Marcel Nnakwe Vs The State (2013)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This interlocutory appeal seeks to challenge the competence of the Respondent (the State/Attorney General of the Federation) and its counsel (the law firm of Chief Afe Babalola, SAN & Co. to prosecute the Appellant for the crimes of attempted murder and murder.

The resume of the brief facts of this case simply dated back to the 13th day of October, 2004 when the High Court of the Federal Capital Territory granted the Respondent leave to prefer a four count charge of conspiracy, attempted murder and murder against the Appellant and seven others. The law firm of Chief Afe Babalola, SAN & Co. was briefed by the Respondent to prosecute the following four count charge:-

Charge No. 1.

“That you (1) FRANCIS C. OKOYE (a.k.a. Ebubedike); (2) EMMANUEL NNAMDI NNAKWE (a.k.a. Aboy); (3) MARCEL NNAKWE; (4) EMEKA ORJIAKOR; (5) CHRISTOPHER OKWARA MBAH (a.k.a. Persus); (6) OLISAEMEKA IGBOKWE (a.k.a. Holy War); (7) CHUKUKA EZEUKWU (a.k.a. ‘Let’s Go’) (8) JUDE UGWU (a.k.a ‘Agada’) on or between October, 2001 to December, 2003 at different places in the Federal Capital Territory and Anambra State agreed to do or cause to be done an illegal act to wit: cause the death of Dr. (Mrs.) Dora Akunyili, Director General, National Agency for Food and Drug Administration and Control (D.G., NAFDAC) and that the said act was attempted to be done in pursuance of an agreement and that you thereby committed an offence punishable under Section 97 of the Penal Code.

Charge No. 2

That you (1) FRANCIS C. OKOYE (a.k.a. Ebubedike); (2) EMMANUEL NNAMDI NNAKWE (a.k.a. Aboy); (3) MARCEL NNAKWE; (4) EMEKA ORJIAKOR; (5) CHRISTOPHER OKWARA MBAH (a.k.a. Persus); (6) OLISAEMEKA IGBOKWE (a.k.a. Holy War); (7) CHUKUKA EZEUKWU (a.k.a. Let’s Go); (8) JUDE UGWU (a.k.a. Agada) on a day in the month of October, 2001 at about 7.00 pm at the D.G. NAFDAC’s residence on Freetown Crescent, Wuse II, Abuja, did an act, to wit; caused unknown gun men to invade the residence of Dr. (Mrs.) Dora Akunyili, Director General, National Agency for Food and Drug Administration and Control (D.G. NAFDAC) and forcibly entered the rooms in the house in search of the said Dr. Dora Akunyili for the purposes of firing gun shots at her with such intention and or Knowledge and under such circumstances that if by that act you had caused the death of the said Dr. Dora Akunyili you would have been guilty of culpable homicide punishable, with death and that you thereby committed an offence punishable under Section 229 of the Penal Code.

Charge No. 3.

“That you (1) FRANCIS C. OKOYE (a.k.a. Ebubedike); (2) EMMANUEL NNAMDI NNAKWE (a.k.a. Aboy); (3) MARCEL NNAKWE; (4) EMEKA ORJIAKOR; (5) CHRISTOPHER OKWARA MBAH (a.ka. Persus); (6) OLISAEMEKA IGBOKWE (a.k.a. Holy War); (7) CHUKUKA EZEUKWU (a.k.a Let’s Go); (8) JUDE UGWU (a.k.a. Agada) on the 26th day of December, 2003 at Agulu in Anambra State did an act to wit:- caused gun shots to be fired at Dr. (Mrs.) Dora Akunyili, Director General National Agency for Food and Drug Administration and Control (D.G. NAFDAC) while driving inside her Peugeot 406 Saloon official car with such intention or knowledge and under such circumstances that if by that act you had caused the death of Dr. (Mrs.) Dora Akunyili, D.G. NAFDAC you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under Section 229 of the Penal Code.

Charge No. 4

“That you (1) FRANCIS C. OKOYE (a.k.a. Ebubedike); (2) EMMANUEL NNAMDI NNAKWE (a.k.a. Aboy); (3) MARCEL NNAKWE; (4) EMEKA ORJIAKOR; (5) CHRISTOPTIER OKWARA MBAH (a.k.a. Persus; (6) OLISAEMEKA IGBOKWE (a.k.a. Holy War); (7) CHUKUKA EZEUKWU (a.k.a. Let’s Go); (8) JUDE UGWU (a.k.a. Agada) on the 26th day of December, 2003 at Agulu in Anambra State did commit culpable homicide punishable with death in that you caused the death of one Emeke Onuekutu by doing an act to wit: caused several gun shots to be fired at Dr. (Mrs.) Dora Akunyili, D. G. NAFDAC while she was driving inside her Peugeot 406 Saloon official car which gun shot missed their target but instead hit the deceased inside his Mitsubishi L300 Minibus with Reg. No. AE 763 AJL with the intention of causing the death of, and or with the knowledge that the death of the said Emeka Onuekutu would be the probable consequence of your act and thereby committed an offence punishable under Section 221 of the Penal Code.”

The case proceeded to trial during which the 7th Accused person, one Chukuka Ezeukwu (a.k.a Let’s go) became deceased. On the 3rd day of February, 2005, just before the prosecution was to proceed with its third witness, the appellant for the first time, by way of a motion on notice, challenged the competence of counts 3 and 4 of the charge and prayed the trial court to quash the said counts in terms of the following reliefs:-

1. AN ORDER quashing or setting aside the FIAT issued on 10th September, 2004 by the Attorney General of the Federation to prefer a charge against the 2nd and 3rd Accused persons/Applicants as it relates to counts 3 and 4.
2. AN ORDER setting aside the order of this Honourable Court dated 13th October, 2004 granting leave to the complainant to prefer a charge in the High Court of the Federal Capital Territory against the 2nd and 3rd Accused Persons/Applicants as it relates to counts 3 and 4.
3. AN ORDER quashing the charge preferred against the 2nd and 3rd Accused Persons/Applicants as it relates to counts 3 and 4 in charge No. CR/28/04.
4. AN ORDER discharging the 2nd and 3rd Accused Persons/Applicants on counts 3 and 4.”

On the 8th day of February, 2005, the learned respondent’s counsel, Seeni Okunloye, SAN (of blessed memory) drew the attention of the court to the pendency of the motion supra and urged that it should be determined before proceeding with the hearing of the case. The learned appellant’s counsel however held a divergent view that the motion be deferred for determination along with a no case submission to be filed by the appellant after the respondent had closed its case. Incidentally, the trial court agreed with the appellant’s position.

Subsequent to the close of the case by both parties therefore, the trial court, in a considered ruling delivered on 23rd September, 2005 ruled in favour of the appellant on both the no case submission as well as the motion on notice challenging the competence of counts 3 and 4.