Okey Ezea V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the leading Judgment)

The appellant in this appeal was the gubernatorial candidate of the Labour Party in the governorship election held in Enugu State on 14th April, 2007. He lost in the election; Sullivan Chime was declared the winner of that election. The appellant filed a petition to challenge the result of the election as declared by the Independent National Electoral Commission. While the petition was pending, the appellant was suspected of having committed a crime.

The Police investigated the allegation against the appellant, prepared the case file and sent it to the Director of Public Prosecutions by a letter dated 4th August 2007. An information was filed against the appellant on 13th August, 2007 in the High Court of Enugu State, Holden at Enugu containing eight count charge of forgery, uttering and assault contrary to and punishable under sections 252, 443 and 444 and of the Criminal Code, Cap 30, Volume 11, Laws of Enugu State of Nigeria, 2004.

By a letter dated 16th August, 2007, the Police requested the Director of the Public Prosecutions to turn the case file on the ground that they wanted to carry out further investigation. Till date, the appellant has refused and/or failed to appear before the lower court to answer the charge. By an application dated 30th September, 2007 and filed on 2nd October, 2007 the appellant applied for the following orders:-

“1) An order of this honourable Court quashing the indictment contained in this case of all the counts charges (sic) against the accused/applicant.

2) An order discharging and/or acquitting the Accused/Applicant pursuant to the grant of prayer one (1) above.

3) And for such further or other orders as this honourable court may deem fit to make in the circumstance”.

GROUNDS OF THE APPLICATION

“1. The charges in this case amount to an abuse of the judicial process and are oppressive to the Accused/Applicant as the charges/Counts are inchoate, premature and still born.

2. The offences ex-facie the charge, arose from an election petition in the course of prosecuting an election petition before the governorship/Legislative Houses Election Tribunal in Enugu State and by virtue of Section 157 and 158 (2) of the Electoral Act 2006 (as amended) the Attorney-General of Enugu State or any of his Officers or any Legal Practitioner to whom he grants a fiat lacks the power to prosecute these offences.
3. The offences alleged against the accused/applicant are not disclosed by the statement of witnesses or the proof of evidence.
4. Take Further Notice that the accused/applicant shall rely on the proof of evidence and shall urge this Court to pry into them at the hearing of this application.”

In a considered ruling delivered by the Honourable Chief Judge, His Lordship dismissed the application, His Lordship held as follows:-

“it is clear that at common law under (sic) the Constitution of the Federal Republic of Nigeria 1999 and under the principle in the STATE v. ILORI (supra) this Court lacks the competence to quash an indictment or information commenced by the Attorney-General of the State against any person except those who enjoy constitutional immunity under Section 308 of the Constitution. It is also clear from the above analysis that the Attorney-General’s commencement of criminal prosecution cannot be subordinated to any instance or instances of the Police such as where the police claim that investigation has not been completed or that Police Report was inconclusive. Once the Attorney-General commences his prosecution, all these instances would merge in the prosecution for better or for worse. But they cannot be a ground for quashing the Attorney General’s indictment in limine or without a trial upon the merits”.

This appeal emanated from that ruling. The notice of appeal dated 7th October and filed on 25th October, 2010 contains 4 grounds of appeal which are:-

GROUNDS OF APPEAL:-

(1) ERROR IN LAW