By: Oluwakemi Stephen Adeyemi
In a criminal trial, upon the conclusion of the cases of both sides of the divide i.e. the prosecution and the accused or defendant (if the jurisdiction is Lagos State) or upon the abrupt end of the case be it for lack of diligent prosecution or the Attorney General’s decision to discontinue prosecution, the trial court is entitled to convict, discharge and acquit or simply discharge.
The thrust of this write-up is to consider from available case-law, the proper order to make upon the finding of the innocence of a defendant as between “discharge and acquitted” and “acquitted and discharged.” In doing this, the case of George v. Federal Republic of Nigeria will be considered, the purports of a discharge order and an acquittal order will be considered and the opinion of a member of the Supreme Court panel that heard the appeal; Ngwuta JSC will be put under the spotlight.
1.2. UNDERSTANDING THE SUPREME COURT IN GEORGE v. FEDERAL REPUBLIC OF NIGERIA
The Supreme Court in Chief Olabode George v. Federal Republic of Nigeria, sitting as a panel of five had the opportunity of deciding as the court of final appeal on the quilt or otherwise of Chief Olabode George who was standing trial on his actions while serving as the chairman Board of Directors of the Nigerian Ports Authority on a 68 counts charge of offences relating to the Corrupt Practices and Other Related Offences Act, 2000 and Sections 104, 203 and 517 of the Criminal Code Cap. 32, Vol. 2 Laws of Lagos State of Nigeria, 1994.
A brief statement of fact will do. The Appellant was at all times material, the Chairman of the Board of Directors of Nigeria Ports Authority. He was charged before the trial court along with the Managing Director of the Authority and four available members of the Board as well as others said to be at large. They all held office from 2001-2003. The prosecution called 10 witnesses in a bid to establish its 68 counts-charge. The Appellant testified on behalf of other members of the Board. At the close of the case of both parties, the learned trial judge discharged and acquitted the appellant and others on counts 1-7 relating to inflation of contracts. He found the appellant along with others guilty of conspiracy to disobey lawful order issued by constituted authority in respect of counts 9-57 and convicted the appellant and others in respect of five similar counts relating to abuse of office contrary to Section 104 of the said code.
The Appellant’s appeal to the Court of Appeal was unsuccessful as the Court of Appeal dismisses his and others’ appeal. This prompted the subsequent appeal to the Supreme Court. The Supreme Court “acquitted and discharged” and “discharged and acquitted” the Appellant.
In doing this, the Supreme Court emphasised that there was no offence known to Law as contract splitting during the relevant time and thus offending the provisions of Section 36 (8) & (12) of The 1999 Constitution of the Federal Republic of Nigeria and that following Agumadu v. The Queen, the prosecution is duty bound to prove the offence as charged regardless of the provisions of the statute creating the offence. Thus, the failure of the prosecution to prove the element of “Intention to defraud” was fatal to its case against the Appellant and the later should not have been convicted.
1.3. UNDERSTANDING A DISCHARGE ORDER
The foremost legal lexicon, Black’s Law Dictionary defines ‘Discharge’ in these words: the release of a prisoner from confinement. In the same vein, Jowitt’s Dictionary of English Law defines the word thus: A prisoner or defendant is discharged from arrest or imprisonment when he is set at liberty. In Chief of Air Staff v. Iyen, the Supreme Court per Tobi JSC defined the word “discharge” when it said: “A discharge, in context means to cancel the original provisional force of a court order by was]y of a charge or to free from confinement.”
An order of discharge is an order releasing an accused or defendant from prison custody. It in essence restores an accused’s hitherto restricted freedom of movement and personal liberty.
Our courts and our statute-books have been quite expressive of when and in what circumstances an order of discharge can and should be made. In Chief of Air Staff v. Iyen, the Supreme Court per Musdapher JSC put it thus: “In my view, this is not a situation when a verdict of acquittal may be entered when the trial is declared a nullity. In the instant case the lower court had adjudged that the GCM had no jurisdiction to try the respondent, there was accordingly no trial and as such there could not be a verdict of discharge and acquittal”. In much clearer terms, Edozie JSC pontified that: I take the view that having regard to the irregularities associated with the purported trial of the respondent as highlighted above particularly the want of jurisdiction on the part of the court that purportedly tried him, an order of “discharge” would have been appropriate.
In addition, an order of discharge will be ordered upon a successful case of “No-Case” submission. This was the purport of the judgement of the Supreme Court in Ugwu v. The State. Mohammed JSC said in this light: Consequently, upon this very clear and unambigous (sic) findings of the courts below that the appellant has no-case to answer in respect of charges 3 and 4, the court below was in error in including him in the case remitted to the trial court for the continuation of the trial. The appellant shall be and is hereby discharged in accordance with the provisions of Section 159 (1) of the Criminal Procedure Act… The Court of Appeal similarly in Suberu v. State per Peter-Odili JCA held that: It is true as posited by appellant’s counsel that if there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence with which he is charged, a court of trial must, as a matter of law, discharge him.
Similarly, upon the Attorney-General’s intervention through the entrance of nolle-prosequi, the proper order open to the court is an order of discharge. This is so because the Attorney-General’s intervention has prevented the court from a thorough consideration of the case on its merits. An order of discharge does not remove guilt nor does it assert innocence. It merely restores the right of movement and personal liberty.
That an accused is discharged of a charge does not foreclose a conviction on another charge. Thus, the Court of Appeal in Ajose v. Federal Republic of Nigeria, held per Danjuma JCA that: It is not the law that if an accused person is discharged on one count, he cannot be convicted on another which has been proved. May it also be added that the finding of the guilt of a defendant does not necessarily mean he must be convicted.
1.4. UNDERSTANDING AN ACQUITTAL ORDER
The Law Lexicon, Black’s Law Dictionary defines an acquittal as the legal certification usually by a jury verdict, that an accused person is not guilty of the charged offence. Jowitt’s Dictionary of English Law defines it as a deliverance and setting free from the suspicion or guilt of an offence. In Chief of Air Staff v. Iyen, Tobi JSC defined it to mean a setting free or deliverance from the charge of an offence by verdict of a court.
Without cosmetics therefore, an acquittal goes to the innocence of a defendant as a conviction goes to the guilt of a defendant. An order acquitting a defendant of some or all charges is an order saying the defendant is innocent of the charges levied against him.
An order of acquittal made by a competent court of jurisdiction is a bar to a subsequent trial on the charges the defendant has been so acquitted. Section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that: No person who shows that he has been tried by a court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court. Relying on this provision, the Supreme Court per Tobi JSC in Chief of Air Staff v. Iyen held that: In view of the decision of discharge and acquittal by the Court of Appeal, the respondents can avail himself of Section 36 (9) of the Constitution and the common law plea of autrefois acquit. The foundation of an acquittal order is that there has been a valid trial in which the accused was found innocent.
The Court per Tobi JSC in distinguishing the two orders of discharge and acquittal said at page 543 that: In criminal proceedings, an accused person who is discharged can be made to face a criminal trial at the whims and discretion of the prosecution. In other words, he does not breath the freedom of air forever or for all times. The prosecution has the power and the discretion to return him to the dock the second time. The position is however different, if an accused person is discharged and acquitted. Such a person cannot normally be made to face a criminal trial on the same offence or offences. He adequately meet such a charge with plea of autrefois acquit.
It is found apposite at this juncture to state that a discharge order is not necessarily followed by an acquittal but an order of acquittal must be followed by a discharge order.
A wrongful order of acquittal and discharge which is not appealed against will not be overruled on appeal. This much can be garnered from the opinion of Tobi JSC in Ebri v. State that: In my view, the court was clearly in error in discharging and acquitting the co-accused persons. As a matter and fact, there was enough to convict all the three persons and this is what the learned judge did. But this court cannot take the issue further as there is no appeal by the prosecution.
The Supreme Court in George v. Federal Republic of Nigeria found that the prosecution did not prove its case adequately to ground the conviction of the Appellant and thus in their own words, they discharged and acquitted and acquitted and discharged. On the premise that three Justices of that court preferred the words “acquitted and discharged” to two justices who preferred “discharged and acquitted”, the majority opinion on this matter is the law. This thus means that the proper order upon the finding of innocence is “acquitted and discharged”. The Supreme Court in Emeka Nwana v. Federal Capital Development Authority and 5 ors per Tobi JSC on this point said: “A concurring judgement, has equal weight with or as a leading judgement. A concurring judgement compliments, edifies and adds to the leading judgement. It could at times be an improvement of the leading judgement, when the justices add to it certain aspects which the writer of the leading judgement did not remember to deal wth… However, a concurring judgement is not expected to deviate from the leading judgement… A concurring judgement which does its own thing in its own way outside the leading judgement, is not a concurring judgement but a dissenting judgement.” In so far as the eminent justices of the Supreme Court agreed with the lead opinion of Fabiyi JSC, their opinions are concurring. However, upon deviation by some members of the panel in declaring the Appellant a free man, their opinions became dissenting. Thus, the opinions of Mohammed and Muntaka-Coomaissee JJ SC to the effect that the Appellant was “discharged and acquitted” is a dissenting opinion and is not binding.
Additionally, if it is true that there must be a foundation for every order of court, it then means that upon the finding of the innocence of a defendant, he need be acquitted before he can be discharged. Thus, it is more apposite to “acquit and discharge” instead of “discharge and acquit”. An acquittal necessarily means a discharge but a discharge does not necessarily mean an acquittal.
1.5. THE ASIDE OF NGWUTA JSC
Justice of the Supreme Court, Ngwuta after having agreed that the respondent had the responsibility of proving the charges against the Appellant as charged and that there is no offence known to Law at the relevant time as “contract-splitting”, went on to add: The counts of splitting of contract if in fact any contract was split relate to the control and management of a Federal Government Agency, the Nigerian Ports Authority over which the Federal High Court has exclusive jurisdiction. See Section 251 of the 1999 Constitution (as amended). The Lagos State High Court had no jurisdiction to try the appellant and his trial, conviction and sentence must be declared null and void and I so declare. After having so held, the Learned Justice went on to hold that: I also allow the appeal and set aside the conviction and sentence passed on the appellant and in place thereof, I acquit and discharge the appellant.
What then is the effect of the Lagos State High Court’s lack of jurisdiction? It is as the Learned Justice put it, a nullity of the whole proceeding and the appeal therefrom. The Court of Appeal per Tsamiya JCA held in Okudo v. State that: The aspect of jurisdiction is relevant for the validity of any proceeding before a court or tribunal… if the court… is incompetent, it would have no jurisdiction… Jurisdiction therefore is the life time of every judicial proceeding before any court…, without which the entire proceedings, trials, findings, orders or pronouncements are rendered futile, invalid, null and void an-initio, however brilliant they must have been conducted. If it were the law that the Lagos State High Court lacked jurisdiction to entertain the matter, the proper order open to the Honourable Justice of the Supreme Court, Ngwuta is an order of discharge not acquit and discharge. In Chief of Air Staff v. Iyen, Onu JSC said: The Court of Appeal was clearly in error to have acquitted the respondent of all the allegations made against him, when it had no jurisdiction try the respondent and also when the respondent was not before it. In my view, this is not a situation when a verdict of acquittal may be entered when the trial is declared a nullity. In the instant case, the lower court had adjudged that the GCM had no jurisdiction to try the respondent, there was accordingly no trial and as such there could not be a verdict of discharge and acquittal. If the opinion of Ngwuta JSC were the law, the Appellant should have been discharged and not acquitted and discharged as the learned Justice ordered. This would have exposed him to prosecution at the whims and discretion of the prosecution. Thankfully, it is not the law that the Lagos State High Court and State High Courts in general lack jurisdiction to try criminal matters relating to the control and management of Federal Government Agencies.
First, Ngwuta JSC was alone in the opinion that the trial court lacked jurisdiction and to this extent, his opinion is dissenting.
Second, the foundation of his conclusion is Section 251 of the 1999 Constitution (as amended). The section provides in plain terms that: Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters. The Constitution by this section expressed the purview of its jurisdictional guarantee for the Federal High Court under Section 251 to be in relation to ‘civil causes and matters’. It will seem with due diffidence to the learned justice Ngwuta JSC that he was too willing to expand the frontiers of this vexed constitutional provision beyond the wildest imagination of its framers.
It is not the law that only the Federal High Court has jurisdiction in relation to crimes committed in the control and management of a Federal Government Agency. However, to the credit of Ngwuta JSC, he of all the members of the panel recognised the question of jurisdiction though the respondent raised it as an issue for determination.
This article has suggested the use of “acquit and discharge” as against “discharge and acquit” upon a finding of innocence of a defendant.
Again, it is not the law that State High Courts do not have jurisdiction to try defendants for crimes relating to the control and management of Federal Government Agencies.
Oluwakemi S. Adeyemi is a graduate of the Faculty of Law, Lagos State University and a prospective student of the Nigeria Law School. He may be reached on firstname.lastname@example.org
 Based on the Administration of Criminal Justice Law of 2011
 Sections 174 (1) (c) and 211 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
 (2014) 1 CLRN 1
 Fabiyi, Ngwuta and Aka’ahs JJ SC
 Mohammed and Muntaka JJ SC
 (1963) 1 All NLR 203. See also in this regard Ofiani v. Nigerian Navy (2007) 8 NWLR (Pt. 1037) 470 at 472; Amadi v. The State (1993) 8 NWLR (Pt. 314) 644 at 664.
 Black’s Law Dictionary, 8th Edition at 495
 Jowitt’s Dictiionary of English Law, 2nd Edition, Volume 1 at 620.
 (2005) 6 NWLR (Pt. 922) 496 at 542
 See Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria
 Op. Cit.
 Ibid at 533
 Ibid at 535. See also Okudo v. State (2011) 3 NWLR (Pt. 1234) 209 at 237
 (2013) 4 NWLR (Pt. 1343) 172
 Ibid at 189.
 (2010) 1 NWLR (Pt. 1176) 494 at 511
 See Sections 174 (1) (c) and 211 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
 (2011) 6 NWLR (Pt. 1244) 465 at 476-477
 Jowitt’s Dictionary of English Law. 2nd Edition, Volume 1 at 620
 8th Edition at 25.
 Op. cit. at 37.
 (2005) 66 NWLR (Pt. 922) 496 at 542
 Ibid at 556
 (2004) 11 NWLR (Pt. 885) 589 at 611
 Mohammed and Muntaka-Coomaissee
 Fabiyi, Ngwuta and Aka’ahs JJ SC
 (2004) 13 NWLR (Pt. 889) 128 at 140-141
 Olufeagba v. Abdul Raheem (2009) 18 NWLR (Pt. 1173) 384 at 456.
 George v. Federal Republic of Nigeria (2014) 1 CLRN 1 at 16
 Ibid at 17
 (2011) 3 NWLR (Pt. 1234) 209 at 238
 (2005) 6 NWLR (Pt. 922) 496 at 533
 See Tobi JSC in Chief of Air Staff v. Iyen (2005) 66 NWLR (Pt. 922) 496 at 543
 See Foot note 28