Commissioner of Police V. Nze George Ali & Ors (2002)

LawGlobal-Hub Lead Judgment Report

SYLVANUS ADIEWERE NSOFOR, J.C.A.

This is a double appeal from the decision by the Owerri High Court of Appeal N.O. Adigwer J. in Suit No. HOW/4CA/94 on the 3rd of April, 1996 on an appeal thereto from the decision of the Magistrate’s court, of Imo state holden in Nwaoriebi on the 7th of February 1994 in charge No. MNU/59C/94. The appeal raises a question of the competence of (i) the Notice: of criminal Appeal signed and filed on the 14th of February, 1994 by a serving Police officer/Lawyer and, (ii) the Deputy Superintendent of police/Lawyer appearing as Counsel, to prosecute the appeal.

I shall state the antecedent facts leading to the appeal in some detail. The respondents herein were the accused persons in charge No. MNU/75C/93. They were charged with various offences in the five Counts of the charge. Count 1 of the charge charged them with conspiracy to commit a felony to wit stealing contrary to Section 516A (a) of the Criminal Code Cap. 30. Vol. II (Laws of Eastern Nigeria, 1963, hereinafter referred to as the Code for short). In Count II, they were charged with stealing contrary to Section 390(a) of the Code counts III, IV and V, respectively, charged them with willful and unlawful damage, contrary to section 451 of the code.

The case came on before the learned trial senior Magistrate Grade I, I.O Agugua Esq; for the hearing on the 21st of July, 1993. As the Record shows, the accused person were present in court and were represented by a counsel, C. U. Ekomaru Esq. Inspector H. Nwetu was prosecuting.

The Prosecuting Police inspector applied for an adjournment, on the ground that the case file was sent to the Director of Public Prosecution (D.P.P) on his request, and he (the D.P.P.) had not returned it.

The learned trial Senior Magistrate Grade I heard the counsel of the accused persons on the application for an adjournment.

In the ruling after hearing the addresses, the Court wrote (See Pages 4/5 of the Record of Appeal) inter alias, thus 3-

“Court: I have jurisdiction to entertain this case and I have not referred the case to the D.P.P for advice… I therefore do not know under what law or with what authority the D.P.P has taken a case file pending in my court from Prosecutor without leave and permission of this Court. This case is fixed for hearing to day. Prosecution has not got the case file and therefore cannot prosecute. Charge No. MNU/75C/93 is hereby dismissed under Section 280 C.P.L for want of prosecution.

Subsequent efforts by the prosecution to charge and prosecute the accused for the offences previously charged failed. The accused persons were charged in Charge No. MNU/205C/93 with the same offences as in the charge “dismissed” on the 27/7/93. On their arraignment before the learned trial Chief Magistrate N. Okoroafor Esq, on the 17th of December, 1993, each accused person raised a special plea or defense of autre foi acquit to each count of the Charge. After hearing the Counsel for the accused persons and Inspector F. Nwabisi for Prosecution, the learned Chief Magistrate in his Ruling upholding the plea held at, page 10 of the Record, inter alias:-

“The accused persons having been tried and acquitted and cannot again stand trial for the same charge again, for that would be illegal and unconstitutional

(Sgd) N. Okoroafor Esq:

Chief Magistrate GD.1.

17/72/93L”.

The accused persons were next charged, on Charge No. MNU/59C/94 with the offences as previously in Charge No. MNU/205C/93 dismissed. When the case came on before the Magistrate’s Court on 7/12/94, the accused were present in court and represented by Counsel Deputy Superintendent of Police S. A. Mbara was prosecuting