Igwe V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

On 26/3/2012, the respondent sought to arraign the appellant and four others before the High Court of Anambra State, Awka Judicial Division on a two-count charge of conspiracy to commit murder and attempted murder.

Although the charges were read and interpreted to them, they declined to plead thereto on the ground that they had a pending motion challenging the competence of the charge. The motion dated 4/5/2010 was brought pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Sections 212, 240, 241 and 247 of the Criminal Procedure Law (CPL) of Anambra State. They sought the following reliefs:

“An Order:

(I) Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of the Court’s process,

(2) Quashing the information as incompetent for failure to contain the proper proofs of evidence as required by Section 211(a) of the Criminal Procedure Law.

(3) Dismissing/Striking out the proceedings for violating the applicants’ fundamental right to fair hearing.

(4) Quashing the information as the Court lacks jurisdiction to try the offences as they were brought in violation of the applicants’ constitutional right to fair hearing.

(5) Quashing the arraignment of the applicants on the information before this Court as the information is incompetent and unsupported by proper proofs of evidence.

And granting such further orders/reliefs as this Honourable Court may deem, just and proper in the circumstances.”

The application was supported by a 22-paragraph affidavit and exhibits attached thereto marked A—F. The applicants filed a written address in support. The respondent filed a counter-affidavit and also filed a written address thereto.

​The applicants were initially arraigned before the Magistrates Court Awka in Suit No. MAW/ 1940/07. Having regard to the nature of the charges, the Court declined jurisdiction and referred the matter to office of the Director of Public Prosecution. The prosecution informed the Court that it intended to call 12 witnesses to testify and supplied their details. The Court therefore made an order binding them over to make themselves available to testify before the High Court wherever they were required to do so. It was the applicants’ contention at the High Court, that of the 12 witnesses bound over, the prosecution only included five in the proof of evidence filed along with the information. It was contended that the failure to include the names, addresses and statements of the remaining 7 witnesses, whom they considered to be material witnesses rendered the information defective and liable to be quashed. In particular, it was contended that the statement of an independent eye witness, one Alice Nweke, who informed the Police that the applicants were not the perpetrators of the crime, was omitted. They also contended that exculpatory statements made by some of the witnesses were not included. They argued that by withholding the statements of material witnesses, their right to be given adequate facilities for the preparation of their defence, guaranteed by Section 36(6) (b) of the 1999 Constitution, as amended, had been breached. They also contended that the information deserved to be quashed for being in violation of Sections 212, 240, 241 and 247 of the CPL of Anambra State.

​The prosecution denied withholding any evidence. They averred in their counter-affidavit that the said eye witness, Alice Nweke, could no longer be traced. It was also contended that by their information, they are only required to show that there is a prima facie case made out, requiring some explanation from the accused. They also argued that the application was an abuse of the Court’s process, aimed at delaying the hearing of the case.

In a brief ruling delivered on 10/9/2012, His Lordship J.C Iguh, J. dismissed the application in the following words:

“I have carefully considered the application, the affidavit in support, together with the exhibits thereto, arguments of the learned counsel for the applicants, counter-affidavit together with the exhibits 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 and is hereby dismissed.”

​The applicants were aggrieved by the decision and filed an appeal before the Enugu Division of the Court of Appeal. In a considered judgment delivered on 28th July, 2015, the appeal was dismissed. The ruling of the learned trial Judge was upheld.

The appellants are still dissatisfied and have further appealed to this Court. Their Notice of Appeal filed on 27th August, 2015 contains 6 grounds of appeal.

At the hearing of the appeal on 18/2/21, Dr. E.S.C. Obiorah adopted and relied on the appellant’s brief filed on 10/12/19 and his reply brief filed on 8/3/19 in urging the Court to allow the appeal. P.A. Afuba Esq. adopted and relied on the respondent’s brief filed on 7/4/16 in urging the Court to dismiss the appeal.

Learned counsel for the appellant distilled a single issue for determination thus:

Whether the failure of the Proof of Evidence to contain the statutorily mandated facilities, as compelled by Sections 220(f) and 146 of the Administration of Criminal justice Law of Anambra State, 2010, rendered both the Proof of Evidence and the underlying amended Information incompetent and also constitutes a violation of the appellant’s fundamental right? (Grounds 1, 2, 3, 4, and 5).

The respondent formulated two issues, namely:

(1) Did the respondent substantially comply with the relevant provisions of the Administration of Criminal Justice Law of Anambra State, 2010, in preparing the proofs of evidence upon which the information filed against the appellant was based? (Grounds 3, 4 and 6).

(2) Whether the Court of Appeal was right in sustaining the information filed against the appellant having found that the alleged violation of the appellant’s fundamental right to fair hearing was not made out? (Grounds 1, 2 and 5).

The appellant’s single issue conveniently encompasses the two issues submitted by the respondent. I shall therefore adopt the sole issue for the resolution of the appeal.

Sole Issue

Learned counsel for the appellant submitted that the law is trite that failure to comply with the mandatory provisions of a statute in performing a statutory duty or carrying out any public function renders any action taken in violation of that statute incompetent and a nullity. He referred to several authorities, including U.N.T.H.M.B. Nnoli (1994) 8 NWLR (Pt. 363) 376 @ 401-413: N.N.P.C. VS. Tijani (2006) 17 NWLR (Pt. 1007) 29 @ 45: Gov. of Ebonyi State Vs Isuama (2004) NWLR (Pt. 870) 511 @ 533. He submitted that while Section 220(f) of the ACJL provides that an “information shall contain Proofs of Evidence” Section 146 sets out what the proofs shall consist of. The Section provides:

“146. The proofs of evidence shall consist of –

(a) Statement of the charge against the defendant,

(b) The name, address, statement of any material witness whom the prosecution intends to call;

(c) the names, address and statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires;

(d) the copy of any report, if available, made by a doctor about the state of mind of a defendant in custody;

(e) record of conviction, if any, affecting the credibility of any witnesses for the prosecutor;

(f) statements of the defendant;

(g) an inventory of all exhibits to be produced to the Court at the trial; and

(h) any other statement or document which the prosecution may consider relevant to the case.” (Underlining mine)

​Learned counsel submitted that there is a world of difference between the liberty of the prosecution to call any witness it desires and the duty to disclose the name, address and statement of any material witness whom the prosecution does not intend to call, the statement of the defendant and all the exhibits to be produced to the Court at the trial. He argued that the first scenario is discretionary and has no relevance to the present case, while the second scenario is mandatory and constitutes a condition precedent for the existence of a valid proof of evidence.

He submitted that the use of the word “shall” in Section 146 of the ACJL connotes mandatoriness. He referred to Gov. of Ebonyi State Vs Isuama (Supra). He submitted that the Court has a duty to stop any prosecution that violates the law or which, on the facts, creates abuse or injustice. See: Ezeze Vs. The State (2004) 14 NWLR (Pt. 894) 491 @ 504-506. He submitted that in the instant case, the information and proof of evidence which omitted the statements of 7 material witnesses, the complaint against the appellant to the police, photographs of the incident and inventory of exhibits are incompetent ab initio and should be quashed.

​On who is a material witness, he submitted that a material witness is a witness whose evidence might influence the decision of the Court on an issue in the prosecution of the case. He referred to the definition provided in Black’s Law Dictionary, 8th Edition, 2004 and the case of Ikemson vs. The State (1989) NWLR (Pt. 110) 455 @ 474. He submitted that the test for determining the materiality of a witness is objective, not subjective. He submitted that the yardstick is the opinion of a reasonable man.

He submitted that the lower Court erred in holding that it is the prosecution that can determine whether a witness is material or not for the purposes of the contents of the proof of evidence. He argued that if this were the correct position, there would not have been any need for the enactment of Section 146(b) and (c) of the ACJL. He submitted that, in any event, the prosecutor had shown that 12 witnesses were material when he applied for them to be bound over during the remand proceedings at the Magistrates Court.

​He submitted that the only reason for the omission of 7 of the witnesses previously bound over is to prejudice the appellant and to deprive him of their statements, which would have facilitated his defence. Apart from listing the names of the witnesses and the statements allegedly withheld, he submitted that the prosecution also failed to list the exhibits to be relied upon including photographs taken at the scene. He submitted that the Court has a duty to prevent an abuse of its process by striking out the defective proof of evidence. He referred to Abacha Vs The State (2002) 11 NWLR (Pt. 779) 437 a 485.

Relying on a recent decision of this Court in Okoye vs C.O.P. (2015) 17 NWLR (Pt. 1488) 276 @ 314 F—H, he submitted that the refusal of the respondent to avail the appellant with the necessary materials to facilitate his preparation for his defence, constitutes a violation of his fundamental right to fair hearing as enshrined in Section 36(6)(b) of the 1999 Constitution, as amended. He also referred to: Kenon Vs Tekam (2001) 14 NWLR (Pt. 732) 12 @ 41: Kalu vs F.R.N. (2014) 1 NWLR (Pt. 1389) 479: Ogboh vs F.R.N. (2002) 10 NWLR (Pt. 774) 21.

He submitted that the respondent’s refusal to accede to the appellant’s request, despite repeated demands. He referred to Udo vs The State (1988) 1 NSCC (Pt. 19) 1163 @ 1172 for the contention that Section 36(6)(d) of the 1979 Constitution (which is in pari material with Section 36(6) of the 1999 Constitution) is a provision of “equal opportunities for both the prosecution and the defence” and therefore the prosecution will not be allowed to have sole access to evidence. He referred to: Orisakwe Vs Governor of Imo state (1982) 3 NCLR 743 @ 758.

Learned counsel submitted that the prosecution should not be allowed to benefit from its illegality. He referred to: Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 554 @ 623; Teriba vs Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Lafia Local Govt. Vs Gov. of Nassarawa State (2012) 17 NWLR (Pt. 1328) 94.

In response, learned counsel for the respondent submitted that there was substantial compliance with the provisions of the ACJL. He referred to Sub-paragraphs (b) and (c) of Section 146 of the law and the proofs of evidence at pages 115—138 of the record, which contains the names, addresses and statements of 5 witnesses. He submitted that what the law requires is the names, addresses and statements of material witnesses. He placed emphasis on “material.” He argued that it is not the requirement of the law that the name, address and statement of every person who made a statement to the police must be included but only that of a material witness. He urged the Court to give effect to the word “material” as used in Sub-sections (b) and (c) in its plain and ordinary meaning. He referred to: Okotie-Eboh Vs Manager & Ors. (2004) LPELR-2502 (SC); (2004) 18 NWLR (Pt. 905) 242. He submitted that where the words of a Statute are clear and unambiguous, the duty of the Court is to apply them in their simple and ordinary meaning. He referred to: Fawehinmi Vs I.G.P. (2000) 7 NWLR (Pt. 481) 503: Awolowo vs Shagari (1979) 6-9 SC 73; (1979) ALL NLR 120: Agwuna vs A.G. Federation (1995) LPELR-258 (SC): (1995) 5 NWLR (Pt. 396) 418.

On who is a material witness, learned counsel referred to: Akpan vs The state (1991) NWLR (Pt. 182) 646, where it was held that a witness is material where he can help resolve the facts in dispute between the contending parties. He referred to Section 147 of the ACJL and submitted that at the stage of preparation of the proof of evidence, there must be a determination as to which witness statements are material and which are not. He referred to: Uket vs F.R.N: (2007) LPELR – (CA), where His Lordship, Rhodes-Vivour, JCA (as he then was) held that the purpose of proof of evidence is to give the accused person an opportunity of knowing what the prosecution witnesses were coming to Court to say against him. See also: Abacha vs The State (2002) 11 NWLR (Pt. 779) 437.

He submitted further, that by Section 145 of the ACJL, it is the statutory duty of the Attorney-General and the law officers in the Public Prosecutions Department of the Ministry of Justice to prepare proofs of evidence in criminal trials. He submitted that it is these officers who can determine which witness statements are material and those that are not. He argued that it is not the province of the appellant or his counsel to appropriate to themselves the said statutory function. He referred to the Police Investigation Report at pages 126—127 of the record, where it was stated that all efforts to reach and obtain a statement from the alleged good Samaritan who allegedly broke the news of the incident in the village, proved unsuccessful. He submitted, as regards to the binding-over order made by the learned Magistrate, that the exercise of the Attorney-General’s statutory powers cannot be fettered or circumscribed by the action of the police prosecutor in the Magistrate’s Court. He submitted that any act by the Police prosecutor is subject to the overriding decision of the Attorney-General. He referred to Section 165 of the ACJL.

Learned counsel submitted that the powers of the Attorney General in respect of criminal prosecution are traceable to Section 211 of the 1999 Constitution, as amended. He referred to: Ezomo Vs A.G. Bendel State (1986) NWLR (Pt. 36) 448 and submitted that he is not subject to any control. He submitted further that copies of the statements could still be availed the appellant upon the proper application to the Court.

​He submitted that the appellant has not alleged that the proofs of evidence, as they stand, do not disclose a prima facie case against him. He submitted that non-disclosure of a prima facie case is a major ground for quashing an information. He contended that the non-inclusion of statements of some persons made to the police in the course of investigation cannot be a basis for the quashing, of an information. He relied on the persuasive authority of Wabara & Ors. vs FRN (2010) LPELR—4940 (CA) per Mary Peter-Odili, JCA (as he then was).

As regards the contention that the appellant’s fundamental right to fair hearing was breached, learned counsel set out the prayers sought in the applicants’ motion seeking to quash the information (reproduced earlier in this judgment). He observed that there was no prayer seeking to compel the prosecution to provide the facilities they required for their defence. He argued that in the absence of a prayer to that effect being refused, the appellant could not contend that his right to fair hearing was breached. He referred to: Inakoju Vs Adeleke (2007) 4 NWIZR (Pt. 1025) 423 @ 475.

Learned counsel noted that the applicants had issued a notice to produce the omitted statements, exhibited to their application as Exhibit F. He submitted that the essence of a notice to produce is to enable the party applying to tender secondary evidence of the relevant documents. He referred to: Buhari Vs Obasanjo (2005) 13 NWLR (Pt. 941) 1. He also referred to the counter-affidavit wherein it was averred that the basis for the demand for some of the documents is non-existent. He submitted that the duty to ensure compliance with Section 36(6) of the 1999 Constitution, as amended, is on the Court and not the prosecution. On what amounts to fair hearing and the duty of the Court in respect thereof, he referred to: A.G. Benue State vs Umar (2008) 1 NWLR (Pt. 1068) 311 @ 351 (CA).

Learned counsel submitted that the issue of lack of fair hearing can only be used to nullify a decision at the conclusion of trial and should not be used as a ploy to truncate the proceedings in limine. He submitted that the issue was raised prematurely in the circumstances of this case. In support of his argument that a trial must have taken place before the issue of lack of fair hearing could be raised, he referred to: Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659; Pam & Anor. vs Mohammed & Anor. (2008) LPELR-2895 (SC).

He distinguished the facts of Okoye Vs C.O.P. (Supra), relied upon by the appellants, from the facts of this case. He submitted that in Okoye’s case, there was an application before the Court for the prosecution to make the statements of some witnesses available which was granted at the Magistrate’s Court and affirmed on appeal to High Court. He noted that it was on further appeal to the Court of Appeal that the order granted was set aside. It was however restored by this Court. He submitted that Okoye’s case cannot therefore be an authority in the instant appeal.

In reply on points of law, learned counsel submitted that it is not correct, as contended by the respondent, that by Section 146(c) of the ACJL, the Attorney General has the sole discretion as to who is a material witness. He submitted that the essence of the provision is to actualize and fulfill the mandate of Section 36(6) (b) of the 1999 Constitution, as amended. He referred to Okoye Vs C.O.P. (Supra) and submitted that the requirement is to prevent the mischief of a prosecutor attempting to conceal facts and misleading the Court to an erroneous decision and to give both sides an even playing field. He submitted that a party who suppresses evidence cannot be allowed to benefit from his own wrong. He referred to: Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 554 @ 623; Teriba VS Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Adedeji vs Obajimi (2018) 16 NWLR (Pt. 1644) 146. He submitted further that the duty imposed on the Attorney General as prosecutor by Section 146(c) of the ACJL has a corresponding correlation to the right vested in the appellant, as an accused person, entitling him to the full complement of the proofs of evidence, which must contain the particulars of witnesses and their statements, whether the prosecution intends to call such witnesses or not.

Learned counsel submitted that there is no statutory or adjectival law that permits the Attorney General to misuse his powers. Relying on Abacha vs The State (2002) 11 NWLR (Pt. 779) 437 @ 485 and Edet vs The State (2008) 14 NWLR (Pt. 1106) 52, he submitted that the Courts have inherent powers to prevent abuse of power and abuse of judicial process in order to safeguard the accused from oppression.

With regard to the Notice to produce, he submitted that what the applicants requested was beyond a mere notice to produce as provided for in Section 91 of the Evidence Act. He submitted that the applicants gave notice to the respondent to produce the required statements for inspection, photographing, copying or testing in fulfilment of the provisions of Section 146(c) of the ACJL. ​He contended that a notice to produce under Section 146 (c) is constitutional and unlike the notice under the Evidence Act, it is not presupposed that the applicants have secondary evidence of the required information in their possession. He submitted that the authority of Nweke Vs The State (2017) 15 NWLR (Pt. 1567) 120, is inapplicable in the present circumstances.

He argued that there is no basis for the contention that an application must have been made to the Court before the applicants could insist on their rights. He asserted that any violation of Section 146(c) of the ACJL renders all actions, including the filing of the information in charge No. A/57C/2008 and the proceedings therein a nullity.

A good place to commence the resolution of this issue is to consider the provisions of Section 36 (6) (b) of the 1999 Constitution, as amended and Section 146 (c) of the ACJL of Anambra State.

Section 36 (6)(b) of the Constitution provides:

36(6) Every person charged with a criminal offence shall be entitled to —

(b) to be given adequate time and facilities for the preparation of his defence.

​Section 146 of the ACJL has been reproduced earlier in this judgment. For emphasis, Sub-section (c) provides that the proof of evidence shall consist of, inter alia:

(c) the names, address and statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires.”

(Underlining mine).

The bone of contention in this appeal is the meaning of the underlined phrase above in the context of Section 36 (6) (b) of the 1999 Constitution, as amended, and who determines who a material witness is. In Newswatch Communications Ltd. vs Atta (2006) 12 NWLR (Pt. 993) 144 @ 170—171 H-A and at 181—182 H—A, this Court held: per Niki Tobi, JSC:

“The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.”

Per Mahmud Mohammed, JSC:

“There is no doubt at all that the principle of fair hearing is fundamental to all Courts’ procedure and proceedings. Like jurisdiction, the absence of it vitiates proceedings, however well conducted… Fair hearing according to the law envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end…

Fair hearing in accordance with the law also envisages that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.”

​As noted above, Section 146 of the ACJL requires the prosecution to include in the proofs of evidence, not only the particulars of material witnesses, which it intends to call, but also the particulars of material witnesses it does not intend to call. I agree with learned counsel for the appellant that the requirements are to give effect to Section 36(6)(b) of the 1999 Constitution, as amended.

​In the case of Okoye vs C.O.P. (2015) 17 NWLR (Pt. 1488) 276, heavily relied upon by learned counsel for the appellant, the facts were as follows: At the arraignment of the appellant and others before the Magistrate Court in Awka, counsel representing the accused persons moved an application for an order of Court directing the prosecution to furnish the accused persons with all documents (including statements of witnesses and police investigation reports relating to the case) whether they intended to tender them at the trial or not. In response, the prosecution contended that such procedure was not applicable to a summary trial but only to a trial on information. The trial Magistrate ruled that the defence should be availed with copies of all the statements of the witnesses examined by the police in the course of its investigation. The prosecution was dissatisfied with the ruling and filed an appeal to the High Court. The appeal was dismissed and the ruling of the trial Magistrate was affirmed.

​On further appeal to the Court of Appeal, the Court agreed with the prosecution’s contention that it was necessary for the accused persons to first make their election whether to be tried summarily or on information and that it was only where they elected to be tried on information that they would be entitled to be furnished with all the witness statements, police investigation reports, and so on. The accused persons all filed individual appeals against the judgment of the lower Court. In a unanimous decision by a full panel of this Court, the appeal was allowed. It was held inter alia at pages 300—301 F—C:

“The moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself. It is immaterial whether he elects to be tried summarily or on information. Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing, for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply… when a person is accused of an offence and requests for facilities to enable him prepare his defence, and the facilities in question are statements of witnesses, it will suffice if the prosecution makes available, photocopies of the statements. The Court below was clearly in error when it made the election of the appellant to be tried on information as a condition precedent to exercising his right to request for facilities to prepare for his defence.”

In my contribution at page 322 D-F of the report, I stated thus:

“There is nothing in Section 36 (6) (b) of the Constitution that restrict its application to either a summary trial or a trial on information or provides for a condition precedent to its application. With the greatest respect to the learned Justices of the Court below, having held that the evidence against the appellant, including the statements of witnesses to the Police were part of the facilities that would aid him in the preparation of his defence, ought to have stopped there and dismissed the appeal. The literal interpretation of Section 36(6) (b) does not admit of the meaning ascribed to it by the lower Court.”

​The law is quite well settled that a decision is only an authority for what it actually decided. It must be considered and utilized in light of its own peculiar facts and circumstances. See: Western Steel Works Ltd. Anor. Vs Iron Steel Workers Union of Nig. & Anor. (1987) 2 SCNJ 1: Ugwuanyi VS NICON Insurance Plc (2013) 11 NWLR (Pt. 1366) 546; Okafor vs Nnaife (1987) 4 NWLR (Pt. 64) 129; Skye Bank & Anor. vs Akinpelu (2010) 9 NWLR (Pt. 119B) 179.

In Okoye’s case (supra), the issue was whether there was any condition precedent to the entitlement of an accused person to be availed of adequate facilities for his defence. This Court answered emphatically in the negative. The Court also interpreted the word “facilities” as contained in Section 36 (6) (b) of the Constitution, as follows (at page 296 E-F):

“The facilities that must be afforded the accused person are the “resources” or “anything which would aid” the accused person in preparing his defence to the crimes for which he is charged. These, no doubt, include the statement of witnesses interviewed by the Police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify.”

​Thus, while Okoye’s case is an authority for what constitutes “facilities” within the context of Section 36(6) (b) of the Constitution, as amended and the fact that an accused person has an unfettered constitutional right to request such facilities whether he is tried summarily or on information, it is not an authority for the proposition that the failure of the prosecution to accede to the request will result in the information being quashed.

The essence or purpose of serving proofs of evidence upon an accused person is to afford him the opportunity of knowing what the prosecution witnesses intend to say against him in Court. It contains statements or abridged statements made extra-judicially to the Police or the investigator by the complainant, witnesses and/or the accused person, which would prima facie sustain the charge or the allegation against the accused person. See: Abacha vs The State (2002) 11 NWLR (Pt. 779) 437: (2002) LPELR—15 (SC) @ 59 B-C: David Amadi vs A.G Imo State (2017) NWLR (Pt. 1575) 92: (2017) LPELR-42013 (SC) @ 18 C—E.

In the Indian case of Sher Shinsh Vs Jittendranathsen (1931) 1 LR 59 case 275, referred to and relied upon by this Court in: Ajidagba I.G.P. (1958) SC NLR 60 @ 62 D–E, it was held thus:

“What is meant by prima facie case? It only means that there is ground for proceeding… But prima facie is not the same as proof, which comes later when the Court has to find whether the accused is guilty or not guilty (Per I. Grosse, J) and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”

In Kalu VS F.R.N (2016) 9 NWLR (Pt. 1516) 1 @ 26 B, it was held per Ngwuta, JSC (of blessed memory):

“The term prima facie case answers the questions on the face of the proofs of evidence: is there a ground for proceeding? Does the proof of evidence disclose an offence or offences and if so, is the accused linked with the offence as to require him to explain his involvement therein?”

See: Ikomi vs The State (1986) 3 NWLR (Pt. 28) 340.

An information is liable to be quashed where the charge is defective or where it fails to disclose a prima facie case against the accused person. See: Abacha v. The State (supra): Okoro vs The State (1988) 5 NWLR (Pt. 94) 255.

In the instant case, the appellant has not alleged that the proofs of evidence filed do not disclose a prima facie case against him. His complaint is that there are other exculpatory statements made to the police by material witnesses, which he requires to enable him properly prepare for his defence, that have been deliberately omitted despite repeated demands.

By Section 146 (c) of the ACJL, the prosecution shall include the names, addresses and statements of any material witnesses even though it does intend to call them. A material witness is one whose evidence is significant, credible and may aid in the determination of the case one way or another. See:Hassan Vs The State (2016) 12 SC (Pt. IV) 41; Ochiba vs The State (2011) 17 NWLR (Pt. 1277) 663 @ 696 A-B.

The use of the word “material” in the Sub-section suggests that there is an element of discretion involved. In other words, the provision does not require that the details of every person who made statements to the Police in the course of their investigation must be included in the proof of evidence. The initial determination of who is a material witness must be that of the prosecution. After all, there is a burden on it which does not shift, to prove the guilt of the accused beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011.

In the instant case, while it is correct that the prosecutor at the Magistrates Court applied for an order binding over 12 witnesses to be available to testify in subsequent proceedings, I agree with learned counsel for the respondent that in filing the charge at the High Court, the Hon. Attorney General is not bound by the steps taken by the prosecutor at the Magistrates Court. See Section 211 (1) (a) and (3) of the 1999 Constitution. The case file was forwarded to the office of the Director of Public Prosecutions to take the necessary steps towards the arraignment of the accused person before a Court of competent jurisdiction. That exercise necessitates a consideration of the entire contents of the case file and a determination as to which witnesses are material to enable the prosecution prove its case beyond reasonable doubt.

​The list of witnesses that eventually forms part of the proofs of evidence is a list of the witnesses considered material by the prosecution. Not all of those listed may eventually testify. As such, it is a list of material witnesses that the prosecution may or may not intend to call at the trial. Having made that determination and compiled proofs of evidence, duly served on the appellant, he had the right to request to be availed with additional facilities to enable him adequately prepare his defence where he is of the view that certain material evidence has not been included in or has been deliberately omitted from the proof of evidence. Section 146 (c) of the ACJL entitles him to apply to the Court to compel the prosecution to make them available to him. He cannot complain of lack of fair hearing when the hearing is yet to commence. It is the Court that has the duty to ensure that the constitutional right to fair hearing is not violated. It has a duty to hold an even scale between the parties to ensure that both sides are afforded an equal opportunity to present their case.

​When interpreting statutory provisions, it is correct, as submitted by learned counsel for the appellant, that the words used must be given their natural and ordinary meaning except where, to do so would lead to absurdity. See: Dickson vs Sylva & Ors. (2016) 7 SC (Pt.VI) 165; Ibrahim VS Barde (1996) 9 NWLR (Pt. 474) 513; Ojokolobo vs Alamu (1987) 3 NWLR (Pt.61) 377: Nonye Vs Anyichie (2005) SCN 306 @ 316.

It was held in Saraki vs F.R.N. (2016) 3 NWLR (Pt. 1500) 531, that the main object of statutory interpretation is to discover the intention of the law maker, which is to be deduced from the language used. Furthermore, the provisions must be considered as a whole and not in isolation. See:Obi vs INEC (2007) 11 NWLR (Pt. 1046) 560 @ 664 B—D; N.U.R.T.W & Anor vs R.T.E.A.N. & Ors. (2012) LPELR-7840 (SC) @ 28-29 F-A.

​An interpretation of Section 146 (c) of the ACJL, which renders an information null and void because the accused contends that in his opinion, the statement of material witness were omitted or deliberately withheld by the prosecution, would lead to absurdity. It would lead to the opening of the floodgates for any person accused of committing an offence to truncate, in limine, the hearing of any charge against him on the ground that the statements of material witnesses were not included in the information. The test of materiality then becomes subjective and not objective. As observed earlier, it is the Court, upon an application to it by the defence, that can determine the reasonableness of the request.

I agree with the respondent that at this stage, the appellant is not in a position to contend that his right to fair hearing has been breached, as he is yet to take his plea.

Trial in a criminal case is said to commence with the arraignment of the accused, which consists of the reading of the charge to him and the taking of his plea thereon. See: Lufadeju vs Johnson (2007) 8 NWLR (Pt.1037) 535; (2007) LPELR—1795 (SC) @ 43 E-F: Asakitikpi VS The State (1993) 5 NWLR (Pt. 296) 641 @ 652.

In the case of Isiyaku Mohammed Vs Kano State Native Authority (1968) 1 ALL NLR 424 @ 426, it was held, per Ademola, CJN:

“We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. We feel obliged to agree with this.”

​In conclusion, I am not persuaded to interfere with the concurrent findings of the two lower Courts. I am not satisfied that there are grounds to nullify the information where the charge has not been shown to be defective and it is not alleged that the proof of evidence as it stands, does not disclose a prima facie case warranting some explanation from the appellant. I am of the view that an application to the Court for an order directing the prosecution to make the requested materials available would have met the justice of this case. I am equally not satisfied that the appellant’s right to fair hearing has been breached.

The appeal therefore fails and is hereby dismissed. The judgment of the lower Court delivered on 28th July, 2015 is affirmed.

Appeal dismissed.

SC.716/2015