Godwin Moses Udo V. The State (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of High Court of Akwa Ibom State, Ukanafun Judicial Division delivered by Hon Justice Ezekiel Ennang on the 31st July, 2015. The 3rd Accused/Appellant at the lower Court whilst the 1st Respondent was the complaint and 1st and 2nd and 4th Accused persons respectively. The 3rd Accused/Application to quash the information filed against him was refused and struck out, hence this appeal.

Upon the information on the charge being served on the Accused persons, 1st-4th Accused/Appellants Counsel filed an application by way of Motion on Notice on the 12th June, 2015 to quash the information or strike out the three information for failing to disclose a prima facie case of conspiracy, Murder and causing grievous harm against the Accused/Applicant for lack of evidence in the proof of evidence to connect the Accused/Appellant with the offence wherewith the 3rd Accused/Appellant was being charged.

The lower Court on the 31st July, 2015 delivered its Ruling and refused the Application to quash the three count information against the 1st-4th Accused/Appellants. Being dissatisfied with the said Ruling the 1st-4th

Accused/Appellants have new filed this appeal.To argue this appeal the 3rd Accused/Appellant distilled 4 issues for determination:

1. “Whether the trial Court can rely on hear say evidence to establish prima facie case of Conspiracy, Murder and causing grievous harm against the 3rd Accused/Appellant when the 3rd Accused/Appellant was not at the scene of crime.(Ground 1).”

ISSUE NO. 2

2. Whether the Learned trial Judge was right to have hold that a prima facie case of conspiracy murder and grievous harm was established against the 3rd Accused/Appellant in the circumstances, particularly when the identity of the 3rd Accused/Appellant and the Alibi raised by him was not resolved by the prosecution.” (Ground 2).

ISSUE NO. 3

3.”whether a Criminal charge preferred in the Magistrate Court without jurisdiction which was sent to Director of Public Prosecution and adjourned sine die amount to the termination of the Criminal proceedings and whether abuse of Court whether abuse of Court process and Criminal jeopardy against the 3rd Accused/Appellant.”(Ground 3).”

4. Whether the Learned trial Judge can rely on disputed State Law

to Rule against the consent to prefer information at High Court of Akwa Ibom State under a valid existing Law (Ground 4).

In considering the issues No. 1, Learned Appellants Counsel submitted that it is a fact that the 3rd Accused/Appellant was not at the scene of crime whether did he personally involved in the attack of the deceased but what the Court relied upon to link the 3rd Accused/Appellant and made out a prima facie against him is the 3rd Accused /Appellant and make out a prima facie case against him is only hearsay.

And so the hearsay evidence of Gideon Amos Udoko cannot of any means make out a prima facie case. It is therefore Learned Appellants submission that the proof evidence by the prosecution against the 3rd Accused/Appellant cannot make out a prima facie case.

Learned Counsel therefore submitted that the proof of evidence from page 6-44 of the records do not support any link of the 3rd Accused/Appellant with the commission of the offences of Conspiracy, Murder and causing grievous harm under which the 3rd Accused was charged.

?Also, Learned Counsel submitted that the filing of information to proffered charge against the 3rd Accused/Appellant

while the criminal proceedings Charge No. UKM/12C/2015 was adjourned sine die without formally terminating the criminal proceedings at the Magistrate Court amount to the abuse of Court process and a double jeopardy for the 3rd Accused/Appellant. See Diniggadsi (Supra. He then prayed the Court to resolve this issue in their favour.