CHIDI AKABOGU v. THE STATE
(2016)LCN/8507(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of April, 2016
CA/E/32C/2015
RATIO
APPEAL: WHERE ARE ISSUES FOR DETERMINATION DERIVED FROM
It is settled that an issue must derive from one or more grounds of appeal, but not more than one issue can derive from one ground of appeal. See AP Ltd v. J.K. Owodunni (1991) 11 SCNJ 81. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FAIR HEARING: APPLICATION OF THE PRINCIPLE OF FAIR HEARING
Once an accused person requests for the proof of evidence to enable him defend himself at a criminal trial, there should be no hesitation by the prosecution to give it. Afterall, the prosecution is not out to persecute the accused. In any event, this point had been settled by the Supreme Court in Okoye v. C.O.P. (2015) 17 NWLR Pt. 1488 Pg.276 at Pg. 280-284. The Court refused to recognize any dichotomy between trial before a Magistrates’ Court and the High Court, summary trial or trial by information. Once the accused requests for proof of evidence or any document in the police file which he needs to prepare an adequate defence to the criminal charge against him, he must be furnished with same. The Supreme Court held at pg. 281 of the NWLR as follows:
“The provision of Section 36 (6)(b) of the 1999 Constitution applies to every person who is charged with a criminal offence. It does not talk of the nature of the offence charged or the mode of trial of the offence. The provision applies to every person who is charged with any criminal offence triable in any Court either by way of summary trial or trial on information. The provision of Section 36 (6)(b) therefore applies across board, both in summary trial and trial on information and the person charged does not need to elect to be tried either summarily or on information for the provision to apply to him. The provision does not envisage a time frame, condition(s) precedent under which it will come into operation. In the instant case, the Court of Appeal held that for the provision of Section 36(6)(b) to apply to the facts of the case, the Appellants must first and foremost elect either summary trial or trial on information contrary to the clear and unambiguous provision of Section 36(6)(b) of the Constitution. Thus whether the person is charged with any criminal offence in a Court either by way of summons trial or trial on information, he must be given adequate time and facilities for the preparation of his defence.”
Every judge should at least understand the basic principles of fair hearing and principles behind the law that makes the law. Even in civil matters where personal liberty is not at stake as in a criminal trial, the Nigerian adversarial system of jurisprudence does not countenance the taking of the adverse party by surprise or overreaching the adverse party by fresh evidence the other is not aware of and therefore not in a position to effectively rebut. The filing of pleadings and the rule of not admitting evidence outside the pleadings removes the element of surprise from civil proceedings. At every point in adjudication, a judge must try to encourage, and perpetuate both the letters and the spirit of the Constitution.
The broad object of criminal law dispensation is the protection of society by the apprehension and punishment of those who have committed societal wrongs with the confidence of society that the right person has been punished for the crime. The Administration of Criminal Justice Act 2015, S.359 thereof has taken cognizance of this right of the accused as pronounced by the Supreme Court to compel the production of witness or evidence required for his defence.
1. The defendant may apply to the Court to issue a process for compelling the attendance of a witness for the purpose of examination or the production of a document or any other thing.
2. On an application by the defendant under Subsection (1) of this Section, the Court shall issue the process unless for reasons to be recorded by it in writing it considers that the application is made for the purpose of vexation or delay or of defeating the aims of justice.
Also the ACJ Act in S.350 dealing with when summary trials shall be held provides in S.350 (2) as follows:
(2) In a trial in the Magistrate’s Court or Tribunal, the prosecution shall, provide the defendant all materials that the prosecution intends to rely on at the trial, before or at the commencement of the trial. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
CHIDI AKABOGU Appellant(s)
AND
THE STATE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice P. I. Enejere of the High Court of Enugu State in charge No. E/67C/2014 delivered on 19/6/14 refusing to stay proceeding pending the supply of proof of evidence of the charge to the Accused Appellant. The facts that led to this appeal are as follows:
The Accused/Appellant was charged on 7 counts of forgery, uttering forged document, and stealing. While counts 1-3 are charges of forgery, counts 4-6 are on uttering forged document and count 7 is on stealing. He was admitted to bail on 27/2/14.
The Notice of trial on page 1 of the Record signed by the Registrar of the High Court dated 7/2/14 stated thus: –
?TAKE NOTICE THAT YOU WILL BE TRIED ON the information, whereof this is a true copy, of the sessions to be held at High Court 10, Enugu on the 10th day of February 2014 of 9 O’clock in the forenoon.”
No proof of evidence was made available along with the notice of trial However before he pleaded to the charges, the Accused/Appellant’s counsel by a motion on notice dated 12/3/2014, filed on the same date prayed the
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trial Court for an order of Court staying further proceedings in the charge including the arraignment of the accused/applicant till the information together with the proof of evidence in the charge be served on the Accused/Applicant.
The Appellant’s counsel had argued that the Accused/Appellant being charged by information ought to be furnished with a copy of the proof of evidence to enable him prepare a defence to the charge. The prosecution filed a counter affidavit to oppose the prayers of the Accused/Appellant on the basis that no information was filed by the prosecution requiring the provision of the proof of evidence to the accused. Rather only a charge sheet under summary trial was filed and served on the accused/appellant which was signed by the Police Prosecutor.
?
The learned trial judge held that Section 164 of the Criminal Procedure Law of Enugu State provides for summary trial in the High Court other than on information, and that the charges leveled against the Accused/Appellant are not offences for which proof of evidence shall be filed under Section 240 of the said Criminal Procedure Law. The Hon. Court then struck out the application as
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being misconceived. Notice of appeal was filed on 2/7/14. Records were transmitted on 17/2/15 and by order of Court deemed properly transmitted on that day. Appellant’s brief was filed on 22/10/15, but deemed properly filed on 9/2/16.
From the sole ground of appeal, the Accused/Appellant distilled one issue for determination as follows:-
Whether the Accused/Appellant who had been charged to Court vide an information is not entitled or ought to be furnished with a copy of the proof of evidence in the case so as to enable him prepare for his trial.
The Respondent formulated 3 issues from the said sole ground of appeal as follows:
1. WHETHER THE HIGH COURT OF ENUGU STATE HAS THE JURISDICTION TO CONDUCT SUMMARY TRIALS IN CRIMINAL CASES.
2. WHETHER THE TRIAL OF THE APPELLANT IN CHARGE NO.E/67C/2014 AS PRESENTLY CONSTITUTED IS A SUMMARY TRIAL, PROCEEDING AND NOT ON INFORMATION.
3. WHETHER THE FILING OF PROOF OF EVIDENCE IS REQUIRED IN SUMMARY TRIAL PROCEEDINGS BEFORE THE HIGH COURT
It is settled that an issue must derive from one or more grounds of appeal, but not more than one issue can derive from one ground of appeal. See AP Ltd
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v. J.K. Owodunni (1991) 11 SCNJ 81.
The three issues as distilled by learned Respondent’s counsel are a proliferation of the issues in controversy. Therefore I will adopt for the determination of this appeal, the sole issue as identified by the Accused/Appellant’s counsel.
Learned Accused/Appellant counsel, Mr. C. Chuma Oguejiofor who settled the brief argued that by the provision of Section 333 of the Criminal Procedure Law of Enugu State, an accused person facing trial by information is entitled as of right to a copy of the information containing the proof of evidence in the case. Counsel argued that the information preferred by the Police Prosecutor in accordance with Section 152 (b) (iii) ought to be accompanied by the proof of evidence. Counsel insisted that by the notice of trial served on the Accused/Appellant, he was to be tried on information pursuant to Section 153 (b) (iii) not Section 153 (b) (iv) of the Criminal Procedure Law and that the trial cannot be by complaint as it speaks for itself. Counsel argued that the proof of evidence containing the case to be made by the Prosecutor should have been served on the Accused/Appellant so that
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the Accused/Appellant could prepare for his defence. Counsel cited Uket v. FRN (2008) ALL FWR pt.4 Pg.923 at 927, S.36(6)(b) of the 1999 Constitution, Okoye v. C.O.P. (2015) 17 NWLR Pt.1488 pg.276 pg.280-284.
In the brief settled by Damian Njoku-Umeh, the learned police counsel and prosecutor, it was argued that the charge being brought under the summary jurisdiction of the High Court in accordance with Chapter 12 of the Criminal Procedural Law, Laws of Enugu State, the Magistrates’ Courts and High Courts have concurrent jurisdiction to conduct summary trials. Counsel further submitted that having defined summary trial as trial by a magistrate and trial by a judge not on information, it is therefore not difficult to understand and to agree that when a criminal proceeding is initiated in the High Court by a process other than by information, the High Court for that purpose becomes a Court of summary jurisdiction in the same manner as the Magistrate Court, and it is always only on the applicable proceedings meant for summary trials. Learned counsel cited Emirate Airline v. Federal Republic of Nigeria & Ors (2014) LPELR-24135, (2015) All FWLR Pt.773
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Pg.1865; Ralph Uwazurike & Ors v. A.G.F. (2013) 10 NWLR Pt.1361 Pg.105 at 125; FRN v. Osahon (2005) 5 NWLR Pt.973 Pg.361.
Counsel argued that the charge does not fall under the categories provided by S.240 of the Criminal Procedural Law Enugu State 2004 for which the law requires the prosecution to submit proof of evidence to the accused. Counsel argued that the charge against the accused/appellant is not a capital offence; it is not punishable with imprisonment for life, and the accused is not being tried on his election to be so tried.
RESOLUTION
There is no doubt that the Criminal Procedural Law of Enugu State by S.164 provides for summary trials at the High Court. The Accused/Appellant insists that on the face of the “Notice of Trial” the word “information” was used and that makes the trial one by information, while the Respondent insists that the substance of the procedure adopted by the police ex facie the Attorney General’s office, shows that it is strictly summary trial wherein no obligation lies on the prosecution to provide the accused with proof of evidence of the charges on the charge sheet. There is also no doubt that any officer
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of the police is empowered to prosecute criminal cases before any Court in Nigeria. S.277 of the Criminal Procedural Act (the extant law applicable in 2014 when the cause of action arose) or when the charge was preferred) which is in pari materia with S.154 of the Criminal Procedural Law of Enugu State provides for summary trials at the High Court. In this case, Notice of Trial is a simple document which looks like a charge sheet. The charge was not signed by the Attorney General or any officer in his chambers nor a private person acting on the authority of the Attorney General.
A look at page 24 of the Record shows that the charge is similar to a charge sheet in the form prescribed by the schedule to Section 255 of the Criminal Procedure Law. Since the charge was not signed by the Attorney General or any law officer of the State, it is not an information pursuant to Section 213 of the Criminal Procedural Law.
Having said that, let us consider some cardinal principles of our criminal jurisprudence in our adversarial system of justice in Nigeria. This is enshrined in S.36 of the 1999 Constitution which provides for the right to fair hearing. Section
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36(6) (a) & (b) provide as follows:
Every person who is charged with a criminal offence shall be entitled to
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) Be given adequate time and facilities for the preparation of his defence.
I am humbly of the strong opinion that any person charged whether summarily or by information to face criminal charges at the High Court is entitled as provided by the Constitution to details of the offence including the proofs of evidence by the police in order to facilitate his defence to the charge. See Olabode v. The State (2009) 11 NWLR Pt.1152 Pg.254 at 258, Adeniyi v. The State (2001) 25 WRN Pg.117 at 120. In paragraphs 2 and 3 of the affidavit in support of the Accused/Appellant’s motion, he swore as follows:
“That the information in this case had been served on me but without any proof of evidence accompanying the same.
That I need the said proof of evidence so as to enable me prepare my defence effectively to the charge.”
?
Once an accused person requests for the proof of evidence to enable him defend himself at a criminal
8
trial, there should be no hesitation by the prosecution to give it. Afterall, the prosecution is not out to persecute the accused. In any event, this point had been settled by the Supreme Court in Okoye v. C.O.P. (2015) 17 NWLR Pt. 1488 Pg.276 at Pg. 280-284. The Court refused to recognize any dichotomy between trial before a Magistrates’ Court and the High Court, summary trial or trial by information. Once the accused requests for proof of evidence or any document in the police file which he needs to prepare an adequate defence to the criminal charge against him, he must be furnished with same. The Supreme Court held at pg. 281 of the NWLR as follows:
“The provision of Section 36 (6)(b) of the 1999 Constitution applies to every person who is charged with a criminal offence. It does not talk of the nature of the offence charged or the mode of trial of the offence. The provision applies to every person who is charged with any criminal offence triable in any Court either by way of summary trial or trial on information. The provision of Section 36 (6)(b) therefore applies across board, both in summary trial and trial on information and the person charged
9
does not need to elect to be tried either summarily or on information for the provision to apply to him. The provision does not envisage a time frame, condition(s) precedent under which it will come into operation. In the instant case, the Court of Appeal held that for the provision of Section 36(6)(b) to apply to the facts of the case, the Appellants must first and foremost elect either summary trial or trial on information contrary to the clear and unambiguous provision of Section 36(6)(b) of the Constitution. Thus whether the person is charged with any criminal offence in a Court either by way of summons trial or trial on information, he must be given adequate time and facilities for the preparation of his defence.”
Every judge should at least understand the basic principles of fair hearing and principles behind the law that makes the law. Even in civil matters where personal liberty is not at stake as in a criminal trial, the Nigerian adversarial system of jurisprudence does not countenance the taking of the adverse party by surprise or overreaching the adverse party by fresh evidence the other is not aware of and therefore not in a position to
10
effectively rebut. The filing of pleadings and the rule of not admitting evidence outside the pleadings removes the element of surprise from civil proceedings. At every point in adjudication, a judge must try to encourage, and perpetuate both the letters and the spirit of the Constitution.
The broad object of criminal law dispensation is the protection of society by the apprehension and punishment of those who have committed societal wrongs with the confidence of society that the right person has been punished for the crime. The Administration of Criminal Justice Act 2015, S.359 thereof has taken cognizance of this right of the accused as pronounced by the Supreme Court to compel the production of witness or evidence required for his defence.
1. The defendant may apply to the Court to issue a process for compelling the attendance of a witness for the purpose of examination or the production of a document or any other thing.
2. On an application by the defendant under Subsection (1) of this Section, the Court shall issue the process unless for reasons to be recorded by it in writing it considers that the application is made for the purpose of
11
vexation or delay or of defeating the aims of justice.
Also the ACJ Act in S.350 dealing with when summary trials shall be held provides in S.350 (2) as follows:
(2) In a trial in the Magistrate’s Court or Tribunal, the prosecution shall, provide the defendant all materials that the prosecution intends to rely on at the trial, before or at the commencement of the trial.
I do not think justice was being served by the refusal of the learned trial judge to grant the application compelling the prosecution to furnish the accused/Appellant with a copy of the proofs of evidence in this case.
In the circumstances, the ruling of Hon. Justice P. I. Enejere in charge E/67C/2014 delivered on 19/6/14 is hereby set aside. The prosecution shall serve forthwith the proof of evidence in respect of the charges in this case on the Accused Appellant. The case is hereby remitted back to the High Court for the arraignment and trial of the accused Appellant. Appeal allowed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: My learned brother, Hon. Justice Helen Moronkeji Ogunwumiju, JCA availed me with the copy of the lead judgment she has just delivered. I
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agree entirely that the ruling of the Lower Court which pertained to the instant interlocutory appeal matter should be set aside. It is accordingly set aside by me. I abide by the consequential orders made in the said lead judgment of my learned brother, Ogunwumiju, JCA.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree
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Appearances:
I. Aroh with A.C. Nzeka, N. A. Ozordi (Miss) and M. U. Uzuegbuna (Miss)
For Appellant(s)
Damian Njoku-Umeh
(Deputy Superintendent Police-Legal Officer NPC Enugu)
For Respondent(s)
Appearances
I. Aroh with A.C. Nzeka, N. A. Ozordi (Miss) and M. U. Uzuegbuna (Miss)For Appellant
AND
Damian Njoku-Umeh
(Deputy Superintendent Police-Legal Officer NPC Enugu)For Respondent
