FRED CHIJINDU AJUDUA v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7530(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
CA/L/693A/2014
RATIO
CRIMINAL PROCEDURE: FILING OF INFORMATION BEFORE A TRIAL COURT; THE ELEMENTS THAT CULMINATE INTO THE FILING OF INFORMATION BEFORE A TRIAL COURT
First and foremost, I adopt the elements enumerated earlier on in this Judgment, that culminate into the filing of INFORMATION before a trial Court, in respect of a criminal matter. One of the elements is that there shall be a statement properly obtained from the accused person.
There is in Section 251(3) of the Administration of Criminal Justice Law, No 10 of 2011 the following provisions
“The Prosecution shall at any time before Judgment be at liberty to file notice of additional evidence”
This provision, I must say, is subject to the Judicial Interpretation of the term “Additional Evidence”. In my view it does not connote a statement of the “accused statement”. This is because in a criminal matter, the accused statement is the most important document to be obtained at the investigative stage; indeed before the full blown trial of a criminal offence.
At that stage, the Investigating Police Officers are required to obtain as many statements from the accused person as it pleases. per. RITA NOSAKHARE PEMU, J.C.A.
CRIMINAL PROCEDURE: FILING INFORMATION; THE EFFECT OF THE ABSENCE OF THE STATEMENT OF AN ACCUSED IN THE INFORMATION FILED
I must quickly say here, that the statement of an accused person is an integral part of an information filed, and its absence makes the prosecution carry out an exercise in futility. This is because, at the investigative stage, the law enforcement authorities (whether Police or authorities of the E.F.C.C) as the case may be, are obligated to obtain the statement of the culprit and indeed tender same in Court in due course. In the Judgment of the lower Court, the learned trial Judge observed thus:
“, , , , , , ,After a careful consideration of the supporting affidavit, I find that same is bereft of any fact as to why the Defendant/Applicant failed, refused and neglected to give his statement on the three occasions when the Investigating Officers sought to obtain his statement/reaction to the charges leveled against him. Surely, a Court of Law ought not to be indulging a party when no case has been provided” per. RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
FRED CHIJINDU AJUDUA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering The Leading Judgment): This is an appeal against the Ruling of Honourable Justice O.A. Ipaye of the High Court of Lagos State holden at Ikeja, delivered on the 9th of May 2014, in Charge No ID/354C/2011.
In the Judgment, the learned trial Judge dismissed the Appellant’s motion on notice filed on the 31st of March 2014, in which he prayed the lower Court for an order permitting the Appellant to make his extra-judicial statement in response to the allegations against the Appellant, in Charge No. ID/354C/2013, and have the statement part of the proof of evidence before the lower Court.
SYNOPSIS OF FACTS
The Respondent had filed a fourteen counts information against the Appellant. It is dated 14th October 2013 – pages 1-12 of the Record of Appeal.
The charges ranged from conspiracy to the offences of obtaining money by false pretences, contrary to Sections 8(a) and 1(3) of the Advanced Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999, and Section 1(3) of the Advanced Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999 respectively.
One General Ishaya Bamaiyi (Rtd.) had hitherto addressed a petition dated 10th June 2006 against the Appellant to the Chairman of the Economic and Financial Crimes Commission.
The information filed against the Appellant at the lower Court Registry did not however include the statement made by him. This is because the Appellant had not made his statement at the time the information was filed, because he refused to on three occasions.
The Appellant had refused to make a statement to the operatives of the E.F.C.C until he had been brought face to face with Lt. General Ishaya Bamaiyi (Rtd.), a request which the operatives of the E.F.C.C. denied him.
However despite this, the Respondent went ahead to file the information, saying that the Appellant had unconditionally refused to make his statement in the course of investigation.
It is instructive to note that the Appellant had pleaded not guilty to all the counts in the information filed against him during arraignment before the lower Court.
On the 31st of March 2014, the Appellant filed a notion on notice praying the lower Court for the following:
(i) AN ORDER for leave permitting the Defendant/Applicant to make Statement/Extra judicial statement under caution and same to be included in the Proof of Evidence herein.
(ii) AN ORDER compelling and directing the Respondent to list and include the Defendant/Applicant’s Extra-Judicial statement as part and parcel of the Proof of Evidence in this charge.
(iii) AND FOR SUCH FURTHER or other Orders this Honourable Court may deem fit to make in the circumstances of this case.
The application was predicated on four grounds with an affidavit in support. The proposed handwritten and typed written extra judicial statements of the Appellant, were exhibited to the affidavit in support of the motion.
The Respondent filed a counter affidavit on the 2nd of May 2014.
After a consideration of the motion, the learned trial Judge refused the application and dismissed same.
The Respondent had, after the Ruling of the lower Court, filed the amended information dated 1st July 2014, to which were attached fresh statements of the complainant at the lower Court.
At the time the Appellant’s motion was argued before the lower Court, the Respondent had not opened its case.
The Appellant is dissatisfied with the Ruling of the lower Court and has appealed same.
Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 22nd of May 2014 – pages 147 -153 of the Notice of Appeal. The Notice of Appeal had four Grounds of Appeal.
Applications for extention of time to file the Respondent’s Brief of Argument out of time filed on the 9th of September 2014, was granted, and same was deemed filed on the 25th of September 2014.
Also application for leave to enable Respondent compile and file a Supplementary Record of Appeal filed on the 25th of September 2014, was granted and the Respondent’s supplementary Record of Appeal was deemed filed on the 25th of September 2014.
The Appellant had proffered a sole issue for determination in his Brief of Argument. It is
“WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS RIGHT IN REFUSING TO ALLOW THE APPELLANT TO HAVE HIS EXTRA-JUDICIAL STATEMENT IN RESPONSE TO THE CHARGES AGAINST THE APPELLANT TAKEN UNDER CAUTION BY THE INVESTIGATING POLICE OFFICERS FROM THE ECONOMIC AND FINANCIAL CRIMES COMMISSION AND HAVE IT INCLUDED IN THE PROOF OF EVIDENCE BEFORE THE LOWER COURT HAVING REGARD TO THE MATERIALS PLACED BEFORE THE TRIAL COURT, CONSTITUTIONAL RIGHT OF THE APPELLANT TO FAIR TRIAL AND THE DUTY OF THE TRIAL COURT TO ENSURE THE OBSERVANCE OF THE CONSTITUTIONAL RIGHT OF THE APPELLANT FOR FAIR TRIAL”
The Appellant’s Brief is settled by Olalekan Ojo Esq.
The Respondent filed also a sole issue for determination.
“WHETHER CONSIDERING THE ANTECEDENT OF APPELLANT IN THIS CASE IN WHICH HE MADE THE NON INCLUSION OF HIS STATEMENT AS ONE OF GROUNDS FOR SEEKING THE ORDER OF THE LOWER COURT TO QUASH THE INFORMATION BY WAY OF PRELIMINARY OBJECTION DATED 11TH OF FEBRUARY, 2014 AND AFTER HIS MOTION WAS DISMISSED, THE APPELLANT COULD STILL SEEK AN ORDER OF THE LOWER COURT TO COMPEL THE RESPONDENT TO EITHER ADOPT HIS WRITTEN STATEMENT OR OBTAIN A FRESH ONE AND INCLUDE IT IN THE PROOF OF EVIDENCE”
It is settled by S.K. Atteh Esq. The Appellant filed a Reply Brief on the 17th of September 2014, but same was deemed filed on the 25th of September 2014.
ISSUE NO 1
The gravamen of the Applicant’s case is that his constitutional right to fair hearing has been infringed, referring to Section 36(4) of the 1999 Constitution.
He submits that the lower Court was obligated to do everything necessary to ensure that justice is done to the Accused/Appellant.
He submits that an information must contain the following viz:
(1) The charge, statement of offence and particulars of the offence;
(2) The Statement of the witnesses for the Prosecution;
(3) Statement of the Accused person;
(4) All relevant documents etc that the prosecution intends to rely on at trial.
UWAZUIRUKE & 6 ORS VS. A-G OF FEDERATION (2013) 4 S.C. (PT. 1) 90 AT PAGES 112-113.
He submits that the lower Court had the power to ensure that all the contents of an information, including the Statement of the Appellant are contained in the information filed against the Appellant.
That the Appellant cannot be said to have waived his right to make his statement and have same as part of the proof of evidence.
He submits that when the Appellant told the EFCC operatives that he would not make his statements until he confronts the Petitioner, General Ishaya Bamaiyi (Rtd.), this did not amount to waiver in law. Neither did it amount to the Appellant abandoning, or relinquishing his right to respond to the allegation made against him. He submits that it was the refusal of the investigating officers to make the confrontation possible, that amounted to a denial of the right to fair hearing to the Appellant.
The Appellant submits that he has the legal right to have his non-confessional extra judicial statement tendered by the prosecution, as this is the very foundation of his defence. – DANDARE & ANOR V. STATE (1967) NWLR 56 @ 57.
He submits that the non-inclusion of the Appellant’s extra judicial statement in the proof of evidence would adversely affect the conduct of the defence of the Appellant. This is moreso as the Appellant would not be able to cross-examine any of the investigating officers as to the extra-judicial statement.
Urges this Honourable Court that the lower Court failed to exercise its statutory and inherent powers in furtherance of the interest of justice.
The Respondent, submits that the Appellant refused on three occasions to make written statement to the operatives of the Economic and Financial Commission, when they visited him at the Kirikiri Maximum Prison and confronted him with the allegation of Retired General Bamaiyi.
That the three occasions were on the 13th, 17th and 21st of June 2013 respectively.
He submits that when the Respondent filed the information dated 14th of October 2013, the Appellant filed a Notice of Preliminary Objection dated 20th December 2013, attaching seven (7) paragraphs affidavit and sworn to by one Pascal Ike – pages 5-7 of the Respondent’s Supplementary Record.
That the Appellant subsequently filed Notice of Discontinuance of the motion.
He submits that by virtue of Section 35(2) of the 1999 Constitution as (amended) the Appellant has a right to remain silent and cannot be compelled to make a statement – ATANDA V. A-G WESTERN NIGERIA (1965) NWLR 225 @ 228. In this case, it was held inter alia that a person accused of a criminal offence is not bound to make a statement to the Police – GIRA V. STATE (1996) 4 NWLR (PT. 443) 375 @ 386.
He submits that the Appellant is not approaching this Court with clean hands, as there is evidence that the operatives of the E.F.C.C came to the prison to interrogate the Appellant. That the fact that the Appellant misled the lower Court by claiming that he was never interrogated, or confronted with allegation, made against him by Retired General Bamaiyi shows that he did not come to the lower Court with clean hands.
He submits that in an inquisitorial system such as ours, the Court is not an investigator. That what the Appellant seeks is for the Court to give directive on how Respondent Operatives should take the Defendant’s statement and include same in the proof of Evidence.
That although Section 251 (3) of the Administration of Criminal Justice Law of Lagos State 2011 provides that the prosecution could bring additional evidence at any state before Judgment is delivered, this, in practice applies to witnesses of the prosecution and not the Defendant. That it is unknown to law for the prosecution to attempt to obtain statement from a Defendant after his plea had been taken.
In his reply brief, the Appellant submits that the Respondent’s brief did not address the issues raised in the Appellant’s brief.
I, with respect do not agree with this line of thought, as the Respondent’s sole issue for determination talks about the “non inclusion of the Appellant’s statement” the subject matter of the Appellant’s appeal. Indeed all the four Grounds of Appeal in the Notice of Appeal refer to the non inclusion of the Appellant’s statement in the proof of evidence.
That line of reasoning by the Appellant in his reply brief is totally misconceived and same is hereby discountenanced.
Perhaps I should go straight to considering the respective two issues for determination proffered by the parties.
The fulcrum of the Appeal is that the Appellant was not allowed to make his statement at the investigative stage.
There are certain observations which may lead to a just conclusion of this matter.
First and foremost, I adopt the elements enumerated earlier on in this Judgment, that culminate into the filing of INFORMATION before a trial Court, in respect of a criminal matter.
One of the elements is that there shall be a statement properly obtained from the accused person.
There is in Section 251(3) of the Administration of Criminal Justice Law, No 10 of 2011 the following provisions
“The Prosecution shall at any time before Judgment be at liberty to file notice of additional evidence”
This provision, I must say, is subject to the Judicial Interpretation of the term “Additional Evidence”. In my view it does not connote a statement of the “accused statement”. This is because in a criminal matter, the accused statement is the most important document to be obtained at the investigative stage; indeed before the full blown trial of a criminal offence.
At that stage, the Investigating Police Officers are required to obtain as many statements from the accused person as it pleases.
But, with respect, this was not the case here.
The Appellant had admitted in his Brief of Argument that he refused to make his statement until he confronts the Petitioner, General Bamaiyi.
The issue is therefore that he blatantly refused to make his statement.
From records, his proposed extra judicial statement was made on the 22nd of March 2014 – pages 99-108 of the Record of Appeal.
He then filed a motion on the 31st of March 2014, for an order for leave permitting him to make statement/extra judicial statement under caution and same to be included in the proof of evidence, which application was refused and dismissed – pages 77-78 of the Record of Appeal.
I must quickly say here, that the statement of an accused person is an integral part of an information filed, and its absence makes the prosecution carry out an exercise in futility. This is because, at the investigative stage, the law enforcement authorities (whether Police or authorities of the E.F.C.C) as the case may be, are obligated to obtain the statement of the culprit and indeed tender same in Court in due course.
In the Judgment of the lower Court, the learned trial Judge observed thus:
“, , , , , , ,After a careful consideration of the supporting affidavit, I find that same is bereft of any fact as to why the Defendant/Applicant failed, refused and neglected to give his statement on the three occasions when the Investigating Officers sought to obtain his statement/reaction to the charges leveled against him. Surely, a Court of Law ought not to be indulging a party when no case has been provided”
The Appellant has argued strenuously that he has been denied his right to fair hearing.
I am of the view that this is misconceived, as it is not true.
It is he, who has refused to make his statement, as and when he was supposed to do so. He even admitted this.
Criminal cases triable by State High Courts are normally conducted on an information – F.R.N V. IBORI (2013) 13 NWLR (PT 1423) 168 @ 204.
The Appellant had referred to his purported statement as “extra judicial statement”.
With respect, this is a misconception as “extra judicial statement” portends a confessional statement, and indeed what was done outside the Court.
Yes, decidedly, in a criminal trial, the lower Court has the power and indeed a duty to ensure that all the contents of an information, including the statement of the Accused are contained in the information filed against the Accused.
In the present case, the Appellant had insisted on a face to face confrontation with the man who wrote a petition against him to the E.F.C.C, before making his so called “extra judicial statement”.
With respect, the refusal by the EFCC investigating officers cannot, and does not amount to a denial of the Appellant’s constitutional right to fair hearing, as it evidently is not in their practice to make accused persons confront their petitioners.
I had observed earlier on in this Judgment, that the Appellant had applied to the lower Court in an application dated 31st March 2014 and filed on same date, for leave to permit him to make statement/extra-judicial statement under caution, and same to be included in the proof of evidence. The application was dismissed – pages 77-97 of the Record of Appeal.
A cursory look at the proposed statements made by the Appellant show that they were just typed and handwritten statements, not taken under caution and they are not extra-judicial in nature.
I am of the view that it was the Appellant (as rightly observed by the learned trial Judge) in exercise of his constitutional right to remain silent, that declined to make written statement.
Simply put, the Appellant it was who refused to make statement and the Respondent cannot force him to do so. – Section 35(2) of the 1999 Constitution guarantees the Appellant a right to remain silent. ATANDA V. A-G WESTERN NIGERIA (1965) NMLR 225 @ 228; GIRA V. STATE (1996) 4 NWLR PT. 443 AT 386.
I agree with the Respondent’s submission in paragraph 2.21 of his Brief of Argument, when he said that
“Investigation is not trial. No provision of the law provides that at the investigation stage, a complainant or a witness must be interrogated or cross-examined by Accused/Defendant before the Accused/Defendant could make statement. That is only done during the trial in Court as provided in Section 214 of the Evidence Act”
The Court cannot direct the Police before a case comes to Court on how to investigate same. This is not the function of the Court in our adversary system.
In all, I am of the view that the appeal as it is, is devoid of merit.
The answer to the Appellant’s sole issue for determination is in the affirmative.
The Appeal is hereby dismissed and the decision of Honourable Justice O. A. Ipaye, contained in a Ruling delivered on the 9th of May 2014 in Charge No. ID/354C/13 is hereby affirmed.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU JCA. The appellant on his own accord chose to remain silent as he has the right to do. It is completely outside the norm for him to now seek an order of the court that his “extra judicial” statement be included in the proof of evidence. The strange request was rightly refused by the lower court. I agree that the appeal lacks merit and should be dismissed. I also dismiss the appeal.
JAMILU YAMMAMA TUKUR, J.C.A.: I had read before today the lead judgment just delivered by my learned brother Rita Nosakhare Pemu JCA.
I agree with the reasoning and conclusion reached therein that the appeal is devoid of merit. I too dismiss the appeal and affirm the ruling of the lower court delivered on the 19th of May 2014 in charge No.ID/354C/13.
Appearances
For Appellant
AND
S. A. Atteh Esq.For Respondent
