COMMISSIONER OF POLICE V. EJIKE OKOYE & ORS.
(2011)LCN/4669(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of July, 2011
CA/E/97/2008
RATIO
FACILITY: DEFINITION OF THE WORD “FACILITY”
Webster’s New World Dictionary defines the word “facility” inter alia as – “Ease of doing or making; absence of difficulty; the means by which something can be done”. Dictionary.com defines “facilities” inter alia as – “Something that permits the easier performance of an action, course of conduct, etc.: to provide someone with every facility for accomplishing a task,’ – – the quality of being easily or conveniently done or performed – – – “. In a nutshell, the word “facilities” embraces anything that would make it easier to perform any action or course of conduct, etc. PER AMINA ADAMU AUGIE, J.C.A.
DEFENCE: DEFINITION OF THE WORD “DEFENCE”
“Defence” is defined as an accused person’s “stated reason why the Prosecutor has no valid case”, esp., his or her “answer, denial or plea”. For instance, an accused person’s defence may be a complete and total denial of the commission of the offence, etc. PER AMINA ADAMU AUGIE, J.C.A.
TRIAL: WHAT IS A TRIAL: WAYS OF INITIATING OR COMMENCING CRIMINAL TRIALS IN OUR COURTS
Now, a trial “is the finding out by due examination the truth of the point in issue” – see Graham & ors V. Esumai & Ors (1984) 11 SC 123, and there are two different methods or ways of initiating or commencing criminal trials in our Courts. Section 163(1) of the Anambra State CPL, which applies in this case, and deals with “method of trial”, provides – “Trials shall be held – (a) In the High court – (i) On the information, after the preparation of proofs of evidence either by the Attorney-General or by a private Prosecutor as the case may be such information being filed by the Attorney-General in accordance with the provisions of Chapter 16, or (ii) On information, filed in the Court after the Accused has been summarily committed for perjury by a Judge or Magistrate under the provisions of Chapter 13, or (iii) On information exhibited by the Attorney-General under the provision of Section 152, or (iv)Summarily in accordance with the provisions of Chapter 12; or (b) In Magistrates’ Court summarily in accordance with the provisions of Chapter 12. Chapter 12 of the CPL is on “Summary Trial”, and Section 164 reads – “The Provisions of this Chapter shall apply to offences triable summarily, that is to say – (a) To all trials in the high Court other than on information, and (b) To all trials in the High Court in respect of offences for which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided, and (c) To all trials in any Magistrate’s Court to the extent of the jurisdiction of the magistrate adjudicating, and (d) for all offences declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a Magistrate. PER AMINA ADAMU AUGIE, J.C.A.
SUMMARY TRIAL AND FULL TRIAL (ON INFORMATION): WHETHER A SUMMARY TRIAL IS DISTINCT FROM A FULL TRIAL ON INFORMATION
So, trials commenced, initiated or instituted by way of or on information in the High Court are excluded or exempted from the procedure for summary trials provided for in the CPL see Alamieseigha V. FRN (2006) 16 NWLR (Pt. 1004) 1, where this Court per Adamu, JCA, said- “- – A summary trial is and remains so in both its manner of initiation, institution and conduct and is distinct from the full trial (on information), which also has its peculiar characteristics and different pre-requisites in both its manner of initiation, institution and conduct. It will therefore be wrong and contrary to the letter and spirit of the law (i.e. the CPA) to differentiate between the manner of initiating a summary trial and the way it is conducted. Similarly, we cannot differentiate on how a full trial on information can be commenced or initiated from how it will be conducted. Thus, a summary trial is or remains as such from its inception to its conduct and conclusion in the same way as a full trial on information also remains with its full characteristics from its inception, conduct and conclusion as recommended by the law and it would be a double standard to mix them up or to expect such a full trial to (on information) be commenced or be initiated summarily and be conducted fully (or as a full trial). In the same manner, a summary trial cannot be expected to commence fully and be conducted summarily’. (Highlight mine). In other words, a summary trial is a SUMMARY TRIAL, and a trial on information is a TRIAL ON INFORMATION; they cannot be mixed up. Each method of trial has its own peculiar characteristics from inception, conduct and conclusion as recommended by the Anambra State CPL. To my mind, likening a summary trial to a trial on information is like saying going to Abuja from Enugu by air or by road is one and the same, which is quite laughable because going by air will take about 45 minutes, and travelling by road will take roughly 6 hours with its inconveniences. It is the same thing here. The CPL simply defined a summary trial as – “any trial by a Magistrate and a trial by a Judge not on information” – see the interpretation Section 2 of the CPL. Black’s Law Dictionary, 9th Ed., however, defines it as “a non-jury proceedings that settles a controversy or disposes of a case in a relatively prompt and simple manner”, and the word “prompt” is defined in the same Dictionary as “to incite, esp. to immediate action”, just like going to Abuja by air; a quick and easy ride. A trial by information is a different ballgame altogether because the “proofs of evidence” must be prepared before the ball starts rolling. Chapter 17 of the CPL contains provisions for the “Preparation and use of Proofs of Evidence”, and the rules of the game are set out therein. The proofs of evidence SHALL, subject to the direction and control of the Attorney-General, be prepared by law officers in the Ministry or, in the case of a private prosecution, by the private Prosecutor – Section 239. The proofs of evidence shall be prepared in all charges relating to – (a) Capital offences; (b) Offences punishable with imprisonment for life; and (c) Any indictable offence in respect of which the accused persons has elected to be tried by the High Court. (Section 240) In indictable offences, “proofs of evidence shall be prepared if and after the accused person has elected to be tried by the High Court – Sec. 242. After the charge has been read or after he accused person has elected to be tried at the High Court, the Magistrate shall record the following – (i) The charge against the accused; (ii) The fact that the accused has elected to be tried by the High Court; (iii) Whether bail was granted or refused to the accused and, where bail was refused, the fact that the accused was informed of his right to apply to the High Court for bail, and (iv) Any other fact or matter relevant to the charge which transpired in the proceedings before the Magistrate, and shall thereafter direct the Prosecuting Police Officer to transmit forthwith to the Attorney-General- (a) The Police case file relating to the charge, and (b) An inventory of all exhibits relating to the charge. (Section 243) It is the duty of the Magistrate to transmit a copy of the said record to the Attorney-General – Section 243(2), and it is the duty of the Police Officer or any other Police Officer acting under the general or special instruction of the State Commissioner of Police to transmit the Police case file and the inventory to the Attorney-General – Section 244. Upon the receipt of the Police case file and the record made under Section 243, it is the duty of the Director of Public Prosecutions [DPP], and other law officers, acting under and in accordance with the general or special instructions of the Attorney-General to prepare the proofs of evidence – Section 246. Section 247 lists out what the proofs of evidence shall consist of – (a) A statement of the charge against the accused person; (b) Where the accused person has a right of election, a statement that he elected to be tried by the High Court; (c) The name, address and statement of any material witness whom the Prosecution intends to call; (d) The name, address and statement of any material witness whom the prosecution does not intend to call; Provided that the submission of such names shall not prevent the Prosecution from calling any such witness at the trial if the Prosecution later so desires; (e) The copy of any report, if available, made by a doctor about the sate of mind of an accused person in custody; (f) Records of conviction, if any affecting the credibility of any witness for the Prosecution; (g) Statements of the accused person; (h) An inventory of all the exhibits to be produced at the Court at the trial, and (i) Any other statement or document which the Prosecution may consider relevant to the case. A trial by information is, obviously, like going to Abuja by road – a much longer journey that is quite time consuming, and with a lot more hassles. A summary trial, more or less, involves the Magistrate and the accused, while a trial by information has many more players involved. In addition to the Magistrate, the accused person and his counsel, if any, there is the Attorney-General of the State and other law officers in the Ministry, as well as Police Officers, including the Commissioner of Police himself. I must add that a trial by information is not a bad thing, and should not be looked at negatively because the purpose of serving proofs of evidence on an accused person is to give him the opportunity of knowing what the Prosecution witnesses state in Court – see Abacha V. The State (2002) 11 NWLR (Pt. 779) 437 SC; Alamieseigha V. FRN (supra). PER AMINA ADAMU AUGIE, J.C.A.
RECORD OF APPEAL: WHETHER AN APPELLATE COURT CAN GO OUTSIDE THE RECORD AND DRAW CONCLUSIONS UNSUPPORTED BY THE RECORD
It is an inexorable principle of law that an appellate Court is always bound by the record and the record only. It has no jurisdiction to go outside the record and draw conclusions unsupported by the record – see Onwuka V. Ononuju (2009) 11 NWLR (Pt 1151) 174 SC, and Olufeagba V. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) SC. It is also trite that an appellate Court must confine itself to the material before it, base its findings on it, and not attempt to make a case for any party where none exists – see Olufeagba V. Abdul-Raheem (supra). PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES:
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
CHUKWUDUMEBI SAMUEL OSEJI Justice of The Court of Appeal of Nigeria
Between
COMMISSIONER OF POLICE – Appellant(s)
AND
1. EJIKE OKOYE
2. ONYEKA OKOYE
3. EBELE OKOYE
4. CHIKA OKOYE
5. CHIZOBA OKOYE – Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The 1st Respondent, who is a legal practitioner, was arraigned with the other Respondents at the Chief Magistrate Court, Awka, on a 7-count Charge of serious assault on police officers; malicious damage; unlawful assault on “one Sgt. Paulinus Nze, while acting in the execution of his lawful duty by hitting him with a stick on his left eyebrow which caused him harm”; unlawful assault on “one Inspector Godwin Okeme by giving him fist blows all over his body”; unlawful assault on “one Sgt. Onuh Odoh by giving him fist blows all over his body”; unlawful and malicious damage “to 55 fifty-five six inches blocks valued at N3,850.00, property of one Christian Okoye”; and unlawful and malicious damage to a “wall fence valued at N9,000.00 property of one Christian Okoye”. The matter was adjourned to 3rd August 2006, for “plea and hearing”, but on that day, learned counsel for the Respondents orally applied for an Order –
“Directing the Prosecution to furnish the defence with all documents (including statements of witnesses, and Police Investigation Reports relating to this case), which are relevant to this case whether they tender same or not.
The Prosecution objected to the said oral Application on the ground that –
(a) “This is a summary trial and furnishing of relevant documents up front is not provided for in the CPL as in the case of trial on information”.
(b) “If the defence wants to enjoy the facility of front loading they have their right under Section 193 CPL to elect for trial on information; they should not seek to enjoy a right only available in a trial on information in a summary trial”.
The Chief Magistrate Court ruled as follows (see page 8 of the Record) –
“I am of the view that if front loading does not occasion miscarriage of justice in a trial, all that the Court is to ensure is that the process and delay associated with a trial on information is not imported into a summary trial. The Court is also to ensure that the expense to which a Prosecutor is not put in a summary trial (i.e. for photocopying and transmission) are not put on a Prosecutor should the Court be minded that relevant documents to a criminal trial be furnished up front to the defence. – (i) hereby grant the application – a photocopy each all the statements of all the witnesses examined by the Police in the course of the investigation of the case be furnished to the defence on or before the next adjourned date. The cost of production of the photocopies shall be borne by the accused persons. I have deliberately omitted police investigation report from my order as relating to police internal administration. But this is not to hold that should such a report become an issue in course of the trial, this Court will be precluded from ordering its production”.
Dissatisfied with this Ruling of the Chief Magistrate Court, the Appellant appealed to the High Court of Anambra State, Awka, with a Notice of Appeal containing five Grounds of Appeal. In its Judgment delivered on 19th November 2007, the High Court per Hon. Justice J.C. Iguh, held –
The Statements of the Prosecution witnesses to the Police – – form part of the facilities to be given to the defence for the preparation of hr’s defence. Such statements are not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then, if it is intended to impeach his credit, to put the statement in evidence for that sole purpose – – – The Defendant or his counsel has no means of knowing whether the statement can be put to this use until he has seen it. The prosecuting counsel whose traditional duty is not to secure a conviction, but to see that justice is done, should put no hindrance in his way and the Court – – should make whatever order that may appear necessary to enable the accused person to put forward any defence that may be open to him. – – – Although, the trial at the lower Court is a summary trial, but the defence are entitled – – since they have applied, to be given copies of the statements made by the Prosecution witnesses as one of the facilities they require for the preparation of their defence as provided by Section 36(6) (b) of the Constitution”.
Aggrieved by the decision of the appellate High Court, the Appellant appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, and three issues for Determination were formulated therefrom in the Appellant’s brief prepared by B. A. Onwuemekaghi, Esq.
The three issues for Determination formulated by the Appellant are –
(1) Whether the learned High Court Judge was right to hold that photocopies of the statements made by the Prosecution witnesses are one of the facilities the defence requires for the preparation of their defence as provided by Section 36(6)(b) of the 1999 Constitution.
(2) Whether the Judge was right in arriving at a decision directing the Prosecution to furnish the defence with photocopies of all the statements of witnesses examined by the Police whether they intend to call such witnesses or not in preparation of their defence as provided for in Section 36(6)(b) CFRN 1999 without considering the hardship and inconvenience involved in where the Police will now be required to photocopy their case files and hand same over to the defence.
(3) Whether Section 346(1) of the Criminal Procedure Laws of Anambra State empowers the Court to make order for the photocopying of documents in Police case file and hand same over to the defence before a trial could commence at the Magistrate Court.
The Respondents submitted in their brief settled by Rev. Fr. Dr. Edwin S.C. Obiorah that the “only two main dispositive issues” are as follows –
1. Whether the learned High Court Judge was right when he held that the statements of witnesses and police investigation reports, obtained by the Appellant in the course of its investigation of the crimes for which the Respondents were charged, are within the purview of the “adequate” “facilities” which the Respondents need for the preparation of their defence, as mandated by Section 36(6)(b) of the (1999) Constitution.
2. Notwithstanding the answer to issue No. 1 above, whether the learned High Court Judge was right in holding that the learned trial Chief Magistrate has the authority and power to order the Appellant to furnish the Respondents with the copies of statements of witnesses and the police investigation reports, obtained by the Appellant in the course of its investigation of the crimes for which the Respondents stand charged.
In my view, the issues formulated by the Respondents highlight the core issues at stake in this appeal, and I will adopt them in dealing with same.
Issue 1 is hinged on Section 36(6)(b) of the 1999 Constitution, which stipulates that – “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”‘. The lower Court noted that the Constitution did not define the word “facilities”, and then referred to the Advanced Learners Dictionary, wherein the word “facility” is defined inter alia as building, services, equipment etc. that are provided for a particular purpose, a natural ability to learn or do something easily”. The lower Court further observed as follows at page 71 of the Record-
“By the above provision – – it means that adequate time and facilities shall be given to every person charged with a criminal offence for the preparation of his defence. The Constitution – – did not state that this is applicable only to persons who are charged with a criminal offence at the High Courts. It does not therefore matter which Court the person is charged with a criminal offence. Once a person is charged with a criminal offence he is entitled to the facilities for the preparation of his defence. Learned counsel for the Appellant argued that the trial at the lower Court is a summary trial, the provisions applicable thereat is different from the one applicable in the trial at the High Courts. I agree completely with him on this point. It must be pointed out that none of the Prosecution witnesses has testified in the case as at the time the learned counsel for the Respondents made the application. The Respondents who are the accused persons at the lower Court are entitled to the Statements made by the Prosecution witnesses to the Police”.
The Appellant’s contention is that the lower Court was wrong to so hold as the meaning of the word “facilities” implies a passive assistance by the person affording the facility to the person being afforded the facility. It was submitted that the Prosecution is not obliged to take active steps by supplying the accused with copies of the statements of prospective Prosecution witnesses or making available to him other evidence that would assist him in the preparation of his defence, as decided in State V. Iortseh Terban & 8 Ors (1989) 1 CLRN 331, State V. Alhaji Aminu Yusuf & 6 Ors (1989) 1 CLRN 269 AT 270 that the lower Court did not consider any of these authorities before relying heavily on the Advance Learners Dictionary definition of the word “facility” to arrive at its decision; and that based on these authorities, which the Courts have consistently followed, and the provisions of the Evidence Act, it is left for the Prosecution to determine which particular witness it wishes to call in proof of its case. Furthermore, that it is after a witness has testified that the defence in the process of contradicting his evidence will, after laying proper foundation under Section 198 and 209 of the Evidence Act, call for his Statements; and that the Court is enjoined to act in an unbiased manner so as not to aid the defence in fishing for evidence because the definition of the word “facility” as opined by the lower Court never contemplated handing over of statements in the Police case file to the Defence Counsel.
The Respondents, on their part, added Section 36(6)(d) of the Constitution, and submitted that Section 36(6) is designed to ensure that “every person who is charged with a criminal offence” is given” adequate facilities” for the preparation of his defence and afforded the ” same conditions as those applying to the witnesses called by the prosecution”; and that the Section 36(6) – ” is meant to guard against surprises, making a trial to be a search for truth and not a field of games and gimmicks”; that there is no dichotomy or distinction therein between a person tried summarily in a Magistrate Court and a person tried on information in the High Court, citing Ogboh V. FRN (2002) 10 NWLR (Pt. 774) 21, Udo V. State (1988) 1 NSCC (Pt. 19) 1163, and while the Section did not define ‘facilities’ or ‘conditions’ ” our Courts are not left orphans without a guide”, as there are authorities that ” serve as powerful beacons to our Court”.
They referred to a number of dictionaries, and submitted that the “facilities” that must be given an accused are the ‘resources’ or ‘anything which would aid him in preparing his defence, and includes statements that might be exculpatory to him or assist him in subpoenaing favorable witnesses that the Prosecution knew but hid away, and the ‘fact or event’ recorded therein that would enable the defence know how to formulate certain questions to a witness that would bring out the truth of the matter. They cited R. v. Clarke 22 Cr. App. R. 58, Layonu & Ors v. State (1967) 5 NSCC /94, Orisakwe v. Gov. Imo State (1982) 3 NCLR 743, and Rabiu v. State (2005) 7 NWLR [Pt. 925] 491, and further referred us to –
The Jamaican case of Vincent and Franklyn v. R. (1993) 1 W.L.R. 862 where the Privy Council considered the provisions of Section 20(6)(b) of the Jamaican Constitution, which is in pari materia with the provisions of Section 36(6)(b) of the 1999 Nigerian Constitution, and held that:
“The Defendant was denied fair hearing as guaranteed by the Jamaican Constitution when the matter proceeded without the defence being provided with information indicating the evidence to be adduced by the prosecution by way of statements of witnesses … undoubtedly the Defendant would have been assisted in preparing his defence if he was provided with copies of statements on which the Prosecution proposed to rely prior to the commencement of his trial.”
– The case of Republic v. Bernard Georges (2002) 2 C.H.R. 477 wherein the Constitutional Court of Seychelles (per Amerasringhe, J) stated thus.
“Providing all accused persons irrespective of whether the proceedings against them are non-summary or summary, with lists of witnesses, statements of witnesses and the Prosecution dockets, as early as possible before the accused pleads to the charge, is the ideal.”
– The United States locus classicus on disclosures in criminal trials Brady v. Maryland, 373 U.S. 83 (1963), where the US Supreme Court made it mandatory for the Prosecution to disclose to the defense all evidence which is ‘material either to guilt or punishment.” Evidence is material as long as there is an indication that it will ‘play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” U.S. v. Lloyd, 992 F.2d 348, 351 (D.C. Cir, 1993).
They further argued that criminal prosecution is a “search for truth” not the ‘sporting theory of justice” that makes criminal justice a game of “hide and seek’: that it was this mischief of “hide and seek” that Section 36(6) sets out to destroy by making it a duty of the Court to enforce easy and liberal disclosure of evidence to the defence as it would promote a more level playing field by emphasizing the “quest for the truth”, and that the Prosecutor should not be allowed to have sole access to evidence, obtained by tax-payer’s money, and heavy complex machinery of state power, which the simple feeble accused person has no power to reach. Furthermore, that a situation where an accused does not know the case against him, while the Prosecution knows everything well-ahead-of-time, amounts to procedural inequality, and is a gross violation of principles of fair hearing or fair trial and is tantamount to an invidious violation of Section 36(6) of the Constitution, citing Dennis v. U.S. 384 U.S. 855, 873 (1966), and Kenon v. Tekam (2001) 14 N.W.L.R. (Pt.732) 12; that it is immaterial whether they are tried summarily or not as providing the said facilities would actually assist in a smooth uninterrupted trial, reduce incessant requests for adjournment and thereby achieve a prompt, easy, speedy and simple disposition of the controversy, even though the constitutional principle of fair hearing cannot be sacrificed on the altar of speedy trial, citing Abubakar v. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465.
They further submitted that the current trend is for parties to a civil or criminal action to provide full and prompt disclosure of evidence to each other before trial, and “even in an ordinary civil trial, the parties are compelled to disclose their evidence to each other prior to the hearing – the so called front loading enshrined in Order 3 Rule 2 of the High Court (Civil Procedure) Rules, a fortiori a criminal trial where the rights of the accused to adequate ‘facilities’ have been constitutionally guaranteed and protected, full disclosure of evidence prior to trial must not only be required as a desideratum – it is mandatory. They also distinguished the facts and circumstances of Gaji V. The State (1975) 9 NSCC 294, State V. Iortsegh Terban & 8 Ors (supra) and State v. Alhaji Aminu Yusuf & 6 Ors (supra), cited by the Appellants, from this case, and concluded that –
“It does not even appear to strike the Appellant that by denying the Respondents the opportunity to inspect and copy their statements, the statements of prosecuting witnesses and the evidence against them that (it) is actually hampering the Respondents in the preparation of their defence thereby violating the principle in the very Terban case he relied so much upon. – – it is very clear that section 36(6)(b) & (d) – – compelled the Appellant to produce for the inspection and copying of – – the statements of witnesses and police investigation reports as part of the ‘facilities’ and/or ‘conditions’ to which every person charged with a criminal offense is entitled. As such, the learned High Court Judge was right when he held that the statements of witnesses and police investigation reports, obtained by the Appellant in the course of its investigation of the crimes for which the Respondents were charged, are within the purview of the “adequate” “facilities” which the Respondents need for the preparation of their defence, as mandated by Section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999′.
At this stage, we are only considering whether the statements qualify as “facilities” within the meaning of Section 36(6)(b) of the Constitution. In their own words, the Respondents requested to “see and copy” –
“- – The statements of witnesses, the Police investigation reports and the evidence in support of the allegation of the crimes of which they stand charged, such as the photographs of the damage they were accused of – – – For the Respondents to be on equal footing with the Prosecutor as compelled by the case of Udo V. State (supra), they should be put in possession of a list of witnesses, their own statements to the law enforcement agents, statement of Prosecution witnesses, relevant professional reports and other relevant materials relating to the case against them, such as the photographs of the property they are being accused of damaging”.
It is true that the word “facilities” is not defined by the 1999 Constitution, but the dictionary meaning of the word “facility” gives us an idea of what “adequate facilities”, which it mentions in its Section 36(6)(b), connotes. Webster’s New World Dictionary defines the word “facility” inter alia as – “Ease of doing or making; absence of difficulty; the means by which something can be done”. Dictionary.com defines “facilities” inter alia as –
“Something that permits the easier performance of an action, course of conduct, etc.: to provide someone with every facility for accomplishing a task,’ – – the quality of being easily or conveniently done or performed – – – “.
In a nutshell, the word “facilities” embraces anything that would make it easier to perform any action or course of conduct, etc. Section 36(6)(b) of the 1999 Constitution stipulates that every accused person is entitled to be given adequate facilities for the preparation of his or her “defence”. “Defence” is defined as an accused person’s “stated reason why the Prosecutor has no valid case”, esp., his or her “answer, denial or plea”. For instance, an accused person’s defence may be a complete and total denial of the commission of the offence, etc. Looking at it from this angle, the evidence against the accused, including statements of witnesses for the Prosecution, would be necessary for the preparation of his defence. So, they are “facilities” within the meaning of the said Section 36(6)(b), and this issue must be resolved in favour of the Respondents.
Issue 1 is easily resolved, but the hard nut to crack in this appeal, is whether the lower Court was right to hold that the Prosecution must furnish the Respondents with all the statements of all the witnesses examined by the Police, whether they will be called as witnesses or not. The Appellant is put out by the decision, and that is what propelled it to appeal to the High Court, and again to this Court because, in its view –
“The learned Judge was wrong in arriving at a decision directing the Prosecution to furnish the defence with photocopies of witnesses examined by the Police whether they intend to call such witnesses or not, which will amount to handing over the Prosecution s case to the defence and thereby aid the defence in fishing for evidence, a position not contemplated by taw and unsupported by any judicial precedent”.
It was submitted what where an accused at the Magistrate Court elects to be tried by the High Court, it is the duty of the Police to transmit the case file to the DPP; that Section 243(1) of the CPL gives the Attorney General power to prepare proof “RESUME” of Evidence, and not hand over statements of witnesses and all documents contained in the Police case file to the defence; that a summary trial in the Magistrate Courts is guided by Sections 192 and 193 of the CPL, which were complied with, and they are not in conflict with Section 36(6)(b) of the Constitution; that once an accused person elects to be tried in the Magistrate Court, summary trial procedure, which is used for expeditious dispensation of cases without importing any other fanciful rules or procedures that will deliberately delay such trial; is followed; that the defence can request for a witness’s statement during cross-examination to contradict him in any material particular, which is the only use the Defence can make of it; and that Section 199 and 209 of the Evidence Act does not envisage photocopying statements of witnesses, etc., and handing same over to the Defence before a trial could commence at the Magistrate Court.
Furthermore, that even in a trial on information at the High Court, it is proof of evidence and not photocopies of the statements of witnesses that is required; that there is a great difference between the precis of evidence and a photocopy of a witness’s statement; that after electing to be tried at a Magistrate Court, the defence cannot change the procedure applicable to that Court; that the Defence can call for the statement of a witness but the witness must be called by the Prosecution, and the production of the said statement must be at the trial, citing Sections 198 and 209 of the Evidence Act; and that the Prosecution is at liberty to decide which witness to call in proof of its case, and if a witness is not called, the Defence cannot compel the Prosecution to call him, citing Gaji V. State (supra), Attah V. State (2010) 10 NWLR (Pt. 1201) 190, 205.
The Respondents, however, contend that the lower Court was right to hold that the Chief Magistrate Court has the authority and power to order the Appellant to furnish them with copies of the said documents. They submitted that Section 69 of the Magistrate Court Law gives the Magistrate power to order an inspection of documents and make subsequent consequential order of copying in the interest of justice, and from the meaning of “Movable property” in Black’s Law Dictionary 8th Ed., the words “movable and immovable property” used in the said Section refers to anything of whatever nature, tangible or intangible, and Police reports and witness statements are clearly tangible things; and that the said Section 69 also empowered the Chief Magistrate to “give such direction respecting such inspection as to the court may seem fit”, and such direction could include the provision of the photocopies of the inspected documents, which the Court considers just and fair in order to insure that that justice is not only done but also seen to be done. It was further argued that the Appellant focused attention on the assumption that since they were being tried before the Chief Magistrate, the trial must be a summary trial, which is a complete misconception, as it is clear from Section 21 of the Magistrate Court Law that a Chief Magistrate is not bound to try every criminal case summarily, and can even try an offence using the documents listed in section 247 of the CPL; that it would be a degradation of our legal system to say that the High Court is meant to do justice while Chief Magistrate Courts are meant to do injustice by curtailing the constitutional rights of the accused persons to fair hearing under the guise of summary trial; and that in any event, if any provisions of the CPL attempts to deprive the accused person of adequate ‘facilities’ and equal opportunities provided by the Constitution, such provisions become invalid to the extent of inconsistency, citing the Namibian case of State v. Scholtz (1997) 1 L.R.C. 67.
To sift the chaff from the wheat, we will have to go down to basics because, in arguing as they did, both sides appear to have lost sight of the well-defined lines between a civil action and a criminal proceeding, which is “instituted to determine a person’s guilt or innocence or to set a convicted person’s punishment; a criminal hearing or trial” – see Black’s Law Dictionary, 9th Ed. The same Dictionary defines a civil action as “an action brought to enforce, redress, or protect a private or civil right; a non-criminal litigation”. This appeal emanated from a criminal trial, and it is totally out of place for parties or the Court to bring in or import the rules and procedure that belong to a civil action into a criminal proceeding. Take the so-called “front-loading” provided for in Order 3 rule 2(1) of the High Court of Anambra State (Civil Procedure) Rules 2006 that reads –
“All civil proceedings commenced by writ of summons shall be accompanied by –
(a) Statement of claim’
(b) List of witnesses to be called at the trial;
(c) Written Statements on oath of the witnesses and
(d) Copies of every document to be relied on at the trial.
The issue before us has nothing to do with “front-loading” of documents, which belongs in the sphere of a civil action. The Respondents were arraigned at the chief Magistrate Court and charged with sundry crimes. They were facing a criminal trial, and the rules governing civil actions are of no relevance whatsoever in this appeal. The point being made is that all the arguments hinged on such rules, will be discountenanced by me.
Now, a trial “is the finding out by due examination the truth of the point in issue” – see Graham & ors V. Esumai & Ors (1984) 11 SC 123, and there are two different methods or ways of initiating or commencing criminal trials in our Courts. Section 163(1) of the Anambra State CPL, which applies in this case, and deals with “method of trial”, provides –
“Trials shall be held –
(a) In the High court –
(i) On the information, after the preparation of proofs of evidence either by the Attorney-General or by a private Prosecutor as the case may be such information being filed by the Attorney-General in accordance with the provisions of Chapter 16, or
(ii) On information, filed in the Court after the Accused has been summarily committed for perjury by a Judge or Magistrate under the provisions of Chapter 13, or
(iii) On information exhibited by the Attorney-General under the provision of Section 152, or
(iv)Summarily in accordance with the provisions of Chapter 12; or
(b) In Magistrates’ Court summarily in accordance with the provisions of Chapter 12.
Chapter 12 of the CPL is on “Summary Trial”, and Section 164 reads –
“The Provisions of this Chapter shall apply to offences triable summarily, that is to say –
(a) To all trials in the high Court other than on information, and
(b) To all trials in the High Court in respect of offences for which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided, and
(c) To all trials in any Magistrate’s Court to the extent of the jurisdiction of the magistrate adjudicating, and
(d) for all offences declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a Magistrate.
Chapter 14 of the same CPL deals with “Summary Trial by Magistrate of Indictable Offences”, and Section 192 to 194 thereunder, provides –
192. Where a person who is an adult is charged before a Magistrate’s Court with any indictable offence other than a capital offence or an offence punishable with imprisonment for life, the Court, may subject to the provisions of this Law or any other law for the time being in force and to the extent of the jurisdiction of the Magistrate adjudicating, deal summarily with the offence.
193. If a Magistrate at any time during the hearing of a charge for such an indictable offence as aforesaid against a person who is an adult becomes satisfied that it is expedient to deal with the case summarily the Magistrate shall thereupon, for the purpose of proceedings under this section, cause the charge to be reduced into writing, if this has not been already done, and read to the Accused and shall address to him a question to the following effect
“Do you desire to be tried by a Judge of the High Court or with a jury, as the case may be, or do you consent to the case being dealt with summarily by this Court?”
With a statement, if the Magistrate thinks such a statement desirable, of the meaning of the case being dealt with summarily and of the sitting of the High Court at which he is likely to be tried, if an information is preferred and, if the accused consents to be tried summarily, shall forthwith ask him the following question –
“Do you plead guilty or not guilty?”
194. If the Magistrate fails to inform the accused of his right to be tried by a Judge of the High Court – – the trial shall be null and void ab intio unless the accused consents at any time before being called upon to make his defence to be tried summarily by a Magistrate in which case the trial shall proceed as if the accused had consented to being tried summarily before the Magistrate proceeded to hear evidence in the case.
Chapter 16 covers “Trial on Information”, and Section 204 states that –
“Where a trial is to take place in the High Court after the preparation of proofs of evidence in respect of the charge such trial shall, be on information”.
So, trials commenced, initiated or instituted by way of or on information in the High Court are excluded or exempted from the procedure for summary trials provided for in the CPL see Alamieseigha V. FRN (2006) 16 NWLR (Pt. 1004) 1, where this Court per Adamu, JCA, said-
“- – A summary trial is and remains so in both its manner of initiation, institution and conduct and is distinct from the full trial (on information), which also has its peculiar characteristics and different pre-requisites in both its manner of initiation, institution and conduct. It will therefore be wrong and contrary to the letter and spirit of the law (i.e. the CPA) to differentiate between the manner of initiating a summary trial and the way it is conducted. Similarly, we cannot differentiate on how a full trial on information can be commenced or initiated from how it will be conducted. Thus, a summary trial is or remains as such from its inception to its conduct and conclusion in the same way as a full trial on information also remains with its full characteristics from its inception, conduct and conclusion as recommended by the law and it would be a double standard to mix them up or to expect such a full trial to (on information) be commenced or be initiated summarily and be conducted fully (or as a full trial). In the same manner, a summary trial cannot be expected to commence fully and be conducted summarily’. (Highlight mine).
In other words, a summary trial is a SUMMARY TRIAL, and a trial on information is a TRIAL ON INFORMATION; they cannot be mixed up. Each method of trial has its own peculiar characteristics from inception, conduct and conclusion as recommended by the Anambra State CPL.
To my mind, likening a summary trial to a trial on information is like saying going to Abuja from Enugu by air or by road is one and the same, which is quite laughable because going by air will take about 45 minutes, and travelling by road will take roughly 6 hours with its inconveniences. It is the same thing here. The CPL simply defined a summary trial as – “any trial by a Magistrate and a trial by a Judge not on information” – see the interpretation Section 2 of the CPL. Black’s Law Dictionary, 9th Ed., however, defines it as “a non-jury proceedings that settles a controversy or disposes of a case in a relatively prompt and simple manner”, and the word “prompt” is defined in the same Dictionary as “to incite, esp. to immediate action”, just like going to Abuja by air; a quick and easy ride.
A trial by information is a different ballgame altogether because the “proofs of evidence” must be prepared before the ball starts rolling. Chapter 17 of the CPL contains provisions for the “Preparation and use of Proofs of Evidence”, and the rules of the game are set out therein. The proofs of evidence SHALL, subject to the direction and control of the Attorney-General, be prepared by law officers in the Ministry or, in the case of a private prosecution, by the private Prosecutor – Section 239. The proofs of evidence shall be prepared in all charges relating to –
(a) Capital offences;
(b) Offences punishable with imprisonment for life; and
(c) Any indictable offence in respect of which the accused persons has elected to be tried by the High Court. (Section 240)
In indictable offences, “proofs of evidence shall be prepared if and after the accused person has elected to be tried by the High Court – Sec. 242. After the charge has been read or after he accused person has elected to be tried at the High Court, the Magistrate shall record the following –
(i) The charge against the accused;
(ii) The fact that the accused has elected to be tried by the High Court;
(iii) Whether bail was granted or refused to the accused and, where bail was refused, the fact that the accused was informed of his right to apply to the High Court for bail, and
(iv) Any other fact or matter relevant to the charge which transpired in the proceedings before the Magistrate, and shall thereafter direct the Prosecuting Police Officer to transmit forthwith to the Attorney-General-
(a) The Police case file relating to the charge, and
(b) An inventory of all exhibits relating to the charge. (Section 243)
It is the duty of the Magistrate to transmit a copy of the said record to the Attorney-General – Section 243(2), and it is the duty of the Police Officer or any other Police Officer acting under the general or special instruction of the State Commissioner of Police to transmit the Police case file and the inventory to the Attorney-General – Section 244. Upon the receipt of the Police case file and the record made under Section 243, it is the duty of the Director of Public Prosecutions [DPP], and other law officers, acting under and in accordance with the general or special instructions of the Attorney-General to prepare the proofs of evidence – Section 246.
Section 247 lists out what the proofs of evidence shall consist of –
(a) A statement of the charge against the accused person;
(b) Where the accused person has a right of election, a statement that he elected to be tried by the High Court;
(c) The name, address and statement of any material witness whom the Prosecution intends to call;
(d) The name, address and statement of any material witness whom the prosecution does not intend to call;
Provided that the submission of such names shall not prevent the Prosecution from calling any such witness at the trial if the Prosecution later so desires;
(e) The copy of any report, if available, made by a doctor about the sate of mind of an accused person in custody;
(f) Records of conviction, if any affecting the credibility of any witness for the Prosecution;
(g) Statements of the accused person;
(h) An inventory of all the exhibits to be produced at the Court at the trial, and
(i) Any other statement or document which the Prosecution may consider relevant to the case.
A trial by information is, obviously, like going to Abuja by road – a much longer journey that is quite time consuming, and with a lot more hassles. A summary trial, more or less, involves the Magistrate and the accused, while a trial by information has many more players involved. In addition to the Magistrate, the accused person and his counsel, if any, there is the Attorney-General of the State and other law officers in the Ministry, as well as Police Officers, including the Commissioner of Police himself.
I must add that a trial by information is not a bad thing, and should not be looked at negatively because the purpose of serving proofs of evidence on an accused person is to give him the opportunity of knowing what the Prosecution witnesses state in Court – see Abacha V. The State (2002) 11 NWLR (Pt. 779) 437 SC; Alamieseigha V. FRN (supra).
In this case, the Appellant’s stance is that the Respondents elected to be tried at the Magistrate Court, and the summary trial procedure that is “for quick and expeditious dispensation of cases without importing any other fanciful rules or procedures that will deliberately delay such trial”, was strictly followed. But I have gone through the record of appeal, and there is nothing therein to indicate which procedure was followed.
It is an inexorable principle of law that an appellate Court is always bound by the record and the record only. It has no jurisdiction to go outside the record and draw conclusions unsupported by the record – see Onwuka V. Ononuju (2009) 11 NWLR (Pt 1151) 174 SC, and Olufeagba V. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) SC. It is also trite that an appellate Court must confine itself to the material before it, base its findings on it, and not attempt to make a case for any party where none exists – see Olufeagba V. Abdul-Raheem (supra).
In this case, there is nothing in the record of appeal detailing the proceedings before 10th July 2006, when the Respondents were arraigned before “Hon. S. N. Okoye, Esq., CR, CCA (Presiding as Court Decongestion Chief Magistrate). lt is in the Respondents’ brief that we are told that the 1st Respondent had earlier been charged on the 22nd of February 2006, and new charges were brought against him on the 24th of May 2006. The Prosecution applied to consolidate the new charges, which was granted, and “on July 10, 2006, the Respondents were arraigned on the new charges and pleaded not guilty to all the counts. The defence’s application for bail was granted. The matter was adjourned to August 3, 2006 for hearing”. As I said earlier, the record of the proceedings on the 10th of July is before us, and it reads as follows-
“All accused present except 2nd and 3rd. Complainant present except one reported to be away on  a training Course at the Police College.
3rd Accused now appears. B. A. Onwuemekaghi, Esq., ASP, Prosecuting. Innocent Anekwe, Esq., for all the accused person apologizes for absence of 2nd Accused; states that accused is writing his University exam this morning. BAIL – Defence applies that bail granted by former presiding officer of Court be allowed to continue. Prosecutor not opposed.
Court – Bail by former presiding officer of Court to continue. Case is adjourned to 3/8/2006 for plea and hearing”.
The record of what transpired on the said 3/8/2006, reads as follows –
“All accused present. 1st Complainant present, the rest absent, Christian Okoye is reported to be sick – Medical Certificate furnished: Sgt. Odoh is reported to be on a training course.
B.A. Onwuemekaghi, Esq., ASP, Prosecuting.
Rev. Fr. Dr. E.S,C. Obiorah, Esq., with him E. C. Ughanze, Esq., (Mrs.) and Innocent Anekwe, Esq., for all the accused.
Application for an Order of Court directing the Prosecution to furnish the defence with all documents (including statements of witnesses, and Police Investigation Reports relating to this case), which are relevant to this case whether they tender same or not.
Reply by Prosecuting Counsel that
(a) this is a summary trial and furnishing of relevant documents up front is not provided for in the CPL as in the case of trial on information.
(b) if the defence wants to enjoy the facility of front loading they have their right under Section 193 CPL to elect for trial on information; they should not seek to enjoy a right only available in a trial on information in a summary trial.
COURT – I am of the view that if front loading does not occasion miscarriage of justice in a trial, all that the Court is to ensure is that the process and delay associated with a trial on information is not imported into a summary trial. The Court is also to ensure that the expense to which a Prosecutor is not put in a summary trial (i.e. for photocopying and transmission) are not put on a Prosecutor should the Court be minded that relevant documents to a criminal trial be furnished up front to the defence. My view being as in the going (sic), and hereby grant the application of the learned defence counsel that a photocopy each all the statements of all the witnesses examined by the Police in the course of the investigation of the case be furnished to the defence on or before the next adjourned date. The cost of production of the photocopies shall be borne by the accused persons. I have deliberately omitted police investigation report from my order as relating to police internal administration. But this is not to hold that should such a report become an issue In course of the trial, this Court will be precluded from ordering its production.
Prosecuting Police gives Notice of Appeal against the foregoing Ruling.
COURT – The Prosecuting counsel is to file his written notice and grounds of police within 30 (thirty days hence). Any further conditions of appeal will be furnished through the Registry. This case is adjourned for mention to 16/10/06.
Sgd. S.N. OKOYE ESQ. CR CCA
(Presiding as Court Decongestion Chief Magistrate)”.
We, the Appellant, the Respondents and this Court alike, are bound by the record of appeal that was transmitted to this Court on 18/3/2008, and since it has not been challenged, we must accept everything recorded in it as the gospel truth of what transpired at the Chief Magistrate Court. What do we find therein – the method of trial, whether summarily or by information, was left hanging in the air. There is nowhere in the record where the Respondents elected to be tried summarily at the Magistrate Court or on information at the High Court. Using the same analogy of going to Abuja by air or by road, I will say that the Respondents are yet to buy their air tickets if they are going by air; and if it is by road, they are yet to put money together, not to mention fuel the car that will take them.
In this case, there is no record of the Respondents being asked the mandatory question – whether they want to be tried by a Judge at the High Court, or consent to a summary trial at the Chief Magistrate Court before they applied for documents to enable them prepare their defence. All I can say, without being accused of acting on speculation, is that the documents that they applied for would have been part of the proofs of evidence against them, if they had elected to be tried at the High Court.
The Chief Magistrate Court is not the place to ask for what belongs in proofs of evidence. Besides, the Chief Magistrate Court cannot just direct the Prosecuting Counsel to give the Respondents the documents because he is a Policeman, and pursuant to Section 243(1) of the CPL, it is only after the accused has elected to be tried at the High Court that the Magistrate can direct the Prosecuting Police Officer to transmit the Police Case file to the Attorney-General, who will then direct the DPP and other law Officers in his office, to prepare the proofs of evidence. Apparently, the Respondents and the two lower Courts jumped the gun. The Respondents had not been asked or elected to be tried at the High Court where they would have gotten the documents as a matter of right. They will have to go back to the finishing line and start all over again.
The end result is that the appeal succeeds and is hereby allowed. The decision of the lower Court is set aside, and the case is sent back to the Chief Magistrate Court for plea and hearing, as the case may be.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in advance the learned brother, Hon. Justice Amina A. Augie, JCA. I agreement with His Lordship’s reasoning and conclusions. His Lordship has dealt with the issues raised in the appeal, incisively and completely and I have nothing useful to add.
I adopt the Judgment as mine and I too, allow the appeal and hereby set aside the decision of the lower court. I also abide by all orders made by my learned brother in the Judgment.
SAMUEL CHUKWUDIMEBI OSEJI, J.C.A: I have had the advantage of reading in draft the judgment delivered by my Lord A.A. AUGIE JCA. All the issues raised in the Appeal were ably considered judicially and intellectually.
I am entirely in agreement with the reasoning and conclusion on this Appeal.
I subscribe to the consequential order made in the lead judgment.
Appearances
B. A. Onwuemekaghi, Esq. For Appellant
AND
Rev. Fr. Dr. E.S.C. Obiorah;
A.C. Ogbuodudu, Esq For Respondent
