Innocent Nweke V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant herein along with four other persons, namely EIias Mmadukaegbu, Edwin Nweke, Charles Igwe and Christopher Okafor Igwe were arraigned on an information before the Anambra State High Court holden at Awka, charged with the offences at conspiracy to commit murder and attempted murder. By a notice dated 30th April, 2010, the Appellant and his co-accused asked the prosecution to produce for their inspection for the purpose of preparing their defence several materials in accordance with the provision of Section 36(6)(b)and (d) of the 1999 Constitution of the Federal Republic of Nigeria and Sections 220 (1) and 146 of the Administration of Criminal Justice Law of Anambra State 2010. Thereafter Dr. Obiorah, learned counsel for the accused persons filed on application dated 5th January, 2010 in which he prayed for the following Orders,-

“1. Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of Court’s Process.

2. Quashing the information filed in this Court against each of the applicants as incompetent for failure to contain the proper Proofs

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of Evidence as required by Section 220(1) of the Administration of Criminal Justice Law, 2010.

3. Quashing or dismissing the information and the entire proceedings as the Honourable Court has no jurisdiction over the person of the 5th Applicant who has not been served with any information, Proof of Evidence and hearing/arraignment
4. Dismissing/striking out this proceedings for violating each of the Applicant’s constitutional rights to fair hearing.
5. Quashing the information as the Court lacks jurisdiction to try the offences as they brought in violation of each of the Applicant’s legal and constitutional right to fair hearing.
6. Quashing the arraignment of the Applicants on the information before this Court as the said information is incompetent and unsupported by proper Proofs of Evidence.”

The learned trial Judge heard this application and in a short ruling which was delivered on the 10th September, 2012, dismissed it on the ground that the Applicants did not make a case that would warrant the grant of the application The accused persons/applicants individually appealed to the Court of Appeal (henceforth) to be referred to as “the

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lower Court”). The lower Court heard the appeal together.

In a reserved and considered judgment which was delivered on the 28th July, 2015, their Lordships, Pemu, Agim and Bolaji- Yusuff JJCA dismissed the appeal. The extent appeal is against the decision of the lower Court. The notice of appeal at pages 321 – 326 of the printed record of this appeal, contains six (6) grounds of appeal.

Parties filed and exchanged briefs of argument DR. E.S.C OBIORAH, Learned counsel for the Appellant distilled two issues for determination of this appeal as follows:-

” l. Whether the appellant’s fundamental rights to be given adequate facilities for the preposition of his defence as enshrined in Section 36(6)(b) and (d) of the Constitution of the Federal Republic of Nigeria, 1999, has been violated; and if so, what is the effect of the said violation on the criminal proceedings and/or the offending information.

II. Notwithstanding, the answer to Issue No. 1 above, whether the Proof of Evidence founding the Amended information complied with Section 220(1) and 146 of the Administration of Criminal Justice Law of Anambra State 2010; and if not, what is the

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effect on the Amended Information and/or the Criminal Proceedings”

For the Respondent, MR G. B. OBI ESQ of counsel, who settled the Respondents brief of argument, submitted for the determination of this appeal a single issue which reads thus:-

“Whether the Information including the Proof of Evidence filed by the prosecution against the Appellant is incompetent and liable to be struck out for non-compliance with the provision of Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State, 2010.”

The issues formulated by both parties are similar. Having read through the briefs of argument, I am of the view that the sole issue formulated by the Respondent has adequately covered the field. I will therefore adopt it in determining this appeal.

Learned counsel for the Appellant submitted in argument that the Appellant’s fundamental right to be given adequate facilities for the preparation of his defence as enshrined in Section 36(6){b) and (d) of the Constitution of the Federal Republic of Nigeria, 1999, has been violated and that such violation has vitiated the Information and other processes as filed by the Respondent.<br< p=””

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In aid, learned counsel cited Ebele Okoye v C.O.P (2015) SC.279/2011, Ejike Okoye v C.O.P (2015) SC.279A/2011, Chizoba Okoye v C.O.P (2015) SC.2779B/2011, Chika Okoye v C.O.P (2015) SC.2779C/2O11 and Onyeka Okoye v C.O.P (2015) SC.279D/2011 which were all decided on 8th May, 2015 by this Court.

In a further argument, learned counsel submitted that the Proof of Evidence founding the amended information violated the express provisions of Section 220(1) and 146 of the Administration of Criminal Justice Law of Anambra State 2010 rendering the said proof of evidence and its Amended Information incompetent and liable to be quashed. Learned counsel submitted that when a statute prescribes a condition precedent for doing an act, failure to follow the said condition renders the act null and void. In aid the authorities in UNTHMB v Nnoil (1994) 8 NWLR (Pt. 353) 376; Ogieva v. lgbinedion (2004) 14 NWLR [Pt. 894] 467, and NNPC v Tijani (2006)17 NWLR (Pt. 1007) 29 were cited.

For the Respondent, it is argued that the Appellant’s application at the trial Court is premature in that he did not formerly apply for on order from that Court to compel the Respondent to

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provide him with the facilities he required to defend himself. In a further argument, learned counsel submitted that it is the prosecution that determines who qualifies as a material witness for the purpose of compliance with Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State 2010 and the proof of evidence which accompanies the information containing the statement and particulars of all the persons adjudged by the prosecution as material witnesses in the case. Still in argument, learned counsel submitted that the counter affidavit to the Appellants application had clearly stated that the prosecution had no other materials outside those it had exhibited to the proofs of evidence and the Appellant’s assertion that some document were been kept away is a mere speculation. Learned counsel urged the Court to dismiss the appeal.

Section 36(6)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:-

“Every person who is charged with a the Criminal offence shall be entitled to:-

(b) Be given adequate time and facilities for the preparation of his defence

(d) Examine in person or by his legal

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practitioner, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution.”

In Ebele Okoye v COP (2015) SC.279/2011, the judgment which learned counsel for the Appellant graciously made available to me, this Court had the opportunity to interpret the word ‘facilities’ under Section 36(6)(b) of the 1999 Constitution as follows:-

“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 statements 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 prosecution counsel may not want to put forward to testify.”

There is no doubt that the Appellant served the notice to produce for inspection certain facilities on the Respondent on

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the 30th of April, 2010. Before the notice, the Appellant through his counsel had written a petition to the Attorney-General of Anambra State, dated December 22nd, 2008, complaining that the prosecuting counsel was hiding evidence which would be favorable to the Appellant in his defence. Learned counsel for the Appellant, has clearly demonstrated his ignorance in the art of conducting cases in Court. It is a typical example of chasing the shadow instead of the substance. A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice.

If the Appellant strongly wanted some facilities which were not made available to him, he would have applied formerly to the trial Court for an order compelling the Respondent to make available those facilities which he required for his defence. In the passage

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which I reproduced elsewhere in this judgment in the case of Ebele Okoye v C.O.P (Supra) which learned counsel for the Appellant cited and placed so much reliance upon, this Court clearly stated that any request for facilities necessary for the preparation of the defence of an accused must be made to the Court. Even at the risk of repetition, I hereby reproduce part of the passage as follows:-

“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,” (Underlining is mine for emphasis).

This Court did not say at any time that the Respondent must accede to the request of the Appellant, as the latter is incapable of making an enforceable order. Learned Appellant’s counsel at page 10 of the Appellant’s brief of argument stated that the prosecutor should not be allowed to have sole access to evidence and that a judge or jury should ensure that the doors leading to truth have been unlocked. With that knowledge, learned counsel would have known that the

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request to produce should have been made to the Court and not to the prosecutor. Issuance of notice and writing petition to wrong quarters, are not helpful to the Appellant and so the lower Court is right to have dismissed the Appellant’s appeal on this score.

This now brings me to the issue of whether the Appellant’s fundamental rights to be given adequate facilities for the preparation of his defence as enshrined in Section 36(6)(b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria has been violated. In answer to this issue, learned counsel for the Appellant submitted that the Information and Proof of Evidence are incompetent and should be quashed for infringing on the Appellant’s fundamental right to fair hearing/fair trial and for violating the express mandatory provisions of Section 36(6)(b) and (d) of the Constitution. Lack of fair hearing means a trial conducted contrary to all legal rules formulated to ensure that justice is done to the parties to the case. The trial of the Appellant in the instant case had not been concluded and so learned counsel’s complaint of lack of fair hearing and or fair trial is speculative and the

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trial Court had no jurisdiction to act on speculation. See Nnajiofor v. Ukomi (1985) 2 NWLR (Pt.9) 686. A breach of the right of fair hearing is a matter of fact that must be established by evidence. Learned counsel’s affidavit in support of his application of the trial Court admitted that statements of five witnesses had been provided and the statements of the seven witnesses that were bound over by the magistrate Court to give evidence in the case were not available. Section 36 of the Constitution provides for the provision of adequate facilities and not all the facilities. It was therefore left for the Appellant to object to the tendering in Court the statement of the 7 witnesses that were not made available on the ground of non-compliance with the appropriate legislation or apply that the documents be made available for inspection.

The last issue to be considered is whether the Amended Information filed against the Appellant at the trial Court are incompetent and should be quashed for failure to contain certain proofs of evidence as required by Sections 220(1) and 146 of the Administration of Criminal Justice Law of Anambra State.

Section 220(1) of

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the Law provides that an information shall contain Proofs of Evidence.

Section 146 of the some law provides as follows:-

“The Proofs of Evidence shall consist of:

(a) Statement of the charge against the defendant

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

(c) The name, 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, may by a doctor about the state of mind of a defendant in custody;

(e) Records of convictions, if any, affecting the credibility of any witness 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.

By this provision, especially Paragraph H, the list of what Proof of Evidence shall consist of is in exhaustive. The case of Ebele

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Okoye v C.O.P (Supra) is distinguishable from the instant case. In that case, the Appellant made an application to the trial Court in which he requested for facilities to defend himself. It was the refusal of that application that gave birth to the appeal that came all the way to this Court. In the instant case, there was no such application before the trial Court. The order in respect of the case of Ebele Okoye v C.O.P (supra) by this Court after allowing the appeal was for the Appellant to be provided with the facilities contained in the notice to produce which was filed in the Magistrates Court Awka by the Respondent. This Court did not declare the Proofs of Evidence and the information filed at the trial Court incompetent. In the instant case, the Appellant’s application at the trial Court was premature as he did not apply formerly for the facilities he required for his defence.

A dismissal of action in limine is the most punitive relief that a Court can grant a defendant against the plaintiff. Because of its Punitive nature, Courts of law are reluctant in granting such a request for the mere asking. There must be legal basis for the request and

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corresponding legal basis for granting it. See Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574.

This is a criminal case, and the need to preserve a crime free society is at stake. The view expressed in Inakoju v Adeleke (Supra) is relevant. The Court of Appeal was therefore right when it dismissed the appeal. I find no reason to accede to the submission of the learned counsel for the Appellant. Accordingly, the sole issue formulated by the Respondent upon which this appeal is considered is resolved against the Appellant in the result, this appeal shall be and it is hereby dismissed.

SC.714/2015