STANLEY NWADIKE v. THE STATE (2015)

STANLEY NWADIKE v. THE STATE

(2015)LCN/7817(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of March, 2015

CA/OW/225/2012

RATIO

COURT: POWER OF THE COURT; THE POWER OF THE COURT TO SAFEGUARD AN ACCUSED FROM OPPRESSION AND PREJUDICE

In the case of Mohammed Abacha vs. State (2002) 7 SC (Pt.1) 1 the Supreme Court said:
“The power of the Court to prevent abuse of the process of court includes the power to safeguard an accused from oppression and prejudice … The process of court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view of harassing him …”
Did the trial Court have power to order the remand of the Appellant, when he was yet to be arraigned and when his application, challenging the legality/validity of the charge and the jurisdiction of the court to entertain the charge, was yet to be heard and determined? I strongly doubt. In the case of Edet vs. State (2008) 14 NWLR (Pt.1106) 52 at 58; this court held:
“The Court has the jurisdiction to safeguard an accused person from oppression or prejudice. The Court will fail in its fundamental duty, if, in the face of a defective or bad charge, it refuses to entertain an application to quash the information and hastily proceeds to set the criminal case for trial. The court has the power and duty to stop a prosecution, which, on the facts, creates abuse and injustice. In the instant case the objection of the Appellant at the trial court was on the legality or validity of the information brought against him. At the material time when the objection was raised, no prima facie case had been established, justifying the criminal trial against the Appellant. Moreover, proper arraignment had not commenced, since the Appellant was challenging the legality or validity of the information brought against him.” per. ITA GEORGE MBABA, J.C.A.

PRACTICE AND PROCEDURE: ARRAIGNMENT; THE PROCESS OF FORMAL ARRAIGNMENT

It is equally doubtful whether a court can assume the trial of an accused person and make order(s) to curtail his liberty, when the accused has not been, formally, arraigned before the Court, thereby coming under or surrendering to the authority, protection and mercy of the Court.
While arraignment is yet to be done, the Accused person is, usually, in the care and control of the Prosecution, who has a duty to produce him in Court and surrender him to the Court, by formal arraignment, wherein he (accused) is made to take his plea.
Of course the process of formal arraignment has earlier been stated in this judgment as per the decision in the case of Olabode vs. State (2009) 11 NWLR (pt.1152) 254, ration 2. See also Blessing vs. FRN (2013) WRN 76; Edet vs. State (2008) LPELR – 4016 (CA) (2008) 14 NWLR (Pt.11 Q6). 52. It was, therefore, premature and wrong, in my view, for the learned trial court to pronounce the order of remand on the Appellant, when he was yet to be surrendered or presented to the Court by the prosecution, for formal arraignment.
In the case of Gwarzo vs. COP (2014) LPELR 23470 (CA) this Court relied on the case of Okeke vs State (2003) 15 NWLR (Pt.842) 25, where the Supreme Court said that “an arraignment is not a matter of technicality; it is a very important initial step in the trial of a person in a criminal charge and that where there is no proper arraignment, there is no trial. Without a valid arraignment of the accused person, no trial in law would have commenced…”
I also believe that where no criminal trial has commenced, pursuant to a valid arraignment, the court lacks powers to pronounce on the liberty of the accused, to order for the remand of the accused, except perhaps, where he is produced in Court, specifically, under what is usually termed “a holding charge”, usually applicable in Magistrates’ Courts. per. ITA GEORGE MBABA, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

STANLEY NWADIKE Appellant(s)

AND

THE STATE Respondent(s)

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…
(12) That the Applicant was neither acquitted nor convicted by the Honourable Court in the said case and was not even pardoned by the State for the offence for which he is charged.
(13) That the charge or information was not dismissed by the Honourable Court in Exhibit B…”
See pages 17 to 19 of the Records of Appeal.

A brief facts of the matter at the lower Court, shows that the above preliminary objection was still pending on 4/4/12, when the application was adjourned for hearing; that on that day Appellant was in court but his counsel (L.M. Alozie Esq.) was absent, and the Court, on its own, acknowledged that Appellant could not take plea, as his Counsel was absent, but it proceeded to order for the remand of the Appellant in prison custody, and adjourned the case to 2/5/12 for plea, even when Appellant’s application challenging the competence, legality/validity of the information against him, cum jurisdiction of the Court, had not been heard and disposed of. Appellant, on noticing what happened, and having earlier stayed in prison custody for about 5 years along with his father and other brother, made a wrong move by eloping – running out of the Court into the bush!

Appellant’s Counsel later came to Court on the same date and caused the case to be called again. He apologized for his absence, saying he was in another court and could not send a letter, to stand down this matter. He also condemned the action of the Appellant for eloping and apologized to the Court. He prayed that the order of court for remand be deferred. The Court held:
“Apart from the charge for which the accused person is in Court, there is then offence of escaping from lawful custody committed in the presence of the court. There is also the issue of contempt of court by defying the order of the court to stay in prison custody. Something must be done to protect the corporate integrity of the court which the accused person has tried to rubbish by his action. I cannot accede to the prayer of the Learned defence Counsel at this stage. Bench warrant is hereby ordered to issue for the arrest of Mr. Stanley Nwadike … who is the accused person in this matter, for him to be arrested and detained by any police officer or any person that sets his eyes on him. Meanwhile, the said Stanley Nwadike is hereby declared wanted and the Imo State Police Command is hereby directed to publish a bulletin, declaring him wanted to the Notice of the general public … and whenever the said accused person is arrested he should be detained in Police custody until he is produced in Court here on 2/5/12 or any other date convenient to the Court.”
See pages 31-32 of the Records of Appeal.

Appellant’s Counsel had, on 20/7/12, filed a motion praying for stay of execution of the bench warrant (Order) and further stay of proceeding of the charge NO: HOG/9C/2011, pending the determination of this appeal.

This appeal is against that Ruling of the trial Court, made on 4/4/12, as per the Notice of appeal filed on 13/4/12 (pages 82 to 84 of the Records of Appeal) disclosing two grounds of appeal. Appellant filed his brief of argument on 4/3/13, upon the Records of appeal being deemed duly compiled and transmitted to this court on 29/1/13.

The Respondent did not file any Brief and, on 16/1/14, Appellant was granted leave for the appeal to be heard on his brief alone, and when this appeal was heard on 23/2/15, the Respondent had still failed to take steps to respond to the arguments of the Appellant.

The issues for determination, distilled by Appellant’s Counsel, were:
(1) Whether the Learned trial judge was right in law when he ordered the remand in prison custody of the Appellant without hearing and determining the Appellant’s preliminary objection by way of motion on notice challenging the competence and validity of the charge cum jurisdiction of the Honourable Court to entertain the charge.
(2) Whether the Learned trial judge was right in law when he, by way of order, issued a bench warrant for the arrest, detention and production of the Appellant who was also declared wanted, when the Court have (sic) not determined the Appellant’s preliminary objection to the charge, i.e., before the Appellant was formally arraigned before him.

Arguing the Appeal, L.M. Alozie Esq., submitted that issue of jurisdiction is of seminal and fundamental importance in every exercise of judicial power under our jurisprudence; that once there is absence of jurisdiction, the trial, decision and Orders of Court amount to a nullity, no matter how well conducted. He relied on Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. Counsel said that as part of our jurisprudence, once objection is raised as to the jurisdiction of a court to hear and decide a cause/matter, the law is that, the objection has to be taken and determined first, as it goes to the root of the trial, as well as competence of the court. He relied on Afro Continental (Nig) Ltd vs. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt.813) 303 at 308.

Counsel submitted that the inability/refusal of the lower court to first hear and determine the pending application, challenging the Courts’ jurisdiction, rendered the proceedings of 4/4/12 as well as the orders made by the learned trial Court a nullity. He relied on the case of Onyeme vs Oputa (1987) 3 NWLR (Pt.60) 259 at 262; Okafor & Ors. vs. Nwude & Ors. (1999) 7 SC (Pt.1) 106 at 109; Joseph Agor vs. The State, delivered by this Court, Port Harcourt Division, on 5/7/2005. He added that Appellant had taken out the preliminary objection, timeously.

Counsel argued that once an accused person had gone through the rigours of trial and got discharged on the merit, that amounts to an acquittal. He relied on NIWA vs. SPDCN LTD (2008) 13 NWLR (Pt.1103) 73; ENE vs. ASKPO (2010) 10 NWLR (Pt.1203) 477

Counsel argued that by the procedure the trial Court adopted, it failed to protect the Appellant from injustice and prejudice, when it failed to consider Applicant’s objection before it, thus no arraignment ever took place, but the Court went ahead to order for the remand of the Appellant in prison custody! Counsel said the Court had frowned against such act in the case of Edet vs. State (2008) 14 NWLR (Pt.1106) 52 at 58-59.

Counsel said that the learned trial Court was wrong in this case, when it abandoned the Appellant’s preliminary objection, pending before it, and jumped into arraignment and began to issue orders, including order for the remand of the Appellant. He argued that the information filed against the Appellant was an abuse of the process of Court.

On issue 2, Counsel submitted that what happened on 4/4/12 fell short of arraignment, in that, the Courts have since, in a plethora of cases, stated the procedure and what constitutes an arraignment. He relied on the case of Olabode vs. State (2009) 11 NWLR (Pt.1152) 254, ratio 2 on the procedure and requirements of a valid arraignment, that:
(a) The person shall be informed promptly in the language he understands and in detail of the nature of the offence alleged to have been committed;
(b) The person to be tried shall be placed before the Court unfettered;
(c) The charge or information shall be read and explained to him by the Registrar or other officer of the Court, to the satisfaction of the Court;
(d) Such a person shall be called upon to plead instantly thereto.

Counsel said that failure to comply with any of the above conditions renders the whole trial a nullity. In the circumstances of the remand order on the Appellant, Counsel submitted, that there was no basis for the remand order as what transpired on the 4/4/12 was never an arraignment, as the court rightly acknowledged; that it follows that the trial court should have adjourned the case, as what was actually before him was the application challenging the validity/legality of the information against him cum the jurisdiction of the trial Court to entertain it. Again, Counsel said that the orders of bench warrant against Appellant and the declaring of Appellant wanted had no legal foundation to stand on; that it is a cardinal principle of law that one cannot put something on nothing and expect it to stand. Mcfoy vs U.A.C (1962) AC 152.

Counsel observed that the Respondent had earlier filed appeal against the decision in HOG/15C/06, delivered on 13/1/11, as shown on pages 46-74 of the Records of Appeal; that after filing the Notice of Appeal, the Respondent somersaulted, abandoned the appeal and filed the information, which Appellant quarreled with, which proceeding led to this appeal. He asserted, again, that once a person has gone through the rigours of trial and is discharged on the merit, he cannot be subjected to trial again on the same offence. He relied on Section 36(9) of the 1999 Constitution, as amended. He urged us to resolve the issues for the Appellant and allow the appeal.

RESOLUTION OF ISSUES
I think it is proper to treat the two issues raised by the Appellant for determination, together, but in doing so, I shall endeavor to avoid the aspect of Appellant’s arguments relating to the status of Appellant’s charge in charge NO:HOG/9C/11, whether or not the same is valid or legal, vis-a-vis his trial and discharge over the same offence on 13/1/11, in charge NO:HOG/15C/06, the reason being that the issues raised in Appellant’s application, challenging the jurisdiction of the trial court to entertain that charge – HOG/9C/11, are yet to be heard and determined and are subjudice. The law forbids a court delving into the substantive matter before it, yet to be tried, at the time of considering a preliminary objection to the hearing of the substantive matter. See the case of Kwazo vs. Railway Property Co. Ltd & ors. (2014) LPELR – 23737 (CA); Agbaso vs. Iwunze & ors. (2014) LPELR 24108 CA; Global Fishing Ind. LTD VS. Coker (1990) 7 NWLR (Pt.162) 265; Akapo vs. Hakeem-Habeeb & ors. (1992) 16 NWLR (Pt.247) 266

Appellants main complaint in this appeal is that the Learned trial Court lacked the vires to order for the remand of the Appellant on 4/4/12, when he appeared in court, as the criminal charge was not due for hearing or arraignment on that day. Rather, it was his application (preliminary objection) challenging the legality/validity of the charge (HOG/9C/11) and the jurisdiction of the trial Court to entertain it that was due for hearing, in view of the fact that Appellant had earlier been tried and discharged on the merit over the same offence on 13/1/11, in charge NO:HOG/15C/06.

Of course, there is admission by the Respondent that the said charge NO:HOG/9C/11 was the same as NO:HOG/15C/06, though they (Respondent) argued that Appellant’s trial (along with other Accused persons), in the charge NO:HOG/15C/06 did not end in acquittal. See paragraphs 6-10 of Respondent’s Counter affidavit (page 17-18 of the Records). The Respondent also admitted that the Appellant’s application filed on 17/6/11 was still pending, and due for hearing as at 4/4/12, when the learned trial Court made the order remanding the Appellant and adjourning the case to 2/5/12 for Appellant to take plea to the charge!

The above facts were not, at all, in dispute as the learned trial Court had acknowledged the fact that Appellant could not be tried in the absence of his Counsel, and so he (Appellant) was not, at all, arraigned, formerly, on the said 4/4/12, when Appellant was ordered to be remanded in prison Custody. See page 30 of the Records. It is also an indisputable fact that the case was adjourned on 1/2/12 to 20/2/12 for the preliminary objection but on that date, 20/2/12, the preliminary objection was not heard, rather the court adjourned the case for plea and threatened to order for bench warrant against the Appellant, if he failed to attend Court on the next adjournment date, which was 4/4/12! See page 3 of the Additional Records of Appeal.

Of course, on 4/4/12, Appellant was in Court, but his Counsel did not come at the time the case was called, and the Court appeared quite peeved and, appeared to have forgotten that what was before it, on that date, was the preliminary objection, which ought to be argued and disposed of, before the Court could call on the Appellant to take his plea, that is if the preliminary objection failed. The Court also appeared to have forgotten that the Appellant was in Court and that it required the presence of his Counsel to argue the application, contesting the legality/validity of the charge, after Appellant had been tried and discharged on the same offence on 13/1/11.

It was bad enough that Appellant’s Counsel was not in Court at the time this case was called and had sent no letter to explain himself, especially, as the Court had earlier adjourned the case to that date, with threat, against the Appellant, if he failed to attend court, and he (Counsel) was to argue the application, to make way for the criminal charge to commence, if necessary. Such a scenario obviously can work on the nerves of a judge and task his patience. But a judge should not betray the foibles of the weak, and must refrain from acting in anger, or yielding to excitement that can compromise the right and interest/protection of a hapless Applicant before him.

I think Appellant needed the protection of the trial Court, when his Counsel failed to show up on time to argue his application or defend him in Court, not harassment. Appellant had been through a lot from the previous trial, and had been in prison Custody for the 5 years their trial in HOG/15C/06 lasted. He, his father and another sibling had been in prison for many years before the 13/1/11, when they regained their freedom, only for Appellant to be charged again for the same offence, soon after the pyrrhic victory. I think that is the circumstances one should appreciate the state of mind of the Appellant, when he did not see his Counsel in Court on 4/4/12 and when his case was called, and the trial judge handed down an order of remand against him to confine him in prison custody!

Again! It’s like Appellant reacted that way and could not take it any longer and so bolted, or zoomed, according to the Court, into the bush, to the embarrassment of the Court!

In the case of Mohammed Abacha vs. State (2002) 7 SC (Pt.1) 1 the Supreme Court said:
“The power of the Court to prevent abuse of the process of court includes the power to safeguard an accused from oppression and prejudice … The process of court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view of harassing him …”
Did the trial Court have power to order the remand of the Appellant, when he was yet to be arraigned and when his application, challenging the legality/validity of the charge and the jurisdiction of the court to entertain the charge, was yet to be heard and determined? I strongly doubt.
In the case of Edet vs. State (2008) 14 NWLR (Pt.1106) 52 at 58; this court held:
“The Court has the jurisdiction to safeguard an accused person from oppression or prejudice. The Court will fail in its fundamental duty, if, in the face of a defective or bad charge, it refuses to entertain an application to quash the information and hastily proceeds to set the criminal case for trial. The court has the power and duty to stop a prosecution, which, on the facts, creates abuse and injustice. In the instant case the objection of the Appellant at the trial court was on the legality or validity of the information brought against him. At the material time when the objection was raised, no prima facie case had been established, justifying the criminal trial against the Appellant. Moreover, proper arraignment had not commenced, since the Appellant was challenging the legality or validity of the information brought against him.”

The facts of the above case and the issues therein tend to agree with this appeal, where the competence of the charge HOG/9C/11 was challenged by motion filed on 17/6/11, and the said preliminary application was pending at the time the trial Court ordered for the remand of the Appellant. I think the learned trial Court jumped the gun, as the Appellant was not standing trial on the charge HOG/9C/11 at the time the trial Court made the order of remand on 4/4/12. Rather, Appellant’s case, that morning, was the civil challenge of the charge, that it was not legal or valid, vis-a-vis the earlier charge of HOG/15C/06 (the same offence) with which Appellant had been tried and discharged on 13/1/11, and that the trial Court lacked jurisdiction to entertain the charge.

It must also be stated that, as long as the issue of jurisdiction was not resolved or pronounced on, the learned trial court had no power to make any order meant to curtail the liberty of the Appellant, pursuant to the charge under challenge. See Edet vs. State (supra).

To that extent, I fault the order for the remand of the Appellant and the other orders which followed, or resulted from the order for the remand. I therefore resolve the issues in favour of the Appellant and allow the appeal.

The order for the remand of the Appellant in Prison Custody is hereby set aside. I also set aside the order declaring the Appellant wanted and the issuance of bench warrant to arrest him, as the said other orders were consequential or predicated on the wrongful order for the remand of Appellant, which frightened him to negative behavior in Court on the 4/4/12.

I cannot make order for the quashing of the charge NO: HOG/9C/11, as the application for the quashing of the charge is yet to be heard. I, however, order that the case and the preliminary objection be transferred by the Chief Judge of Imo State, from Hon. Justice G.I. Anunnihu, to another High Court Judge for hearing and determination in the interest of justice.

PETER OLABISI IGE, J.C.A.: I have read in advance the judgment of my Lord Mbaba (JCA) which he just delivered.

I agree with the said judgment.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother I.G. Mbaba, JCA just delivered and I agree with his reasoning and conclusions therein that the case file be remitted to the Hon. Chief Judge, Imo State to be assigned to another Judge of his choice for hearing and determination in the interest of justice.

Appearances

L.M. Alozie for the Appellant with him K.C. Okoroafor & C.A. OKWARA (Mrs.)For Appellant

AND

C.N. Akowundu Esq. (D.E.T) (M.O.J) Imo StateFor Respondent