Charles Igwe Vs The State (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKAAHS, JSC

The appellant was the 4th accused in amended Charge No. A/57C/2008 before the Anambra State High Court, Awka for the offences of conspiracy to commit murder and attempted murder. Before the arraignment could take place, the learned counsel appearing for the appellant and the other accused persons brought an application dated 5 January, 2012 challenging the competence of the information and the supporting proofs of evidence seeking the following orders: –

1. Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of court process
2. Quashing the information filed in this Court against the applicants as incompetent for failure to contain the proper Proofs of Evidence as required by section 220(f) of the Administration of Criminal Justice Law 2010.
3. Quashing or dismissing the information and the entire proceedings as the Honourable Court has no jurisdiction over the person of the 5 applicant who has not been served with any information, proof of evidence and hearing/arraignment notice.
4. Dismissing/striking out this proceeding for violating each of the applicants’ constitutional right to fair hearing.
5. Quashing the information as the court lacks jurisdiction to try the offences as they were brought in violation of each of the applicants’ legal and constitutional rights to fair hearing.
6. Quashing the arraignment of the applicants on the information before this Court as the said information is incompetent and unsupported by proper proofs of evidence.

The motion was supported with a 30 paragraph affidavit to which was annexed proceedings at the Magistrate’s Court in Charge No. MAW/194c/2007. In paragraphs 11, 22, 23, 24 and 25 thereof, Jacinta Maduka, deposed to the following facts: –

“11 Upon careful review of the Proofs of Evidence served on the 1st applicant, it was discovered that the respondent refused or failed to include the exculpate y statements of the following material witnesses in the purported Proofs of Evidence: –

“(a) statement of Alice Nweke, who was referred to by the complainant as the “Abakaliki woman” who witnessed the incident, taken by the prosecution on 26/10/2007 which statement informed the prosecution that the culprits of the offence were not the applicants but two persons who came in a motor cycle and left with the same. A copy of the said statement which was given to the lSi applicant by the police for his file is annexed hereto as Exhibit “B”.

(b) Statement of Chukwudi Okonye, taken by the prosecution on 23/10/2007, which supports the alibi of the 3rd applicant. A copy of the said statement which was given to the 3rd applicant by the police for his file is annexed hereto as Exhibit “C.

(c) Statement of Gabriel Honwa, taken by the prosecution on 26/10/2007, indicating that the Police at B Division had investigated the matter and obtained witnesses’ statements not included in the proofs of evidence. A copy of the said statement given to the 1 applicant by the police for his file is annexed as Exhibit “D”.

22. By a Notice to produce for Inspection dated April 30, 2010, the applicants demanded on the prosecution to produce the material facilities that would enable the applicants to prepare for trial. A copy of the said Notice which is part of the record of this Court is annexed hereto as Exhibit “F”

23 Till date, the prosecutor has refused or failed to produce the facilities demanded by Exhibit “F” or make any demanded materials available to the applicants.

24. On May 4, 2010, at Awka, Dr. E. S. C. Obiorah Esq. informed me and I verily believe him that the applicants are in dire need of the facilities or materials in order to adequately prepare their defence and in order to properly cross-examine the prosecution witnesses. The materials will assist the defence in investigating this matter to search for and discover witnesses and interview them in preparation for the trial. The applicants also need them to adequately carry out the examination of witnesses on the same conditions as those applying to the witnesses called by the prosecution.
25. The applicants also need the demanded, facilities to adequately prepare for trial and avoid unnecessary surprises and ‘hide and seek’ on the part of the prosecution”

The motion was opposed and Ifeoma Francis, a litigation officer in the Anambra State Ministry of Justice, Awka deposed to a 39 paragraph affidavit in opposition. In paragraphs 23 and 25 of the counter-affidavit, she averred that: –

“23. That the defence is at liberty to call any witness they feel will advance their case.

25. It further answer to paragraph 22 above, the prosecution states that the defence has no right to tell it the witness to call, and one not to call”.

In his short ruling at page 230 of the records the learned trial Judge said: –

“I have carefully considered the application, affidavit in support together with the exhibits exhibited thereto, arguments of learned counsel for the applicant, counter affidavit together with the exhibits exhibited thereto and arguments of the learned counsel for the respondent and it seems to me that the applicants have not made a case that would warrant the grant of the application. The application accordingly fails, the same must be and is hereby dismissed”.

Being dissatisfied with the said ruling the applicants appealed to the Court of Appeal, Enugu in appeal No. CA/E/461C/2012 in their several Notices of Appeal dated 22 September, 2012 containing 5 ground of appeal from which two issues were distilled. The Court of Appeal in dismissing the appeal and affirming the ruling of the High Court held that it is the Attorney-General and the Law Officers in the State who determine the material witnesses that can be listed at the back

of the information and they may or may not be called and that the Attorney-General cannot be subject to the control of a police prosecutor in the Magistrate Court and consequently there was no infringement of the applicants’ constitutional right to fair hearing.