INNOCENT NWEKE vs. THE STATE
(2017) LCN/4541(SC)
In the Supreme Court of Nigeria
Thursday, April 13, 2017
Case Number: SC. 714/2015
RATIO
INTERPRETATION OF SECTION 36(6)(A.) AND (B) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA WITH RESPECT TO THE MEANING OF THE WORD “FACILITIES”
Section 36(6)(a.) and (b) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:- “Every person who is charged with a criminal offence shall be entitled to:- (b) Be given adequate time and facilities for the preparation of his defence. (d) Examine, in person or by his legal practitioner, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”. In Ebele Okoye v C.O.P (201 5) SC 279/2011, the judgment which learned counsel for the Appellant graciously made available to me, this court had the opportunity to interpret the word ‘facilities’ under Section 36(6)(b) of the 1 999 Constitution as follows:- “The facilities that must be afforded the accused person are the ‘resources’ or ‘anything which would aid’ the accused person in preparing his defence to the crimes for which he is charged. These, no doubt, include the statements of witnesses interviewed by the police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify.” PER PAUL ADAMU GALINJE, JSC
POSITION OF THE LAW ON ISSUANCE OF NOTICE TO PRODUCE DOCUMENTS
A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice. If the Appellant strongly wanted some facilities which were not made available to him, he would have applied formerly to the trial court for an order compelling the Respondent to make available those facilities which he required for his defence. In the passage which I reproduced elsewhere in this judgment in the case of Ebele Okoye v C.O.P (Supra) which learned counsel for the Appellant cited and placed so much reliance upon, this court clearly stated that any request for facilities necessary for the preparation of the defence of an accused must be made to the court. Even at the risk of repetition, l hereby reproduce part of the passage as follows:- “Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the court must accede to his request and the prosecution has to comply.” (Underlining is mine for emphasis). This court did not say at any time that the Respondent must accede to the request of the Appellant, as the latter is incapable of making an enforceable order. Learned Appellant’s counsel at page 10 of the Appellant’s brief of argument stated that the prosecutor should not be allowed to have sole access to evidence and that a judge or jury should ensure that the doors leading to truth have been unlocked. With that knowledge, learned counsel would have known that the request to produce should have been made to the court and not to the prosecutor. Issuance of notice and writing petition to wrong quarters, are not helpful to the Appellant and so the lower court is right to have dismissed the Appellant’s appeal on this score. PER PAUL ADAMU GALINJE, JSC
WHEN SHOULD LACK OF FAIR HEARING BE COMPLAINED OF
Lack of fair hearing means a trial conducted contrary to all legal rules formulated to ensure that justice is done to the parties to the case. The trial of the Appellant in the instant case had not been concluded and so learned counsel’s complaint of lack of fair hearing and or fair trial is speculative and the trial court had no jurisdiction to act on speculation. See Nnajiofor v Ukomi (1985) 2 NWLR (Pt. 9) 686. A breach of the right of fair hearing is a matter of fact that must be established by evidence. PER PAUL ADAMU GALINJE, JSC
INTERPRETATION OF SECTIONS 220(F) AND 146 OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW OF ANAMBRA STATE AS REGARDS THE CONTENTS OF A PROOF OF EVIDENCE
Section 220(f) of the law provides that an information shall contain Proofs of Evidence. Section 146 of the same law provides as follows.– “The Proofs of Evidence shall consist of: (a) Statement of the charge against the defendant; (b) the name, address and statement of any material witness whom the prosecution intends to call; (c) 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; (d) the copy of any report, if available, may by a doctor about the state of mind of a defendant in custody; (e) records of convictions, if any, affecting the credibility of any witness for the prosecutor; (f) statements of the defendant; (g) an inventory of all exhibits to be produced to the court at the trial; and (h) any other statement or document which the prosecution may consider relevant to the case. By this provision, especially paragraph H, the list of what Proof of Evidence shall consist of is inexhaustive. The case of Ebele Okoye v C.O.P (Supra) is distinguishable from the instant case. In that case, the Appellant made an application to the trial court in which he requested for facilities to defend himself. It was the refusal of that application that gave birth to the appeal that came all the way to this court. In the instant case there was no such application before the trial court. The order in respect of the case of Ebele Okoye v C.O.P (supra) by this court after allowing the appeal was for the Appellant to be provided with the facilities contained in the notice to produce which was filed in the magistrates court Awka by the Respondent. This court did not declare the Proofs of Evidence and the information filed at the trial court Incompetent, in the instant case the Appellant’s application at the trial court was premature as he did not apply formerly for the facilities he required for his defence. A dismissal of action in limine is the most punitive relief that a court can grant a defendant against the plaintiff. Because of its punitive nature, courts of law are reluctant in granting such a. request for the mere asking. There must be legal basis for the request and corresponding legal basis for granting it. See lnakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574. This is a criminal case, and the need to preserve a crime free society is at stake. The view expressed in Inakoju v Adeleke (Supra) is relevant. The Court of Appeal was therefore right when it dismissed the appeal. PER PAUL ADAMU GALINJE, JSC
JUSTICES:
OLUKAYODE ARIWOOLA
CLARA BATA OGUNBIYI
CHIMA CENTUS NWEZE
AMIRU SANUSI
PAUL ADAMU GALINJE
APPELLANTS
INNOCENT NWEKE
RESPONDENTS
THE STATE RULING (DELIVERED BY PAUL ADAMU GALINJE, JSC) The Appellant herein, along with four other persons, namely Elias Mmadukaegbu, Edwin Nweke, Charles Igwe and Christopher Okafor Igwe were arraigned on an information before the Anambra State High Court holden at Awka, charged with the offences of conspiracy to commit murder and attempted murder. By a notice dated 30th April, 2010, the Appellant and his co-accused asked the prosecution to produce for their inspection for the purpose of preparing their defence several materials in accordance with the provision of Section 36(6)(b)and (d) of the 1999 Constitution of the Federal Republic of Nigeria and Sections 220 (1) and 146 of the Administration of Criminal Justice Law of Anambra State 2010. Thereafter Dr. Obiorah, learned counsel for the accused persons filed an application dated 5th January, 2010 in which he prayed for the following Orders:-
“1. Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of court’s process. 2. Quashing the information filed in this court against each of the Applicants as incompetent for failure to contain the proper Proofs of Evidence as required by Section 220(1) of the Administration of Criminal Justice Law, 2010.
3. Quashing or dismissing the information and the entire proceedings as the Honourable Court has no jurisdiction over the person of the 5th Applicant who has not been served with any information, Proof of Evidence and hearing/arraignment notice.
4. Dismissing/striking out this proceeding for violating each of the Applicant’s constitutional right to fair hearing. 5. Quashing the information as the court lacks jurisdiction to try the offences as they brought in violation of each of the Applicants’ legal and constitutional rights to fair hearing.
6. Quashing the arraignment of the Applicants on the information before this court as the said information is incompetent and unsupported by proper Proofs of Evidence.” The learned trial Judge heard this application and in a short ruling which was delivered on the 10th September, 2012, dismissed it on the ground that the Applicants did not make a case that would warrant the grant of the application. The accused persons/applicants individually appealed PAGE| 3 to the Court of Appeal (henceforth to be referred to as “the lower court”). The lower court heard the appeal together. In a reserved and considered judgment which was delivered on the 28th July, 2015 their Lordships, Pemu, Agim and Bolaji-Yusuff JJCA dismissed the appeal. The extant appeal is against the decision of the lower court.The notice of appeal at pages 321 – 326 of the printed record of this appeal, contains six (6) grounds of appeal. Parties filed and exchanged briefs of argument. DR. E.S.C OBIORAH, Learned counsel for the Appellant distilled two issues for determination of this appeal as follows:- “I. Whether the Appellant’s fundamental rights to be given adequate facilities for the preparation of his defence as enshrined in Section 36(6)(b) and (d) of the Constitution of the Federal Republic of Nigeria, 1999, has been violated: and if so, what is the effect of the said violation on the criminal proceeding and/or the offending information. II. Notwithstanding, the answer to Issue No. 1 above, whether the Proof of Evidence founding the Amended information complied with Section 220(1) and 146 of the Administration of Criminal Justice Law of Anambra State, 2010; and if not, what is the effect on the Amended Information and/or the Criminal Proceedings? For the Respondent, MR G. B OBI ESQ of counsel, who settled the Respondent’s brief of argument, submitted for the determination of this appeal a single issue which reads thus:- “Whether the information including the Proof of Evidence filed by the prosecution against the Appellant is incompetent and liable to be struck out for non-compliance with the provision of Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State, 2010”. The issues formulated by both parties are similar. Having read through the briefs of argument, I am of the view that the sole issue formulated, by the Respondent has adequately covered the field. I will therefore adopt it in determining this appeal. Learned counsel for the Appellant submitted in argument that the Appellant’s fundamental right to be given adequate facilities for the preparation of his defence as enshrined in Section 36(6)(b) and (a) of the Constitution of the Federal Republic of Nigeria, 1999, has been violated and that such violation has vitiated the information and other process as filed by the Respondent. In aid, learned counsel cited Ebele Okoye v C.O.P (2015) SC.279/2011, Ejike Okoye v C.O.P (2015(50.279A/201, Chizoba Okoye v C.O.P (2015) SC.279B/2011 Chika Okoye v C.O.P (2015) SC.2779C/2011 and Onyeka Okoye v C.O.P (2015) 5C.279D/2011 which were all decided on 8th May, 2015 by this court. In a further argument, learned counsel submitted that the Proof of Evidence founding the amended information violated the express provisions of Section 220(f) and 146 of the Administration of Criminal Justice Law of Anambra State 2010 rendering the said proof of evidence and its Amended Information incompetent and liable to be quashed. Learned counsel submitted that when a statute prescribes a condition precedent for doing an act, failure to follow PAGE| 4 the said condition renders the act null and void. In aid the authorities in UNTHMB v Nnoil (1994) 8 NWLR (Pt. 363) 376; Ogieva v Igbinedion (2004) 14 NWLR (Pt. 894) 467, and NNPC v Tijani (2006) 17 NWLR (Pt. 1007) 29 were cited. For the Respondent it is argued that the Appellant’s application at the trial court is premature in that he did not formerly apply for an order from that court to compel the Respondent to provide him with the facilities he required to defend himself. In a further argument, learned counsel submitted that it is the prosecution that determines who qualifies as a material witness for the purpose of compliance with Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State 2010 and the proof of evidence which accompanies the information containing the statement and particulars of all the persons adjudged by the prosecution as material witnesses in the case. Still in argument, learned counsel submitted that the counter affidavit to the Appellants application had clearly stated that the prosecution had no other materials outside those it had exhibited to the proofs of evidence and the Appellant’s assertion that some documents were been kept away is a mere speculation. Learned counsel urged the court to dismiss the appeal. Section 36(6)(a.) and (b) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:- “Every person who is charged with a criminal offence shall be entitled to:- (b) Be given adequate time and facilities for the preparation of his defence. (d) Examine, in person or by his legal practitioner, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”. In Ebele Okoye v C.O.P (201 5) SC 279/2011, the judgment which learned counsel for the Appellant graciously made available to me, this court had the opportunity to interpret the word ‘facilities’ under Section 36(6)(b) of the 1 999 Constitution as follows:- “The facilities that must be afforded the accused person are the ‘resources’ or ‘anything which would aid’ the accused person in preparing his defence to the crimes for which he is charged. These, no doubt, include the statements of witnesses interviewed by the police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify.” There is no doubt that the Appellant served the notice to produce for inspection certain facilities on the Respondent on the 30th of April, 2010. Before the notice, the Appellant through his counsel had written a petition to the Attorney-General of Anambra Stare, dated December 22nd, 2008, complaining that the prosecuting counsel was hiding evidence which would be favourable to the Appellant in his defence. Learned counsel for the Appellant, has clearly demonstrated his ignorance in the art of conducting cases in court. It is a typical example of chasing the shadow instead of the substance. A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice. PAGE| 5 If the Appellant strongly wanted some facilities which were not made available to him, he would have applied formerly to the trial court for an order compelling the Respondent to make available those facilities which he required for his defence. In the passage which I reproduced elsewhere in this judgment in the case of Ebele Okoye v C.O.P (Supra) which learned counsel for the Appellant cited and placed so much reliance upon, this court clearly stated that any request for facilities necessary for the preparation of the defence of an accused must be made to the court. Even at the risk of repetition, l hereby reproduce part of the passage as follows:- “Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the court must accede to his request and the prosecution has to comply.” (Underlining is mine for emphasis). This court did not say at any time that the Respondent must accede to the request of the Appellant, as the latter is incapable of making an enforceable order. Learned Appellant’s counsel at page 10 of the Appellant’s brief of argument stated that the prosecutor should not be allowed to have sole access to evidence and that a judge or jury should ensure that the doors leading to truth have been unlocked. With that knowledge, learned counsel would have known that the request to produce should have been made to the court and not to the prosecutor. Issuance of notice and writing petition to wrong quarters, are not helpful to the Appellant and so the lower court is right to have dismissed the Appellant’s appeal on this score. This now brings me to the Issue of whether the Appellant’s fundamental rights to be given adequate facilities for the preparation of his defence as enshrined in Section 36(6)(b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria has been violated. In answer to this issue, learned counsel for the Appellant submitted that the Information and Proof of Evidence are incompetent and should be quashed for infringing on the Appellant’s fundamental right to fair hearing/fair trial and for violating the express mandatory provisions of Section 36(6)(b) and (d) of the Constitution. Lack of fair hearing means a trial conducted contrary to all legal rules formulated to ensure that justice is done to the parties to the case. The trial of the Appellant in the instant case had not been concluded and so learned counsel’s complaint of lack of fair hearing and or fair trial is speculative and the trial court had no jurisdiction to act on speculation. See Nnajiofor v Ukomi (1985) 2 NWLR (Pt. 9) 686. A breach of the right of fair hearing is a matter of fact that must be established by evidence. Learned counsel’s affidavit in support of his application at the trial court admitted that statements of five witnesses had been provided and the statements of the seven witnesses that were bound over by the magistrate court to give evidence in the case were not available. Section 36 of the Constitution provides for the provision of adequote facilities and not ail the facilities. It was therefore left for the Appellant to object to the tendering in court the statement of the 7 witnesses that were not made available on the ground of non-compliance with the appropriate legislation or apply that the documents be made available for inspection. The last issue to be considered is whether the Amended Information filed against the Appellant PAGE| 6 at the trial court are incompetent and should be quashed for failure to contain certain proofs of evidence as required by Sections 220(f) and 146 of the Administration of Criminal Justice Law of Anambra State. Section 220(f) of the law provides that an information shall contain Proofs of Evidence. Section 146 of the same law provides as follows.– “The Proofs of Evidence shall consist of: (a) Statement of the charge against the defendant; (b) the name, address and statement of any material witness whom the prosecution intends to call; (c) 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; (d) the copy of any report, if available, may by a doctor about the state of mind of a defendant in custody; (e) records of convictions, if any, affecting the credibility of any witness for the prosecutor; (f) statements of the defendant; (g) an inventory of all exhibits to be produced to the court at the trial; and (h) any other statement or document which the prosecution may consider relevant to the case. By this provision, especially paragraph H, the list of what Proof of Evidence shall consist of is inexhaustive. The case of Ebele Okoye v C.O.P (Supra) is distinguishable from the instant case. In that case, the Appellant made an application to the trial court in which he requested for facilities to defend himself. It was the refusal of that application that gave birth to the appeal that came all the way to this court. In the instant case there was no such application before the trial court. The order in respect of the case of Ebele Okoye v C.O.P (supra) by this court after allowing the appeal was for the Appellant to be provided with the facilities contained in the notice to produce which was filed in the magistrates court Awka by the Respondent. This court did not declare the Proofs of Evidence and the information filed at the trial court Incompetent, in the instant case the Appellant’s application at the trial court was premature as he did not apply formerly for the facilities he required for his defence. A dismissal of action in limine is the most punitive relief that a court can grant a defendant against the plaintiff. Because of its punitive nature, courts of law are reluctant in granting such a. request for the mere asking. There must be legal basis for the request and corresponding legal basis for granting it. See lnakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574. This is a criminal case, and the need to preserve a crime free society is at stake. The view expressed in Inakoju v Adeleke (Supra) is relevant. The Court of Appeal was therefore right when it dismissed the appeal. I find no reason to accede to the submission of the learned counsel for the Appellant. Accordingly the sole issue formulated by the Respondent upon which this appeal is considered is resolved against the Appellant. In the result, this appeal shall be and it is PAGE| 7 hereby dismissed. (Delivered by Chima Centus Nweze, JSC) My Lord, Galinje, JSC, obliged me with the draft of the leading judgement just delivered now: the leading judgement in this appeal in which this court as, once again, been confronted with the interpretation of Section 36 (6) (b) of the 1999 constitution of Nigeria (as amended). The said action provides thus: 36 ……… —- (6) Every person who is charged with a criminal offence shall be entitled to – (b) be given adequate time and facilities for the preparation of his defence; The right in this section [that is. Section 35 (6) b)] and, indeed, the other fundamental rights guaranteed in Chapter IV of the 1999 Constitution, as amended), were greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR, for short] which, in turn, was Influenced by the United Nations’ Unversal Declaration of Human Rights of 1948, see, ……er Lord Wilberforce in Minister of Home Affairs v …sher (1980) AC 319, 329; also, Chima Centus Nweze, ‘The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement strategies,” in Chima Centus Nweze et al (eds.), beyond Bar Advocacy (Umuahia, Nigeria: Impact global Publishers Ltd, 2011) 394; G. Ezejiofor Protection of Human Rights Under The Law London : Butterworths, 1964) 182. This background to these guaranteed rights was the proximate impulsion to the formidable resorption that their provisions should not be subjected to “the austerity of tabulated legalism”. On the contrary, they [their provisions] …call for a generous interpretation … suitable to give to individuals the full measure of the fundamental rights and freedoms referred to…,” Minister of Home affairs v Fisher (supra). This court, subsequently, explained the rationale for this Interpretive approach in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E. Listen to this eloquent reasoning: Human rights in our written Constitution mark a standard of behaviour which we share with all civilized countries of the world. Since the United Nations Universal Declaration of Human Rights in 1948, though it Is still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate Into their domestic laws, once incorporated, their application lose the character of Insular Isolationism. Rather they assume a universal character in their standard of interpretation and application…. [Italics supplied for emphasis] Surely, these imperatives of their universal character prompted this court’s view that, in Interpreting the provisions of the Constitution, particularly, the fundamental rights provisions PAGE| 8 thereof, It would he well-guided by decisions of international and domestic courts which have interpreted provisions, similarly, worded like the fundamental rights provisions of our Constitution, …lawoyin v C.O. P. (1961) LPELR (24984) 4; A-D. In effect long before the advocacy for the …spousal or a “global conversation about common …gal issues…” see, V. C. Jackson, Constitutional engagement in a Transnational Era (Oxford; Oxford University Press, 2010) 102, thus court had, admirably, explored the dividends of that comparative approach to judicial dialogue: an approach which it endorsed in Nafiu Rabiu v. The State [1981] 2 NCLR 293; [1980] 8-11 SC 130; Senator Adesanya v. President of the Federal Republic of Nigeria [1981] 5 SC 112; Attorney General of Bendel State v. Attorney General of the Federation [I981] 10 SC 1; Ogugu and Ors v. The State [1994] 9 NWLR (pt.366) 1, 22-28. Instructively, this pro-active approach to the extraterritorial Interpretation” of fundamental rights provisions has gained currency in many disparate jurisdictions. Instances Include: The United States of America, Thomson v Oklahoma [1988] 487 US 815; Washing v Glucksburg (1997) 521 US 702, 718; Lawrence v Texas (2003) 539 US 558; Atkins v Virginia (2002) 536 US 394: Canada, US v Burns 2001) SCR 283; Australia, Leask v Commonwealth 1996) 187 CLR 579, 615 -616; Hong Kong, Shum …Kkwok Sher v HKSAR (2002) 2 HKLRD 793 etc. Academic writers have, equally, endorsed this approach; see, for example, N. J. Udombana, “Interpreting Rights Globally; Courts and Constitutional Rights in Emerging Democracies,” 2005) 1 AHRLJ 47-69; C. M. Zoethout, “The lemma of Constitutional Comparativism,” ZaoRV 1 (2001) 787- 806; C, M. Zoethout, “The European court of Human Rights and Transnational Judicial dialogue, References to Foreign Law and the Quest for Justification,” (2015) ICL Journal, 9 (3), 396 -16; A. Stone, “Comparativism in Constitutional interpretation,” [2009] UMeibLRS 15; S, E. Fields, Constitutional Comparativism and the Eight amendment: How A Flawed Proportionality requirement can Benefit from Foreign Law,” Boston University Law Review [Vol 86; 963, 2006] 953 etc. Clear evidence of this judicial approach could be seen in several decisions of this court [the apex court in Nigeria]. Thus,in the interpretation of certain provisions of our Constitution, it [this court] has had recourse to decisions from such other jurisdictions like Tanzania, Mbushuu and Anor v The republic (decision of the Tanzanian Court of Appeal); Zimbabwe, Catholic Commission for Justice and Peace v Attorney General, Zimbabwe and Ors, 1993) (4) SA 239]; South Africa, State v Makwanyane and Anon (1995) (6) BCLR 665 (CC); 1995) SACLR LEXIS 218]; India, Becan Singh v State of Punjab (1983) (2) SCR 583; the US, Gregg Georgia 428 US, 153, 176 -187 (1975); District attorney for Sulfork District v James Watson and Ors 1980) 381 Mass, 648; Hungary, Jones v Wittenbeng 3 FSUPP. 707. Others Include cases from; Jamaica, Noel Riley and Ors v AG for Jamaica and Anor (1983) 1 A. C. 319 (PC) 725; Earl Pratt and Anon v AG for Jamaica and Anor (1944) 2 A. C. (PC) 28, 29; Commonwealth of Bahamas, Fisher v Minister of Public Safety and Immigration and Ors (1998) 3 NWLR 208 (PC); Republic of Trinidad and Tobago, Lincoln Anthony Guerra v Cipriani Baptist and Ors 1996) 1 A. C 396 (PC); see, generally, Onuoha Kalu State (1998) LPELR -1655 (SC) 41 et seq.
This approach notwithstanding, due weight must, always, be accorded to our peculiar circumstances, the generally held norms of society and our values, aspirations and local conditions, Onuoha Kalu v State (1998) LPELR – 1655 (SC) 40 – 41; Nafiu Rabiu v. The State (supra); Senator Adesanya v. President of the Federal Republic of Nigeria (supra); Attorney General of Bendel State v. Attorney General of the Federation (supra); Ogugu and Ors v The State (supra), Against this background, since Section 36 (6) (b) (supra) did not define the meaning and ambit of the term “facilities/’ I shall, in an attempt to deconstruct its nuances, seek guidance from the decisions of the European Court; of Human Rights which had interpreted that term in the Convention, that is, the ECHR (supra), In the first place, It has to be noted that Section 6 (6) (b) (supra) is, similarly, worded like [and was indeed influenced by] Article 6 (3) (b) of the said Convention [ECHR]. What emerges from the conspectus or the corpus of jurisprudence on the latter provision [that is- Article 6 (3) of the ECHR] is that the former section, [Section 36 (1) (supra)], If read as a whole, guarantees the right or an accused person to participate effectively in a criminal trial, Rowe and Anor v UK (GC) [Judgement of the European Court [ECtHR] of February 16, 2000, par 60] It, therefore, includes a right to organize a defence in an appropriate way and a right to put cross relevant defence arguments before the trial court Komev and Karpenko, [ECtHT judgement of October 21, 2010, par 66, cited In Luchaninova v Ukraine, [ECtHR judgement of June 9, 2011]. This right – which encompasses the twin rights of “time and facilities for defence” – is an important element of the guarantee of fair trial and an application of the principle of equality of arms in itself, an inherent feature of a fair trial. It requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent, Foucher v France (Reports of Judgments and Decisions of the European Court of Human Rights. 1997 -11) Bulut v Austria, (Reports of Judgments and Decisions of the European Court of Human Rights, 1996 -11). In criminal cases, Section 36 (i) (supra) overlaps with the specific guarantees In Section 36 … (supra); although it is not confined to the minimum rights set out therein, Indeed, the guarantees contained In Section 36 (6) (supra) are constituent elements, among others, of the concept of a fair trial set forth In Section 36 (1) (supra), …obek v Poland, [judgments and Decisions of the. CtHR, no 68761/01 of July I7, 2007]; Klimentyer v Russia , no 46503/99 of November 16, 2006. As shown in the leading judgement, in the instant case, the appellant [as accused person] alleged that the twin right under Section 36 (5) (b) (supra), that is, the right to “facilities for his defence” had been breached. However, he did not apply to the court for the facilities he required for his defence. Undoubtedly, counsel for the appellant misread the principle re-established in Okcye and Ors v C. O. … and Ors (2015) LPELR -24675 (SC) 69 – 70: a princlple that actually, dates back to the decisions … R v Adebanjo (1935) 2 WACA 315; Layonu and Ors v State (1967) 1 All NLR 198; PAGE| 10 Gaji v State 1975] 5 SC 61, 83, if not earlier; also, F.R.N. v Nabara [2013] 5 NWLR (pt 1347) 331: Ohwovoriole F. R. N [2003] 2 NWLR (pt 803) 176; Ikomi The State [1986] 3 NWLR (pt 28) 340; Uwazurike v AG. Federation [2013] ALL FWLR (pt 691) 1520. In all, the learned counsel for the appellant, evidently, not quite conversant with the logic of the reasoning in the above decisions, failed to appreciate that the right to the “… facilities…” for the defence of an accused person In Section 36 (6) (b) of the Constitution (supra) is not self-executory, R v Adebanjo (supra); Layonu and Ors v State (supra); Gaji v State (supra), That is the rationale for the prescription in these authorities that the appellant (as accused person) ought to have made a request to the trial court, either orally or in writing, for the Prosecution to oblige him with the “facilities” that would have enabled him to prepare his defence, Attah v State 2010] All FWLR (pt 540) 1224, 1248- 1249, citing Gaji v State (supra); Layonu and Ors v State (supra); R. v. Adebanjo (supra). The explanation for this requirement could be found in the jurisprudence of the European Court of Human Rights [ECtHR) which, in interpreting Article 6 (3) (b) (supra) in pari materia with Section 36 (6) (b) of the 1999 Constitution, as amended (supra), has held that, at that stage, the entitlement to …sclosure of such facilities, like statements of prosecution’s witnesses, is not an absolute right. Thus, in criminal proceedings, there may be competing interests, such as national security or the …eed to protect witnesses who are at risk of reprisals or to keep secret the methods used by the police in the Investigation of crimes, Van Mechelen and Ors v The Netherlands, [Reports of Judgments and Decisions, 1997 – 11. These, however, must be weighed against the rights of the accused person. Van Mechelen and Ors v The Netherlands (supra). In effect, only such measures restricting the rights of the defence which are, strictly, necessary are permissible under Article 6 [that is Section 36 (6) (b) of the 1999 Constitution (supra)], Van Mechelen and Ors v The Netherlands (supra), Moreover, in order to ensure that the accused person receives a fair trial, any difficulties caused to the defence by a limitation …n the said right must be, sufficiently, counter-balanced by the procedure which the judicial authorities followed, Doorson v The Netherlands, [Reports and Decisions of the ECtHR, 1996-11; Van Mechelen and Ors v The Netherlands (supra); see, generally, European Court of Human Rights: Guide on Article 6 of the European Convention on Human Rights, (NP: Council of Europe, 2014) 44 et seq. It is for the above, and the more detailed, reasons in the leading judgment that I, too shall resolve the sole issue, which the respondent formulated, against the appellant, appeal dismisse (Delivered by Olu Ariwoola, JSC) I had the preview of the draft of the lead judgment just delivered by my learned brother, Galinje, JSC. I am in agreement with the reasoning that led to the conclusion that the appeal lacks merit and should be dismissed. It is, accordingly, dismissed by me. PAGE| 11 Appeal dismissed.
(Delivered by CLARA BATA OGUNBIYI, JSC)
I read in draft the lead judgment of my learned brother Galinje, JSC just delivered. I agree that the appeal lacks merit and should be dismissed. I seek to state at this point that the two lower courts are concurrent in their judgments. The onus lies squarely on the appellant, who must proffer special convincing reason why this court should interfere with such judgments. For all intents and purposes, I must say that the appellant has not given any reason why the lower courts’ judgments should be set aside. On the totality of this appeal, it is, as rightly submitted by the respondent’s counsel that, it is the prosecution that determines who qualifies as a material witness for the purpose of compliance with Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State 2010 and the proof of evidence which accompanied the information contained the statement and particulars of all the persons adjudged by the prosecution as material witnesses in the case. My learned brother Galinje, JSC has resolved the lone issue raised very comprehensively. I do not have anything useful to add. In the result therefore, I hereby adopt his judgment as mine and in the same vein dismiss the appeal as lacking in merit. (DELIVERED BY AMIRU SANUSI, JSC) A copy of the draft judgment prepared and delivered by my learned brother Galinje JSC was made available to me before now. On careful perusal of the said judgment, 1 find myself in entire agreement with his reasons and conclusion that this appeal is bereft of merit and must be dismissed. While doing some, 1 wish to add few comments to support the said Judgment especially with regard to the submission on the respondent’s sole issue for determination which I feel, treating the appeal based on that issue can comfortable determine the appeal. The sole issue raised in the respondent’s brief of argument reads thus:- “Whether the information including the proof of Evidence filed by the prosecution against the Appellant is incompetent and liable to be struck out for non-compliance with the provision of Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State” The contention of the learned counsel for the appellant is to the effect that an accused person or the defense must always be given adequate facilities to prepare his defense as demanded by the PAGE| 12 provisions of Section 36 (6)(b) and (d) of the 1999 constitution (as amended). To the learned appellant’s counsel, such facilities were not availed to the appellant and therefore there was contravention of the that constitunonal provisions. For that reason, he prayed this court to quash the Amended Information, as it was incompetent Conversely, the learned counsel for the respondent felt that such Invitation on this court to quash the amended information was premature because the appellant herein, did not formally apply to the court to compel them to provide him with the facilities he required for his defense. He added that as prosecutor if is within his province to determine who qualifies as material witness by virtue of the provision of Section 146 (b) of Administration of Criminal Justice Law, Anambra State 2010 and that the Proof of evidence was accompanied by the Information, Statement and particulars of their witnesses which were all supplied. It is noted by me, that the appellant herein, served a notice to produce some facilities on the respondent on 30/4/2010 and had earlier on served the Attorney General, Anambra State with a petition that the prosecution was withholding some evidence from them which will facilitate their defense. It is my humble view that such request made by the appellant for supply to him, of the named documents should not have been directed to the Attorney General directly. The proper channel to make such request is to the court which will in tern order the prosecution to oblige him with all that he required. I am fortified on that view, by the case of Ebele Okoye vs COP (2010), SC 279 which was cited and relied on by the appellant/herein. Once such request is made, the trial court must see to it that the prosecution complies with the its order to avail or supply the accused/appellant with all the documents which are available. In the light of the above, 1 must say that the appellant should not complain that his right of fair hearing as enshrined m the provision of Section 36(6) (b) of the 1999 Constitution (as amended) was infringed or violated. It is instructive to note that trial in this case has not been concluded. At any time, the appellant, as accused person, is at liberty to ask the court to order the defense to supply him with the documents which should ordinarily accompany the Proof of Evidence if such documents, had not been supplied by the prosecution earlier or can seek for any information that will be beneficial to his defense. To my mind, it is rather premature for him to ask the court to quash the information. It is not appropriate for court to act within the realm of conjecture. For that reason, 1 do not share the views or sentiment of the learned appellant counsel that the appellants was denied his constitutional rights to fair hearing. The matter as I said supra, is at an elementary stage. All what the appellant had wanted to be supplied to him by the prosecution could have been obliged to him, if he had routed his request through the trial court which is the appropriate channel he ought to have followed. I too will therefore refuse to dismiss the proof of evidence or quash the information as prayed by the learned appellant’s counsel. Thus, in the light of these few comments and for the detailed and much fuller reasons advanced by my leaned brother Galinje JSC, I will dismiss this appeal for being lacking m merit. It is accordingly so dismissed. Appeal dismissed COUNSEL; PAGE| 13 DR. E. S. C. OBIORAH with Miss N. H Osunkwo and Mary Okkeke for the Appellant. MR. G.B OBI for the Respondent.
