleged confessional statement also bears the date of 19/05/2002 as the date of the commission of the offence of murder. The medical report Exhibit ‘A’ also disclosed the probable date of death of the deceased Kyernum Korve as 19/05/2002. It is therefore an undisputed fact that the date stated on the charge being 19/10/2002 as the date of commission of the offence is at variance with the date the witnesses gave in their testimonies being 19/05/2002 as the date the alleged offence of murder was committed. The question now is whether the discrepancy to date has occasioned a miscarriage of justice. In a charge, the prosecution is enjoined to furnish or supply particulars as to time, place and the person against whom the offence was committed. The date and place must be stated as near as possible. Section 202 of the Criminal Procedure Code provides:- “The Charge shall contain such particulars as to the time and place of the alleged offence and the person if any against who, or the thing if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.” The appellant pleaded not guilty to a charge that alleged that he killed the deceased on or about the 19th day of October 2002. The whole essence of a charge is to give an accused due and proper notice of the case he is to meet at the trial in order to enable him to prepare to meet it. See Aruna v. The State (1990) 6 NWLR (Pt. 155) 125 at 136. Appellant’s counsel had argued that the phrase on or about used in the charge connotes a little before or a little after. That the gap of 5 months between May 2002 and October 2002 is far beyond a little before or after as such it should not be ignored. In Awopejo v. The State (supra) the Court per Amaizu JCA held that: “The word “OR” when used in a sentence introduces an alternative and it is sometimes used to express uncertainty about a thing. On the other hand, the word ”about” means a little more or less, ”a little before or after.” Thus when the phrase “on or about” is used in a charge, it is not necessary to prove the precise date the alleged offence was committed.” As clearly stated in Awopejo’s case (supra) when the phrase “on or about” is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It appears that except where an accused person could show that he was misled, the error regarding the failure of the prosecution to state the precise date in the charge will not be fatal to the prosecution’s case. See also Garba v. State (1999) 11 NWLR (Pt. 627) 422 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. In the instant case, all evidence adduced points to the fact that the deceased was killed on 19/5/2002. This includes the alleged confessional statement of the accused/appellant. The error notwithstanding, it appears the appellant was not misled and so no miscarriage of justice has been occasioned. The error could have been avoided if the state counsel who handled the case at the trial Court had applied to amend the charge to bring it in line with the evidence adduced. I have gone through the unreported case of Emmanuel Gekpe v. The State Appeal CA/J/212C/2006 delivered on the 15th day of November 2007 heavily relied upon by the appellant’s counsel. I hold the view that the facts and circumstances, in that case, are distinguishable from the case at hand. In that case, the sole witness mentioned a different time the offence was committed from the time stated in the charge. In absence of evidence from other witnesses, the discrepancy was considered a material contradiction which created doubt as to the guilt of the appellant in that case. In the instant case, having regard to the evidence adduced, it cannot be said that an essential ingredient of the charge had not been proved due to the wrong date stated in the said charge.’ (Underlining is mine for emphasis).
Finally, therefore, I humbly submit that the meanings, implications and qualifications of the use of the words ‘On’ or ‘About’ in a criminal charge have been clearly identified and explained in this case as held by the appellate court as follows ‘In Awopejo v. The State (supra) the Court per Amaizu JCA held that: “The word “OR” when used in a sentence introduces an alternative and it is sometimes used to express uncertainty about a thing. On the other hand, the word ”about” means a little more or less, ”a little before or after.” Thus when the phrase “on or about” is used in a charge, it is not necessary to prove the precise date the alleged offence was committed.” As clearly stated in Awopejo’s case (supra) when the phrase “on or about” is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It appears that except where an accused person could show that he was misled, the error regarding the failure of the prosecution to state the precise date in the charge will not be fatal to the prosecution’s case. See also Garba v. State (1999) 11 NWLR (Pt. 627) 422 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112.’ In the instant case, all evidence adduced points to the fact that the deceased was killed on 19/5/2002. This includes the alleged confessional statement of the accused/appellant. The error notwithstanding, it appears the appellant was not misled and so no miscarriage of justice has been occasioned. (Underlining is mine for emphasis).
Email: hameed_ajibola@yahoo.com
