Gabriel Ezeze & Anor. V. The State (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

This is an appeal against the ruling of the High Court of Lagos State, Ikeja Division delivered on the 14th July, 2003 in charge No. ID/38C/2003. The appellants who were the 7th and 8th accused persons in the court below were charged along with others with criminal offences. In particular, the appellants were charged with the offence of perversion of course of justice contrary to section 126(1) of the Criminal Code Law, Cap 32 volume 2, Laws of Lagos State 1994.

Proofs of evidence were laid before the court below. Suffice it to say that the 1st to 6th accused persons were charged with the offence of murder. Before the trial of the accused persons commenced, the learned counsel for the appellant or time to enable him respond to the application. The trial Judge acceded to this request. And by the endorsement in the record, the case was adjourned to 14th July, 2003 for mention. When the case again came up on the 14th of July, 2003 all the accused persons were recorded by the trial Judge as “not produced”. The learned counsel for the appellants asked for a date to move the motion to quash or stay.

The learned prosecuting counsel still not having reacted to the motion prayed for an adjournment to a date when the accused would be produced in court. The defence counsel opposed the application of the prosecuting counsel for an adjournment to a date when the accused persons would be present, submitting that the accused need not be in court when their application to quash would be taken. In ruling on the submissions of counsel, the learned trial Judge adjourned the case to 7th October, 2003 for trial. Dissatisfied with the said ruling, the 7th and 8th accused persons (now the appellants) appealed to this court contending that the fixing of the charge for trial was wrong in law having regard to the fact that the motion on notice dated 9th June, 2003 to quash or stay the charge was still pending. The said notice of appeal dated and filed on 15th July, 2003 carries three grounds. Distilled therefrom are originally, four issues for determination by this court when the appeal came before us on the 20th of April, 2004 for argument, learned counsel sought the leave of this court to abandon the third issue and the arguments thereon contained in the brief of his clients.

Thus the remaining three issues as could be gleaned from the said brief are in the following terms:-
(1) Should the lower court have fixed the criminal matter for trial when the appellants’ (sic) above motion to quash the charge and other processes against them or for stay of same had not yet been taken or heard?

(2) Should the lower court have fixed the criminal matter for trial when there was no application before it for the case to proceed to trial?

(3) Is the physical presence of an accused person in court mandatory before a motion to quash filed before trial on behalf of such an accused can be heard or taken by the court before trial?

The issues conceived by the respondent for determination as arising from the grounds of appeal set out in their brief are as follows:-

(1) Whether the trial Judge was right to have fixed the criminal matter for trial when the appellant’s motion to quash the charge was still pending?

(2) Whether the trial Judge had jurisdiction to fix the criminal matter for trial as at the 14th of July, 2003 when it made the order?

(3) Whether the physical presence of an accused person in court is mandatory before a motion to quash the charge filed can be heard?

I have had a close examination of the issues identified by both sides. I am of the humble view that issues Nos. 1 and 2 set out on the appellant’s brief can be taken together with issues, Nos. 1 and 2 in the respondent’s brief. I shall so do in this judgment. I shall thereafter take issue No.3 on the appellant’s brief along with issue No.3 on the respondent’s: both of which are materially similar.

On issue No. 1 in his brief, the appellant submitted that the court below was wrong, in law, to have set the case for trial when it had not yet disposed of the motion brought by the appellants praying the court to quash or alternatively stay all the processes before it pending the determination of the judicial review proceedings challenging the finding of culpability against them on which the charge against them was predicated.

In support of this submission, it was contended that the appellants have a right, in law, to move the court to quash or stay before their arraignment in the court of law or before any or all of the incidents of the commencement of trial are embarked upon, reference was made to (1) Archbold-Criminal Pleading, Evidence and Practice (1997) paragraph 4 – 4 at pages 320 to 321 (2) R v. Chairman, County of London Quarter Sessions (1954) 1 QB 1 (3) Conelly v. D.P.P. (1964) AC 1254 and (4) Ikomi & Ors. v. The State (1986) 3 NWLR (Pt. 28) 340. It was further argued that by the rule of practice and procedure in our courts, that all applications pending before a court of law must be treated before embarking on the substantive case; support for this contention was found in the decisions in Ayanboye & Ors. v. Balogun (1990) 5 NWLR (Pt. 151)392 and (2) Woluchem v. Wokoma (1974) 1 All NLR (Pt. 1) 605 for their part, the respondent submitted that the trial Judge was right to have fixed the original matter for hearing when the appellant’s motion was still pending reference was made to the definition of the word ‘TRIAL’ in Black’s Law Dictionary 5th Edition page 1348.