Commissioner Of Police V. Ejike Okoye & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The 1st Respondent, who is a legal practitioner, was arraigned with the other Respondents at the Chief Magistrate Court, Awka, on a 7-count Charge of serious assault on police officers; malicious damage; unlawful assault on “one Sgt. Paulinus Nze, while acting in the execution of his lawful duty by hitting him with a stick on his left eyebrow which caused him harm”; unlawful assault on “one Inspector Godwin Okeme by giving him fist blows all over his body”; unlawful assault on “one Sgt. Onuh Odoh by giving him fist blows all over his body”; unlawful and malicious damage “to 55 fifty-five six inches blocks valued at N3,850.00, property of one Christian Okoye”; and unlawful and malicious damage to a “wall fence valued at N9,000.00 property of one Christian Okoye”. The matter was adjourned to 3rd August 2006, for “plea and hearing”, but on that day, learned counsel for the Respondents orally applied for an Order –

“Directing the Prosecution to furnish the defence with all documents (including statements of witnesses, and Police Investigation Reports relating to this case), which are relevant to this case whether they tender same or not.

The Prosecution objected to the said oral Application on the ground that –

(a) “This is a summary trial and furnishing of relevant documents up front is not provided for in the CPL as in the case of trial on information”.

(b) “If the defence wants to enjoy the facility of front loading they have their right under Section 193 CPL to elect for trial on information; they should not seek to enjoy a right only available in a trial on information in a summary trial”.

The Chief Magistrate Court ruled as follows (see page 8 of the Record) –

“I am of the view that if front loading does not occasion miscarriage of justice in a trial, all that the Court is to ensure is that the process and delay associated with a trial on information is not imported into a summary trial. The Court is also to ensure that the expense to which a Prosecutor is not put in a summary trial (i.e. for photocopying and transmission) are not put on a Prosecutor should the Court be minded that relevant documents to a criminal trial be furnished up front to the defence. – (i) hereby grant the application – a photocopy each all the statements of all the witnesses examined by the Police in the course of the investigation of the case be furnished to the defence on or before the next adjourned date. The cost of production of the photocopies shall be borne by the accused persons. I have deliberately omitted police investigation report from my order as relating to police internal administration. But this is not to hold that should such a report become an issue in course of the trial, this Court will be precluded from ordering its production”.

Dissatisfied with this Ruling of the Chief Magistrate Court, the Appellant appealed to the High Court of Anambra State, Awka, with a Notice of Appeal containing five Grounds of Appeal. In its Judgment delivered on 19th November 2007, the High Court per Hon. Justice J.C. Iguh, held –

The Statements of the Prosecution witnesses to the Police – – form part of the facilities to be given to the defence for the preparation of hr’s defence. Such statements are not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then, if it is intended to impeach his credit, to put the statement in evidence for that sole purpose – – – The Defendant or his counsel has no means of knowing whether the statement can be put to this use until he has seen it. The prosecuting counsel whose traditional duty is not to secure a conviction, but to see that justice is done, should put no hindrance in his way and the Court – – should make whatever order that may appear necessary to enable the accused person to put forward any defence that may be open to him. – – – Although, the trial at the lower Court is a summary trial, but the defence are entitled – – since they have applied, to be given copies of the statements made by the Prosecution witnesses as one of the facilities they require for the preparation of their defence as provided by Section 36(6) (b) of the Constitution”.

Aggrieved by the decision of the appellate High Court, the Appellant appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, and three issues for Determination were formulated therefrom in the Appellant’s brief prepared by B. A. Onwuemekaghi, Esq.

The three issues for Determination formulated by the Appellant are –

(1) Whether the learned High Court Judge was right to hold that photocopies of the statements made by the Prosecution witnesses are one of the facilities the defence requires for the preparation of their defence as provided by Section 36(6)(b) of the 1999 Constitution.

(2) Whether the Judge was right in arriving at a decision directing the Prosecution to furnish the defence with photocopies of all the statements of witnesses examined by the Police whether they intend to call such witnesses or not in preparation of their defence as provided for in Section 36(6)(b) CFRN 1999 without considering the hardship and inconvenience involved in where the Police will now be required to photocopy their case files and hand same over to the defence.