Arthur Kalu Dede V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of K. C. Nwamkpa; J of the Abia State High Court sitting at the Ohafia Judicial Division delivered on the 6th day of May, 2011.

The brief background facts of this case is that, the Appellant and 8 (eight) others were arraigned before the High Court of Abia State sitting at Ohafia on an Information alleging the offences of murder, kidnapping, conspiracy, etc. However, by a motion on notice dated and filed the 14/4/2010, the Appellant who was the 3rd Accused person on the charge, 4th, 5th and 6th Accused persons prayed the lower court for:

AN ORDER:

Quashing all counts in the Information preferred against the Applicants on the following grounds:

(i) No prima case is disclosed against the Applicants.

(ii) The Information constitutes an abuse of the court’s process having regard to Suit No: FHC/UM/M/86/2009-EZEOGO ONWUBIKO IKPO & ORS v. THE ATTORNEY-GENERAL OF ABIA STATE & 2 ORS.

(iii) The Information is unconstitutional and prejudicial.

(iv)The Information is void for non-compliance with Statutory provisions of sections 5, 6, 7 and 8 of the Criminal Procedure (Miscellaneous Provisions) Edict 1974 (Edict No. 19 of 1974).

AND FOR SUCH FURTHER orders or orders as the court may deem fit to make in the circumstances.

To effectually hear and determine on the motion, parties filed and exchanged written Addresses and the Application was subsequently heard on the 14/5/2010, when parties adopted their written Addresses. The learned trial Judge adjourned Ruling on the Application to the 28/6/2010. However, as shown by the record, Ruling could not be delivered till the 06/5/2011, which is a period of over one year since the Application was heard. The learned trial Judge could not deliver Ruling on the Application on the said 06/5/2011, but held as follows:

“In the final analysis, the hearing and determination of this motion as well as proceedings with the Hearing of Charge No.HOH/1C/2010 are hereby stayed pending the determination of the Application of the 4th, 5th and 6th Accused/Applicants before the Federal High Court in Suit No: FHC/UM/M86/2009. Consequently, this motion and charge No:HOH/1C/2010 are hereby adjourned sine die until the determination of Suit No.: FHC/UM/M86/2009 before the Federal High Court, Umuahia.”

In essence therefore, the trial High Court did not rule on the Application before it, but proceeded to adjourn the Ruling on the Application and hearing of the substantive Charge No: HOH/1C/2010 pending before it, sine die or till the 4th, 5th and 6th Accused/Applicants’ Application then pending before the Federal High Court, Umuahai was determined. The Appellant who was the 3rd Accused/Applicant in that motion, was dissatisfied with the decision of the lower court thereon, and therefore filed this appeal.

The Notice of Appeal which was dated the 19/5/2011 and filed 20/05/2011 is based on three Grounds. They are hereunder reproduced follows: