David Effiom V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A.: (Delivering the Leading Judgment)

The Appellant, along with UNEEPTEE Power Nig. Ltd. and DSP Enoh Usoh Usoh Essien, were arraigned before the High Court of Akwa Ibom State, Uyo, on a nine (9) counts charge No. HU/2C/2008 of conspiracy and stealing contrary to Sections 556(1) and 408, respectively, of the Criminal Code, Cap 38, Vol. II, Laws of Akwa Ibom State, 2000.

Specifically, the Appellant and Essien were charged with the offence of conspiracy to steal in counts 1 and 2 while in count 3, he, with UNEEPTEE, were charged with stealing “the aggregate sum of Two Hundred and Forty Eight Million, Four Hundred Thousand Naira (N248,400,000) the property of Akwa Ibom State Government.”

On arraignment, the Appellant vide a motion filed on the 15/4/2008, prayed the High court to quash the charge/information against him and the 2nd accused, on the grounds that:-

a) That the charge/information was preferred with the leave and

b) That the information as preferred, does not disclose a prima facie case against Applicants.

After hearing the motion, the High Court, in a ruling delivered on the 2/6/2009, refused to quash the information/charges against the Appellant but quashed same against the 2nd accused person: UNEEPTEE. It is expedient to set out the reasoning and conclusion of the High Court in the ruling, which runs from page 71 – 72 of the record of the appeal. This is it:-

“I have endeavoured to go through the information which is so badly reproduced that it is difficult to read but it is clear issues of transfer of money, non-payment to designated persons, conversion and stealing are raised. I cannot say whether or not a prima facie case is made out against anyone but I cannot also say that no offence is disclosed against the 1st accused person.

In the circumstances it is only after hearing the evidence that one can make a determination one way or the other. This is different from the situation where there is nothing linking the accused persons of all to the offence.

On the issue that the information was preferred without leave there is nothing apparent on the information to suggest that leave was sought or that consent of a judge was obtained. Since the statement taken from witnesses were not verified on oath before a Magistrate the information can only be preferred under the provisions of Section 314(3)(b) of the Criminal Procedure Law which provides as follows:-

“No information charging any Person with an indictable offence shall be preferred unless the information is preferred by the directions or with the consent of a Judge or pursuant to order made under part 31 to prosecute the person charged for perjury.

Section 314(5) provides that an information preferred otherwise than in accordance with the provisions of sub-section (2) of this section has been filed by the Registrar the information is liable to be quashed.

Sub-section (2) deals with the situation where a judge on being satisfied with requirements of information had been met directs that such information be filed.

However a letter from the office of the Director of Public Prosecution forwarding a draft charges and statements of witnesses for purposes of filing of information will in my view quality as an application in the light of the decision in the case of Abacha v The State (2002) 11 NWLR (Pt.779) 437.