Stanley Nwadike V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the decision of the High Court of Imo State, Oguta, in an application to quash charge NO: HOG/9C/2011, pending before the High Court, presided over by Hon. Justice G.I. Anunnihu. The Appellant had taken out a preliminary objection filed on 17/6/2011, seeking the following reliefs:

“An order striking out/dismissing the instant charge”

The grounds for the application were:

“(1) The accused/Applicant had been tried for the same offence in charge NO.HOG/15C/06 by a Court of competent jurisdiction, who (sic) heard the matter on the merit, dismissed the complaint and, accordingly, discharged the accused/Applicant on the merit.

(2) The alleged offence, facts, evidence and witnesses in the instant charge is one and the same with that of charge NO:HOG/15C/06 for which the accused/Applicant was tried for five years before he was discharged on the merit, and the complaint dismissed.

(3) It is the same State Counsel who signed charge Number: HOG/15C/06 for which the accused/Applicant was tried and discharged on the merit that also signed the instant charge Number: HOG/9C/11.”

The application was supported by affidavit and Exhibits – A & B – being copies of the charge/proof of evidence in charge NO.HOG/15C/06 and the judgment thereof, delivered on 13/1/2011.

The Respondent had opposed the application by filing a counter-affidavit, saying:

“(6) That the Applicant was merely discharged in the said case (HOG/15C/06) as shown in Exhibit B…

(7) That the information was not dismissed as shown in Exhibit B to the affidavit, contrary to the Applicant’s averments in his affidavit.

(8) That at the end of the case, the Respondent being dissatisfied with the judgment of the Court (Exhibit B) appealed against the discharge and acquittal of the other five co-accused persons at Court of Appeal, Owerri Division.

(9) That the Respondent further informed me and I verily believed him that mere discharge of the Applicant does not amount to acquittal.

(10) That by necessary implication, the charge is still hanging on his head…