Mercy Okoroafor V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal stems from the interlocutory ruling of Hon. Justice Otisi (as he then was) of the High Court of Abia State sitting in Aba, delivered on 10/5/2010 wherein His lordship dismissed the Appellant’s application to quash Charge No. A/7C/2009.

The facts culminating in this appeal are that the Appellant and one other person were arraigned on 13/8/2008 before a chief magistrate court sitting in Aba South, Abia State on the counts of conspiracy, stealing and malicious damage. The Appellant pleaded not guilty whereupon the matter proceeded to trial.

The prosecution in proof of its case called PW1 who testified and was fully cross examined. Sequel to the inability of the prosecution to call their other witnesses, they were foreclosed and accused persons called upon to open their defence. DW1 testified on 9/10/08 and the matter was adjourned to 7/11/08 for his cross examination. On 7/11/08 the prosecutor brought an application to substitute the charge and arguments were taken and the matter adjourned for ruling to 26/11/08.

On 3/12/08 the prosecution applied for an adjournment in order to obtain the record of proceedings to cross examine the DW1. The matter was, then adjourned to 4/12/08. On 5/12/08 one T.O.B. Okey Esq brought an application to vacate the order of foreclosure which was argued and on 11/2/09 the application was refused and the matter was then adjourned to 18/2/09 for cross examination of DW1.

On 25/2/09 the state counsel that appeared applied for adjournment to enable him cross examine the DW1. Defence opposed the application where upon the application was refused. The Prosecutor then said he had no cross examination. DW2 testified and was partly cross examined and this matter was then adjourned to 13/3/09 for continuation of cross examination.

By a letter dated 27/3/09 addressed to the Registrar of the Magistrate Court the prosecutor stated that he had filed information at the High Court and wished to discontinue the matter.

On 28/4/2009, the charge at the High court came up for plea but counsel to the accused/appellant raised a preliminary objection on the grounds that the charge constituted an abuse of process since the charge at the magistrate court was still pending. The learned judge after acknowledging that the parties and facts in the two charges were the same however dismissed the preliminary objection.

On 15/7/09 when the matter came up at the magistrate court, the prosecution was absent and following the application by the defence counsel, the accused persons were discharged on the merit.

The Appellant subsequently brought an application to quash the information at the High Court for constituting double trial since he had been acquitted of the allegation contained in the information. After considering the written addresses on both sides, the learned judge dismissed the application. It is the dismissal of the application to quash the charge that gave rise to the present appeal.

GROUNDS OF APPEAL

Consequent upon the leave of this Honourable court granted on 16/2/2011, the Appellant filed a notice of appeal wherein he raised the following grounds of appeal, which I do hereby reproduce without their particulars.

GROUND ONE: The learned trial judge in the court below erred in law when she ruled that charge No. MAS/301C/2008-C.O.P. V. OKOROAFOR & ANOR pending against the 2nd Appellant and another before the chief magistrate were properly discontinued by officers of the ministry of justice by their letter Exhibit C in the application.

GROUND TWO: The learned trial judge in the court below erred in law when she ruled that the order of the learned chief magistrate was made without jurisdiction and amounted to a nullity.