INYANG EDET VS THE STATE
(1988) LCN/2373(SC)
In the Supreme Court of Nigeria
Thursday, December 1, 1988
Case Number:[1988] SC. 16/1987
JUSTICES:
AUGUSTINE NNAMANI
MUHAMMADU L. UWAIS
KAYODE ESO
ADOLPHUS GODWIN KARIBI-WHYTE
ABDUL G. O. AGBAJE
ABUBAKAR BASHIR WALI
EBENEZER BABASANYA CRAIG
BETWEEN
APPELLANTS
INYANG EDET
AND
RESPONDENTS
THE STATE
RATIO
THE POWER OF ATTORNEY-GENERAL TO DISCONTINUE OR TERMINATE A CRIMINAL TRIAL BEFORE JUDGEMENT IS DELIVERED
Finally, section 191 subsections (1)(c) and (3) of the 1979 Constitution provides as follows –
“191-(1) The Attorney-General of a State shall have power-
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(3) In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
The power of the Attorney-General to discontinue or terminate a criminal trial before the judgment of a court is delivered is clearly not in doubt – see The State v. S. O. Ilori & 4 Ors., (1983) 1 S.C.N.L.R. 94; (1984) 2 S.C. 155. PER UWAIS, J.S.C.
WHETHER OR NOT IT IS PROPER FOR THE PROSECUTION TO FILE TWO CHARGES AGAINST AN ACCUSED PERSON BASED ON THE SAME FACT IN DIFFERENT COURTS
However, what remains to be said is that it is improper for the prosecution to file two charges based on the same fact or incident in different courts as have been done here. Although such action may or may not be fatal to the subsequent trial, (depending on whether it leads to a conviction) it certainly amounts to an abuse of the process of the Court because the earlier information was not withdrawn in the first court to have been seised with the charge of manslaughter (see Amaefule v. State. (supra), at pp. 168,170 and 176),no citizen should be the subject of persecution by the State. PER UWAIS, J.S.C.
WHERE THE WEAPON USED IN CAUSING DEATH IS A BOTTLE AND NOT A KNIFE OR PISTOL, WHETHER THE VERDICT TO BE GIVEN BY THE COURT ON THE CASE SHOULD BE THAT OF MANSLAUGHTER
It will therefore be preposterous and indeed impossible to lay down a principle of law that whenever a broken bottle is the weapon employed in causing death, a verdict of manslaughter or culpable homicide not punishable with death must be the verdict to be returned. That is not and cannot be the law under the Penal Code or indeed the Criminal Code with which this case is concerned. PER UWAIS, J.S.C.
THE PRINCIPLE OF ABUSE OF COURT PROCESS
On abuse of process Oputa, J.S.C. at page 177 of the record said,
“Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive There is nothing on record to suggest that the Attorney-General of Imo State in preferring the information, the subject matter of this appeal, acted from improper motives or was wanting in bona fides ….. I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fides; it has to be an improper use or perversion of process after it has been issued. The term abuse of process has an element of malice in it.” PER NNAMANI, J.S.C.
WHERE WITHDRAWAL OF A CHARGE BY THE PROSECUTION WOULD OPERATE AS AN ACQUITTAL
It is correct as the counsel for the respondent had said in his brief, that it was only when trial of an accused person had begun and after the accused had been called upon to make his defence that withdrawal of the charge by the prosecution would operate as an acquittal See Inspector-General of Police v. Marke (1957) 2 F.S.C. 7 at p.8 PER KARIBI-WHYTE, J.S.C.
UWAIS, J.S.C. (Delivering the Leading Judgment): This appeal was summarily dismissed on the 22nd day of September, 1988 and we intimated then that our reasons for the dismissal would be given today. I now state my reasons.
The appellant together with three others were arraigned in the High Court of Lagos State before Oguntade, J. (as he then was) on a charge of murder. The appellant was convicted and sentenced to death while the other accused persons were discharged and acquitted.
The facts of the case as found by the learned trial judge are as follows. On the 4th of June, 1983 one Elizabeth gave birth to a baby. P.W.3 – the daughter of Macaulay Isong, now deceased, was asked by her mother P.W.2, to go and assist Elizabeth with her chores. Whilst with Elizabeth, P.W.3 was asked by the former to gather her clothes from a drying line as it was about to rain. In collecting the clothes P.W.3 mistakenly collected also the pant of the 4th accused person who is a lady. Because the 4th accused person was annoyed by this she beat P.W.3. When P.W.2 heard P.W.3 crying she asked what was wrong and P.W.3 told her that she (P.W.3) was beaten by the 4th accused person. A quarrel ensued between P.W.2 and the 4th accused person. At the time the quarrel was going on, the deceased came into the compound, where everyone so far mentioned lived, and asked what had happened. The 3rd accused person called the deceased a rogue. The deceased retorted by calling the 3rd accused person a thief. There was a fight between deceased and the 3rd accused person. The deceased went out of the compound. He met the 2nd accused person (now appellant) and the 1st accused person waiting by the road side. As an argument ensued between the deceased and the 1st accused, an empty bottle was thrown at the deceased. The deceased bent down to pick the bottle but could not do so as he was prevented by the 1st accused who held him. The appellant picked the bottle and broke it before stabbing the deceased with it in the stomach. The deceased struggled to free himself from the grip of the 1st accused and in so doing both the deceased and 1st accused fell into a ditch that was full of stagnant water. The deceased was bleeding from the stab wound. P. W.2 took the deceased to the Police Station at Maroko where she was given a note to take the deceased to the General Hospital, Lagos. At the general hospital, the deceased was given an injection before he was admitted. The following morning an operation was performed on the deceased. His wounds were stitched and plaster was put on the stitches. The deceased was then discharged but he continued to complain of pain. Five days later that is on the 10th June, 1983 his condition became worse and he was in serious pain. He could not get out of bed. As the deceased was employed as a messenger by the Nigerian Ports Authority, P.W.2 took him to Ethiope Hospital, which is a private hospital retained by the Nigerian Ports Authority. The deceased was admitted in the hospital. Two days later when P.W.2 went to the hospital to see the deceased, she found that he had died. P.W.2 went to the Police Station at Maroko and made a report. The body of the deceased was removed from the private hospital to the General Hospital, Lagos. A post mortem examination was conducted on the body by P. W.1 after it was identified to him by P.W.2. In his testimony, P.W.1, a medical officer, said that the deceased was about 30 years old and had two areas with stitches below his left ribs. The first area had 7 stitches covering a wound that was 9 centimeters long. The second wound was 3 centimeters long and had 2 stitches. The doctor further said –
“The stomach was normal with bile stained liquid. The liver was firm. The spleen was enlarged and firm. There was pus in both kidneys. From my findings on the examination conducted my opinion is that cause of death is consistent with stab wound. I certify the cause of death to be shock and internal haemorrhage due to these wounds.”
The defence gave evidence and called witnesses. In his evidence, the appellant denied that he stabbed the deceased with a bottle. He said,
“It is not true that the 3rd accused gave me a bottle or any sharp instrument to stab the deceased. I did not use any bottle or sharp instrument to stab the deceased.”
Earlier on the 1st accused person testified that he was charged of manslaughter together with the appellant before the Yaba Magistrate’s Court. He said that he pleaded not guilty to the charge and that the case was still pending in the Magistrate’s Court at the time of his testimony in the present case. The charge sheet in the Magistrate’s Court which was tendered at the trial and was admitted as exhibit G. reads-
“Charge No. N/203/83
COMMISSIONER OF POLICE
Vs.
1. Edet Inyang (m) 25 Yrs.
2. Inyang Edet (m) 20 Yrs.
That you Edet Inyang (m) and Inyang Edet (m) on the 4th day of June, 1983 at No. 25 Asani Tokotaya Street, Ilado Maroko in the Lagos Magisterial District unlawfully killed one Macaulay Isong (m) and thereby committed an offence punishable under section 325 of the Criminal Code Cap.31 Laws of Lagos State of Nigeria, 1983.
13th October. 1983.
(Sgd.)…
POLICE OFFICER
DATE OF ARRAIGNMENT:
15/7/83
PLEA:
N/G
FINDINGS:
SENTENCE:
MAGISTRATE: – Mrs. C. O. Denton,
Chief Magistrate’s Court, Grade 1.
Prosecution:
COURT:
ORDER:
BAIL:
EXHIBIT:
Date of Adjournment:- 13th October, 1983
Bail: – N10,000.00 with 2 Sureties.”
At the close of the case for the defence learned counsel for all the 4 accused persons, who incidentally is also the counsel for the appellant in this appeal, submitted inter alia that the trial before the High Court was a nullity since there was a charge of manslaughter in the Magistrate’s Court pending against the appellant and the 1st accused person.
The learned trial Judge, after carefully considering the totality of the evidence adduced by the prosecution and the defence came to the conclusion that although the practice of bringing two charges on the same facts before different courts was wrong and improper and ought to be “condemned and deprecated in the strongest terms”, the trial before him was not a nullity. After observing that the defences of self-defence and provocation were not available to the appellant, the learned trial judge found the case against the appellant proved by the prosecution and concluded his judgment thus-
“From the totality of the evidence before me, I find the 1st and 3rd accused persons not guilty of the offence of murder as laid. The 1st and 3rd accused persons are accordingly discharged and acquitted.
I find the 2nd accused guilty of the offence of murder in that on 4th June, 1983 the 2nd accused unlawfully caused the death of Macaulay Isong by stabbing Macaulay Isong with a broken bottle and that (sic) said Macaulay Isong died of such stab wounds on 12th June, 1983.”
Dissatisfied with this decision, the appellant appealed from it to the Court of Appeal, complaining inter alia that the learned trial judge erred in law when he failed to hold that the trial before him was a nullity since the appellant together with the 1st accused person were charged in the Magistrate’s Court with manslaughter and that that charge was not disposed off when the charge in the High Court was brought. In dismissing the appeal, the Court of Appeal (per Uthman Mohammed, J .C.A.) considered the point and observed as follows –
“The last point raised in the issues for determination of this appeal is whether or not the trial was a nullity, the appellant having been previously charged for the lesser offence of manslaughter at the Magistrate’s Court. This point had been adequately covered by the brief of the counsel for the respondent, Mr. Alatishe, the learned Assistant D.P.P. of Lagos State. It has been explained that the appellant was not tried in the magistrate’s court. He was only arraigned on a charge of manslaughter and then the case was taken before the High Court where a charge of murder was read against him. It is correct as the counsel for respondent had said (sic) in his brief, that it was only when trial of an accused person had begun and after the accused had been called upon to make his defence that withdrawal of the charge by prosecution would operate as an acquittal. See Inspector-General of Police v. Marke, (1957)2 F.S.C. 7 at p.8.”
The Appellant has appealed again to this Court against the dismissal of his appeal by the Court of Appeal. Seven lengthy grounds of appeal have been filed with the Notice of Appeal. The most important of these grounds is ground 4 which raises a constitutional issue for the first time. It reads –
“(4) The learned Justices of the Court of Appeal and the learned trial judge erred in law in failing to hold that the trial of the Appellant in the High Court before the learned trial judge was a nullity on the ground that the Appellant had earlier been charged with manslaughter at the Magistrate’s Court, Yaba, Lagos where he elected summary trial and pleaded not guilty to the charge.”
Particulars of Error
It is the constitutional right of the Appellant that he should be given a fair hearing within a reasonable time when he was charged with manslaughter of the deceased at the Magistrate’s Court, Yaba, Lagos where he pleaded not guilty on the 15th day of July, 1983. The Appellant who pleaded not guilty to a charge of Manslaughter in the Magistrate’s Court, Yaba, Lagos on 15th July, 1983, was after a period of over ten months arraigned on information before the learned trial judge on the 6th day of April, 1984 when the Appellant pleaded not guilty to a charge of murder. The appellant was convicted of murder and sentenced to death by hanging on the 30th day of May, 1984 when the charge of manslaughter dated 15th July, 1983, was still pending in the Magistrate’s Court, Yaba, Lagos.
Happily, all the grounds of appeal have been condensed in the appellant’s supplementary brief of argument to 2 issues for our determination; to wit:-
“1. Whether the appellant should have been discharged and acquitted of the charge of murder and the lesser offence of manslaughter on the ground that the proceedings in the court of first instance were a nullity because the prosecution were negligent in violating the constitutional rights of the Appellant by adopting a wrong procedure of charging him with murder in the High Court, Lagos when the earlier charge of manslaughter against him in the Magistrate’s Court, Yaba, was nut withdrawn and thereby failed to give him a fair hearing within a reasonable time.
2. Whether, assuming that the appellant stabbed the deceased with a broken bottle, the appellant should have been discharged and acquitted of murder and convicted of manslaughter on the ground that the weapon used was a bottle and not a knife or pistol.”
In support of his submission that the trial of the appellant in the High Court was a nullity, learned counsel for the appellant referred, in the appellant’s brief of argument and in his address, to the provisions of sections 32 (1)(c) of the Constitution of the Federal Republic of Nigeria, 1979. He argued that by the provisions of section 33(4) of the Constitution whenever any person is charged with a criminal offence, unless the charge is withdrawn, he is entitled to a fair hearing within a reasonable time. Furthermore, he said, by virtue of section 32 subsection (1)(c) of the Constitution no person shall be deprived of his personal liberty except in accordance with a procedure which is permitted by law for the purpose of bringing him before a court upon reasonable suspicion of his having committed a criminal offence. Finally, learned counsel stated that the provisions of section 191 subsections (1)(c) and (3) of the Constitution empowers the Attorney-General of a State to discontinue with any criminal proceedings whether instituted by the Attorney-General or any person. Learned counsel for the appellant concluded his argument on this point by submitting than he failure of the prosecution to withdraw the charge of manslaughter in the Magistrate’s Court before instituting the present case in the High Court on a charge of murder renders the latter proceedings a nullity. He contended that the failure gave rise to the fact that the appellant was not given a fair hearing within a reasonable time in respect of the charge of manslaughter and, therefore, the procedure followed in charging the appellant with murder in the High Court was contrary to the procedure laid down by sections 32(1)(c); 33(4) and 191 (1)(c) and (3) of the 1979 Constitution.
In effect the appellant’s contention is that the constitutional provisions which he referred to have not been followed and as a result they have been violated. By reason of the violation the trial in the High Court is a nullity. Although at the conclusion of the argument of learned counsel for the appellant we did not deem it necessary to call on Mr. Arthur-Worrey, learned Senior State Counsel, to reply on behalf of the respondent, we were not oblivious of the lucid respondent’s brief of argument which the latter had filed. In the brief Mr. Arthur- Worrey contended that the first issue for determination formulated by the appellant raises three questions, namely-
“(a) Can the appellant’s claim that he was denied a fair trial within reasonable time within the meaning of section 33(4) of the 1979 Constitution in the Magistrate’s Court affect the validity of his trial and his conviction in the High Court
(b) Did the pendency of the charge before the Magistrate curtail the Attorney-General’s powers under section 191 (1) of the 1979 Constitution to institute the proceedings in the High Court
(c) Can the appellant seek to invoke the provisions of sections 33 (9) of the 1979 Constitution; 181 and 221 of the Criminal Procedure Law (of Lagos State) and ask this honourable Court to nullify the trial and conviction in the High, Court on the ground of double jeopardy”
In answer to the first question, learned Senior State Counsel conceded in the brief that the pending proceedings in the Magistrate’s Court offended the spirit of section 33(4) of the Constitution in that they had not been withdrawn nor determined within a reasonable time; but submitted that the provisions of section 33(4) could not be applied to the proceedings in the High Court because the proceedings in the Magistrate Court were separate and distinct from those in the High Court. Learned Senior State Counsel argued further that by all accounts the appellant had a fair hearing within a reasonable time at his trial in the High Court.
With regard to the second question, learned Senior State Counsel cited the recent decision of this Court in Amaefule v. The State, (1988) 2 N.W.L.R. 156 and contended that the pendency of the trial in the Magistrate’s Court could not in any way curtail the power of the Attorney-General under Section 191 of the 1979 Constitution to institute the subsequent trial for murder in the High Court.
Finally, in answer to the third question, learned Senior State Counsel submitted that only a plea of either autrefois acquit or autrefois convict as provided under section 33(9) of the 1979 Constitution and sections 181 and 221 of the Criminal Procedure Law of Lagos State could have aborted the proceedings in the High Court; but such plea would not apply here since the trial in the Magistrate’s Court had not been concluded.
It is pertinent now to refer in detail to the provisions of sections 32(1)(c); 33(4) and 191(1)(c) and (3) of the 1979 Constitution on which the appellant is resting his case to nullify the proceedings in the High Court. Section 32(1)(e) reads.-
“32-(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;”
The record of appeal shows that the proceedings in the High Court were initiated by the filing of an information on a charge of murder against the appellant and three others. The information was signed by one Mrs. A. T. Awojobi, State Counsel, on behalf of the Director of Public Prosecutions of Lagos State. This has not been shown by the appellant to be contrary to the procedure laid down in section 77 of the Criminal Procedure Law, Cap. 32 Laws of Lagos Sate, 1973 which inter alia lays down the procedure for instituting criminal proceedings in the High Court. It cannot also be disputed that from the evidence available to the prosecution at the time of filing the information in 1984, there was reasonable suspicion that the appellant together with his co-accused caused the death of the deceased.
Section 33(4) of the 1979 Constitution provides –
“33(4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn he entitled to a fair hearing within a reasonable time by a court or tribunal.”
The appellant’s complaint in this respect is not that the trial in the High Court was not heard within a reasonable time, but that the information brought in the Magistrate’s Court was left in abeyance whilst the trial in the High Court went on. I think this complaint is misconceived. First, this appeal is not concerned with the proceedings pending in the Magistrate’s Court. It is an appeal against the decision of the High Court in a murder charge, which went to the Court of Appeal and thence here. Secondly, the provisions of section 33 subsection (4) of the 1979 Constitution do not and cannot apply to the present appeal because the appellant was arraigned in the High Court, according to the record of appeal, on the 6th day of April, 1984 and the judgment of the High Court was given on the 30th day of May, 1984. Thirdly, the point that the trial pending in the Magistrate’s Court offends the provisions of section 33 subsection (4) can only be raised in an appeal against the decision of the Magistrate. So far there has been no such decision of the Magistrate’s Court from which there is an appeal to this Court. Any complaint that the appellant may have against the proceedings in the Magistrate’s Court will have to await the decision of the Court in the charge of manslaughter. In other words it is now premature for the appellant to complain in this Court against any delay in the Magistrate’s Court to continue with proceedings abated in favour of the trial in the High Court.
Finally, section 191 subsections (1)(c) and (3) of the 1979 Constitution provides as follows –
“191-(1) The Attorney-General of a State shall have power-
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(3) In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
The power of the Attorney-General to discontinue or terminate a criminal trial before the judgment of a court is delivered is clearly not in doubt – see The State v. S. O. Ilori & 4 Ors., (1983) 1 S.C.N.L.R. 94; (1984) 2 S.C. 155. The exercise of that power does not apply to the trial of the present case in the High Court. It is therefore idle to discuss the power in relation to the present case. The Attorney-General may decide to exercise his power in the proceedings before the Magistrate’s Court but that can not be the subject which this Court needs to consider since it has not arisen. However, what remains to be said is that it is improper for the prosecution to file two charges based on the same fact or incident in different courts as have been done here. Although such action may or may not be fatal to the subsequent trial, (depending on whether it leads to a conviction) it certainly amounts to an abuse of the process of the Court because the earlier information was not withdrawn in the first court to have been seised with the charge of manslaughter (see Amaefule v. State. (supra), at pp. 168,170 and 176),no citizen should be the subject of persecution by the State. The Courts frown at such action and will not hesitate to deprecate it even if no remedy has been provided by law.
I now turn to the second issue for determination, which states that the appellant ought to have been convicted of manslaughter and not murder, because the weapon used in killing the deceased was a bottle and not a knife or pistol. In support of this contention learned counsel for the appellant cited the following cases – Okonji v. The State, (1987) 3 SC. 175 at pp. 176, 2 208 and 211; Aremu v. The State, (1984) 6 SC. 85 at p.86 and Akpuenyi v. The State, (1976) 11 SC. 269. Counsel argued that in all cases where the accused had used a broken bottle to inflict injury on the deceased there have been either a conviction of manslaughter or a discharge and acquittal of the accused because the prosecution had failed to establish malice aforethought against the accused person.
With respect, this is a most ridiculous submission. To start with, none of the cases relied upon by the learned counsel for the appellant supports his argument. In Aremu v. The State (supra) and Akpuenyi v. The State (supra). The weapons employed in committing the offences thereunder were a gun and knife respectively. There was no mention of a bottle whatsoever in both cases. With regard to the case of Okonji v. The State (supra) there was no doubt as to what weapon was used by the accused person to stab the deceased in the stomach. The question then was: was it a bottle or a knife This question was answered as follows per Nnamani, J.S.C. at p.200 where said –
“If a knife was used in the circumstances accepted by the lower courts, it would seem to me that knowledge that deceased would be the probable not likely consequence of such an accused would be imputed to the appellant. If on the other hand a bottle was used in circumstances alleged by the appellant, I am so sure that one can come to the same conclusion. It seems therefore useful to examine this question of the weapon used.” (italics mine)
Learned justice continued thus on pp.206 to 209 thereof-
“P.W.3 he said saw the appellant stabbing the deceased on the right side of the neck and abdomen and the medical report talks of those injuries all on the right side of the body. It would appear to me that what the learned Chief Judge was saying was that he believed P.W.3 because the injuries in the medical report would seem to have been caused by a knife. The appellant had alleged that after the deceased hit him on the head with a broken bottle, he forced out a piece from the deceased’s hand and it was with it that he stabbed the deceased. Learned Deputy Director of Public Prosecutions has urged this Court to hold that the injuries could not have been caused by a bottle. Could such a decision be reached without the evidence of the Doctor The medical report in this case was tendered under Sections 249 and 250 of the Criminal Procedure Code. The Doctor did not give evidence. If he did, perhaps he would have explained what he meant by “a sharp cutting weapon.” Another matter which has caused lingering doubt over this issue of the weapon is the fact that the allegation that they fought in a place littered with bottles was not, and perhaps could not have been, investigated……It is trite law that where there is doubt in the mind of the court in a criminal matter it ought to be resolved in favour of the accused person.
The consideration in the High Court and the Court of Appeal had been based on the finding that a knife was the weapon. Any doubt on the finding must inevitably affect the result of this appeal. It will not affect it to the extent of an acquittal for the appellant himself has admitted being in a fight in the course of which he inflicted injuries on Lawal Mohammed from which he died. It would seem to me that in such circumstances, this case falls within the provisions of Section 222(4) of the Penal Code. That section provides that:-
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. “, (italics mine)
And concluded at p.211 as follows –
“Having previously held that there was a lingering doubt as to what weapon was used in this case, I am of the view that this case falls within the principles enunciated in the Oji case [(1961) N.R.N.L.R. 93 or (1961) All N.L.R. 262]. I am therefore of the view that a defence under Section 222(4) of the Penal Code is available to the appellant……I find the appellant guilty of culpable homicide not punishable with death and convict him accordingly.”
It is clear from the foregoing quotations that this Court did not decide in Okonji v. The State (supra), as submitted by learned counsel for the appellant, that where the weapon used in causing death is a bottle, and not a knife or pistol, then the verdict to be given by the court, on the case being proved, is that of manslaughter. The verdict to be returned cannot be the same always but will differ from case to case because the circumstances surrounding the cases are not always the same. It will therefore be preposterous and indeed impossible to lay down a principle of law that whenever a broken bottle is the weapon employed in causing death, a verdict of manslaughter or culpable homicide not punishable with death must be the verdict to be returned. That is not and cannot be the law under the Penal Code or indeed the Criminal Code with which this case is concerned.
It was, therefore, for all these reasons that I dismissed the appeal on the 22nd day of September, 1988 and affirmed the conviction and sentence of death which was passed by the High Court and was confirmed by the Court of Appeal.
K. ESO, J.S.C.: I have had a preview of the Reasons given in this appeal by my learned brother Uwais, J.S.C.
I will adopt those reasons for dismissing the appeal on 22nd September, 1988.
A. NNAMANI, J.S.C.: On 22nd September, 1988, this appeal came before this Court for hearing. Having read the records of proceedings, and having heard learned counsel to the appellant, the respondent’s counsel not called, I was satisfied that the appeal was devoid of substance. I accordingly dismissed it and indicated that I would give my reasons for this judgment today. I now give my reasons.
I have before now had a preview of the Reasons for Judgment just delivered by my learned brother, UWAIS, J .S.C. I entirely agree with them and adopt them as my own.
I shall only make a short comment on the main constitutional issue raised before this Court. In making this comment, I shall rely on the facts as fully set down by my learned brother, UWAIS, J.S.C. The constitutional issue is raised in ground 4 of the appellant’s grounds of appeal to this Court. In it the appellant complained as follows:-
“4. The learned Justices of the Court of Appeal and the learned trial Judge erred in law in failing to hold that the trial of the Appellant in the High Court before the learned trial Judge was a nullity on the ground that the Appellant had earlier been charged with manslaughter at the Magistrate’s Court, Yaba, Lagos where he elected summary trial and pleaded not guilty to the charge.”
Part of the Particulars of Error read as follows:-
“The Appellant, who pleaded not guilty to a charge of Manslaughter in the Magistrate’s Court, Yaba, Lagos on 15th July, 1983, was after a period of over ten months arraigned on information before the learned trial Judge on the 6th day of April, 1984 when the Appellant pleaded not guilty to a charge of murder. The appellant was convicted of murder and sentenced to death by hanging on the 30th day of May,1984 when the charge of Manslaughter dated 15th July, 1983 was still pending in the Magistrate’s Court, Yaba, Lagos.”
This ground of appeal was reflected in the first issue for determination raised by the appellant in his supplementary brief. The substance of it was whether the appellant ought to have been discharged and acquitted of the charge of murder on the ground that the proceedings in the High Court were a nullity, in that the appellant was charged with murder when the earlier charge in the Magistrate’s Court for Manslaughter was still pending. In argument in Court, appellant’s learned counsel, Chief Oriade, put it more directly when he submitted that a man charged in the Magistrate’s Court cannot be charged in the High Court with another offence on the same facts.
Respondent’s counsel, Fola Arthur-Worrey perhaps put it even more directly when in his reply he said the issue for determination was “whether the information filed in the High Court during the pendency of Charge No.N/203/83 in the Magistrate Court was an abuse of process such as would nullify the trial and conviction in the High Court.”
In his argument both in his supplementary brief and in court, Chief Oriade relied on Sections 33(4),32(1)(c) and 191(1)(c) and (3) of the Constitution of the Federal Republic of Nigeria, 1979, hereinafter referred to as the Constitution. These sections deal with fair hearing within a reasonable time by a Court, right to personal liberty and the right of the Attorney-General to discontinue at any stage criminal proceedings instituted by him or any other person respectively.
From the facts of the case, it is clear that on 6th April, 1984 the appellant and three other were charged with murder at the High Court of Lagos State. They all pleaded not guilty to the charge. At the end of the trial on 30th May, 1984 only the present appellant, who was the second accused person at the trial, was convicted and sentenced to death. It is also clear that earlier on, on 15th July, 1983, the appellant and 1 other person were arraigned before the Magistrate’s Court Yaba, Lagos on a charge of Manslaughter. The two accused persons’ pleaded not guilty. The case was adjourned to 13th October, 1983. Nothing else happened in it except that it was pending during the trial of the appellant in the High Court.
It seems to me from this situation that it cannot be open to the appellant to complain that he had not been tried within a reasonable time. The trial in the High Court commenced in April 1984 and was terminated on the 30th May, 1984. Admittedly, the charge of Manslaughter had been pending in the Magistrate Court for 9 months at the time the trial in the High Court commenced. But the two trials are distinct and in two different courts. From the facts stated above, there is no way the trial in the High Court can be said to have violated the provisions of Section 33(4) of the constitution. I am of the view too that appellant’s submissions as they relate to Sections 33(4) and 32(1)(c) of the Constitution were clearly misconceived.
Perhaps it is the submission that the proceedings in the High Court were an abuse of process of the court and therefore a nullity that deserves some examination. It cannot be disputed that it was improper and undesirable that a charge was pending in the Magistrate Court against the appellant for the whole period he was arraigned, tried and convicted. This deserves strong deprecation. To put in the mind of an accused person that kind of anxiety is something that ought to be avoided. On the face of it, it would look like an abuse of process for two charges were brought against the appellant in two separate courts and on the same facts! However, in the circumstances of this case I do not think this was an abuse of process in the sense in which the law conceives it, an abuse of process that would render the subsequent proceedings in the High Court null. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. Looking at what happened in the two courts, I see nothing of the sort. It is not uncommon that prosecutors take a charge to court, only to realise, perhaps as a result of the unearthing of more facts, that a different and even more serious charge ought to be brought in another court. In this case while 2 persons were charged with Manslaughter in the Magistrate Court, 4 persons were charged with Murder in the High Court. What was wrong and this is what ought to be avoided, is not promptly withdrawing the charge against the appellant in the Magistrate Court at the time the prosecution decided to file an information against him.
The question of abuse of process arose before this Court in Amaefule and 1 Or v. The State (1988) 2 N.W.L.R. (Part 75) 156. The facts of that case were not dissimilar to the present one. There, a charge containing indictable offences was brought against accused persons in a Magistrate Court in Imo State. After several adjournments, during which the Director of Public Prosecutions requested that the case file be sent to his office, the trial Chief Magistrate made an order adjourning the case sine die. Subsequently, an information was filed against some of the accused persons in the High Court. It was contended for the appellants, not only that the filing of an information against the accused persons while the charge against them in the Magistrate Court was pending was an abuse of process, but that that fact rendered the information null and void. This Court, after holding that the charge in the Magistrate Court was pending (as herein) when the information was filed, rejected both complaints. On abuse of process Oputa, J.S.C. at page 177 of the record said,
“Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive There is nothing on record to suggest that the Attorney-General of Imo State in preferring the information, the subject matter of this appeal, acted from improper motives or was wanting in bona fides ….. I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fides; it has to be an improper use or perversion of process after it has been issued. The term abuse of process has an element of malice in it.”
In my own contribution at page 172 I said as follows:-
“It is not even certain to me that there is on the face of the papers a case of abuse of process which can be said to be oppressive of the accused person. First of all, not all the accused persons in the original charge in the Magistrate Court are included in the information filed. Secondly, the counts in the information are slightly different from the counts in the charge in the Magistrate Court…. It is not as if the proceedings had been adjourned to a definite date. It is within the power of the Attorney-General of Imo State, having filed information in the High Court, to take legal steps to terminate the proceedings still pending in the Magistrate’s Court.”
The charge in the present case was adjourned to a definite date but that date had passed and nothing happened before an information was filed in the High Court.
As for the second matter, whether the information in the High Court was rendered null because there was a pending charge against the Appellant in the Magistrate Courts, I would, as this Court did in Amaefule’s case (Supra) reject the contention. The unquestionably wide powers of the Attorney-General to institute and discontinue criminal proceedings under Section 191(1) of the Constitution takes care of the situation here. The pendency of the matter in the Magistrate Court cannot restrict the power of the Attorney-General to file information in the High Court. As I said in Amaefule, he would in due course take legal steps to discontinue the proceedings in the Magistrate Court. My view is that ‘due time’ ought to be before, or contemporaneous with the filing of an information in the High Court. I do not find it necessary to deal with Chief Oriade’s further submission that the exercise of the powers of the Attorney-General under Section 191(3) of the Constitution ought to be held to be objective not subjective as decided by this Court in Ilori v. The State (1983) 2 SC. 155 and Amaefule as no arguments were actually advanced to support their being overruled.
It was for these reasons, and the more detailed reasons, in the judgment of UWAIS, J.S.C. to which I earlier referred that I dismissed this appeal.
A. G. KARIBI-WHYTE, J.S.C: I have had the privilege of reading in draft the judgment of my learned brother Uwais, J.S.C. in this judgment. I entirely agree with the reasoning and conclusions therein. I only wish to make my contribution in respect of the novel point raised by counsel for the appellant that the extant charge of Manslaughter against the appellant in the Magistrate’s Court arising out of the same facts vitiated the trial and conviction of appellant in the High Court for the offence of murder.
The judgment of my learned brother Uwais, J.S.C. has dealt exhaustively with the facts of this case. I should not repeat them here as they are largely irrelevant for my own purposes.
It is only necessary for me to reiterate the evidence that during the trial, the accused testified that there was pending before the Magistrate Court Charge No. N/203/83, in which the 1st and 2nd accused were charged for the offence of Manslaughter punishable under section 325 of the Criminal Code, Cap.31, Laws of Lagos State of Nigeria, 1983. He said he had pleaded not guilty to that charge. The charge Sheet was tendered as Exhibit G. At the end of the prosecution for murder, and the prosecution for manslaughter still pending the appellant alone was convicted for the offence, and sentenced to death.
In his judgment the learned trial judge considered the submission that in view of the pending charge of manslaughter, the prosecution for murder I was a nullity, and held that “it was a mere irregularity” which “did not disable the prosecution from properly putting the accused on trial for the offence of murder in these proceedings.” (See p.92 of the record).
The point was also taken in the Court of Appeal. The court whilst rejecting the contention treated it as a variant of the plea of autrefois acquit and accepted the contention in the brief of counsel for the Respondent and said; at p.150.
“It has been explained that the appellant was not tried in the Magistrate’s Court. He was only arraigned on a charge of manslaughter and then the case was taken before the High Court where a charge of murder was read against him. It is correct as the counsel for the respondent had said in his brief, that it was only when trial of an accused person had begun and after the accused had been called upon to make his defence that withdrawal of the charge by the prosecution would operate as an acquittal See Inspector-General of Police v. Marke (1957) 2 F.S.C. 7 at p.8. Counsel is also right to refer to S.75(3) of the Criminal Procedure Law on a discharge of an accused person under s.75 of the same law that it shall not operate as a bar to subsequent proceedings against him on account of the same facts.”
I do not think the reasoning is right. I have however, not been shown any authority for the view that completion of a pending prosecution is a precondition for the validity of subsequent prosecutions. Appellant has again put forward the same contention as his ground of appeal before us. Ground 4 of the grounds of appeal states as follows:
“4. The learned Justices of the Court of Appeal and the learned trial Judge erred in law in failing to hold that the trial of the Appellant in the High Court before the learned trial Judge was a nullity on the ground that the Appellant had earlier been charged with manslaughter at the Magistrate’s Courts Yaba, Lagos where he elected summary trial and pleaded not guilty to the charge.
Particulars of Error
It is the constitutional right of the Appellant that he should be given a fair hearing within a reasonable time when he was charged with manslaughter of the deceased at the Magistrate’s Court, Yaba, Lagos, where he pleaded not guilty on the 15th day of July, 1983. The Appellant who pleaded not guilty to a charge of manslaughter in the Magistrate’s Court, Yaba, Lagos, on 15th July, 1983, was after a period of over ten months arraigned on information before the learned trial Judge on the 6th day of April, 1984 when the Appellant pleaded not guilty to a charge of murder. The Appellant was convicted of murder and sentenced to death by hanging on the 30th day of May, 1984 when the charge of Manslaughter dated 15th July, 1983 was still pending in the Magistrate’s Court, Yaba, Lagos.”
Consistent with the briefs of argument filed by both Counsel, they also formulated issues for determination in the appeal. I think the issue as formulated by Mr. Arthur-Worrey for the Respondent which I therefore adopt, more neatly and accurately represents the issues in the above ground of appeal. It is the first of the two issues formulated by him and states as follows –
“(1) Whether the information filed in the High Court during the pendency of charge No. N/203/83 in the Magistrate’s Court was an abuse of process such as would nullify the trial and conviction in
the High Court.”
The main plank on which Mr Oriade for the Appellant rested his submission on ground 4 and Issue 1, is that the prosecution of the appellant was a violation of the Constitutional provision of fair hearing under section 33(4) of the Constitution 1979. Counsel also referred to section 32(1)(c) of the Constitution 1979 and the liberty of the suspect. Mr. Oriade, then went on to cite and rely on section 191(1)(c) and (3) of the Constitution 1979 under which the exercise of the authority of the Attorney-General to discontinue a criminal prosecution is provided. Counsel cited Okoro v. Inspector-General of Police (1953) 14 WACA 370, 371 as authority for nullity of a prosecution on a non-existent charge, Okafor v. State (1976) 5 SC.13, declaring a nullity an information preferred without compliance with enabling statutory provisions.
I find it utterly incomprehensible that the Attorney-General’s exercise of power to discontinue a prosecution should ever be open to examination on the facts of the case before us. I think it is not an issue and ought not to have been introduced however ingeniously contrived. The issue before us as clearly articulated in the ground of appeal is whether the pendency of the charge of manslaughter in the Magistrate’s Court, Yaba, Lagos over the appellant was sufficient to vitiate his trial and conviction for murder in the High Court on the same facts. I shall therefore set out sections 33(4) and 32(1)(c) of the Constitution relied upon for this proposition.
Section 32(1)(c) provides as follows –
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
X X X
(c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;….”
Section 33(4) provides-
“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a court or tribunal.”
It is pertinent to observe that Mr. Oriade’s argument that the proceedings resulting in the conviction for murder and sentence to death of the appellant is a nullity was not stricto sensu directed at any defect in the information on which the appellant was prosecuted, or the procedure followed during the proceedings. It has not been suggested that the trial court had no jurisdiction to try the appellant or that the Judge was incompetent to do so – See Madukolu v. Nkemdilim (1962) 1 All NLR.587. Mr. Arthur-Worrey for the Respondent has correctly, in my opinion, pointed out that the provisions of sections 32(1)(c) and 33(4) of the Constitution 1979 relied upon by appellant more appropriately relate to the pending charge of the offence of Manslaughter against the appellant in the Magistrate’s Court, Yaba. They do not concern the offence of murder in respect of which appellant was properly charged, tried, convicted and sentenced to death. I agree entirely with the submission of Mr. Arthur- Worrey that the proceedings in the Magistrate’s Court, Yaba for manslaughter and that in the High Court for murder, though founded on the same facts and arising from the same event are separate and distinct. Accordingly even if the provisions of the Constitution are violated in the one, such violation may not in the circumstance affect the other. This is because the offence of manslaughter subject matter of the complaint is still pending. As I have already pointed out the allegation of violation of the Constitution is confined to the pending charge in the Magistrate’s Court, Yaba. The appeal before us is with respect to the conviction and sentence for the offence of murder. No allegation of constitutional violation has been made in its regard.
It seems to me that Mr. Oriade’s real contention could be reduced to the proposition that where a person is suspected of having committed more than one offence either arising from the same event or not, it will constitute a violation of the Constitution relating to fair hearing to charge him for the two or more offences and prosecute him to conviction in respect of only one of them leaving the other in abeyance. In the alternative where a person is charged with an offence, he must be prosecuted to finality before a prosecution for another offence whether more serious or not arising from the same facts is commenced. Otherwise it will constitute an abuse of the legal process and a violation of the spirit of section 33(4) of the Constitution 1979. The provisions of the Constitution reproduced above and the numerous decided cases cited to us have been claimed to support the proposition. I do not think Mr. Oriade’s submission is supportable on the authorities relied upon.
It is conceded that during the pendency of a charge, to commence a new charge in another court in respect of a more serious offence from acts arising from the same events is not only undesirable but psychologically oppressive. I however do not think that is sufficient to constitute an abuse of the judicial process or a violation of any provision of the Constitution; and certainly not of section 33(4) of the Constitution 1979 relied upon by Mr. Oriade which relates to fair hearing refers to the hearing of the charge against the accused within a reasonable time. What may be regarded as a reasonable time has been suggested by section 32(4) of the Constitution 1979 which provides as follows –
“(4) Any person who is arrested or detained in accordance with subsection 1(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) 2 months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) 3 months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without any prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.”
This section refers to persons arrested or detained in accordance with s.34(1)(c), and relates to the circumstances wherein a person may be deprived of his liberty. Section 32(1) has provided that a person can be deprived of his liberty in accordance with a procedure permitted by law. Sub-section (1)(c) enables deprivation of liberty “for the purpose of bringing him (the accused) before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be necessary to prevent his committing a criminal offence.”
It is not certain whether Mr. Oriade is actually relying on these constitutional provisions referred to because he has not pointed out in what respects they have been violated in respect of the trial and conviction of the appellant. There is no doubt that an accused person can be deprived of his liberty in compliance with the procedure permitted by law. In the instant case bail in the case of an accused charged with the offence of manslaughter, which is a felony not punishable with death, is discretionary – see s.118(2) Criminal Procedure Law, Cap.32. On the other hand a person charged with any offence punishable with death shall not be admitted to bail, except by a Judge of the High Court – See s.118(1) Criminal Procedure Law, Cap. 32. Thus the detention of the accused in respect of both the charges of manslaughter in the Magistrate’s Court, and Murder in the High Court are permitted by law and not in violation of section 32 of the Constitution 1979.
The true nature of the complaint is that the charge of Manslaughter brought against the accused in the Magistrate’s Court, Yaba was left in abeyance and allowed to hang as a sword of Damocles over the head of the appellant, so that during the trial for murder there was an extant charge of manslaughter in respect of which there was still a possibility of his being prosecuted even if he was acquitted of the offence of murder. This it is argued is a violation of the fundamental right of the accused. As I said, I do not accept this contention. I agree however that it is undesirable and psychologically oppressive although there is no constitutional violation. Since the complaint in the appeal before us is essentially against the conduct of the offence of manslaughter in respect of which appellant has not been prosecuted, but fears, he may be prosecuted, it is not a complaint which ought to be made in this appeal. There is therefore no direct suggestion that the right of an accused to fair hearing has been violated. I think it is a very strong allegation to deny an accused of his entrenched rights. Where a right is provided it must be expressed and should not be by implication from other facts.
It is necessary to point out that in the exercise of his constitutional powers under section 191(1) of the Constitution 1979, the Attorney-General may institute criminal proceedings, by complaint in the Magistrate’s Courts, or by information or complaint in the High Court – See s.77, Criminal Procedure Law, Cap.32. On a careful reading of the sections of the Criminal Procedure Law enabling the institution of criminal proceedings, namely sections 72, 77, 275, it seems to me unarguable that proceedings on an information filed in the High Court is not invalid because a charge in respect of the same offence was already pending in the Magistrate’s Court. In Amaefule v. The State (1988) NWLR (Pt.75)156,thiscourt by a majority decision held that the Attorney-General is not prevented by the fact of pending proceedings in the Magistrate’s Court, from filing information in the High Court for the same offence against the same parties on the same facts. The contrary argument that to allow prosecution during the pendency of another charge, amounts to an abuse of the judicial process ignores the possibility of multiple charges against the same accused arising from the same event.
For the reasons I have adduced in this judgment I am of the opinion that the trial for murder and conviction and sentence to death of appellant was not rendered a nullity because there was a pending charge for the offence of Manslaughter against him in the Magistrate’s Court, Yaba. LAGOS. I entirely endorse on the only other issue for determination. It is for the above reasons that I dismissed the appeal, on the 22nd September, 1988 and affirmed the conviction and sentence of death passed by the High Court and affirmed by the Court of Appeal.
A. G. O. AGBAJE, J.S.C.: I dismissed this appeal summarily on 22nd September, 1988. I indicated then that I will give fuller reasons for my decision today. The point raised in issue 1 in the appellant’s brief of arguments namely:-
“1. Whether the appellant should have been discharged and acquitted of the charge of murder and the lesser offence of manslaughter on the ground that the proceedings in the court of first instance were a nullity because the prosecution were negligent in violating the constitutional rights of the Appellant by adopting a wrong procedure of charging him with murder in the High Court, Lagos when the earlier charge of manslaughter against him in the Magistrate’s Court, Yaba, was not withdrawn and thereby failed to give him a fair hearing within a reasonable time.”
is definitely concluded against him by the decision of this court in Amaefule v. The State (1988) 2 N.W.L.R. part 75 p.156. I abide by my decision in that case.
In respect of the other points raised in this appeal, I have had the opportunity of reading in draft the lead reasons for judgment given by my learned brother Uwais, J.S.C. I adopt them as mine.
A. B. WALI, J.S.C.: On the 22nd day of September 1988 this appeal came before this Court for hearing, and having read the record and the briefs filed and having also listened to the oral arguments in elaboration of the said briefs, I summarily dismissed the appeal and reserved my reasons for doing so to today. I have had the privilege of reading before now the lead Reasons for Judgment of my learned brother Uwais, J.S.C., with which I entirely agree and I hereby adopt same as mine.
On the facts produced in the evidence presented before the trial court, a finding by the learned judge other than that of guilty would have been perverse. There can be no iota of doubt that the death of the deceased was caused by the appellant when he stabbed him with a piece of broken bottle on that mortal part of his body, as established by the totality of the evidence. The Court of Appeal was therefore right in dismissing the appeal for want of merit. I also hold that the appeal lacks substance and hereby dismiss it.
Accordingly, the conviction and sentence of the trial court as affirmed by the Court of Appeal are hereby confirmed.
E. B. CRAIG, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Uwais, J.S.C. and I agree entirely with his reasoning and conclusions. I adopt them as mine.
I would however like to comment very briefly on the first issue formulated in the Appellant’s brief. It states as follows:
“My Lords the first issue of constitutional importance for determination in this Supplementary Brief of Argument of the appellant is whether the Appellant should have been discharged and acquitted of the Charge of murder and the lesser offence of manslaughter on the ground that the proceedings in the Court of First Instance were a nullity because the Prosecution was negligent in violating the constitutional rights of the Appellant by adopting a wrong procedure of charging him with murder in the High Court, Lagos when the earlier charge of manslaughter against him in the Magistrates Court Yaba, was not withdrawn and thereby failed to give him a fair hearing within a reasonable time.”
In formulating that issue, the Appellant was expected to present one question for the determination of this Court and, in accordance with the Rules of court, that question should have been set out in a clear and concise form. Unfortunately that has not been done in this case. In my view, the issue formulated is not only prolix and argumentative, but the real question seemed to have been buried in a verbiage of words. In this respect, I would draw attention to the observation of this Court in the case of Uzor Idika & Ors v. N. Erisi & Ors. (1988) 2 NWLR (Pt.78) 578 per Nnaemeka-Agu, J.S.C. By way of contrast, the Respondent in his Brief has commendably put that same issue in a more succinct manner thus:
“Can the appellant’s claim that he was denied a fair trial within a reasonable time within the meaning of section 33(4) of the 1979 Constitution in the Magistrate’s Court affect the validity of his trial and his conviction in the High Court”
When the issue is set out in that manner, the exact question which the Court is called upon to determine becomes quite clear, and the straight forward answer to the question as formulated is in the negative.
It is of course very improper for the Prosecution to charge the appellant in two different Courts with offences which arise from the same set of facts. In this regard, I note that the two lower Courts had in their judgments, quite properly condemned the practice, and one hopes that the Ministry of Justice would take note of the Court’s observations especially those expressed by Uwais, J.S.C. in the lead judgment.
In my view, what occurred in the trial Court, – that is, commencing a new trial without withdrawing the former charge in the Magistrate’s Court can best be described as an irregularity. The appellant had not been tried in the Magistrate’s Court and although the charge in that Court was for “manslaughter”, it certainly would have been neater and tidier if that charge had been withdrawn before another one for murder was filed in the High Court.
But the appellant has submitted that by maintaining the two charges in different Courts at the same time, his trial in the High Court was a nullity.
With the greatest respect to Counsel, it is one thing to say that the proceedings in a Court are irregular, whilst it is a totally different thing to say that they are a nullity. It is settled law that when a Court embarks on a case without jurisdiction, the whole proceedings are a nullity, no matter how well conducted – Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587 But when irregularities occur in the conduct of the case, it will only vitiate the proceedings if such irregularities occasion a miscarriage of justice. The Queen v. Ijoma (1962) 1 All N.L.R. 402; Filani v. Bornu Native Authority (1961) All N.L.R. 473; Agbeyin v. The State (1967) N.M.L.R. 129.
In the instant appeal, the irregularity complained of was not such as would occasion a miscarriage of justice. Counsel also argued that the appellant was not given a fair trial within a reasonable time as provided in Section 33(4) of the 1979 Constitution; for these reasons, he has asked that his conviction be set aside. It seems to me that the Appellant’s Counsel has confused the legal points involved in the appeal before this Court, the Record of Appeal shows that the appellant was arraigned before the High Court on 6th April, 1984 and within two months of that date, he had been tried and convicted. In those circumstances, Section 33(4) of the 1979 Constitution does not avail him and his trial cannot be declared a nullity. On the other hand, the trial in the Magistrate’s Court has not commenced nor is any appeal on that case before us, so it cannot be said that the proceedings in that Court would in any way affect the validity of the High Court trial. Besides, it does not appear that the appellant has suffered any double jeopardy.
For the fuller reasons set out in the lead judgment, I hold that there is no merit in this appeal and it is accordingly dismissed.
The conviction and sentence of the appellant as affirmed by the lower Court are hereby sustained.
Appeal Dismissed.
Appearances
Chief R.A.O. Oriade (with him, A. Taylor, O.T. Akinbiyi and C. Udofia) For Appellant
AND
Arthur- Worrey, Senior State Counsel, Lagos State For Respondent
