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ABSENCE OF A FORMAL CHARGE FILED IN A DISCIPLINARY PANEL DOES NOT NULLIFY THE PROCEEDING WHERE FAIR HEARING HAS BEEN OBSERVED

Dictum

In Okike v L.P.D.C (No. 2) (2005) 7 SC (Part 111) 75 at pages 93, 113 and 116 as follows, Per Musdapher, JSC: “In my view, the word ‘charges’ used under the rule does not mean and cannot mean formal charges in a criminal trial before a criminal court . . . Therefore what needs to be known to the legal practitioner concerned is the substance of the allegations against him before the proceedings started: The precise nature of the allegations against the appellant were communicated to the appellant, he was well aware of the complaints against him. The appellant had fair notice of the allegations against him. Where the allegations contained in the petition before the disciplinary tribunal, as opposed to criminal tribunal, contains all the essential elements and enough information, it is not necessary to make reference to particular breaches of the rules as in a criminal case – See MDPDT v Okonkwo (supra) and Idowu v LPDC (1962) All NLR 128 as it will be necessary in a criminal trial. In my humble opinion, the absence of a formal charge did not occasion any miscarriage of justice, the appellant was well aware of the complaint against him.” …

Per Ejiwunmi, JSC: “… the reference to ‘charges’ in the above provisions should not be read to mean that only a formal charge or charges would suffice to bring home to the person concerned the complaint brought against that person . . . It is my view that it will amount to undue technicality to contend that because the word ‘charge’ was not used, the allegation against the appellant was not brought to his knowledge and therefore he was not made aware of the complaint against him. In this context, it must be borne in mind that the proceedings before the respondent is not expected and indeed not required to be conducted as a full scale criminal trial. If that then be the position, the word ‘charge’ read in that context is simply a ‘complaint’ that discloses a prima facie case that deserves to be investigated and determined by the respondent.”

Per Pats-Acholonu JSC: “…the characteristics or feature of a charge do not lie in procedural formalism but rather in the context of the unrighteous act being brought to the knowledge of the person so indicted in good lucid and really understandable English as in the present case. In the case before us now, the charge as I choose to call it, the document was couched in simple prose and he was requested to appear before the Peers of his profession. It is not an indictment wearing a criminal garb. The issue before us is as to whether the act of the appellant constituted a gross misconduct to affect his status in the profession of the Bar. Therefore to latch or clutch on the defence of improper charge laid, shows the inability of the appellant to fully grasp the nuance associated with the procedure in handling his case by the respondents.”

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CHARGE MUST BE INTERPRETED TO ACCUSED LANGUAGE

All the above requirements must co-exist and must be satisfied as they are mandatory. For as Olatawura, JSC pungently pointed out in the case (Erekanure (supra) at page 393, paragraphs B-E of the Report: “In this case on appeal and according to the printed record, there is nothing to show that the court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language? If as it has been shown that it was read, was it explained to him? No. There is nothing on record to show also that it was even read by the registrar or an officer of the court. Where for instance no officer of the Court is capable of interpreting the charge in the language the accused person understands, a sworn interpreter is produced to explain the charge to the accused. As shown on page 26 of the printed record, the appellant spoke Urhobo language. The failure to comply fully or wholly with these requirements renders the trial a nullity.”

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INGREDIENTS TO SUCCEED IN A CHARGE MURDER

For the prosecution to succeed in a charge of murder, it must prove the following ingredients. 1. That the death of the deceased was a result of the voluntary act of the accused; 2. That the accused had an intent to cause the death or cause grievious bodily harm to the deceased; 3. That the death of the deceased was a direct result of the act of accused to the exclusion of all probable causes.

– OMOBONIKE IGE, J.C.A. Etumionu v. AG Delta State (1994)

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THERE MUST BE A CHARGE FOR PROSECUTION OF A CRIME

In the case in hand, the learned trial judge did compel the appellants to choose either the witness box or the dock and it is significant that they all chose the witness box. This of course is an outrage on our criminal procedure for the learned trial judge had in the circumstances, with a witness in the witness box and without any other prosecutor, assumed that role in a most irregular inquisition, which is most undignified of a judge of a superior court. At the end of his ruling the learned trial judge stated that he found the appellants guilty but there was no charge and it is manifest that the judge did not deal as he should have dealt with the appellants’ brevi manu by asking them into the dock to show cause why they should not be punished for contempt of court and punishing them accordingly.

– GEORGE BAPTIST AYODOLA COKER, J.S.C. A.U. Deduwa & Ors. v. The State (1975)

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DISCRETION OF ATTORNEY GENERAL IN TAKING OVER CHARGE

The prosecutorial powers of the office of the Attorney-General of any State in the Federation, by dint of Section 211 of the 1999 Constitution, as amended, include taking over, at any stage, the case and the case file from the police and filing an information in the High Court in respect of any offence which, in their discretion, has been disclosed by the police investigation. This discretion cannot be denied to the office of the Attorney-General.

— E. Eko, JSC. Kekong v State (2017) – SC.884/2014

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ONLY A CHARGE CREATED BY A COMPANY REQUIRES REGISTRATION

It has been held that it is only charges to secure money that are registrable, so a charge which, if granted by an individual, would require registration under the Bills of Sale Act, 1882, will not necessarily be registrable if granted by a company. See Stoneleigh Finance Ltd. v. Phillips (1965) 2 QB 537. And only a charge created by a company requires registration not one, which arises by operation of law such as an unpaid vendor’s lien. See London and Cheshire Insurance Co. Ltd. v. Laplagrene Property Co. Ltd. (1971) Ch. 499.

– Augie JSC. Bank v. TEE (2003)

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WHERE MORTGAGE IS BY CHARGE

In other words where the mortgage is by way of charge, and not by conveyance, the mortgagee takes no estate whatsoever in the land or in the property but he has generally only an equitable interest to be enforced by sale upon an order of court. The equitable charge simpliciter only gives a right to payment out of the property; it does not amount to an agreement to give a legal mortgage at all. The strict mode of enforcing the charge is, however, by sale (or appointment of a receiver under an order of court) but never by foreclosure. On the other hand where, as here, the agreement is to create a legal mortgage when required following a default in the terms of the agreement, the agreement may be enforced according to its terms notwithstanding that the legal mortgage when executed will also confer on the mortgagee an immediate power of sale.

– Idigbe JSC. Ogundiani v. Araba (1978)

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