FEDERAL REPUBLIC OF NIGERIA v. CHIKE CHARLES ONONYE
(2018)LCN/11945(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
RATIO
CRIMINAL LAW; WHETHER WITHDRAWAL OF CHARGE CAN BE MADE
“These are not the scenarios in this case. However, I can only conclude that the primary complainant in this case has the right to compound the offence and cause a withdrawal of the charge against the accused. If at all, the Federal Republic of Nigeria in this case was a secondary complainant who was unable or unwilling to put into effect the provisions of Section 14 (2) of the Economic and Financial Crimes Commission Act as it would relate to the circumstances of this case even after the primary complainant had written officially to withdraw the complaint and to effectually compound the offence.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Anambra State, Onitsha Judicial Division, delivered by Hon. Justice M.N.O Okonkwo on 23/03/16 wherein the learned trial judge dismissed all charges against the Respondent
The facts that led to this appeal are as follows:
The Appellant filed a criminal charge against the Respondent at the trial Court, wherein the Respondent was arraigned before the High Court of Anambra state on the 23rd of March 2016 in Charge No: 0/5C/2015on three counts of issuing dishonored cheques. The Respondent pleaded not guilty to the said charges. After the Respondent was arraigned, one Barrister Hippo C. Onwuegbuke announced his appearance for and on behalf of Chief Kenneth Ndejiobi and applied for the withdrawal and striking out of the charge and termination of the proceeding, consequent upon which the Court struck out the charge.
Dissatisfied with the decision of the Anambra State High Court, the Appellant filed a notice of Appeal dated 17/06/16.
The Appellants brief was filed on 7/12/17 Record of Appeal was transmitted on 18/8/16 and deemed transmitted on 9/10/17. The Respondent did not file a Respondents brief, and did not appear in Court to defend the ruling of the trial Court.
In the brief settled by Mainforce Adaka Ekwu Esq. (Senior Detective Superintendent, Economic and Financial Crimes Commission) the Appellant raised four issues for determination as follows:
1. Whether the trial judge was right to have struck out the criminal charge against the Respondent upon the application of Barrister Hippo Onwuegbuke, Esq., holding the brief of a person who is not party to the criminal proceeding. (distilled from Grounds 1 and 3 of the Notice of Appeal)
2. Whether the trial judge was right when he held that the complainant in the charge was represented by Hippo Onwuegbuje Esq., and consequently struck out the charge upon the application of the said Hippo Onwuegbuke, Esq. (distilled from Ground 2 of the Notice of Appeal)
3. Whether the honorable trial Court was right when it allowed and acted on the application and submission of Hippo C. Onwuegbuke Counsel appearing for a person, who is not a party to the criminal charge and consequently struck out the Charge. (distilled from Grounds 4 of the Notice of Appeal).
4. Whether the striking out of the charge by the trial Court without first affording the prosecution the opportunity to present its case in proof of the Charge, does not amount to denial of fair hearing. (distilled from Ground 5 of the Notice of Appeal).
Having read the record and the briefs of counsel, I am persuaded that the last two issues are duplicates of the first issue for determination as distilled by Appellants Counsel. I have therefore couched the single issue for determination as follows:
Whether the learned trial judge was right when His Lordship entertained the application by Hippo Onwuegbuke Esq., who appeared as holding, watching brief for the complainant to discontinue the prosecution, and granted same.
Appellants counsel submitted that the learned trial judge erred in law when he granted the application by Hippo Onwuegbuke Esq, counsel representing a person who is not a party in the matter and struck out the charge.The Federal Republic of Nigeria prosecuting through the Economic and Financial Crimes Commission is the prosecution/complainant in the charge and was represented by M.M Gwani Esq. the Defendant/Accused person is Chike Charles Onoye represented by Ada Obinna-Edozie. It is trite that a Court can only exercise jurisdiction over persons who are parties before it. Counsel cited: Charles Odedo v PDP & Ors (2015) LPELR-24738 (SC).
Counsel submitted that Barrister Hippo Onwuegbukes representation was for a non-party, a meddlesome interloper who has no locus standi or legal right to be heard in the matter and therefore the Honorable trial Court lacked the jurisdiction to entertain and grant his Application, because only a party to a matter can be heard. Counsel cited: Labour Party v Independent National Electoral Commission & Anor (2013) LPELR-21960 (CA).
Counsel submitted that the learned trial judge erroneously held that Barrister Hippo Onwuegbuke is the complainant in the proceedings therefore erroneously struck out the charge based on said belief. The Federal Republic of Nigeria is the Complainant in the Charge and not Chief Kenneth Ndejiobi, as the charge was filed by the Economic and Financial Commission on behalf of the Federal Republic of Nigeria making it the complainant in this case in compliance with Section 2 of the Administration of Criminal Justice Law 2010 of Anambra State.
Counsel further submitted that it is only the complainant and the Attorney General by way of entering a Nolle Prosequi that can withdraw a charge and terminate proceedings.
Counsel submitted that the decision of the trial judge to terminate the charge without first affording the prosecution the opportunity of being heard is indeed denial of fair hearing. Counsel cited: Ikechi Okike v The Legal Practitioners Disciplinary Committee & Ors (2005) LPELR-7466(CA).
OPINION
From Pages 38-40 of the record, at the resumed sitting of the Court on 23/3/16, Mr. M.M Gwani Esq. appeared for the prosecution. Mr. Hippo Onwuegbuke Esq., appeared with R.O. Awo Esq. as holding a watching brief for the complainant. Ada Obinna-Edozie Esq (Mrs) appeared for the Defendant, Mrs Ada Obinna- Edozie Esq., informed the Court that the complainant was no longer interested in the prosecution of the charge and had in fact written to that effect to Economic and Financial Crimes Commission on 18/12/14.
Mr. Onwuegbuka confirmed that the complainant has no intention of prosecuting the defendant and would not appear in Court to give evidence. Mr. Gwani insisted that the complainant is actually the state and urged the Court to ignore both Defence counsel and the counsel holding brief for the complainants. The Court then ruled as follows on page 40 of the Record:
Having considered the submissions of all the learned counsel in this case i.e. the learned defence counsel- Ada Obinna Edozie, Esq; the learned prosecuting counsel- M.M. Gwani, Esq., and Hippo Onwuegbuke, Esq., holding the brief of the Complainant, I am satisfied that there is no need for us to continue to have this charge on our cause list. In particular, Section 187 of the Administration of Criminal Justice Law of Anambra State 2010 is very clear on what to be done to a charge in the event of non-appearance in Court of the complainant, where the Defendant voluntarily appears in Court. In the instant case, the complainant is not in Court today and has never appeared in Court for the four times this charge came before this Court. This is clear indication that he is not interested in the prosecution of the charge.
He has followed it up by sending his counsel, Hippo Onwuegbuke Esq. a very senior Counsel, to come to Court and inform us of their intention to discontinue the prosecution of the Defendant. It will serve no useful purpose for any of the parties involved in this charge to insist on its retention on our cause list as the end result is obvious – a mere waste of time of the Court, the EFCC and the defence. In the circumstance, particularly pursuant to Section 187 of the Administration of Criminal Justice Law of Anambra State, this charge is hereby dismissed.
I want to say that the argument by learned Appellants counsel that the Appellants counsel was not heard on that day is not borne out by the clear records of the trial Court. The Court is not a stenographer bound to record everything said by counsel. What is important is that presence of the Appellants Counsel was noted, the fact that counsel gave a submission was noted even in the bench ruling. There is in my humble view no viable challenge to the decision of the Court on the grounds of lack of fair hearing.
It would have sufficed for me to adopt as mine the succinct reasoning,conclusion and orders of the learned trial judge set out which cannot be faulted. However, I will add that the argument of learned Appellants Counsel that the complainant is a third party to the proceedings, whose views are irrelevant as he has no locus standi is completely misconceived. The complainant brought the charge and the charge of issuing dishonoured cheques can only be proved with his cooperation. According to Section 187 of the Administration of Criminal Justice law of Anambra State 2010, where the complainant fails to turn up in Court when the charge is put to the accused, the charge is liable to be struck out for want of prosecution.
That section is similar to that of Section. 351(1) of the Administration of Criminal Justice Act 2015 which states as follows:
When the case is called, the Defendant appears voluntarily in obedience to the summons or is brought before the Court under a warrant, and the complainant having, to the satisfaction of the Court, had due notice to the time and place of hearing, does not appear in person or in the manner authorized by a written law, the Court may dismiss the complaint.
However, absence of a complainant even though it is a good reason, it is not a good enough reason because in this case, the complainant was represented by a counsel holding a watching brief on his behalf. I think Section 355 of the Administration of Criminal Justice Act which is in pari materia with Section 191 of the Administration of Criminal Justice Law of Anambra State is more apt. It states as follows:
Where a complainant at any time before the final order is made in a case, satisfies the Court that there are sufficient grounds for permitting him to withdraw his complaint, the Court may permit him to withdraw the complaint and shall thereupon acquit the defendant.
I cannot given the importance and position given to the complainant see how the said complainant can be regarded as a third party to the proceedings with no locus standi as claimed by the Appellants Counsel. Even though at the trial Court, the learned counsel for the complainant and the defence counsel did not use the particular phraseology, compounding of offence by the complainant is what has happened in this case.
My Lord Augie JSC explained this whole point in PML NIG LTD v. FRN (2017) LPELR-43480(SC) where the difference between compounding a crime and compounding an offence was well explained. Compounding a crime is an offence which is defined as agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution (In both cases for material or financial consideration). Compounding of Offence on the other hand is an act on the part of the victim who decides to pardon the offence committed by the accused person and requests the Court to exonerate him. This does not mean the offence was not committed, it only means the victim is willing to pardon it, or has accepted some form of compensation for what she or he has suffered, so the compounding of the offence terminates the legal proceedings against the offender and he/she is entitled to an acquittal.
I would not here go into the enforcement of the provisions of Section 14(2) of the Economic and Financial Crimes Commission Act which is not the basis of the arguments of learned Appellants counsel. I would add that the Economic and Financial Crimes Commission can prosecute offences created by the Dishonoured Cheques Offences Act 1977 and such offences falls within the province of offences relating to financial malpractices.
Of Course, I understand the public policy implication of compounding offences by complainants. It is clear that where the offence is committed against tax payers and the citizens of this country, (for example, cases of corruption) no one citizen can come out as a complainant to presume to compound such an offence. Only the State itself who could complain against corruption can withdraw the charge by way of Nolle Prosequi. Also for public policy reasons, where Life has been lost, the State is the complainant as the State must protect the right of the person whose life was unlawfully taken away by another who is not in a position to compound the offence even if he/she would have been willing to do so if alive.
These are not the scenarios in this case. However, I can only conclude that the primary complainant in this case has the right to compound the offence and cause a withdrawal of the charge against the accused. If at all, the Federal Republic of Nigeria in this case was a secondary complainant who was unable or unwilling to put into effect the provisions of Section 14 (2) of the Economic and Financial Crimes Commission Act as it would relate to the circumstances of this case even after the primary complainant had written officially to withdraw the complaint and to effectually compound the offence.
In the circumstances, this appeal fails for lack of merit. The ruling of Hon. Justice M.N.O. Okonkwo delivered in Charge No O/5c/2015 on 23/3/16 is hereby affirmed.
APPEAL DISMISSED.
JOSEPH TINE TUR, J.C.A.: I agree.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read the draft judgment of my learned brother HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, I agree with this reasoning and conclusion therein. I abide by the consequential orders made therein.
Appearances:
M.A. EKWUFor Appellant(s)
Counsel for the Respondent, Absent.For Respondent(s)
