Daniel Asuquo Edet V. The State (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an interlocutory appeal against the decision of S. M. Anjor, J., of the High Court of Cross River State, sitting in Calabar in Suit No. HC/39C/2005 delivered on the 3/5/2006.

In order to bring the issues involved in this appeal into proper perspective, it is necessary that I briefly state the facts which led to this appeal.

The appellant was arraigned before the court of trial on three (3) counts of stealing contrary to section 390 (12) of the Criminal Code, Cap. 31, Vol. II, Laws of Cross River State of Nigeria, 1983. On arraignment, but before the commencement of the trial, the appellant by a motion on notice dated 23/11/05 and brought pursuant to sections 167, 340(1), 72(2) of the Criminal Procedure Law of Cross River State, challenged the legality or validity of the information.

The grounds upon which the application was brought are stated at page 23 of the printed record supplied as follows:

“1. The Attorney-General lacks jurisdiction, power and authority to bring Charge No. HC/39C/2005 against the accused having discharged the accused on the 14 April, 2005 vide a letter with reference DPD/38/C/6986/2 to the Commissioner of Police, Cross River State Command, as the said Attorney-General cannot Approbate and Reprobate at the same time.

2. The proof of evidence does not disclose a prima facie case against the Accused/Applicant requiring him to stand trial before this Court of Justice or any other court of law on any of the 3 counts described therein.
3. All the 3 counts in the statement of offences are prejudicial to the Accused/Applicant and an abuse of judicial process.”

Sequel to the above application the appellant’s counsel addressed the court on the objection raised. See pages 49 – 51 of the record.

At the end of the proceedings for the day the learned trial Judge adjourned the proceedings to 15/3/06 for the respondent to reply. For reasons not clearly stated in the record the court did not proceed with the case on that day, instead it adjourned it to 11/4/06.

On 11/4/06 when the court resumed, learned counsel for the respondent, Mr. E. Henshaw, rather than reply to the submissions of the appellant’s counsel, applied to the court that the appellant be ordered to be in the dock.

Instead of hearing arguments conclusively on the objection and ruling on same, the learned trial Judge proceeded to hear the fresh application made by the learned counsel for the respondent urging that the appellant enter the dock. The trial Judge ruled as follows:

“From the arguments of both counsel, what is at stake here is the interpretation of S. 167 CPA, cited by State Counsel which provides “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later”.

The question then is at what point can a charge or information be read to an accused person. Certainly it cannot be when accused is outside the dock, but made same.

I therefore agree with Prosecution Counsel that accused person ought to be inside the dock while taking his objection to the charge or information.

Consequently it is hereby ordered that accused/applicant should enter the dock while argument of his objection continues.