CHARLES IGWE V THE STATE
In the Supreme Court of Nigeria
Friday, December 14, 2018
Case Number: SC. 715/2015
MUSA DATTIJO MUHAMMAD
KUMAI BAYANG AKAAHS
AMINA ADAMU AUGIE
PAUL ADAMU GALINJE
SIDI DAUDA BAGE
LACK OF FAIR HEARING
“Strictly speaking therefore he has not been denied fair hearing since the hearing is yet to start and so lack of fair hearing cannot be invoked to invalidate a hearing or trial and therefore cannot be employed to terminate the proceeding in limine. See Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 9150) 411”.
(DELIVERED BY KUMAI BAYANG AKAAHS, JSC)
The appellant was the 4th accused in amended Charge No. A/57C/2008 before the Anambra State High Court, Awka for the offences of conspiracy to commit murder and attempted murder. Before the arraignment could take place, the learned counsel appearing for the appellant and the other accused persons brought an application dated 5 January, 2012 challenging the competence of the information and the supporting proofs of evidence seeking the following orders: –
1.Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of court process
2.Quashing the information filed in this Court against the applicants as incompetent for failure to contain the proper Proofs of Evidence as required by section 220(f) of the Administration of Criminal Justice Law 2010.
3.Quashing or dismissing the information and the entire proceedings as the Honourable Court has no jurisdiction over the person of the 5 applicant who has not been served with any information, proof of evidence and hearing/arraignment notice.
4.Dismissing/striking out this proceeding for violating each of the applicants’ constitutional right to fair hearing.
5.Quashing the information as the court lacks jurisdiction to try the offences as they were brought in violation of each of the applicants’ legal and constitutional rights to fair hearing.
6.Quashing the arraignment of the applicants on the information before this Court as the said information is incompetent and unsupported by proper proofs of evidence.
The motion was supported with a 30 paragraph affidavit to which was annexed proceedings at the Magistrate’s Court in Charge No. MAW/194c/2007. In paragraphs 11, 22, 23, 24 and 25 thereof, Jacinta Maduka, deposed to the following facts: –
“11 Upon careful review of the Proofs of Evidence served on the 1st applicant, it was discovered that the respondent refused or failed to include the exculpate y statements of the following material witnesses in the purported Proofs of Evidence: –
“(a) statement of Alice Nweke, who was referred to by the complainant as the “Abakaliki woman” who witnessed the incident, taken by the prosecution on 26/10/2007 which statement informed the prosecution that the culprits of the offence were not the applicants but two persons who came in a motor cycle and left with the same. A copy of the said statement which was given to the lSi applicant by the police for his file is annexed hereto as Exhibit “B”.
(b) Statement of Chukwudi Okonye, taken by the prosecution on 23/10/2007, which supports the alibi of the 3rd applicant. A copy of the said statement which was given to the 3rd applicant by the police for his file is annexed hereto as Exhibit “C.
(c) Statement of Gabriel Honwa, taken by the prosecution on 26/10/2007, indicating that the Police at B Division had investigated the matter and obtained witnesses’ statements not included in the proofs of evidence. A copy of the said statement given to the 1 applicant by the police for his file is annexed as Exhibit “D”.
22. By a Notice to produce for Inspection dated April 30, 2010, the applicants demanded on the prosecution to produce the material facilities that would enable the applicants to prepare for trial. A copy of the said Notice which is part of the record of this Court is annexed hereto as Exhibit “F”
23 Till date, the prosecutor has refused or failed to produce the facilities demanded by Exhibit “F” or make any demanded materials available to the applicants.
24. On May 4, 2010, at Awka, Dr. E. S. C. Obiorah Esq. informed me and I verily believe him that the applicants are in dire need of the facilities or materials in order to adequately prepare their defence and in order to properly cross-examine the prosecution witnesses. The materials will assist the defence in investigating this matter to search for and discover witnesses and interview them in preparation for the trial. The applicants also need them to adequately carry out the examination of witnesses on the same conditions as those applying to the witnesses called by the prosecution.
25. The applicants also need the demanded, facilities to adequately prepare for trial and avoid unnecessary surprises and ‘hide and seek’ on the part of the prosecution”
The motion was opposed and Ifeoma Francis, a litigation officer in the Anambra State Ministry of Justice, Awka deposed to a 39 paragraph affidavit in opposition. In paragraphs 23 and 25 of the counter-affidavit, she averred that: –
“23. That the defence is at liberty to call any witness they feel will advance their case.
25. It further answer to paragraph 22 above, the prosecution states that the defence has no right to tell it the witness to call, and one not to call”.
In his short ruling at page 230 of the records the learned trial Judge said: –
“I have carefully considered the application, affidavit in support together with the exhibits exhibited thereto, arguments of learned counsel for the applicant, counter affidavit together with the exhibits exhibited thereto and arguments of the learned counsel for the respondent and it seems to me that the applicants have not made a case that would warrant the grant of the application. The application accordingly fails, the same must be and is hereby dismissed”.
Being dissatisfied with the said ruling the applicants appealed to the Court of Appeal, Enugu in appeal No. CA/E/461C/2012 in their several Notices of Appeal dated 22 September, 2012 containing 5 ground of appeal from which two issues were distilled. The Court of Appeal in dismissing the appeal and affirming the ruling of the High Court held that it is the Attorney-General and the Law Officers in the State who determine the material witnesses that can be listed at the back
of the information and they may or may not be called and that the Attorney-General cannot be subject to the control of a police prosecutor in the Magistrate Court and consequently there was no infringement of the applicants’ constitutional right to fair hearing.
The appellant was further dissatisfied with the judgement of the Court of Appeal and decided to lodge an appeal to the Supreme Court. Six grounds accompanied the Notice of Appeal from which two issues were formulated.
The issues are: –
(a)Whether the Court of Appeal refusal to quash the information and dismiss the Criminal proceedings is not in violation of the applicant’s right to fair hearing (Distilled from Grounds 1, 2,4 and of the Appellant’s ground of appeal).
(b)Whether the Court of Appeal was right in holden (sic) that the respondent’s proof of evidence in support of the information was in accordance with section)146 of the Anambra State Administration of Criminal Justice Law (Distilled from Grounds 3 and 6 of the Appellant’s Grounds of Appeal).
The respondent also submitted two issues for determination but tied issue 1 to grounds 1, 2 and 5 of the grounds while issue 2 was formulated from grounds 3, 4 and 6.
The said issues are: –
(i) Relating to grounds 1, 2 and 5 of the grounds of appeal, whether in the circumstances of this case, the Court of Appeal was right in its conclusion that the appellant was not denied his right to fair hearing.
(ii) Relating to grounds 3, 4 and 6 of the grounds of appeal, whether the Proofs of Evidence filed with the Information against the appellant substantially compiled with the requirements of sections 220(f) and 146 of the Administration of Criminal Justice Law of Anambra State 2010.
On issue A learned counsel for the appellant referred to section 36(6)(b) and (d) of the Constitution of Nigeria 1999 (as amended) and submitted that it is mandatory that every person charged with a criminal offence must be given adequate time and facilities for the preparation of his defence and an accused person is entitled to any written statement in the possession of the prosecution for the preparation of his defence as decided in Layonu & Ors v. State (1967) 5 NSCC 194. He argued that the respondent’s failure and refusal to disclose in the proofs of evidence every evidence and statement of witnesses, whether intended to be used or not in the prosecution of the case violates and runs contrary to section 36(6)(b) of the Constitution. He also argued that the respondent is making deliberate efforts to put away and not disclose in the proof of evidence the statements of seven witnesses who were bound over by the Magistrate Court on 30 October, 2007 and this amounts to a deliberate denial of the appellant’s fundamental right to fair hearing which renders the proof of evidence incompetent and void.
On the second issue learned counsel for the appellant talked about section 220(f) of the Administration of Criminal Justice Law of Anambra State on proofs of evidence which are spelt out in section 146(b), (c) and (g) of that Law and submitted that the use of the word “shall” is mandatory and not directory as Interpreted in Ugwuanyi v. Nicon Insurance Plc (2013) 11 NWLR (Pt. 1366) 546; Aladejobi v, N.B.A. (2013) 15 NWLR (Pt. 1376) 66 and Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605. He argued that a combined reading of section 220(f), 141, 142 and 146 of the Administration of Criminal Justice Law compels the respondent to include in the proofs of evidence to be filed in court names, addresses and statements of all material witnesses, whether or not the prosecution intends to call them when preferring an information against the appellant.
He said that any witness who can offer evidence that has connection with the charge in issue is a material witness and these included the 12 witnesses who were bound over to appear for trial at the Magistrate Court in Charge Mo. MAW/194C/2007. He maintained that any proofs of evidence filed by the respondent which does not have the entire names, addresses and statements of the witnesses is incompetent as same-will prejudice the appellant’s right to fair hearing.
Learned counsel for the respondent submitted that the gravamen of the appellant’s application in the trial court was for the dismissal or striking out of the proofs of evidence on grounds of incompetence and quashing the information filed for failure to contain proper proofs as required by section 220(f) of the Administration of Criminal Justice Law, 2010. He said the appellant did not seek any of the reliefs for an order on the prosecution to provide the necessary facilities that will assist the defence in the preparation of its case. The appellant cannot therefore be heard to complain that he was deprived of adequate facilities for the conduct of his defence. Relying on Maikyo v. Itodo (2007) 5 M.J.S.C. 60 at pages 75-76, learned counsel submitted that the burden is on the party alleging breach of fair hearing in a case to prove the breach and he must do so in light of the facts of the case. He distinguished the present appeal from the cases of Layonu & Ors v. The State (1967) 5 NSCC 194 and Okoye v. C.O.P (2015) 17 NWLR (Pt, 1488) 276 in that in the cases cited, the accused persons applied formally for an order of the trial court directing the prosecution to furnish the defence with all relevant documents relating to cases; whereas in the instant appeal, the appellant’s grouse is that the proof of evidence in support of the information is incurably defective as same violates sections 220(f) and 146 of the Administration of Criminal Justice Law of Anambra State and so prayed the trial court to quash the said information. It is the submission of learned counsel for the respondent that by serving the appellant, with proofs of evidence the respondent has done all that is required of it by section 36(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 and that the essence of serving the accused with proof of evidence is to enable the accused know the case against him to enable him prepare for his defence. He argued that the failure by the appellant to apply for an order directing the respondent to make available all the materials needed to assist him to prepare his defence renders his complaint of denial of fair hearing premature. He contended that even if the notice to produce could take the place of a formal application, failure to produce the specified materials cannot render the information incompetent and liable to be quashed on the ground of want of fair hearing. He submitted that fair hearing can only be invoked to invalidate a hearing or trial but cannot be employed to terminate the proceedings in limine.
On issue no; 2 learned counsel referred to section 146(b) & (c) of the Criminal Justice Law of Anambra State and argued that the proofs of evidence contained on pages 115-138 of the records showing the names, addresses and statements of five witnesses listed by the respondent which it intends to call in proof of its case against the appellant substantially satisfies the requirement of law. He maintained that the law does not require the prosecution to set out seriatim the list of material witnesses it intends to call on one hand and those it doesn’t intend to call on the other hand and it suffices that the particulars of the witnesses are stated in the proofs of evidence and it is left to the prosecution to call only those witnesses that will prove the elements of the offence. It is therefore left for the prosecution to determine which evidence is material since it has the sole duty to prove its case beyond reasonable doubt.
The issue in this appeal is whether an applicant can apply-to dismiss or strike out the proofs of evidence as being incompetent and move the court to quash the information filed in court against an accused person. This Court decided by a majority of 44 in Abacha v. State (2002) 11 NWLR (Pt, 779) 437 that when an application is made to quash an indictment on an information, it is necessary for the trial court to attend to such an application dispassionately and rule on it and the best way to do this is to read all the depositions made by potential witnesses and accused persons so as to find out ii there is a prima facie case for the accused to answer. A prima facie case will consist of facts that clearly reveal a crime and show that the accused person is linked with it; hence has something to explain at the trial.
The appellant is relying on proceedings conducted in the Magistrate Court in Charge No. MAW/194C/2007 in alleging that he is being denied the facilities he requires to prepare his defence which is a denial of his fundamental right 10 fair hearing.
This Court held in Okoye v. C.O.P (2015) 17 NWLR (Pt. 1488) 277 that the moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded an opportunity to defend himself and be given facilities to prepare his defence and section 36(6)(d) of the 1999 constitution (as amended) is a provision of equal opportunities for both the prosecution and the defence. Thus the prosecutor will not be allowed to have sole access to evidence in a situation where the accused person does not know the case he would meet, while the prosecution knows everything concerning the case against the accused ahead of time. For the accused to be on equal footing with the prosecutor, he should be given the statements the witnesses made to the police and relevant materials relating to the case.
As I stated earlier, the application is anchored on what transpired in the Magistrate Court in Charge No. MAW/194C/2007. In paragraphs 3, 5, 6, 12 and 13 of the affidavit in support of the application, Jacinta Maduka deposed to the following facts: ¬
“3. On October 30, 2007, the 1st – 4th applicants were brought before the Senior Magistrate Grade II, sitting at the Anambra State Magistrate Court, Awka, on a remand proceeding in Charge No. MAW/194C/2007, in the charges of conspiracy to commit murder and attempted murder. The court bound over 12 witnesses who made statements to the police and whom the prosecution intended to call. The certified copy of the record of proceedings at the Magistrate’s Court is annexed hereto as Exhibit “A”
4. On July 1, 2008, the respondent prepared and preferred information against only the 1st – 4tn applicants based on the remand proceedings in MAW/194C/2007, indicting the said lst-4th applicants on the same offences of conspiracy to commit murder and attempted murder. The applicants hereby annex by reference the said Information, which is part of the record of this court, and will rely on the same as if set out herein seriatim and annexed as an exhibit herein.
5.In support of the Information, the respondent filed what is purported to be proofs of evidence on the same July 1, 2008. The applicants hereby annex by reference the said Proof of Evidence which form part of the record of this Court; and will rely on same as if set out herein seriatim and annexed as exhibit herein.
6.Trial commenced on December 18, 2008. During cross–examination PW1 (Thomas ilonwa), the purported victim of the offences charged, revealed that he made two separate statements to the respondent through the police. The respondent refused or failed to include the PWTs statement dated 18/10/2007 which is contradictory to his testimony in court and contradictory to his later statement to the police dated 25/10/2007. He only included PW1’s later statement of 25/10/2007, which was obviously an afterthought.
12 During the remand proceedings as shown in Exhibit “A” above the prosecution revealed that they had 12 witnesses who made statements to the police on the incident. The Court bound over the 12 witnesses.
13. However, in the Proof of Evidence, the respondent included the names, addresses and some statements of only 5(five) witnesses. They refused or failed to include the names, addresses and statements of 7(seven) material witnesses who had been bound over by the court to appear in court for trial”.
In the counter-affidavit of Ifeoma Francis, she stated the following facts in paragraphs 9, 13, 14, 15, 16, 17, 19, 20, 21, 23 and 25 of the said counter-affidavit: –
“9 That I have been shown a motion on notice filed by the accused/applicants for the quashing or dismissing of the proofs of Evidence filed by the respondent.
13.That in further answer to paragraphs 6, 9, 11, 12, 13,14,15, 16,17,18,19, 20 and 21 PW1 on the 8th December, 2008, stated that the police took his statement at the hospital while he was unconscious.
14.That all he knew was that the police that claimed they came from B Division interviewed him but he was not sure whether they gave him anything to sign.
15.That he would be surprised to hear that he signed any statement for them since none was read over to him when he regained consciousness.
16.In further answer thereof that the police at the CMU State Headquarters, took his statement when he was unconscious, and later read it to him when he regained consciousness and he appended his signature and affirmed it.
17. In further answer to paragraphs 6, 9,11,12,13,14,15,16, 17,18,19, 20 and 21 of their affidavit, PW1 and E. I. Okafor, inform me, and I verily believe them that PW 1 never made any contradicting statement or any statement to the B -Division.
19.In further answer to paragraph 7 of the affidavit in support, no exculpating statement of the witnesses, both for the defence or the prosecution was removed by the prosecution.
20.That the file was whole and entire when the HAG approved that the accused/applicants be charged for attempted murder. See the police index to the case file attached as exhibit “A”.
21.That in further reply to paragraph 7 of the motion, the respondent states: –
That no Abakaliki woman made any statement to the police.
That the “prosecution” never met the Abakaliki woman anywhere.
That the said statement of the Abakaliki woman annexed as Exhibit “B” is of spurious origin and made up of the figments of the imagination of their counsel and the accused persons.
That this office has reported this document for investigation.
That a forensic look at the exhibit will show the following fraudulent defects.
(i) The document purported to emanate from the police has no police logo or inscription on it and was never certified by them.
(ii) The writing on the body of the document (purportedly obtained by P. C. Omudu Jude) was purportedly signed by the maker.
(iii) The statement underneath purportedly made the same P. C. Omudu does not have writing inscription/marks with that on the body. Yet the same person recorded them.
23. That the defence is at liberty to call any witness they feel will help to advance their case.
25. In further answer to paragraph 22 above, the prosecution states that the defence has no right to tell it the witness to call and who not to call”.
A scrutiny of the affidavit and counter-affidavit filed reveals a conflict in the facts which can only be resolved by the calling of oral evidence especially as regards the exculpatory statement credited to the Abakaliki woman. See: Falobi v. Falobi (1976) NMLR 169. But as it appertains to the statements made by PW1, the respondent was not forthcoming. In one breath the deponent said PW1’s statement was recorded when he was unconscious and when he gained consciousness the statement was read over to him and he appended his signature. In another breath he claimed that the police from B Division interviewed him but he was not sure whether they gave him anything to sign. The deponent turned taciturn when she said PW1 would be surprised to hear that he signed any statement since none was read over to him when he regained consciousness. The respondent is clearly hiding something. It is very likely that PW1 made more than one statement and the prosecution is hiding the statement that is less favourable to its case. The appellant Is entitled to all the statements made by PW1 for the preparation of his defence.
The proceedings of the Magistrate’s Court, Awka in Charge No. MAW/194C/07 which took place on 30 October, 2007 are contained at pages 53-56 of the records of appeal. In the course of hearing an application for bail which was refused, the prosecution informed the court that it would be calling 12 witnesses to testify who were bound over. The said witnesses were: –
1.Thomas llonwa (m) Egbeaga – Amansea Awka L.G.A., Teacher
2.Gabriel llonwa Egbeagu Amansea, Farmer
3.Titus Ocheagwu (m) Egbeagu Amansea, Farmer
4.Christopher Nwafor (m) Egbeagu Amansea, Cyclist
5.Okeke Kenneth (m) Egbeagu Amansea, Trader
6.Okeke Jude (m) Egbeagu Amansea, Student
7.Nweke Ajuchukwu (mj Egbeagu Amansea, Trader
8.Lazarus Onwubeya (m) Ebgeagu Amansea, Trader
9.Obodo Mike (m) Egbeagu Amansea, Wine Tapper
10.Emeka Enenife (mj Orube-Amansea, Trader
11.Dr. L. C. Aka (m) Medicai Practitioner, Chief Medical Director General Hospital Enugwu-Ukwu
12.Inspector Peter Ajana (m) Police Officer attached to Command monetary (OC Monitoring Unit) Anambrc State Command.
The witnesses that the prosecutor annexed to Information were:-
1. Thomas llonwa
4.Inspector Peter Agora; and
5.Dr. L. C. Akah.
The witnesses who have been left out are: –
While I agree with the submission made by Lamed counsel for the respondent that it is the prosecution who determines who to call to prove its case, where it decides not to call all the witnesses, such witnesses should be produced for the purpose of cross-examination. See: Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663 at 695. The appellant is entitled to cross-examine the seven witnesses who were bound over by the Magistrate to testify but who the prosecution does not intend to call as witnesses to prove its case.
On the issue of lack of fair hearing in this case the lower court held that the respondent’s failure to include all the statements obtained by the police in the course of investigation, the proofs of evidence did not amount to denying the appellant adequate facilities for the preparation of his defence. It was earlier held in Okoye v. C.O.P. supra per Onnoghen JSC (as he then was) at 302 that the statements of witnesses and police investigation of the crime charged were part of the adequate facilities which the appellants are entitled to in order to adequately prepare their defence in accordance with the provisions of section 36(6)(b) of the 1999 Constitution.
The trial in this case has not commenced since the appellant is yet to enter into his plea. Strictly speaking therefore, he has not been denied fair hearing since the hearing is yet to start and so lack of fair hearing cannot be invoked to invalidate a hearing or trial and therefore cannot be employed to terminate the proceeding in limine. See Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 9150) 411. In the result I decline to dismiss or strike out the Proofs of Evidence as being incompetent and quash the information. The proofs of evidence have disclosed the commission of an offence and the appellant is linked to the offence. I hereby direct that all statements made by PW1 and the other witnesses listed in the proofs of evidence as well as the seven witnesses who were bound over in the Magistrate Court to testify at the trial of the appellant but who were left out by the prosecution should be made available to the appellant for the preparation of his defence. The appeal is premature and I accordingly strike it out.
SIDI DAUDA BAGE, JSC: I have had the benefit of reading in draft the Lead judgment of my learned brother Kumai Bayang Akaahs, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders contained in the lead Judgment. The appeal is hereby stroke out.
AMINA ADAMU AUGIE, JSC: I had a preview of the lead Judgment delivered by my learned brother, Akaahs, JSC, and I agree with him that the Appeal is indeed premature.
The Appellant, as 4th Accused Person, and other Accused Persons, objected to their arraignment before the High Court of Anambra State, and the crux of their complaint is that the proof of evidence supporting the information against them is defective as the Respondent failed to
include names, addresses and statements of seven out of the twelve material witnesses, whom the Prosecution intended to call at the trial.
The trial Court dismissed the Application, and the Court of Appeal dismissed the Appeal challenging the Ruling of the trial Court thereon, He appealed to this Court, and it is his contention that the failure of the Prosecution to disclose the Statements of the seven other witnesses, who were bound over by the Magistrate Court, Awka, on 30/10/2007, in the Proof of Evidence, is deliberate and intentional and in violation of provisions of Section 36 (6)(b) of the 1999 Constitution (as amended).
The Application to dismiss or strike out the Proof of Evidence and quash the Information filed at the Anambra State High Court is hinged on what transpired at the Magistrate Court. Surely, it is too early for the Appellant to come into this Court waving the flag of lack of fair hearing. He is yet to take a plea; how can he complain about lack of fair hearing?
Thus, I also strike out the Appeal, and abide by the consequential Orders made by my learned brother, Akaahs, JSC, in the lead Judgment.
PAUL ADAMU GALUMJE, JSC: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Akaahs JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The Appellant’s case is hinged on Section 36 (6)(b) of the Constitution of the Federal Republic of Nigeria, 1999, which provides as follows: –
“Every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence”
Black’s Law Dictionary 9th Edition defines Adequate to mean “Legally sufficient.”
In this case it is shown that out of the twelve witnesses that were bound over to appear and give * evidence at the high court by the magistrate’s court, Awka, the statements of five of them were annexed to the information and made available to the defence. Adequate materials do not mean all the materials in the case should be made available. Where the materials are not adequate, the defence has an absolute right to complain to the court. If the complaint is refused, then the defence can now appeal.
The adequate facilities that are required to be made available to the accused are for his defence. It is my firm view that an accused can only complain of lack of fair hearing when he opens and concludes his defence without having access to these facilities. In this case, hearing had not commenced as such the complaint of lack of fair hearing by the appellant is premature.
I find this appeal lacking in merit as such I join my brother in dismissing it. Appeal dismissed.
MUSA DATTIJO MUHAMMAD, JSC: I read m advance the lead judgment of my learned brother KUMAI BAYANG AKAAHS JSC and agree with the reasoning and conclusion therein which I hereby adopt as mine in dismissing the appeal too. I abide by the consequential orders contained in the lead judgment.
J.O. ASOLUKA, ESQ, for the Appellant.|CHIGBO ANAENUGU, ESQ., with B.I.P. Ozumba, Esq., for the Respondent.|