Igwe V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

On 26/3/2012, the respondent sought to arraign the appellant and four others before the High Court of Anambra State, Awka Judicial Division on a two-count charge of conspiracy to commit murder and attempted murder.

Although the charges were read and interpreted to them, they declined to plead thereto on the ground that they had a pending motion challenging the competence of the charge. The motion dated 4/5/2010 was brought pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Sections 212, 240, 241 and 247 of the Criminal Procedure Law (CPL) of Anambra State. They sought the following reliefs:

“An Order:

(I) Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of the Court’s process,

(2) Quashing the information as incompetent for failure to contain the proper proofs of evidence as required by Section 211(a) of the Criminal Procedure Law.

(3) Dismissing/Striking out the proceedings for violating the applicants’ fundamental right to fair hearing.

(4) Quashing the information as the Court lacks jurisdiction to try the offences as they were brought in violation of the applicants’ constitutional right to fair hearing.

(5) Quashing the arraignment of the applicants on the information before this Court as the information is incompetent and unsupported by proper proofs of evidence.

And granting such further orders/reliefs as this Honourable Court may deem, just and proper in the circumstances.”

The application was supported by a 22-paragraph affidavit and exhibits attached thereto marked A—F. The applicants filed a written address in support. The respondent filed a counter-affidavit and also filed a written address thereto.

​The applicants were initially arraigned before the Magistrates Court Awka in Suit No. MAW/ 1940/07. Having regard to the nature of the charges, the Court declined jurisdiction and referred the matter to office of the Director of Public Prosecution. The prosecution informed the Court that it intended to call 12 witnesses to testify and supplied their details. The Court therefore made an order binding them over to make themselves available to testify before the High Court wherever they were required to do so. It was the applicants’ contention at the High Court, that of the 12 witnesses bound over, the prosecution only included five in the proof of evidence filed along with the information. It was contended that the failure to include the names, addresses and statements of the remaining 7 witnesses, whom they considered to be material witnesses rendered the information defective and liable to be quashed. In particular, it was contended that the statement of an independent eye witness, one Alice Nweke, who informed the Police that the applicants were not the perpetrators of the crime, was omitted. They also contended that exculpatory statements made by some of the witnesses were not included. They argued that by withholding the statements of material witnesses, their right to be given adequate facilities for the preparation of their defence, guaranteed by Section 36(6) (b) of the 1999 Constitution, as amended, had been breached. They also contended that the information deserved to be quashed for being in violation of Sections 212, 240, 241 and 247 of the CPL of Anambra State.

​The prosecution denied withholding any evidence. They averred in their counter-affidavit that the said eye witness, Alice Nweke, could no longer be traced. It was also contended that by their information, they are only required to show that there is a prima facie case made out, requiring some explanation from the accused. They also argued that the application was an abuse of the Court’s process, aimed at delaying the hearing of the case.

In a brief ruling delivered on 10/9/2012, His Lordship J.C Iguh, J. dismissed the application in the following words: