Pius Odock and Others V. The State (2006)

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S. A. IBIYEYE, J.C.A.

This appeal is against the ruling of the Calabar Judicial Division of the High Court of Cross River State presided over by Ita, J. and delivered on the 24th day of February, 2005 in charge No. HC/8C/2005 overruling the appellants’ objection challenging his jurisdiction to try them in Calabar for an offence of murder allegedly committed at Odajie-Mbube, in Ogoja Local Government Area of Cross River State within Ogoja Judicial Division of the High Court of Cross River State.

The antecedents of the instant ruling are that the accused persons now appellants were arraigned on a one count information at the Calabar Judicial Division for an alleged offence of murder which was committed at Odajie-Mbube in Ogoja Local Government Area of Cross River State on the 6th day of August, 2004. On the 11th day of February, 2005 each of the appellants pleaded not guilty to the charge and the case was adjourned to 22nd, 23rd and 24th of February, 2005 for hearing. At the hearing on the 22nd day of February, 2005, the P.W.1, Mr. John Egbelo, testified and the case was adjourned to 2nd day of February, 2005 for cross examination by the appellants. On the 23rd day of February, 2005, the learned counsel for the appellants instead of cross examining the prosecution witness raised an objection to the jurisdiction of the learned trial Judge to try the appellants at the Calabar Judicial Division instead of the Ogoja Judicial Division where the alleged offence took place, in view of the provisions of Section 64(1) and (b) of the Cross River State. Arguments were proffered by the learned counsel for and against the objection. The learned trial Judge on the 24th day of February, 2005 in a reserved ruling, held, inter alia:

“The information and all the proofs of evidence attached to the information say Chief Egbelo was beaten comatose at Ogoja and that that beating caused his death. I find and hold that the alleged unlawful acts which resulted in the death of Chief Egbelo took place at Odajie-Mbube in Ogoja Judicial Division which has primary jurisdiction to hear this matter. I will in deciding this issue take judicial notice of Suit No. HC/MSC.256/2005 which come before me as the vacation Judge. That matter was an application for bail of certain persons who were arrested for reprisal (sic) attacks/actions resulting from the death of Chief Egbelo, (sic) the subject matter of the present charge. Houses were burnt and property destroyed at Mbube in Ogoja Judicial Division as a result of this murder (about 2 weeks after). If they so reacted without seeing these accused persons and witnesses, I am sure their reaction will be worse when they see them physically.

Having regard to the accessibility and convenience of witnesses in this case, this case should be tried at Ogoja Judicial Division but placing that against the threat to peace that this matter can cause if tried at Ogoja, I am persuaded to assume jurisdiction to handle this matter at Calabar Judicial Division pursuant to Section 70 C.P.I. The more than 300kms between Calabar and Ogoja will now act as a barrier to war and an agent of peace (sic). Peace is better than money.

What the witnesses will loose in monetary terms, the society at large will gain in peace terms. This trial will proceed.”

(Underlining mine for emphasis)

The appellants were aggrieved by the instant ruling disallowing the objection raised in their behalf and appealed to this Court on four grounds.

The appellants’ counsel identified the following three issues from the four grounds of appeal for the determination of the appeal:

“1. Whether considering the express provisions of Section 64(a) and (b) of the Criminal Procedure Law, Cap 32, of the Laws of Cross River State of Nigeria and the decision of this Court in NWANKWO v. STATE (1983) 2 FNLR 283, the learned trial Judge sitting at the Calabar Judicial Division of the High Court of Cross River State has jurisdiction to try the alleged offence of murder which took place at Odajie-Mbube, in Ogoja Local Government Area within the Ogoja Judicial Division of High Court of Cross River State.

2. Whether the learned trial Judge was right in his construction and application of the provisions of Section 70 of the Criminal Procedure Law, Cap 32, Laws of Cross River State, to the facts and circumstances of the case before him.
3. Was the learned trial Judge not in error when he relied on instinct, assumption and sentiments rather than the law, facts and evidence before him to arrive at his decision?”

The learned counsel for the respondent raised the following singular issue for the determination of the appeal:

“Whether there was impropriety on the part of the trial Judge in relying on Sections 64 and 70 CPL, taking judicial notice of the antecedents of this charge and assuming jurisdiction thereof.”

It is apparent from the two sets of issues adumbrated by the learned counsel for the appellants and the respondents that the issues raised by the former are more comprehensive than those raised by the latter. I shall, in view of this observation, determine the appeal on the issues formulated by the learned appellants’ counsel.

At the hearing, the learned counsel for appellants adopted and relied on the appellants’ brief of argument and the reply brief and’ urged the Court to allow the appeal. The learned counsel for the respondent adopted and relied on the respondent’s brief of argument and urged the Court to dismiss the appeal. The learned counsel for the respondent equally filed a preliminary objection which he argued in the respondent’s brief of argument and urged the Court to sustain both of them.