AKANINYENE BENSON BROWN v. THE STATE
(2016)LCN/8164(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of February, 2016
CA/C/153CC/2015
RATIO
APPEAL: THE PRINCIPLES THAT GUIDES THE COURT IN CONSIDERING AN APPLICATION TO QUASH THE CHARGE AGAINST THE APPELLANT
In considering an 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 and 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) 43, Ubanatu vs. C. O. P (2000) 2 NWLR (pt 643) 115.
In Ikoni vs. The state (1986) 3 NWLR (pt 28) 340, It was held “No citizen should be part to the rigors of trial in a criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime” per. PAUL OBI ELECHI, J.C.A.
CRIMINAL LAW: PARTICIPLES CRIMINIS: WHETHER PARTICIPLES CRIMINIS 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 the commission of the offence on who counselor, procure others to commit the offence or knowingly facilitate the commission of 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
AKANINYENE BENSON BROWN 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 High Court of Akwa Ibom State, Ukanafun Judicial Division delivered by the Hon Justice Ezekiel Ennang on the 31st July, 2015. The 4th Accused/Appellant was the 4th Accused person at the Lower Court whilst the 1st Respondent was the complainant and 1st, 2nd and 3rd Accusesd persons respectively.
The 1st – 4th Accused/Appellants were charged with conspiracy, Murder and causing grievous harm under Section 33,326(1) and 344 of the Criminal Code Law respectively cap 38 vol. 2 Laws of Akwa Ibom State of Nigeria 2000.
In Count 1, the 1st – 4th Accused/Appellants were alleged to have conspired on the 18th March, 2015 amongst themselves 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 15th March, 2015. In Count 3, the 1st – 4th Accused Appellants were alleged to have murdered one Hon. Okon Joseph Uwah on 18th March 2015 did grievous harm to one Uduak Jackson Essien.
?Upon the information being filed and served on them, the lst-4th
Accused/Appellants counsel filed an Application by way of Motion on Notice on the 12th June, 2015 to quash the information or strike out the three count information. The 4h Accused counsel filed an Application and sought to strike out the charge for failing to disclose a prime facie case of conspiracy ,murder and causing grievous harm.
On the 10th July, 2015, the Lower Court delivered Judgment and refused, hence this appeal. In trying to argue this point, the 4th Accused distilled 4 issues for determination.
(1)Whether the trial Court can rely on hear-say evidence to establish prima facie case of Conspiracy, murder and causing grievous harm against the 4th Accused/Appellant when the 4thAccused/Appellant was not at the scene of crime (ground 1).
(2) Whether the Learned trial Judge was right to have held that a prima facie case of Conspiracy, murder, causing grievous harm was established against the 4th Accused/Appellant in the circumstances, particularly when the identity of 4th Accused/Appellant and the Alibi raised was not resolved by the prosecution (ground 2).
(3) 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 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 4th Accused/Appellant. (ground 3)
(4) 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 under valid existing Law.
In arguing issue No.1 above, Learned Accused/Appellant’s counsel referred the Court to the case of Olatunbosun vs. State (2013) 17 NWLR pt 1382 at 197 where the Supreme Court held thus:-
“It is the duty of counsel especially in murder cases to promptly take objection to any or every perceived irregularity at least to procedure or charge.”
Therefore the Accused/Appellant Counsel was acting within the Law when the said Application to quash the three counts when the three counts do not disclose any prime facie case against the 4th Accused/Appellant or link him with the offence charged with. Learned Counsel argued that the statement of one Gideon Amos
Udoko as proof of evidence intending to be used to establish the fact that the 4th Accused/Appellant conspired with and indeed attached the deceased is hear-say evidence is credited to one Akaninyene Peter Abai who was purported to have received instructed via telephone call to attack the deceased. He submitted that it is fact that the 4th Accused/Appellant was not at the scene of crime neither did he personally take part in attacking the deceased. Rather what the Court relied upon to link the 4th Accused/Appellant and made out a prima facie case against him is only hear-say evidence of one Gideon Amos Udoko and mere mention of his name. He submitted that the hearsay evidence of Gideon Amos Udoko cannot be by any means grant a prima facie of conspiracy, against the 4th Accused/Appellant who was purported finked with the offence by telephone conversation of one Akaniyene Peter Abai. Learned Appellant counsel submitted that from the Records, there is the link of the offence with the offence. He then urged the Court to resolve this issue in their favour.
?On Issue No.2, Learned counsel adopted his argument on Issue No.1 above. He submitted that the Alibi
raised by the 4th Accused/Appellant was not investigated and that it is fatal to the prosecution case. Also there was no identification parade by the Police to fish out the real identity of the 4th Accused/person. He then urged the Court to resolve this issue in their behalf.
Issue No. 3, Learned counsel submitted that the filing of information to preferred charge against 4th Accused/Appellant while the criminal proceedings charge No UKM/l2C/2015 was adjourned sine die without formally terminating the criminal proceedings at the Magistrate Court amount to abuse of Court process and a double jeopardy for the 4th Accused/Appellant. See Dingyadi vs. INEC (2011) 10 NWLR (pt 1255) 347. He then urged the Court to resolve this issue in their favour.
Issue No. 4, under this issue, Learned Appellant counsel submitted that publishing of Law (Criminal Procedure) (Amendment Law 2006 of Akwa Ibom State) in the State gazette without the constitutional requirement of the signature of the clerk of the House and the account of the Governor make the Law invalid, null and void and of the effect. On the basis of this, he urged the Court to allow the appeal and set aside
the Ruling of the Lower Court.
Before considering the issues raised in this appeal, it would be necessary to first of 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 of the 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 or 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 l999 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 Appellant 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 1999 as amended and so Section 241(l)of the Constitution of the 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 fatal 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 an 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 and 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) 43, Ubanatu vs. C. O. P (2000) 2 NWLR (pt 643) 115.
In Ikoni vs. The state (1986) 3 NWLR (pt 28) 340, It was held “No citizen should be part to the rigors of trial in a criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime”
In this case at hand, the prosecution witness Gideon Amos udoko heard the phone call conversation between the 1st Accused/Appellant and one Akaninyene Peter Abai now at large and his statement to the police launching on the telephone conversation is evidence of what he heard first hand.
The 1st Accused/Appellant is a well known to the prosecution witnesses who recognized his voice on phone in his house giving directive over the GSM phone (which was on loud speaker) that the body 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 conclusion proof of the Accused person’s guilt which is a 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 fired 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 Udoko 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 (2002) 11 NWLR (pt 779) 473, Almustapha vs. state (2013) 17 NWLR (pr 1383) 350.
This issue is covered by ground 2 of the Grounds of Appeal. Under this issue, one may ask a simple question thus:
“Is the 4th 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 the commission of the offence on who counselor, procure others to commit the offence or knowingly facilitate the commission of the
offence. See Section 7 of the Criminal Code.
From the provisions of the above Section, the 4th 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 case against the 4th Accused/Appellant when he heard that the 1st Accused/Appellant procure and counsel the attackers to kill the deceased through a phone call. And so I hereby resolve issues 2 and 3 respectively in favour of the Respondent and against the Appellant.
Another issue raised by the Appellant is to the effect that whether a criminal charge preferred at 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 at 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/20l5 upon which the 4th 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 required to show appearance in the Magistrate Court.
In view of the above, I hereby resolve this issue in favour of the Respondents. Another issue raised by the 1st Accused/Appellant at the Lower Court was that the information No. HUK/10C/2015 is incompetent in that the consent of the Judge was not obtained before same was filed as required by Section 314 (3) (B) of the Criminal Procedure Law cap 39 vol 2 Laws of Akwa Ibom State 2000. This argument of the Appellant 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 get in dispute as contended by the Appellant. Though the 4h 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 vs. The State (2014) 5 SC (pt 111) 83, Sowemimo vs. The State (2004) 4 SC (pt 1l) 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 4th Accused/Appellant, his motion having been quashed at the Lower Court should go back theirs and take his plea alongside other Accused persons. The appeal therefore, fails it is refused and accordingly dismissed.
I hereby affirm the Ruling of Lower Court in charge No. HUK/10C/20l5 delivered on the 31st day of 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, JCA, 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.CA.:
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 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 vs 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, JCA, 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.
ERNEST AKPAN ESQ.For Appellant
AND
F.J. ITIM ESQ.For Respondent
