Okoye & Ors V Commissioner Of Police (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

In order to fully understand this case and the tenacity with which it has been fought by counsel to the parties from the Chief Magistrate’s Court Awka which went on appeal to the Anambra State High Court sitting in Awka and to the Court of Appeal, Enugu before its final destination in this Court, it is necessary to give the background facts before the Chief Magistrate Court set the ball rolling. However, it will be difficult to refer specifically to the pages in the record because of the haphazard way in which the record was compiled. The record being used in this appeal and the other appeals namely, SC.279A/2011; SC.279C/2011 and SC.279D/2011 was prepared in respect of Ejike Okoye & Ors vs Commissioner of Police in appeal No.CA/E/97/2008 whose appeal has been assigned SC.279A/2011.

The compiled record of the Chief Magistrate’s Court reflect the proceedings of 10/7/06 and 3/8/06 before the appeal went first to the High Court and later to the Court of Appeal. The charge sheet nonetheless shows that the accused/appellants were arraigned on 24/5/06 before Dr. (Mrs) V. N. N. Ibeziako, a Chief Magistrate in Awka and were granted formal bail. In the appellant’s brief which he filed at the Court of Appeal repeating the address he made at the High Court, the prosecuting counsel Mr. B. A. Onwuemekaghi stated as follows in the opening paragraph:

“On 24th day of May, 2006, the appellant charged the respondents to Chief Magistrate Court 1, Awka, in charges No.MAW/121C/2006 on a seven count charges of conspiracy to commit felony to wit serious Assault on Police Officers, and Malicious Damages to Properties. The Accused/Respondents took plea and pleaded not guilty to the counts. They were granted bail and the case was adjourned to 10th July, 2006 for the evidence of PW1. On that date fresh plea were taken by the Accused persons before a new Magistrate as the former one had been transferred”

(See page 81 of the record).

The proceedings of 3/8/06 was before S. N. Okoye Esq. He recorded the presence of all the accused and that of 1st complainant as well as those of the counsel prosecuting and defence counsel. Christian Okoye was reported sick and a medical certificate was furnished while one Sgt. Odoh was reported to be on a training course. Immediately after this it would appear Dr. Obiorah representing the accused moved his application which was opposed by the prosecuting counsel and the ruling by the Chief Magistrate. It is necessary to produce the record which went thus:

“Application for an order of court directing the Prosecution to furnish the defence with all documents. (Including statements of witnesses, and police investigation reports relating to this case) which are relevant to this case whether they tender same or not. Reply by prosecuting counsel that

(a) this is summary trial and furnishing of relevant documents up front is not provided for in the CPL as in the case of trial on information.

The cost of production of the photocopies shall be borne by accused persons I have deliberately omitted police investigation report from my order as relating to police internal administration. But this is not to hold that such a report became (sic) in issue in course of the trial the Court will be precluded from ordering its production.

Prosecuting police gives Notice of Appeal against the foregoing ruling Court:-

The prosecuting police is to file his written notice and grounds of appeal within 30 (thirty days hence).”

The sequence of events before the drama leading to the appeal unfolded is that on 10/3/06, Dr. Obiorah of counsel, had addressed a petition to the Inspector General of Police, the Assistant Inspector – General of police Zone 9 Area Police Command, Umuahia and the Commissioner of Police Anambra State Awka accusing Mr. Ben A. Onwuemekai (presumably Mr. B. A. Onwuemekaghi) the prosecuting counsel of compromising his position in the case and even conspiring with Christian Okoye to destroy the evidence which the accused intended to rely upon in establishing their bona fide claim of right to the disputed property. Apart from the petition, Dr. Obiorah went further to file notice to produce in the Chief Magistrate Court. When the appeal went before the court of Appeal after the High Court affirmed the decision of the Chief Magistrate allowing the prosecution to furnish the defence with photo copies of statements of witnesses at the expense of the defence, learned counsel to the accused in obvious reference to the items listed in the notice to produce argued that whether in civil or criminal actions the parties are compelled through front-loading to disclose their evidence to each other prior to the hearing. He forcefully submitted that in a criminal trial where the rights of the accused to adequate facilities have been constitutionally guaranteed and protected, full disclosure of evidence prior to trial must not only be required as a desideratum – it is mandatory. The court below did not accept this argument. It set aside the decision of the High Court and remitted the case to the Chief Magistrate for the accused to take their plea before proceeding to trial. The appellants felt aggrieved and each of them appealed against the decision of the Court of Appeal.

The Notices of Appeal dated 15th July, 2011 containing five grounds of appeal each carried the same complaints and the appellants who appealed are Ebele Okoye, Ejike Okoye, Chika Okoye and Onyeka Okoye (See pages 157 – 166 of the records). The Notice of Appeal of Chizoba Okoye is not contained in the record but his appeal was assigned SC.279B/2011 and briefs were filed for the appellant and the respondent. I shall say more about appeal No.SC.279B/2011 later in this judgment. Since all the appeals raised the same issues, the appellants could have applied to consolidate the appeals and proceed to file a joint brief on behalf of all the appellants. See: Abba Tukur vs Government of Gongola State (1998) ALL NLR 42; Ogboru vs Uduaghan (2012) 11 NWLR (Part 1211) 357. FRN vs Dairo Unreported SC.229/2012 delivered on 30/1/2015.

I shall now proceed to consider the appeal of Ebele Okoye vs Commissioner of Police which was assigned appeal No.SC.279/2011.