HON EFFIOM JACOB ABAI v. THE STATE
(2016)LCN/8166(CA)
RATIO
APPEAL: THE PRINCIPLES THAT MUST GUIDE THE COURT IN CONSIDERING AN APPLICATION TO QUASH THE CHARGE AGAINST THE APPELLATE
In considering on application of this nature, to quash the Charge against the Appellant on the Ground that the proof of evidence and Statements of witnesses did not disclose a prima facie case against the Appellant, the Court must be guided by the following well laid down principles.
1. The Court must confine itself to the proof of evidence on the witnesses Statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case, the Court will quash the Charge against the Accused.
2.The proof of evidence must sufficiently link the Accused with the offence although it need not be a conclusive proof of the Accused person’s guilt which is a matter to be determined at the substantive trial.
3. Where there is no sufficient linkage of the Accused to the offence allegedly committed the Court would be on a good Ground to quash the Charge against the Accused person. See Abacha vs. State (2002) 11 NWLR (Pt 779) 431, Ubanatu vs. C. O. PÂ (2000) 2 NWLR (pt 643) 115.
4. In Ikoni vs. the State ( 1986) 3 NWLR (pt 28) 340, it was hold no citizen should be put to the rigours of trial in a Criminal proceeding unless available evidence points prima facie to this complicity in the commission of crime. per. PAUL OBI ELECHI, J.C.A.
CRIMINAL LAW: PARTICIPLE CRIMINIS; WHETHER ALL PERSONS WHO ARE PARTICIPLE CRIMINIS ARE GUILTY OF THE OFFENCE AND MAY BE CHARGED AND CONVICTED WITH THE ACTUAL COMMISSION OF THE CRIME
Whether or not, the Law is settled that all persons who are participles criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be Charged and convicted with the actual commission of the crime. Parties, participles criminis to a crime, include inter alia every Person who actually does the act or makes the omission which constitutes the offence, person who aided, abetted or assist them in commission of the offense on who Counselor, procure others to commit the offence or knowingly facilitate the offence. See Section 7 of the Criminal Code.
per. PAUL OBI ELECHI, J.C.A.
JUSTICES:
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
HON EFFIOM JACOB ABAI – Appellant(s)
AND
THE STATE – Respondent(s)
PAUL OBI ELECHI, J.C.A.(Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Akwa Ibom State, Ukanafun Judicial Division delivered by Honouroble justice Ezekiel O. Enang on the 31st July 2015.
The 1st – 4th Accused / Appellants were Charged with Conspiracy, Murder and causing grievous harm under Section 331, 326 (1) and 344 of the Criminal Code Law respectively Cap 38 Vol. 2 Laws of Akwa Ibom State of Nigeria 2000.
In count one, the 1st – 4th Accused /Appellants were alleged to have conspired on the 18th March, 2015 among them to kill one Hon Okon Joseph uwah. In Count 2, the 1st-4th Accused/Appellants were alleged to have murdered one Hon Okon Joseph Uwah on the 18th March, 2015. In third count, the 1st – 4th Accused/Appellants were alleged to have alleged to have on the 18th March, 2015 did inflict grievous harm to one Uduak Jackson Essien.
In reaction to this, the 1st-4th Accused/Appellants contested the information on the Charge by filing a Motion on Notice on the 12th June, 2015 to quash the information or strike out the three counts information. Their reason being that the
information of three counts failed to disclose a prima facie case of Conspiracy Murder and causing grievous harm against the Accused / Appellants for lack of evidence in the proof of evidence to connect the Accused/ Appellants with the offences Charged. That the offence Charged with or the proof of evidence when compared and contrasted the ingredients of the offence of Conspiracy, Murder and causing grievous harm cannot be established against the 1st Accused / Appellant.
Ruling on the above Application was delivered on the 31st of July,2015 refusing to quash the three count information against the 1st -4th Respondents and dismissed same. Being dissatisfied with the said Ruling, the 1st – 4th Accused /Appellants Appealed against the said Ruling. The 1st Accused /Appellant’s Notice of Appeal is dated 11th August, 2015.
STATEMENT OF FACTS
The 1st Accused/Appellant with other three Accused/Appellants were Charged of Conspiracy, Murder and causing grievous harm to the deceased and one Uduak Jackson Essien. They were all arraigned before a Magistrate Court in Ukanafun where the Magistrate declined jurisdiction sent their case file to the Director of
Public Prosecution (DPP) and adjourned the matter sine die. Meanwhile the Accused/Appellants were at the same time Charged at the High Court of Akwa Ibom State after information was filed to prefer Criminal Charge against the Accused/Appellant without consent against the requirement of Law.
After the filing of information the Accused/Applicant brought and Application to quash the charge on the information but it failed according to the Ruling of the Honourable trial Court.
Thereafter, the matter was adjourned to enable the Accused / Appellants to take plea to the Criminal Charges against them. Instead of submitting himself to the plea the 1st Accused/Appellant filed a Notice of Appeal dated 11th August, 2015 challenging the said Ruling of the Lower Court on the Ground that it is perverse and contrary to Law Statute.
From the five Grounds of Appeal as formulated, the 1st Accused /Appellant has distilled five issues for determination.
1. “Whether trial Court can rely on hear-say evidence to establish prima facie case of Conspiracy, Murder and causing grievous harm against the 1st Accused/Appellant when the 1st Accused/Appellant was not
at the scene of crime.
2. Whether the 1st Accused/Appellant can be held liable for the offence of Conspiracy, Murder and causing grievous harm when the killer of the deceased were actually known and identified by the Gideon Amos Udoka and as Stated in the proof of evidence which did not include the 1st Accused/Appellant contrary to the principles of Law enumerated in Abacha vs. State (2002 11 NWLR (Pt.,7791) 437 and Almustaph vs. State (2013) (7 NWLR (Pt.1383) 350. Ground 2,
3. Whether the trial Judge was right to have established prima facie case of Murder against the 1st Accused/Appellant when he held that the 1st Accused/Appellant procure and Counsel the attackers to kill the deceased through a phone call without any proof linking the 1st Accused/Appellant with the phone call other than the hear-say of the prosecution witness and moreso where no disposition in the proof of evidence Stated there in that the 1st Accused/Appellant Counsel that the 1st Accused/Appellant Counsel or procured the attacker to kill the deceased (Ground 3).
4. Whether a Criminal Charge professed in the Magistrate Court without jurisdiction which was sent
to Director of Public prosecution and adjourned sine die amount to then termination of the Criminal proceedings and whether the filing of information at the same time at High Court did not amount to abuse of Court process and Criminal jeopardy against the 1st Accused/Appellant.
5. Whether the Learned trial Judge can rely on disputed State Law to rule against the consent to prefer information at High Court of Akwa Ibom State as a valid exiting Law Ground 5.”
In trying to argue issue No. 1 above as to whether the trial Court can rely on hear-say evidence to establish prima facie case of conspiracy Murder and causing grievous harm against the lst Accused / Appellant when the 1st Accused / Appellant was not at the scene of crime.
Learned Appellant Counsel referred the Court to the case of Olatunbosun v. State (2013 17 NWLR (PT. 1382) where the Supreme Court of Nigeria hold thus that it is the duty of Counsel especially in Murder cases to promptly take Objection to any or every perceived irregularity relating at least to procedure or Charge.
Learned Appellant Counsel submitted that the trial Judge cannot rely on the hear-say evidence of one Gideon Amos
Udoko to establish a prima facie case of Conspiracy, Murder and causing grievous harm as this is contrary to evidence Law and all relevant Law. See Section 37 of the Evidence Act 2011.
The 1st Accused/Appellant according to Learned Counsel was not at the scene of crime nor was he personally involved in the attack of the deceased as the trial Judge only relied on the hear-say evidence of telephone call. It is Learned Appellant’s submission that the hear-say evidence of Gideon Amos cannot be any means grant a prima facie case of Conspiracy, Murder and grievous harm against the 1st Accused /Appellant who was purportedly linked with the offences by telephone conversation of one Akaniyere Peter Abai as heard by Gideon Amos Udoka without calling the said Akaniyere Peter Abai who personally received the phone call as a witness he then submitted that the proof of evidence by the prosecution did not disclose any prima facie case against the 1st Accused /Appellant. See Njoku vs. State (2013) 2 NWLR (PT. 1339) 548, Osuoha vs. state (2010) 16 NWLR (Pt. 1219) 364.
Learned Appellants Counsel then submitted that if the hear-say evidence of Gideon Amos Udoko is expunged or
not believed or taken as hear-say, there is no other evidence to connect the 1st Accused/Appellant in the commission of the offence, He then urged the Court to resolve this issue No. 1 in favour of the Appellant.
ISSUE No. 2
Whether the 1st Accused/ Appellant can be held liable for the offence of Conspiracy, Murder and causing grievous harm when the killer of the deceased were actually known and identified by Gideon Amos Udok which did not include the 1st Accused Appellant contrary to the principles of Law enunciated in Abacha vs. State (2002) 11 NWLR (Pt 779) 473 and Almustapha vs. State (2013) 17 NWLR (Pt. 1383) 350 (Ground 2). Learned Appellants Counsel Stated that there is not where in the Records where the name of the 1st Accused / Appellant is mentioned or named as one of the attackers of deceased. The said Gideon Amos Udoka expressly named the attacker and the killer of the deceased. The 1st Accused / Appellant denied ever killing the deceased or sending the alleged named killers of the deceased to attack him. The prosecution ought to have proceeded after the named killers of the deceased. See Abacha vs. State (2002) 11 NWLR (Pt 779)
473 and Almustapha vs. State (2013) 17 NWLR (Pt 1383) 350. Since the alleged instigator the deceased has denied some, the Court is urged to resolve this issue in favour of the Appellant.
ISSUE No. 3
Whether the trial Judge was right to have established a prima facie case of Murder against the 1st Accused/ Appellant procure and Counsel the attackers to kill the deceased through a phone call without any proof linking the 1st Accused/Appellant with the phone call other than the hear-say of the prosecution witness. Learned Appellant’s Counsel submitted that the Learned trial Judge erred in Law when he established a prima facie case of Conspiracy, Murder against the 1st Accused /Appellant based on telephone conversation by one Akaniyere Peter Abai who was not called as a witness in the case whose hearsay evidence is used to establish the fact that the 1st Accused /Appellant did conspire with others to convict the offence of Murder. It is Learned Counsel’s submission that the hear-say evidence of Gideon Amos Udoko cannot Ground the basis for a prima facie case of Conspiracy against the 1st Accused/Appellant. See FRN vs. Usman (2012) 8 NWLR (Pt 1301)
141 at 160.
From available Records, Learned Appellant’s Counsel submitted that the prosecution has not established the essential ingredients of the offence even under Section 344 vis-a-vis the deposition in the proof of evidence and on that basis, he urged the Court to resolve issue No. 3 in their favour.
ISSUE No.4
Whether a Criminal Charge preferred in the Magistrate Court without jurisdiction which was sent to the Director of Public Prosecution and adjourned sine die amount to the determination of the Criminal proceedings and whether the filing of information at the same time at the High Court did not amount to abuse of Court processes and Criminal jeopardy against the 1st Accused/Appellant. See Dingyadi vs. INEC (2011) 10 NWLR (Pt. 1255) 347 at 404.
Learned Appellant’s Counsel then submitted that the pending Criminal proceedings in Charge No. UKM/12C/2015 adjourned sine die at the Magistrate Court against the 1st Accused / Appellant of the same time the filling of information to proffered Charge in Charge No. HUK/10C/2015 at the same time at High Court against the same 1st Accused / Appellants amount to an abuse of Court processes and
doubt jeopardy for the 1st Accused/Appellant base on the fact that the Criminal of proceedings was just adjourned sine die and not formally terminated against the 1st Accused/Appellant while the lst Accused /Appellant was also arraigned before the High Court for the same Criminal offence simultaneously.
In addition , Learned Counsel their submitted that a round order by the Magistrate against the 1st Accused/Appellant which amount to a holding Charge which is unconstitutional and cannot terminate a Criminal of proceeding adjourned sine die magistrate Court. See Ahmed vs. C. O. P (2012) 9 NWLR (Pt. 1304), while arguing the Court to so hold, he then urged the Court to resolve this issue in their favour.
ISSUE No. 5
Whether the Learned trial Judge can rely on disputed State Law to rule against the consent to proper information at High Court of Akwa Ibom State under a valid existing Law – covered in Ground 5. Under this issue, Learned Appellants Counsel submitted that the Criminal procedure Law of Akwa Ibom State is still intact without any amendment and therefore the consent requirement is needed before an information is filed in the Court.?
In conclusion, Learned Appellant’s Counsel then urged the Court to resolve this Issue No. 5 in their favour and allow the Appeal and set aside the Judgment of the Court.
In reply to the above Issues and argument raised by Appellant, the Respondent formulated five Grounds of Appeal distilled four issues for the determination of this Appeal Vis:
1. Whether the information No. HUK/10C/2015 as filed with the proof of evidence thereon has disclosed a prima facie case against the 1st – 4th Accused/Appellants and whether the Lower Court rightly dismissing the Motion to quash same filed by the Accused/Appellants.
2. Whether the Charge No. UKM/12C/2015 which the Learned Magistrate declined jurisdiction to hear or ordered inter-alia that case file be transferred to the Director of Public Prosecution for necessary action was still pending at Ukanafun Magistrate Court and, whether the DPP filing information in the High Court amounts to an abuse of Court process.
3. Whether the Learned presiding Judge was right in taking Judicial Notice of and relying on the provisions of Criminal procedure Amendment Law of 2006 and Criminal Procedure Amendment Law
2006 and Criminal Procedure Amendment Law 2011 respectively which Laws amended Sections 314 (3) (a) and (b) and 39 of Criminal Procedure Law, Cap 39 Vol. 2 Laws of Akwa Ibom State 2000.
4. Whether this Appeal is not competent, robbing this Court of jurisdictions to entertain same for failure of the Appellant to seek and obtain the Leave of Court before filing this interlocutory Appeal.
In arguing issue No. 1 above, Learned Respondent’s counsel contended that the evidence of Gideon Amos Udoko is not a hear-say evidence because the said witness heard the phone call conversation between the 1st Accused/Appellant and one Akininyene Peter Abai, now at large and his Statement to the police touching on the telephone conversation is evidence of what he heard first hand.
The 1st Accused/Appellant is well known to the prosecution witnesses (especially his voice on phone in his house giving directive to one of the Murders Akaninyene Peter Abai) that the boys including 2nd- 4th Accused /Appellants should not allow the deceased to move or Leave the venue of the meeting, following which instructions, the deceased was assaulted to death.
On Conspiracy Learned
Respondent Counsel contended that police investigation report reveals that the GSM Phone of the 1st Accused appellant and found out that at the time material to this case the 1st Accused / Appellant had phone conversion with most of the boys including 2nd 3rd and 4th Accused/Appellants and Akaninyene Peter Agbai.
According the Learned Counsel all these facts link the Accused Appellants including the 1st Accused Appellant with Conspiracy to kill and main the APC candidates and their supporters for during to bring their political campaign to Ukanafun and Nkek in particular.
On the way to Prove Conspiracy Learned Respondent Counsel Stated that the Supreme Court provide a guideline in the case of Omotola and Ors. vs. the State (2011) 9 LRCNCC 77, Abacha vs. State (2003) 3 ACLR 344, Ikemson vs. state (1998) 1 ACLR 86, Erim vs. State (2012) 9 ACLR 351.
The 1st – 4th Accused/Appellants had a common purpose and a common intention which they set out to execute oat Nkek village on the 18th March , 2015. Their intention and purpose was to disrupt the consultation meeting of APC House Assembly and House of Representatives and such disruption could take any form including Murder as
the youths threatened and eventually carried out when they beat the deceased to death. The Law he Stated is that where a person Procures or Counsels another to commit an offence, such a person who counselled is personally liable along with his agents who executed the Counsel, it is immaterial that the offence committed is different from what was counselled.
The 2nd – 4th Accused/Appellants went to that venue prepared to kill and main as they were armed with various dangerous weapons. He submitted that once common intention/purpose is proved, it becomes immaterial that a person did not personally carry out the act; all the persons involved are jointly liable for the offence committed in the execution of the common purpose. See Ahmend vs. State (1998) 7 SC (pt 1) 105 – 106 Oyediram vs. the Republic (2003) 3 ACLR 516.
It is also Learned Counsel’s submission that the facts of this case a Presented by the Respondents have disclosed enough circumstantial evidence upon which the Court can infer Conspiracy between the 1st, 2nd , 3rd and 4th Accused /Appellants. As a result , therefore he urged the Court to dismiss the Appeal, there was therefore a prima facie case made out
against the 1- 4 Accused /Appellants and the Lower Court was right to dismiss the Accused /Appellants Motion to quash the information. He then urged the Court to resolve this Issue No. 1 in favour of Appellant.
ISSUE No. 2
Whether the Charge No. UKM/12C/2015 which the Magistrate had declined jurisdiction to hear and order inter alia that case file be transferred to the Director of Public Prosecutions for necessary action was still pending in Ukanafun Magistrates Court at the time information was filed in the High Court and whether the DPP filing information in the High Court amounts to an abuse of Court process.
On this issue, Learned Counsel Stated categorically that sending the case file to the DPP by the Magistrate Court who had no jurisdiction to try the Charge does not amount to an abuse of Court process and Criminal jeopardy against the Accused /Appellants upon filing information at the High Court, the Magistrate having declined jurisdiction did not adjourn Charge No. UKM/12c/2015 to any future date and the Accused/Appellants were no longer required to Appeal at the said Magistrate Court for that Charge. So there is nothing like an abuse of Court
process as for as the Appeal in this matter is concerned. Therefore, the Learned Counsel urge the Court to resolve this issue in their favour.
ISSUE No.3
Whether the Learned presiding Judge was right in taking judicial Notice of and relying on the provisions of Criminal Procedure Amendment Law 2006 and Criminal Procedure Amendment Law 2011 respectively which Laws Amended Sections 314 (3) (a) and (b) and 315 of Criminal Procedure Law, Cap 39, vol. 2 Laws of Akwa Ibom State 2000.
Respondent’s Counsel Stated that the Learned Appellant’s Counsel contended at the Lower Court that the information No. HUK/10c/2015 upon which the 1st Accused /Appellants were Charged was incompetent in that the consent of the Judge was not obtained same was filed as required by Section 314 (3) (b) of the Procedure Law Cap 39 Vol. 2 Laws of Akwa Ibom State 2000. The Respondent then urged the Lower Court to take Judicial Notice of the Akwa Ibom State of Nigeria gazette No. 25 Vol. 24 of 24th June, 2010 which contains the relevant Amendments to Section 314 of the Criminal Procedure Law referred to by the Accused /Appellants Counsel. According to Learned Respondent’s
Counsel, the Learned presiding judge after due consideration rightly held that the information No. HUK/l0C/2015 was duly filed in line with the provisions of the Criminal Procedure Amendment Law 2006, which Law the Court took Judicial Notice of in line with Sections 148 (a) and 122 (a) (2) of the Evidence Act 2011.
In view of this, Learned Counsel then urged the Court to hold that the Ruling of the Lower Court on this issue that the information No. HUK/10C/2015 on which the 1st – 4th Accused/ Appellants were charged is competent and has not contravened any Law in view of the provisions of the Criminal Procedure Amendment Law of Akwa Ibom State 2006. Which Authorities the filing of information without Statement of witnesses being verified on Oath before a Magistrate and without obtaining the consent of a Judge. As a result, he urged the Court to resolve this issue in their favour.
ISSUE No. 4
“Whether this Appeal is not competent robbing this Court of jurisdiction to entertain same for failure of the Appellant to seek and obtain the Leave or Court before filing this interlocutory Appeal.”
On this issue Learned Respondent’s Counsel submitted that Section 241 (1)
of the 1999 Constitution of the Federal Republic of Nigeria as amended provides for Appeals which can be brought as of right. The present interlocutory Appeal does not fall into any of its categories. As a result, the Accused / Appellants are bound under Section 242 (1) of 1999 Constitution of the Federal Republic of Nigeria as amended to obtain Leave of Court either at the Lower Court or this Court before filing the Appeal. Failure to do some is fatal to their Appeal and liable to be struck- out. See Iwunze vs. FRN (2014)2 Sc (pt. 1) 113.
Learned Respondents Counsel then urged the Court to strike out this Appeal for want of jurisdiction occasioned by failure of the Appellant to comply with the condition precedent to bringing this Appeal, also to resolve this Issue in their favour.
In a Reply Brief dated 2nd November, 2015 and filed same date the Learned Appellant’s Counsel submitted that unlike the argument of the Respondent , Leave is not required to file an interlocutory Appeal where the Grounds of Appeal involve question of Law only as in the case. Also that the Notice of Preliminary Objection of the Respondent should be dismissed or struck – out before
considering the issues raised in this Appeal, it would be necessary to first all consider the merit or otherwise of the Preliminary Objection filed by the Respondent.
The Respondent by a Notice of Preliminary Objection pursuant to Order 10 Rules of this Court filed a Notice of intention to rely on the Preliminary Objection which is incorporated in the Respondent Brief of Argument as issue No. 4 for determination before this Court in their argument.
In the said Preliminary Objection, the Respondent argued that the Appellant did not obtain the leave of either the Lower Court or this Court before the filing of the interlocutory Appeal. Consequent upon the failure to obtain same the Respondent alleged that this Court is being robbed of jurisdiction to entertain the Appeal filed by the Appellant. On the other hand, the Appellant’s Counsel Stated that it is not every interlocutory Appeal that needs the Leave of this Court or the Lower Court before an Appeal is filed. He referred the Court to Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended which provides for the instances where Appeals as of right shall lie to this Court from the
decision of the Federal High Court or a High Court of a State. What must be noted in mind is that the Appeal of the Accused/Appellant is against an interlocutory Ruling of the High Court of Akwa Ibom sitting at ukanafun, on which Ruling of the Lower Court dismissed the Motion filed by the Appellants herein to quash information No. HUK/10C/2015.
Consequently, this Appeal being an interlocutory Ruling of the Lower Court is not listed under Section 241 (1) of the Constitution of the Federal Republic of Nigeria applies and as a result, the Appellants were duty bound to comply with the constitutional requirement and to obtain Leave and failure to do so is failed to this Appeal and I so hold.
Therefore, this Preliminary Objection therefore succeeds. This conclusion ought to be the end of this Appeal. But being a penultimate Court in this country it is expedient to also consider the merit of the Appeal in the event that the ultimate Court (Supreme Court) does not agree with this conclusion, I shall therefore commence the consideration of the Issues raised by the parties.
The main issue in contention of the Appellant’s Argument in this Appeal and infact, the backbone is
that the Learned trial Judge was in error to have held that the proof of evidence in this Appeal discloses a prima facie case against the Appellant when according to the Appellant there was no evidence from the proof of evidence linking the Appellant with the offence of Conspiracy, Murder and causing grievous bodily harm.
In considering on application of this nature, to quash the Charge against the Appellant on the Ground that the proof of evidence and Statements of witnesses did not disclose a prima facie case against the Appellant, the Court must be guided by the following well laid down principles.
1. The Court must confine itself to the proof of evidence on the witnesses Statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case, the Court will quash the Charge against the Accused.
2.The proof of evidence must sufficiently link the Accused with the offence although it need not be a conclusive proof of the Accused person’s guilt which is a matter to be determined at the substantive trial.
3. Where there is no sufficient linkage of the Accused
to the offence allegedly committed the Court would be on a good Ground to quash the Charge against the Accused person. See Abacha vs. State (2002) 11 NWLR (Pt 779) 431, Ubanatu vs. C. O. PÂ (2000) 2 NWLR (pt 643) 115.
4. In Ikoni vs. the State ( 1986) 3 NWLR (pt 28) 340, it was hold no citizen should be put to the rigours of trial in a Criminal proceeding unless available evidence points prima facie to this complicity in the commission of crime.
In this case at hand, the prosecution witness Gideon Amos Udoka heard the phone call conversation between the 1st Accused /Appellant and one Akaninyene Peter Abai now of large and his Statement to the police launching of the telephone conversation is evidence of what he heard first hand.
The 1st Accused/Appellant is well known to the prosecuting witnesses who recognised his voice on phone in his house giving directive over the GSM phone (which was on loud speaker) that the boys including the 2nd-4th Accused/Appellant should not allow the deceased  to move or leave the venue of the meeting, following which instruction, the deceased was assaulted to death.
In the instant case, the telephone conversation at speaker phone level which other witnesses of the prosecution heard while on the scene of crime has provided a link with the Accused/Appellant with the offence of Conspiracy, Murder and causing grievous harm although it need not be a conclusive proof of the Accused person’s guilt which is matter to be
determined at the substantive trial.
It is on this Ground that I am of the humble opinion that the information No. HUK/10C/2015 as filed with the proof of evidence thereon has disclosed a prima facie case against the Accused /Appellant and therefore, the Lower Court rightly dismissed the Motion to quash same filed by the Accused/Appellant. Consequently, I hereby resolve the above issue No. 1 against the Appellant and in favour of the Respondents. Another Issue raised by the Appellant in their brief is:
“Whether the 1st Accused/Appellant can be held liable for the offence of Conspiracy, Murder and causing grievous harm when the killer of the deceased were actually known and identified by Gideon Amos Udoka and as Stated in the proof of evidence which did not include the 1st Accused/Appellant contrary to the principles of Law enunciated in Abacha vs. State (200) 11 NWLR (pt. 779) 473 Almustapha v. State (2013) 17 NWLR (pt. 1 383) 35.”
This Issue is covered by Ground 2 of the Grounds of Appeal. Under this Issue, one may ask a simple question thus:
“Is the 1st Accused/Appellant one of the participles criminis in the commission of this offence, the Charge sought to
be quashed at the Lower Court.”
Whether or not, the Law is settled that all persons who are participles criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be Charged and convicted with the actual commission of the crime.
?Parties, participles criminis to a crime, include inter alia every Person who actually does the act or makes the omission which constitutes the offence, person who aided, abetted or assist them in commission of the offense on who Counselor, procure others to commit the offence or knowingly facilitate the offence. See Section 7 of the Criminal Code.
From the provisions of the above section, the 1st Accused /Appellant clearly falls into the category of Counseling and procuring others to commit the offence which he has facilitated through telephone conversation.
It is on that note that I hereby resolve that the Learned trial Judge was right to have established a prima facie as against the 1st Accused/Appellant when he led that the 1st Accused/Appellant procure and Counsel the attackers to kill the deceased through o phone call. And so I hereby resolve
Issues 2 & 3 respectively in favour of the Respondent and against the Appellant.
Another Issue raised by the Appellants is to the effect that whether a Criminal Charge preferred of the Magistrate Court without jurisdiction which was sent to, the Director of Public Prosecution and adjourned sine die amounted to the termination of the Criminal Proceedings and whether the filing of information of the same time at the High Court did not amount to abuse of Court process and Criminal jeopardy against the 1st Accused Appellant?
The information filed at the High Court is competent in Charge No, HUK/10C/2015 upon which the 1st Accused/ Appellant is charged, The Learned Magistrate having declined jurisdiction did not adjourn the said charge No. UKM/12C/2015 to any future date and the 1st Accused/Appellant was no more require to show appearance in the Magistrate Court.
In view of the above, I hereby resolve the Issue in favour of the Respondents.
Another Issue raised by the 1st Accused/ Appellant of the Lower Court was that the information No. HUK/10C/2015 is incompetent in that the consent of the Judge was not obtained before some was filed as required by Section 314(3)
(b) of the Criminal Procedure Low Cap. 39 Vol. 2, Laws of Akwa lbom State 2000. This argument of the Appellant’s counsel is of the old school. There is now an Amendment to Section 314 of the Criminal Procedure Law of Akwa Ibom State 2006 which authorizes the filing of information without the Statement of witnesses being verified on oath before a Magistrate and without obtaining the consent of a Judge.
In view of this, I shall and hereby resolve this Issue in favour of the Respondents as no Law is yet in dispute as contended by the Appellant.
Though the 1st Accused/Appellant is not yet on trial but, the positive and credible evidence and unequivocal fixing of the 2nd-4th Accused/Appellants and the telephone conversation at the scene of crime clearly debunks and dispenses with any plea of Alibi or defence of Alibi that may arise from any of the witnesses. See Mohammed v. State (2014) 5 Sc (pt. 111) 83, Sowemimo v. state (2004) 4 Sc (pt. 11) 2. There is therefore a prima facie evidence disclosed against the 1st- 4th Accused/Appellant and the Lower Court was right to dismiss the Accused/Appellants Motion to quash the information.
Therefore, I resolve
this Issue in favour of the Respondent. Having resolved all the issues in this Appeal in favour of the Respondents, I find no merit in this Appeal. The 1st Accused/Appellant, his Motion having been quashed of the Lower Court should go back there and take his plea alongside other Accused persons. The Appeal therefore fails; it is refused and accordingly dismissed.
I hereby affirm the Ruling of the Lower Court in charge No. HUK/10C/2015 delivered on the 31st July, 2015 by Hon. Justice Ezekiel O. Enang at the High Court of Justice, Ukanafun Judicial Division of Akwa Ibom State. Appeal dismissed.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Paul Obi Elechi, J.C.A., made available to me a draft copy of the lead Judgment in this appeal, in which he dismissed this appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal, which is totally unmeritorious, and affirm the Ruling of the trial Court. I abide by the orders made in the lead Judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: An application to quash a charge on grounds of insufficiency of attached proof of
evidence although available to an accused person under the extant criminal procedure law in Akwa Ibom State, is anachronistic in several jurisdictions within the country.
The justification for this is easily fathomed. At best the application only secures a mirage of a reprieve for the accused, virtual without being actual. It does not bar subsequent prosecutions as its success does not result in an acquittal. Furthermore, the prosecution is at liberty to file additional proofs of evidence and as held in UGURU VS STATE (2002) 10 NSCQR 37 it could amend the charge anytime until judgment.
The application is mainly premised on the contention that the information is not supported by the attached proof of evidence as to justify the accused being put on trial.
The proof of evidence must disclose a prima facie case, sufficient if believed, to link the accused with the alleged offence and justify a proceeding with the trial. The prima facie case must constitute ground for proceeding.
Where the proof of evidence fails to disclose an offence known to law, it would be quashed. See FRED EGBE VS STATE (1980) 1 NCR 341.
Where the proof of evidence although discloses an offence
known to law but insufficiently links the accused person with it as to justify his being put on trial in respect thereof, it would also be quashed. See ABACHA vs STATE (2002) 11 NWLR (PT 779) 437 and OHWOVORIOLE vs FRN (2003) 2 NWLR (PT 803) 176.
Because this objection bothers on jurisdiction, for where a trial is based on a bad indictment it would be an exercise in futility, it could be entertained even if brought after plea. See IKOMI V. STATE (1986) 3 NWLR (PT 28) 340 per ANIAGOLU JSC at 370.
With respect to the present case, I agree with the more detailed reasoning and conclusion in the lead judgment just delivered by my learned brother, PAUL OBI ELECHI J.C.A., the draft of which I was privileged to have read, that the attached proof of evidence links the appellant sufficiently with the alleged offences as to justify his being put on trial in respect thereof.
I therefore find no merit in this appeal and I dismiss it. I also adopt the consequential orders in the lead judgment.
Appearances
Victor Ukod, Esq. For Appellant
AND
Ernest Akpan, Esq. with him,
F. J. Itim, Esq. For Respondent
