HRH IGWE JOHN OSITA UMENYIORA & ORS v. THE STATE
(2016)LCN/8303(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of March, 2016
CA/E/191/2010
RATIO
PRACTICE AND PROCEDURE: WHETHER THE ATTORNEY GENERAL CAN FILE AN INFORMATION AGAINST ANY ACCUSED PERSON
In the first place, can the Inspector of General of Police prevent the Attorney general from filing an Information against any accused person, on the excuse that police investigations have not been completed. Certainly, the Attorney General does not answer to the Inspector General of Police. Instead, it is the other way round. Perhaps, it is pertinent and instructive to reiterate the extensive powers of the Attorney General, with respect to public prosecutions, against the backdrop of Section 174(1) (a) (b) (c), (2) and (3) vis-?-vis Section 211(1)(a) (b) (c), (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, with respect to the Attorney General of the Federation and States’ Attorneys-General, respectively. In the exercise of their powers to initiate, take over and discontinue criminal prosecution, in the courts, the Attorneys-General are said to be masters to themselves such that nothing and nobody can restrain them from taking any step towards criminal prosecutions, in our Courts. Generally see; The State v. S. O. Ilori & 2 Ors (1983) 2 SC 155; Amaefule & Anor v. The State (1988) LPELR-450 (SC); (1988) 2 NWLR (Pt. 75) 238. per. TOM SHAIBU YAKUBU, J.C.A.
CRIMINAL PROCEDURE LAW: WHETHER INFORMATION WAS PREFERRED BY LEAVE OF THE HIGH COURT
In Onu Okafor v. The State (1976) 5 SC 13; (1976) NSCC 259, which was decided pursuant to Section 340(2) (a) and (b); 340(3) proviso (b) of the Criminal Procedure Law, Cap. 31 Vol.2 of the Laws of Eastern Region 1963 applicable to the Eastern States (then Anambra & Imo States) which is in pari materia with Section 211 (a) (b) and (c) of the Anambra State Criminal Procedure Law, Cap. 37, 1991; the Information was preferred by leave of the High Court pursuant to Section 340(2)(a) of the 1963 Law of the Eastern Region. It was found that the Information was not preferred in accordance with the said Section 340 (2) (supra), so it was quashed even though there was no objection taken against the Information by the defence. However, that is not the situation in the present case, therefore Okafor v. The State (supra) is really not apposite to the facts of the instant case. per. TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
H.R.H. IGWE JOHN OSITA UMENYIORA
EXPARTE:
1. CHARLES GWACHM
2. H.R.H. IGWE JOHN UMENYIORA
3. CHINENYE BOSAH
4. SUNDAY IGWENAGU
5. LAWRENCE OKEAKPU
6. EMMANUEL OLISA EZE
7. NONSO UDO
8. LEONARD ODINYE
9. OKONKWO NWANKWO
10. ISIUZOH CHIBUEZE – Appellant(s)
AND
THE STATE – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant along with nine other persons were jointly charged with various offences contained in 10 counts on a criminal information, prepared at the instance of the Attorney General of Anambra State, in re Charge No. OT/12c/2007: THE STATE v. CHARLES GWACHAM & 9 ORS. On the 15th August, 2008, the appellant was served with the Notice of trial which was pasted on the front gate of his palace at Ogbunike. The appellant did not appear in Court to take his trial but filed an application at the trial High Court of Justice holden at Awka, and prayed as follows:
“(1) That the charge No. OT/12c/2007; THE STATE v. CHARLES GWACHAM & 9 ORS., pending before this Court be struck out in so far as it concerns the Applicant, without requiring the Applicant to plead thereto being totally irregular, incompetent and void.
(2) That further proceedings based on Charge No. OT/12c/2007; THE STATE v. CHARLES GWACHAM & 9 ORS., in so far as the Applicant is concerned, be terminated on the grounds that this Court lacks the jurisdiction to entertain it.
?(3) That this Honourable Court do make any other Order as it may
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consider just having regard to the provisions of the Criminal procedure Law.”
The grounds upon which the application was anchored are that:
“(i) The Notice of Trial is on its face incompetent as a Notice of Trial under Section 220 and 254(2) of the Criminal Procedure Law.
(ii) The charge No. OT/12c/2007; THE STATE v. CHARLES GWACHAM & 9 ORS., is in so far as the Appellant is concerned inconsistent with the provisions of Section 211, 240(c), 242, 243, 246, 247, 276, 278 and 280 of the Criminal Procedure Law.
(iii) The said Charge has been brought through a procedure totally unknown to law and the Court lacks the jurisdiction to entertain it.
(iv) The charge is frivolous, vexatious and oppressive of the Appellant and the Court ought to decline jurisdiction to entertain it.”
He filed an affidavit of 22 paragraphs in support of the application; and annexed some documentary exhibits to the said affidavit. The learned trial judge, in his ruling on the application, found no merit in it and consequently dismissed it. The appellant, not satisfied with the decision of the learned trial judge, filed an appeal predicated on four grounds of appeal, to this Court. And in
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order to prosecute the appeal, the appellant’s brief of argument, settled by chief, the Hon. U. N. Udechukwu, KSC, SAN & S. U. S. Mbanaso, Esq., JP, Pnm; dated 31st August, 2010 was filed on the same date.
In it, a sole issue for the determination of the appeal was identified, to wit:
Whether the learned trial Judge was right in her conclusion that the application of the Appellant is devoid of merit. (Grounds 1 and 2).
The Respondent’s brief of argument, settled by E. I. Okafor, Esq., ACSC of the Ministry of Justice, Awka, dated 21st October, 2015 and filed on 29th October, 2015 was deemed as properly filed and served by this Court at the hearing of the appeal on 1st February, 2016. He adopted the sole issue formulated by the appellant and also nominated one other issue for the determination of the appeal to wit:
Whether the appellant who has not appeared to take his plea can be heard challenging the jurisdiction of the Court. I adopt the sole issue agreed upon by both counsel herein for the determination of this appeal.
The contention of the appellant’s learned counsel is that the procedures stipulated in Sections 220 and 254 of the Criminal Procedure
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Law of Anambra State were not followed by the respondent in initiating the criminal prosecution in this matter against the appellant. He therefore submitted that the information prepared at the instance of the Attorney General of Anambra State was grossly inconsistent with the provisions of the Criminal Procedure Law of Anambra and that the appellant had the right to insist on the compliance with the relevant provisions of the said Criminal Procedure Law. He referred to Martin v. Mackonochie (1878) LR 3 QB 775 which was adopted by the Supreme Court in Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156 at 177. He insisted that the said Information being incompetent, the Court below, had no jurisdiction to entertain it.
He insisted that no Information nor proofs of evidence within the con of Sections 254(2) and 220 of the Criminal Procedure Law, was served on him and that service of a Court process is fundamental to the assumption of jurisdiction over any matter placed before it for adjudication. He referred to Mgt. Enter. Ltd v. Otusanya (1987) 4 SC 367 at 389 – 390. Furthermore, it is senior counsel’s submission that pursuant to Section 240(c) read together
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with Section 242 of the Criminal Procedure Law, it was incumbent on the Magistrate who took cognisance of the charges or offences contained in the Information, that since the offences alleged against the appellant are indictable offences, the fact that the appellant elected to be tried by the High Court must expressly be stated on the record of the Magistrate Court. And that in the instant case, the record indicates that “ELECTION BY THE ACCUSED not applicable.”
? He was emphatic that where the Attorney General as in the instant matter filed an Information pursuant to Section 240(c) of the Criminal Procedure Law, and there was no clear indication on the Information, that there was an election by the accused person, such an information was liable to be quashed. He placed reliance on Okafor v. The State (1976) 5 SC 13. And that pursuant to Sections 211, 240(c), 242, 243, 246 and 247 of the Criminal Procedure Law, an Information and proofs of evidence cannot be prepared in respect of a charge which required the accused person making an election as to the venue of his trial. He however submitted that the only time when a charge or count requiring the accused
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person’s election can be introduced into an Information, is through a latter/subsequent amendment of the Information pursuant to Section 211 of the Criminal Procedure Law. He insisted that counts 1, 9 and 10 ought to have been quashed under Section 212(a) of the Criminal Procedure Law.
The other grounds of the appellant’s complaint are with respect to non-compliance with Sections 276, 278 and 280 of the Criminal Procedure Law, because only three offences of the same kind committed with 12 months are to be charged together, and that counts 2, 3, 4, 5, 6, 7, 8, 9 and 10 were wrongly included in the information which rendered it incompetent and liable to be struck out.
In his responses, learned Assistant Chief State Counsel to the respondent submitted that there was full compliance with Sections 211, 248, 254 and 276 of the Criminal Procedure Law Cap. 37 Laws of the Anambra State of Nigeria, 1991. He submitted that the appellant was duly served with the Information by the invocation of Section 108 of the Criminal Procedure Law, 1991 when the Information was pasted on his premises which made him aware of the criminal proceedings pending in Court against him. He
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also contended that in the circumstances and facts of the instant case, where counts 3 ? 8 are not within the jurisdictional limit of the Magistrate Court, the appellant had no right to elect the venue of his trial. He therefore insisted that the Court below was right in dismissing the appellant’s application.
Resolution:
The law is well settled to the effect that where a particular procedure has been mandated by law to be followed in activating any matter in Court for adjudication, it is that procedure that must be followed by the person initiating the proceedings. Martin v. Mackonochie (1879) LR 3 QB 775 adopted by the Supreme Court in Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156 at 177; (1988) LPELR-450 (SC); – Adene v. Ugwu (1997) 3 NWLR (Pt. 491) 57 at 63; Udeagha & Anor v. Omegara & Ors (2010) LPELR-3856 (CA).
This appeal borders on the procedure of laying a criminal information by the Attorney General of Anambra State, for the prosecution of accused persons, at the High Court of Justice of Anambra State. And this is essentially governed by the provisions of Sections 211, 212, 220, 248, 254, 276 and 278 of the Criminal Procedure Law,
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Cap. 37 Laws of the Anambra State of Nigeria, 1991, with particular reference to the facts and circumstances of the instant case.
Let us begin first with Sections 211 and 212 of the Criminal Procedure Law Cap. 37 Laws of Anambra State of Nigeria, 1991. They each say:
S.211 – “subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either –
(a) The information is preferred after the preparation of the proofs of evidence in the charge, or
(b) The information is preferred pursuant to an order made under Chapter 13 to prosecute the person charged for perjury, or
(c) The information is preferred in cases other than those mentioned in paragraphs (a) or (b) above because of the special circumstances of such cases the Attorney General considers that an information should be filed without recourse to the procedure referred to in paragraph (a) above:
? Provided that where the information is preferred after the preparation of the proofs of evidence it may include either in substitution for or in addition to counts charging the offence for which the proofs of evidence have been prepared, any counts founded on
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facts or evidence disclosed in the proofs of evidence being counts which may lawfully be joined in the same information.”
S.212 “If an information preferred otherwise than in accordance with the provisions of the last forgoing section has been filed by the registrar the information shall be liable to be quashed;
Provided that –
(a) If the information contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this section; and
(b) …………..”
Now, the NOTICE OF TRIAL is at page 143 of the record of appeal. It is dated 4th December, 2008. I have also seen the Information containing ten counts at the instance of the Hon. Attorney General of Anambra State, wherein the appellant, along with 10 other accused persons were named to answer to charges of conspiracy, Arson and Riot, contrary to Sections 495(a), 416(a) and 107 respectively of the Criminal Code, Cap. 37, Vol.II, Revised Laws of Anambra State, 1991. The Information spans from pages 3-8 of the record of appeal. It was dated 19th November, 2007. The names of the prosecution witnesses and
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their addresses were stated at the same page 8 of the record of appeal. It is clear to me that the filing of the Information against the appellant and 10 other accused persons, by the Hon. Attorney General of Anambra State was pursuant to his powers under Section 211(c) of the Criminal Procedure Law, 1991.
The appellant contends that the Notice of trial is incompetent because it alone standing without more, did not constitute the Information nor proofs of evidence. I agree. However, from the ipse dixit of the deponent, at paragraph 3 of the affidavit in support of the application at the Court below (see pages 139-141 of the record of appeal) averred that “A bundle of papers captioned Record of proofs of Evidence in relation to charge No. OT/12c/2007, THE STATE v. CHARLES GWACHAM & 9 ORS., which was filed at the Registry of this Court by the State naming the Applicant as 2nd Accused was also deposited at the Applicant’s Palace and I retrieved it. The said Record of Proofs of Evidence forms part of the record of this Court in this proceedings and is hereby verified as Exhibit 2. The Applicant will rely and refer to it in the course of this proceedings.” So,
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from the showing of the appellant himself, he was served with the Notice of trial that is, Exhibit 1 along with the Information and the Proofs of evidence – Exhibit 2. I therefore find it difficult to comprehend the appellant’s complaint, to the effect that the Information was incompetent for non-compliance with Sections 211 and 212 of the Criminal Procedure Law, 1991.
?In Onu Okafor v. The State (1976) 5 SC 13; (1976) NSCC 259, which was decided pursuant to Section 340(2) (a) and (b); 340(3) proviso (b) of the Criminal Procedure Law, Cap. 31 Vol.2 of the Laws of Eastern Region 1963 applicable to the Eastern States (then Anambra & Imo States) which is in pari materia with Section 211 (a) (b) and (c) of the Anambra State Criminal Procedure Law, Cap. 37, 1991; the Information was preferred by leave of the High Court pursuant to Section 340(2)(a) of the 1963 Law of the Eastern Region. It was found that the Information was not preferred in accordance with the said Section 340 (2) (supra), so it was quashed even though there was no objection taken against the Information by the defence. However, that is not the situation in the present case, therefore Okafor v.
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The State (supra) is really not apposite to the facts of the instant case.
The other contention of the appellant is to the effect that the Information was not served upon him in accordance with Sections 220 and 254 of the Criminal Procedure Law, Cap. 37 of 1991. I do not think that there is any force in this contention. For, as I have earlier in this judgment demonstrated, from the affidavit in support of the application at the Court below, it is clear as crystal as to the facts averred at paragraphs 2 and 3 thereof, to the effect that the Notice of trial/Information – Exhibit 1 and the proofs of Evidence – Exhibit 2 were pasted/deposited at the appellant’s palace and he retrieved them. And it was thereafter that he filed the application challenging the competency of the Information, the dismissal of which culminated in this appeal.
?The appellant furthermore contended that by virtue of Sections 240 (c), 242 and 243 of the Criminal Procedure Law, Cap. 37 of 1991, where indictable offences other than capital offences and also offences punishable with imprisonment for life, are intended, proofs of evidence shall only be preferred, after the accused person has
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elected to be tried in the High Court. Now, in the circumstances of this case where the Information was preferred at the instance of the Hon. Attorney General, direct to the High Court by virtue of his powers under Section 211(c), I do not think that the appellant had any election to make as to where he was to be tried. It is only if the filing of the Information were under Sections 211(a) or (b) that the question of the appellant’s election as to the venue of his trial would have arisen. That is not the situation here where the Information was laid by the Hon. Attorney General directly to the High Court and not through the Magistrate.
Indeed, the learned trial judge meticulously resolved the question of election, admirably at page 253 of the record of appeal, thus:
“An election as to the venue of his trial is made by an accused person where he is charged before a magistrate’s Court with an indictable offence other than a capital offence or an offence punishable with imprisonment for life. The Court may, subject to the extent of the jurisdiction of the magistrate adjudicating, deal summarily with the offence but the Court must first ask the accused person if
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he desires to be tried by the High Court or summarily by the magistrate Court. The purpose of this election therefore is to give the accused person an opportunity to choose by himself whether or not to be tried at the magistrate court. However where the accused person has no choice in the matter an election as to venue is not required. It is not disputed that the Applicant herein cannot elect the venue for his trial in counts 3 – 8. It follows therefore that since all the offences in this charge are alleged to have been committed in one transaction and therefore part of series of offences of the same kind committed within a specified period of time as shown in the information and since the counts 1, 9 and 10 are contained in the same Information as counts 3-8, the counts cannot be severed to enable Applicant elect the venue of trial. The result will be that if Applicant elects to be tried summarily at the Magistrate Court, that Court will not have jurisdiction to try the offences in counts 3-8 which are clearly outside its jurisdiction. The next question will be whether the Applicant can be tried partly in the Magistrate Court and partly in the High Court. The
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answer must be a definite no! That would be ridiculous. It therefore follows that since the High Court has jurisdiction to try the offences in all the counts, the High Court is the only venue where the Applicant can be tried, the purpose of election being to save an accused person from the magistrate Court rather than the High Court. I therefore agree with the learned Deputy Director Public Prosecution that an election by an accused as to the venue of his trial is inapplicable where any of the offences committed in one transaction include counts of offences which are beyond the jurisdiction of the presiding magistrate.”
I cannot fault his Lordship’s reasoning and conclusion, at all, because I find them unassailable.
The next and remaining vexed issue is with respect to the appellant’s contention that the “Information is frivolous, vexatious and oppressive of the Appellant.” He referred to paragraphs 18-20 of the affidavit in support of the Appellant’s application at page 141 of the record of appeal. The said paragraphs 18-20 of the affidavit are reproduced here below, for ease of reference and appreciation, inter alia:
?18. The police did not complete their
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investigation before Exhibit 2 was filed in this Court. This is made clear by an application made before the Magistrate Court by the Inspector General of Police, copy whereof is hereby exhibited marked Exhibit 3.
19. The Ruling of the Magistrate’s Court in respect of Exhibit 3 is hereto attached marked Exhibit 4.
20. Exhibit 5 is an application filed at the High Court by the Inspector General of Police applying for enlargement of time to appeal against Exhibit 4. It is still pending.”
The gravamen of the appellant’s complaint on this issue is that in view of Exhibits 3, 4 and 5, the Hon. Attorney General, ought not to have filed or preferred the Information herein against the appellant. I think the contention of the appellant, is tantamount to underestimating or underrating the powers of the Attorney General with respect to initiation, taking over and termination of criminal prosecutions, instituted or preferred against any person and by any person or authority. In the first place, can the Inspector of General of Police prevent the Attorney general from filing an Information against any accused person, on the excuse that police investigations have not been
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completed. Certainly, the Attorney General does not answer to the Inspector General of Police. Instead, it is the other way round. Perhaps, it is pertinent and instructive to reiterate the extensive powers of the Attorney General, with respect to public prosecutions, against the backdrop of Section 174(1) (a) (b) (c), (2) and (3) vis-?-vis Section 211(1)(a) (b) (c), (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, with respect to the Attorney General of the Federation and States’ Attorneys-General, respectively. In the exercise of their powers to initiate, take over and discontinue criminal prosecution, in the courts, the Attorneys-General are said to be masters to themselves such that nothing and nobody can restrain them from taking any step towards criminal prosecutions, in our Courts. Generally see; The State v. S. O. Ilori & 2 Ors (1983) 2 SC 155; Amaefule & Anor v. The State (1988) LPELR-450 (SC); (1988) 2 NWLR (Pt. 75) 238.
?With respect to Exhibit 4, the ruling of the Chief Magistrate was delivered on 26th November, 2007. See page 157 of the record of appeal. The Information by the Attorney General was
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filed on 19th November, 2007. However, the said Information was only served on the appellant on 4th December, 2007. Therefore, it cannot be seriously contended that the prosecution of the appellant was contemporaneously running or going on in both the magistrate and High Courts. And in any event, the fact of the pendency of the matter at the Magistrate Court cannot prevent or restrict the Attorney General from exercising his power to file the Information in the High Court, so long as the trial of the matter would not be running contemporaneously in the two Courts at the same time. Inyang Edet v. The State (1988) LPELR-1008 (SC); (1988) 12 S.C. (Pt. 1) 103. Therefore, in the circumstances herein, it cannot be said that the filing of the Information by the Attorney-General, was tantamount to an abuse of the process of Court.
In the circumstances of the instant case, the appellant has not demonstratingly shown that the filing of the Information against him by the Attorney General is frivolous, an abuse of process of Court nor vexatious and oppressive. In the end, I have come to the inescapable conclusion that the sole issue in this appeal is resolved against the
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appellant. Hence, the appeal is dismissed.
The ruling of Ijem Onwuamaegbu, J., in re motion No. A/1189M/08 of 9th June, 2010 is affirmed. The appellant shall make himself available to take his trial at the Court below, accordingly.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I agree with reasoning, conclusions and orders therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the judgment just delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with the reasoning and conclusions therein. I hold that this appeal lacks merit. I abide by all the orders in the judgment including the order dismissing the appeal and awarding costs to the respondent.
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Appearances:
Chief S. U. S. Mbanaso with him, Ikem Ayika, Esq.For Appellant(s)
Daniel Ezechukwu, Esq. (State Counsel, Ministry of Justice, Anambra State)For Respondent(s)
Appearances
Chief S. U. S. Mbanaso with him, Ikem Ayika, Esq.For Appellant
AND
Daniel Ezechukwu, Esq. (State Counsel, Ministry of Justice, Anambra State)For Respondent
