FABIAN OBODO v. THE STATE (2016)

FABIAN OBODO v. THE STATE

(2016)LCN/8318(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/E/356CB/2012

RATIO

COURT: THE INHERENT POWER OF THE COURT TO PREVENT ABUSE OF THEIR PROCESS; WHETHER THE JUDICIAL POWER INCLUDES THE POWER TO SAFEGUARD A DEFENDANT FROM OPPRESSION AND PREJUDICE

Let me first say that I agree with the fundamental proposition of the law that the Courts have inherent jurisdiction to prevent abuse of their process. The judicial power which is conferred on the Court is intended to be used in deciding issues in genuine cases or controversies. This power of Court to prevent abuse of its process includes the power to safeguard a defendant from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked.
This point was also reiterated in Abacha v. The State (supra) at pg. 560 of the NWLR. In Ikomi v. The State (supra), Nnamani, JSC at pg.358-359 of the NWLR held that the principle applicable must be that even if the depositions and statements attached to the information disclose an offence, a defendant should not be put on trial if there is no link between him and that offence. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

COURT: WHETHER THE GUILT OF THE ACCUSED MUST BE ESTABLISHED BEFORE APPROVING THE INFORMATION TO FILE THE INDICTMENT

In Abacha v. The State, Belgore, JSC who wrote the lead judgment held at Pg.483 of the NWLR that:
“I must not be understood to hold that guilt of the accused must be established before approving the information to file the indictment; far from it. There must be prima facie case to be tried and the accused must be sufficiently linked to be in a situation where an explanation is necessary from him at the trial”. I must also mention that in Abacha v. State, Abacha was charged as accessory after the fact before the alleged main offenders were charged. In Abacha v. The State, the Prosecution appeared to have jumped the gun. The practice was either to charge the accessory along with the main offender or charge them separately, but before the accessory after an offence can be tried, if charged along, there must be proof that indeed a murder had indeed been committed by the person or persons the accused is said to have assisted as an accessory after the fact and that the accused knew about it. That was the factual basis of that judgment. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

PRACTICE AND PROCEDURE: WHAT CONSTITUTES A PRIMA FACIE CASE

Attempts were made in Abacha v. The State to define what constitutes a prima facie case. Let us take the definition approved from Ajidagba v. I.G.P. (1958) SCNLR 60 which if adopted is to the effect that a prima facie case means there are grounds for proceeding with the charge. I have to explain that criminal proceedings come in several stages. The police investigation that culminates in the case file being sent to the Director of Public Prosecutions who decides if a crime has indeed been committed and the persons to be accused and who advises the Attorney General to initiate Public Prosecution on behalf of the State. The materials prepared by the police and sent to the Director of Public Prosecutions which are statements of witnesses and exhibits gathered are called “proof of evidence”. The proof of evidence is generally statutorily required to be served on the Accused when the charge is preferred by information to the High Court. We are here concerned with the view of the police and accepted by the Judge to whom the proof of evidence was sent who approved the laying of information against the accused person. The motion to quash the charge was dismissed by the trial judge. No plea has been taken and we are urged to overrule the trial judge and to quash the charge. None of the Criminal Procedure Acts, Codes or Laws in this country provides for the quashing of a charge before the plea is taken upon an application before the Court. Such applications had relied on the inherent jurisdiction of the Court to prevent abuse of its process. The issue of whether a prima facie case had been made by the prosecution to warrant a reaction from the accused as provided by the Procedure Laws and Acts usually comes in when the prosecution witnesses have given evidence on OATH before a Court of law. Thereafter, the accused’s counsel may make a submission to the effect that the accused has no case to answer usually called a NO CASE SUBMISSION. See S. 286 of the Criminal Procedure Act, S.191 (5)(d), S. 159 (1) of the Criminal Procedure Code and Ss.257 and 258 of the Administration of Criminal Justice Act 2015. The trial Court decides whether or not based on the evidence so far adduced in open Court, subjected to the fire of cross examination, the prosecution have successfully made a prima facie case against the accused to warrant the accused being obliged to make a defence in answer to the charge. Where the judge upholds the submission, the accused must be discharged and acquitted. Where the judge overrules the submission, the accused must enter a defence to the charge. See Adeyemi v. The State (1991) 6 NWLR (Pt. 195) pg. 1; Tongo v. C.O.P. (2007) 12 NWLR (Pt. 1049) pg. 525. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

FABIAN OBODO Appellant(s)

AND

THE STATE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): The Appellants was charged to Court upon information in charge No. E/5C/03 for conspiracy to commit murder and murder.

By a motion on notice dated 23/6/04 the Appellant had prayed the Court for the following orders:
a. Quashing the information containing the statement of offence and the particulars of same dated 27/2/04 filed by the Respondent against the Applicants in this matter for the reason that the proof of evidence also filed in Court in this matter against them does not disclose any facts that suggest or otherwise in any other manner whatsoever connect the applicants with the offences charged against them.
b. A further order of the Court that the charge as constituted is an abuse of the process of Court brought in bad faith and with sole intention of harassing and persecuting the Applicants, the Applicants’ counsel shall further contend at the hearing that the process of Court should not be deployed to satisfy the whims and caprices of accused persons’ detractors but must be based or predicated on hard facts contained on the face of the proof of evidence.

The application was moved on

13/04/06. On 6/7/06, the learned trial judge held as follows on Pg. 100 of the record:
“I have carefully read the proof of evidence before the Court. There is evidence that eight of them met on the day of the incident and posted themselves out to different locations. Subsequently, the deceased was shot and killed and his corpse disposed of. The question is whether the evidence disclosed on the face of the proofs of evidence is enough to link the accused/applicants to the offence. My answer to this question is that the evidence has sufficiently linked the accused persons to the offence.”

Aggrieved by that decision, the Appellant has appealed to this Court vide a Notice of Appeal filed on 29/6/12 pursuant to an order granted on 28/6/12. The Appellant’s brief was filed on 10/10/12. The Respondent’s brief was filed on 18/1/16. In the Appellant’s brief settled by C. Chuma Oguejiofor, Esq., one sole issue was settled as follows:
Whether from the proof of evidence in this matter, a prima facie case has been made out as to require the appellant take his plea and stand trial for conspiracy to commit murder and murder.

In the Respondent’s brief settled by Chief M.

E. Eze and Dr. Anayo N. Edeh, Assistant Chief Legal Officer, Enugu State, the Respondent adopted the same issue. I also adopt the same issue to determine in this appeal.

The argument of learned Appellant’s counsel is that in a case where an accused person is accused of committing an indictable offence and the trial is by information filed at the High Court against him, the Court can be invited to quash the indictment if no prima facie case has been made out against him to necessitate his trial. The Court, invited to quash a charge must consider the depositions of witnesses as gathered by the prosecution in order to determine if a prima facie case had been made out against the accused to answer.
Counsel cited Abacha v. The State FWLR (Pt. 118) Pg.1224 at 1236-1237.

Counsel argued that the depositions showed that the 2nd Accused person Mr. Gabriel Udebunu in a confessional statement stated that he shot the deceased, and that he was the only one on duty with a loaded gun. Counsel submitted that no shred of evidence links the Appellant to the shooting of the deceased and that this Court is bound to safeguard the Appellant from aggression and prejudice resulting

from being tried on information which discloses no offence with which he is linked. Counsel urged the Court to distinguish this case from the case of Ikomi v.The State (1986) 3 NWLR (Pt. 28) Pg. 314. Counsel argued that the 2nd accused had owned up to shooting and killing the deceased solely without anyone having procured, counselled, conspired or otherwise nursed a common intention to kill the deceased. Counsel drew our attention to initial information preferred against the Appellant which was for being an accessory after the fact and not murder. The charge for murder was a recent development and this Court should not allow the whims of a prosecutor to be enthroned against hard facts. He urged the Court to discharge the Appellant.

In reply, the Respondent’s counsel, Dr. Anayo N. Edeh urged the view that by virtue of S. 251 Criminal Procedure Law (Cap 37) Laws of Anambra State, 1985 as applicable in Enugu State at the time of the offence now S. 251 Criminal Procedure Law Cap 31 Vol. II Laws of Enugu State, 2004, if at the conclusion of the compilation of the proofs of evidence, the Attorney-General is satisfied that there is prima-facie evidence from the

record to put any Defendant on trial on all or any of the charges against him, he shall prefer an information against any accused in respect of such charge or charges.

Counsel argued that the case of Abacha v. The State cited by the Appellant did not apply to this case because in Abacha v. The State, the Appellant was also charged solely in counts 3 & 4 for accessory after the fact of murder committed by two other persons differently. Those other two persons were not charged at all before the Court.

Counsel argued that in Abacha v The State, the Appellant had brought an application under S. 167 & S. 340(3) of the Criminal Procedure Code Law Cap 33 Laws of Lagos State 1994 and under the inherent jurisdiction of the Court that the information be quashed.

Counsel submitted that in Abacha’s case, the principal offender was not charged while Abacha the accessory was charged. Part of the reason why the Supreme Court quashed the indictment was because the prosecution failed to put on trial the principal offender but attempted to try an accessory whereas the fact that a murder was indeed committed by a named person was not brought forward in any indictment.

Counsel reiterated that in the Abacha’s case before the Chief Judge granted his consent to the application by the Attorney General of Lagos State, Abacha’s counsel had filed an application to quash the information. In the case before the Court, the Attorney-General had filed his information before the counsel for the Appellants filed the motion to quash the information.

Counsel conceded that a defendant should not be put on trial if there is no link between him and that offence. Counsel submitted that the principle however, remains basic that an indictment may not be quashed merely on the ground that a doubt exists on whether the prosecution could secure a conviction- which is not the same thing as where there is a total non-existence of evidence of a crime. He cited Egbe’s cases (1980) 1 NCR ALR 34L; Ikomi & Ors v. State (Supra) and Afidagba v. I.G.P. (1958) 3 FSC 5.

RESOLUTION
The Appellant was charged with conspiracy to commit murder in count 1 of the information while in count 2 he was charged with committing the offence of murder and being an accessory after the fact of the offence of murder. He is the 7th accused person on the charge in the

information.

The Appellant’s counsel relied heavily on Abacha v. The State (2002) 11 NWLR (Pt. 779) Pg. 437 and we have been asked to determine whether from the proof of evidence there is a prima facie case made out against the Appellant.

?What we have

here in the proof of evidence is that the Appellant was one of the members of the vigilante groups who admitted he helped the 2nd accused to conceal the body of the deceased. He denied participation in the killing of the deceased. He denied the charges.

I must also mention that in Abacha v. State, Abacha was charged as accessory after the fact before the alleged main offenders were charged. In Abacha v. The State, the Prosecution appeared to have jumped the gun. The practice was either to charge the accessory along with the main offender or charge them separately, but before the accessory after an offence can be tried, if charged along, there must be proof that indeed a murder had indeed been committed by the person or persons the accused is said to

have assisted as an accessory after the fact and that the accused knew about it. That was the factual basis of that judgment.

?I have to explain that criminal proceedings come in several stages. The police investigation that culminates in the case file being sent to the Director of Public Prosecutions who decides if a crime has indeed been committed and the persons to be accused and who advises the Attorney General to initiate Public Prosecution on behalf of the State. The materials prepared by the police and sent to the Director of Public Prosecutions which are statements of witnesses and exhibits gathered are called “proof of evidence”. The proof of evidence is generally statutorily required to be served on the Accused when the charge is preferred by information to the High Court. We are here concerned with the view of the police and accepted by the Judge to whom the proof of

evidence was sent who approved the laying of information against the accused person. The motion to quash the charge was dismissed by the trial judge. No plea has been taken and we are urged to overrule the trial judge and to quash the charge.

None of the Criminal Procedure Acts, Codes or Laws in this country provides for the quashing of a charge before the plea is taken upon an application before the Court. Such applications had relied on the inherent jurisdiction of the Court to prevent abuse of its process.

The issue of whether a prima facie case had been made by the prosecution to warrant a reaction from the accused as provided by the Procedure Laws and Acts usually comes in when the prosecution witnesses have given evidence on OATH before a Court of law. Thereafter, the accused’s counsel may make a submission to the effect that the accused has no case to answer usually called a NO CASE SUBMISSION. See S. 286 of the Criminal Procedure Act, S.191 (5)(d), S. 159 (1) of the Criminal Procedure Code and Ss.257 and 258 of the Administration of Criminal Justice Act 2015. The trial Court decides whether or not based on the evidence so far adduced in open Court,

subjected to the fire of cross examination, the prosecution have successfully made a prima facie case against the accused to warrant the accused being obliged to make a defence in answer to the charge. Where the judge upholds the submission, the accused must be discharged and acquitted. Where the judge overrules the submission, the accused must enter a defence to the charge. See Adeyemi v. The State (1991) 6 NWLR (Pt. 195) pg. 1; Tongo v. C.O.P. (2007) 12 NWLR (Pt. 1049) pg. 525.

Even though both parties made heavy weather about whether a prima facie case has been made, I humbly think that phrase confuses the issue. In Sher Singh v. Jitend Dranthen (1931) 1 LR 59 Calc. 275, adopted by the State, the prosecution evidence available should be such that there is “ground for proceeding”. At the stage of proffering the charge and asking an accused to plead to it, the issue of whether if the evidence were uncontradicted and if believed would be sufficient to prove the case against the accused does not arise. In my humble view, at that point there is no “evidence” strictly so called. The “proof of evidence” is like pleadings in a civil case and pleadings is not

evidence until the facts therein are adopted or sworn to in open Court. Therefore, the proof of evidence is to put the accused on notice of the evidence against him and also merely to show whether there is ground for proceeding, whereas a made out prima facie case shows that on the available evidence on oath if believed, the accused could be convicted if he has no reasonable defence or evidence to rebut it.

My humble opinion above does not distract from the right of an accused to raise a preliminary objection to the charge. Objections can be made on grounds of:
1. Lack of jurisdiction viz:
i. That the Court lacks the jurisdiction to try the offender or the offence.
ii. The Court is not properly constituted as regards its membership.
iii. The case is not commenced according to due process.
2. Objection to formal defect on the face of the charge.
3. Objection to double trial (double jeopardy).
4. Objection on grounds of pardon.
5. Objection on the ground of the offence being statute barred.

?None of the above reasons have been given by the applicant for asking the charge to be quashed. The objection here is to what is perceived as lack of sufficient evidence to bring

the charge at all.

In the new Administration of Criminal Justice Act 2015, S.221 provides that an objection shall not be taken by the Court on the grounds of an imperfect or erroneous charge.

Also in arraignment by information, the new ACJ Act S. 396 (2) provides that any objection to the charge as contained in the information may be raised at any time before judgment provided the objection is considered with the substantive issues and a ruling made at the time of delivery of the judgment.

Be that as it may, I have to follow the Supreme Court authority in Abacha v. The State which is to the effect that where a deposition whether on oath in a preliminary investigation or not on oath in mere statements attached to an information does not disclose enough grounds to proceed, the charges must be quashed.

?In the circumstances of this case, having read the proof of evidence, I am of the view that the indictment should not be quashed. There is no doubt that the police reports and extra judicial statements disclose that an offence has been committed and that the accused/appellant knew something about the offence and has been linked with the offence and its

concealment. I do not agree with learned Appellant’s counsel that the trial will amount to an abuse of Court process. There is also no pretence that proper procedure had not been followed in the initiation of the prosecution.

After the close of the case for the prosecution the accused is at liberty to make a no case submission. In the circumstance, if the no case is upheld, the accused is discharged and acquitted. That in my humble view would have been a speedier course to pursue to meet the ends of justice.

In the circumstances, the appeal lacks merit and it is hereby dismissed. The ruling of Hon. Justice A. A. Nwobodo in Charge No. E/5C/2003 delivered on 6/7/2006 is hereby affirmed. The Appellant is to submit to trial at the High Court.

TOM SHAIBU YAKUBU, J.C.A.: I am in total agreement with the incisive reasons proffered by my Lord, HELEN MORONKEJI OGUNWUMIJU, J.C.A., in the lead judgment which culminated in the dismissal of this appeal.

?I, too dismiss the appeal. The ruling of A. A. Nwobodo J., in re-charge No. E/5C/2003 delivered on 6th July, 2006 is affirmed. The appellant shall take his trial at the High Court of Justice, Enugu State,

accordingly.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with reasoning, conclusions and orders therein.

Appearances:

OguejioforFor Appellant(s)

Dr Anayo Edeh, with him, Avah C.N.For Respondent(s)

Appearances

OguejioforFor Appellant

AND

Dr Anayo Edeh, with him, Avah C.N.For Respondent