SENATOR ADOLPHUS NDANEWEH WABARA v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2010)LCN/3588(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of February, 2010
CA/A/217c/2006
RATIO
APPEAL: WHEN WILL AN APPEAL BE DEEMED TO HAVE BEEN ENTERED IN THE COURT
Pursuant to Order 4 rule 10 of the Court of Appeal Rules 2007, an appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the registry of the Court. PER JIMI OLUKAYODE BADA, J.C.A.
CRIMINAL PROCEDURE: PERSONS THAT CAN BE TRIED TOGETHER UNDER SECTION 221
Under Section 221 of the Criminal Procedure Code – The following persons may be charged and tried together, namely:-
“(a) persons accused of the same offence committed in the course of the same transaction.
(c) person accused of more than one offence of the same or similar character, committed by them jointly.
(d) persons accused of different offences committed in the course of the same transaction.”
In Olusegun Haruna vs. The State (1972) 8 – 9 S.C. Page 108 at 125 Paragraph 10 the Supreme Court referred to Section 221 of the Criminal Procedure Code and held among others as follows:-
“the conspiracy was hatched and the overt acts were done undoubtedly in the same transaction. It was therefore right and proper to charge and try all the Appellants together.”
Also in the case of:-
The State vs. Onyeukwu (2004) 14 NWLR Part 893 Page 340 at 378 – 379 Paragraphs H-F the Supreme Court stated the advantage of having a joint trial which will necessarily take a much shorter time than trying each accused one at a time. No doubt, in terms of procedural policy of convenience, it is better to charge all accused persons in respect of all counts against them, in circumstances which are envisaged and permissible under Section 155 of the C.P.A. which is impari materia with Section 221 of the Criminal Procedure Code. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
SENATOR ADOLPHUS NDANEWEH WABARA – Appellant(s)
AND
(1) FEDERAL REPUBLIC OF NIGERIA
(2) SENATOR IBRAHIM ABDULAZEEZ
(3) PROFESSOR FABIAN OSUJI – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment) this is an appeal against the Ruling of the High Court of the Federal Capital Territory, Abuja delivered on the 17th day of February 2006 in Suit No- FCT/HC/CR/31/2006.
The said suit arose from Charge No: CR/3/2005 in which the 1st Accused who is now the Appellant and 2nd to 7th Accused Persons who were the Respondents were charged before the High Court of Justice of the federal Capital Territory, Abuja by the Complainant now the 1st Respondent in this appeal with conspiracy to commit the offence contrary to Section 26 of the Corrupt Practices And Other Related Offences Act, 2000, offering and obtaining gratification in the sum of N50,000.000.00 and N5,000.000.00 respectively contrary to Section 8, 9,10, 17 and 19 of the said Act and failure to report the offer of gratification contrary to Section 23 of the Act in the course of the same transaction.
The Appellant and the 2nd to 7th Respondent filed Preliminary Objections challenging the charge against them.
The trial Court delivered its Ruling on the 10th day of November 2005 wherein it dismissed the applications of the Accused Persons and stated the matter for definite hearing. The Appellant and the other Respondents excluding the 3rd and 6th Respondents appealed against the Ruling delivered on the 10th day of November 2005 by the trial Court.
The 3rd and 6th Respondents brought an application for a separate trial for themselves and ruling on a separate trial was delivered in their favour on the 17th day of February 2006.
The Appellant who is dissatisfied with the Ruling of the 17th February 2006 now appealed to this Court.
The learned Counsel for the Appellant formulated two issues for determination as follows:-
“1. Whether it was proper for the Learned trial Judge to have assumed jurisdiction to entertain the application for separate trial on the 14th day of February 2006 and delivered Ruling thereon on the 17th day of February, 2006, when the appeal against his earlier Ruling of 10th November 2005 had been entered and pending at the Court of Appeal as Appeal No: CA/A/7/C/2006.
2. Whether the Learned trial Judge was right when he granted the application for separate trial of the 3rd and 6th Accused/Respondents when the purported offences with which the Appellant the other Accused/Respondents as well as the 3rd and 6th Respondents herein were charged, were alleged to have been committed in the course of the same transaction.”
On the other hand the learned Counsel for the 1st Respondent aligned himself with the Appellant’s brief of argument in addition to the 1st Respondent’s brief of argument.
He also formulated a lone issue for determination as follows:-
“Whether the Learned trial Judge was right when he granted a separate trial for the 3rd and 6th Respondents and whether it was in the interest of Justice to have granted a separate trial in the circumstances of this case.”
At the hearing, the applications to discontinue the appeal against the 3rd 4th, 5th and 6th Respondents were granted and the appeal against them dismissed.
Those remaining as parties in this appeal are the Appellant, the 1st, 2nd and 7th Respondents. The 7th Respondent is now renumbered as 3rd Respondent.
The learned Counsel for the Appellant referred to the Appellant’s Brief of Argument filed in this Court and he adopted the said brief as his argument in urging this Court to allow his appeal.
The learned Counsel for the 1st Respondent referred to the 1st Respondent’s Brief of Argument deemed filed on 23 day of April 2009. He adopted the said brief as his argument in urging this Court to allow the appeal
The learned Counsel for the 2nd and 7th Respondents now 3rd Respondent did not file any brief of Argument, they aligned themselves with the position of the Appellant.
The learned Counsel for the Appellant formulated two issues for determination while the learned Counsel for the respondent formulated a lone issue similar to one of the issues formulated on behalf of the Appellant are considered relevant and apt to determine this appeal.
Issues 1 and 2 (Taken together)
“1. Whether it was proper for the learned trial Judge to have assumed jurisdiction to entertain the application for separate trial on the 14th of February 2006 and delivered Ruling thereon on the 17th day of February, 2006, when the appeal against his earlier Ruling of 10th November 2005 had been entered and pending at the Court of Appeal as Appeal No: CA/A/7/C/2006.
2. Whether the Learned trial Judge was right when he granted the application for separate trial of the 3rd and 6th Accused/Respondents when the purported offence with which the Appellant, the other Accused/Respondents as well as the 3rd and 6th Respondents herein were charged, were alleged to have been committed in the course of the same transaction.”
Learned Counsel for the Appellant submitted that it was legally improper for the learned trial Judge to have assumed jurisdiction to entertain the Application for separate trial on the 14th day of February 2006 and delivered Ruling thereon on the 17th day of February 2006 when the appeal against the earlier Ruling of 10th November 2005 had been entered and pending at the Court of Appeal as Appeal No – CA/A/7/C/2006.
It was further submitted that the said application for separate trial ought to have been transmitted to the Court of Appeal, which has control of proceedings during pendency of appeal. He relied on the following cases:-
Biocon Agrochemicals Nig. Ltd and Others vs. Kudu Holdings (PTY) Ltd (1996) 2 S. C. N. J. Page 212; Dr Femi Adekanye & 25 Others vs. Controller of Prisons & 2 Others (2000) 12 NWLR Part 682 Page 563 at 571 Paragraphs E- H
The learned Counsel for the Appellant also submitted that the Learned trial Judge was wrong when he made an order staying further joint trial of all the Accused Persons in order to have a separate trial of the 3rd and 6th Accused Persons when all the Accused Persons were alleged to have committed the offences with which they were charged in the course of the same transaction.
He went further that the Learned trial Judge in his Ruling agreed that the case of State vs. Onyeukwu (2004) 14 NWLR Part 893 Page 340 relied upon by the 3rd and 6th Accused Persons in seeking separate trial was not applicable to the said application of the 3rd and 6th Respondents as the said case is in support of joint trial.
However, the Learned trial Judge’s reason for staying joint trial and ordering separate trial as prayed was that it will be in consonance with the 3rd and 6th Accused Persons right to fair hearing within a reasonable time, while allowing the Appellant and other Accused Person to proceed with the prosecution of their appeals will be in consonance with their Right to Appeal. Learned Counsel for the Appellant stated that both rights should take cognizance of the fact that the alleged offences were committed in one and the same transaction.
He finally prayed that this appeal be allowed in its entirety.
The learned Counsel for the 1st Respondent in his own submission stated that it is not in the interest of Justice to grant a separate trial for the 3rd and 6th Accused Persons because the offences which the Appellant and the 2nd to 7th Accused Persons were charged with were committed in the course of the same transaction. He relied on the case of:-
– Olusegun Haruna vs. The State (1972) 8-9 SC Page 108 at Page 125 Paragraph 10.
It was further submitted on behalf of the 1st Respondent that it will be improper to try all the Accused Persons in the present case separately. This is because it will be hazardous to get twenty-one witnesses listed in the proof of evidence to appear in Court and testify at separate trials in respect of the offences committed in the same transaction.
It was also submitted that the witnesses who are not the Accused Persons will be made to face double trial as a result of the evidence they will give in the various Courts if separate trial is allowed. The learned Counsel for the 1st Respondent stated that the evidence gathered by the Complainant in this case are available against the Accused Persons jointly and cannot be split for the purpose of separate trials. He went further that going on with a separate trial will destabilize the case of the prosecution and make trial impossible thereby giving rise to gross injustice against the Complainant.
Learned Counsel finally urged that the appeal be allowed.
In order to have a good understanding of the issues in this appeal, it would be necessary to delve into some facts of this case.
The Appellant and the other Accused Persons including the 3rd and 6th Accused Persons were arraigned before the High Court of the Federal Capital Territory Abuja with offences alleged to have been committed by them in the course of one transaction.
The Appellant and the 2nd to 7th Accused Persons filed Preliminary Objections, challenging the charge against them. The trial Court delivered its Ruling on the 10th day of November 2005 wherein it dismissed the application of the Accused Persons and slated the matter for definite hearing.
The Appellant and the other Respondents excluding the 3rd and 6th Accused Persons appealed against the Ruling delivered on 10th November 2005.
The 3rd and 6th Accused Persons brought an application for a separate trial for themselves and ruling for a separate trial was delivered in their favour on the 17th day of February 2006.
The appeal against the Ruling of 10th November 2005 was entered at the Court of Appeal as Appeal No. C/A/7/C/2006 on the 17th day of January 2006.
Pursuant to Order 4 rule 10 of the Court of Appeal Rules 2007, an appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the registry of the Court.
In the instant case the application for separate trial was argued on the 14th day of February 2006. Therefore by the provisions of Order 4 rule 10 of the Court of Appeal Rules 2007 the said application for separate trial ought to have been transmitted to the Court of Appeal which has control of Proceedings during pendency of Appeal. This is because this Court has already received the record of appeal compiled by the Appellants/Applicants since the 17th day of January 2006, therefore any application including that for separate trial should have been made direct to this Court. See the following cases:-
– Coker vs. Adeyemo & Another (1965) 1 All NLR Page 120:
– Biocon Agrochemical (Nig) Ltd & 3 Others vs. Kudu Holdings (PTY) Ltd & Another (1996) 2 SCNJ Page 212 at 219;
– Dr Femi Adekanye & 25 Others vs. Controller of Prisons & 2 Others (2000) 12 NWLR Part 682 Page 563 at 571 Paragraphs E – H.
The Learned trial Judge also stayed further joint trial of all the Accused persons in order to have a separate trial of the 3rd and 6th Accused Persons when all the Accused Persons were alleged to have committed the offences with which they were charged in the course of the same transaction.
The Learned Judge’s reason for staying joint trial and ordering a separate trial as prayed was that it will be in consonance with the 3rd and 6th Accused Persons’ Right to fair hearing within a reasonable time, while allowing the Appellant and the other Accused Persons to proceed with the prosecution of their appeals will be in consonance with their right to appeal.
The pertinent question at this juncture is – Whether the Learned trial Judge was right to have granted a separate trial for the 3rd and 6th Accused Persons?
The offences for which the Appellant and the 2nd to 7th Accused Persons were charged with were committed in the course of the same transaction.
Under Section 221 of the Criminal Procedure Code – The following persons may be charged and tried together, namely:-
“(a) persons accused of the same offence committed in the course of the same transaction.
(c) person accused of more than one offence of the same or similar character, committed by them jointly.
(d) persons accused of different offences committed in the course of the same transaction.”
In Olusegun Haruna vs. The State (1972) 8 – 9 S.C. Page 108 at 125 Paragraph 10 the Supreme Court referred to Section 221 of the Criminal Procedure Code and held among others as follows:-
“the conspiracy was hatched and the overt acts were done undoubtedly in the same transaction. It was therefore right and proper to charge and try all the Appellants together.”
Also in the case of:-
The State vs. Onyeukwu (2004) 14 NWLR Part 893 Page 340 at 378 – 379 Paragraphs H-F the Supreme Court stated the advantage of having a joint trial which will necessarily take a much shorter time than trying each accused one at a time. No doubt, in terms of procedural policy of convenience, it is better to charge all accused persons in respect of all counts against them, in circumstances which are envisaged and permissible under Section 155 of the C.P.A. which is impari materia with Section 221 of the Criminal Procedure Code.
After carefully examining the facts of this case together with decided authorities, it is my view that it was wrong for the Learned trial Judge to have assumed Jurisdiction to entertain the application for abatement of joint trial of all the Accused Persons because by the provisions of Order 4 rule 10 of the Court of Appeal Rules 2007, the said application for separate trial ought to have been transmitted to the Court of Appeal since the Court had received the record of appeal compiled by the Appellants in the earlier appeal since the 17th day of January 2006. Furthermore, it is also not in the interest of Justice when the Learned trial Judge granted a separate trial for the 3rd and 6th Accused Persons when the offences in the charge against the Accused Persons were allegedly committed in the course of the same transaction.
In view of the foregoing, issues 1 and 2 are hereby resolved in favour of the Appellant.
In the final analysis, it is my view that this appeal is meritorious and it is allowed in its entirety. The Ruling of the Learned trial Judge delivered on the 17th day of February 2006 in Suit No. FCT/HC/CR/31/2005 is hereby set aside. And in its place it is hereby ordered that all the accused persons are to be tried jointly in accordance with the law.
MARY U. PETER-ODILI, J.C.A: I have read the draft judgment of my learned brother, Jimi Olukayode Bada JCA whose decision and reasonings I agree with completely. There is nothing more to add. I abide the consequential orders of my learned brother.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
Appearances
MR K. C. NWUFOFor Appellant
AND
I. S. EZEAWA
CHINEDU UMEH
NJIDEKA ODILI and K. K. ACHOLONU.
U. C. NDUBUISI
MR GORDY UCHE
KANAYO OKAFOR, EKELE NWANYA (MISS), NGOZI BON-NWAKANMA
CYNTHIA UKAEGBU (MISS).For Respondent
