MERCY OKOROAFOR v. THE STATE
(2014)LCN/7178(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of May, 2014
CA/OW/7/2013
RATIO
WHETHER A PERSON CAN BE TRIED FOR THE SAME OFFENCE TWICE
The law is settled beyond per adventure that nobody should be tried for the same offence twice, see STATE V. DUKE (2003) FWLR (pt.171) 1654 At. 1685-86 PARAGRAPHS F-B and Section 36(9) & (10) 1999 Constitution. In the instant appeal there is evidence as can be gleaned from the records that the magistrate had discharged the appellant on the merit. Whether the order of discharge was rightly or wrongly made can only be determined if and when there is an appeal against it; and at the moment there is none. Per PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER O. IGE Justice of The Court of Appeal of Nigeria
Between
MERCY OKOROAFOR Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal stems from the interlocutory ruling of Hon. Justice Otisi (as he then was) of the High Court of Abia State sitting in Aba, delivered on 10/5/2010 wherein His lordship dismissed the Appellant’s application to quash Charge No. A/7C/2009.
The facts culminating in this appeal are that the Appellant and one other person were arraigned on 13/8/2008 before a chief magistrate court sitting in Aba South, Abia State on the counts of conspiracy, stealing and malicious damage. The Appellant pleaded not guilty whereupon the matter proceeded to trial.
The prosecution in proof of its case called PW1 who testified and was fully cross examined. Sequel to the inability of the prosecution to call their other witnesses, they were foreclosed and accused persons called upon to open their defence. DW1 testified on 9/10/08 and the matter was adjourned to 7/11/08 for his cross examination. On 7/11/08 the prosecutor brought an application to substitute the charge and arguments were taken and the matter adjourned for ruling to 26/11/08.
On 3/12/08 the prosecution applied for an adjournment in order to obtain the record of proceedings to cross examine the DW1. The matter was, then adjourned to 4/12/08. On 5/12/08 one T.O.B. Okey Esq brought an application to vacate the order of foreclosure which was argued and on 11/2/09 the application was refused and the matter was then adjourned to 18/2/09 for cross examination of DW1. On 25/2/09 the state counsel that appeared applied for adjournment to enable him cross examine the DW1. Defence opposed the application where upon the application was refused. The Prosecutor then said he had no cross examination. DW2 testified and was partly cross examined and this matter was then adjourned to 13/3/09 for continuation of cross examination.
By a letter dated 27/3/09 addressed to the Registrar of the Magistrate Court the prosecutor stated that he had filed information at the High Court and wished to discontinue the matter.
On 28/4/2009, the charge at the High court came up for plea but counsel to the accused/appellant raised a preliminary objection on the grounds that the charge constituted an abuse of process since the charge at the magistrate court was still pending. The learned judge after acknowledging that the parties and facts in the two charges were the same however dismissed the preliminary objection.
On 15/7/09 when the matter came up at the magistrate court, the prosecution was absent and following the application by the defence counsel, the accused persons were discharged on the merit.
The Appellant subsequently brought an application to quash the information at the High Court for constituting double trial since he had been acquitted of the allegation contained in the information. After considering the written addresses on both sides, the learned judge dismissed the application. It is the dismissal of the application to quash the charge that gave rise to the present appeal.
GROUNDS OF APPEAL
Consequent upon the leave of this Honourable court granted on 16/2/2011, the Appellant filed a notice of appeal wherein he raised the following grounds of appeal, which I do hereby reproduce without their particulars.
GROUND ONE: The learned trial judge in the court below erred in law when she ruled that charge No. MAS/301C/2008-C.O.P. V. OKOROAFOR & ANOR pending against the 2nd Appellant and another before the chief magistrate were properly discontinued by officers of the ministry of justice by their letter Exhibit C in the application.
GROUND TWO: The learned trial judge in the court below erred in law when she ruled that the order of the learned chief magistrate was made without jurisdiction and amounted to a nullity.
GROUND THREE: Learned trial judge in the court below misdirected herself when she held as follows “in other words, having been notified that the prosecution had discontinued prosecution of MAS/307C/2008 C.O.P. v. MERCY OKOROAFOR & ANOR and having filed a preliminary objection in the High court, which was pending for ruling, Mr. Nwankwo of counsel for the 1st and 2nd Accused persons/Applicants continued to appear at the lower court purportedly in respect of a matter that had been discontinued.
GROUND FOUR: The learned trial judge in the court below erred in law when she refused to quash the information contained in charge No. A/7C/2009-THE STATE v. MERCY OKOROAFOR & ANOR holding that it did not constitute an abuse of court’s process.
GROUND FIVE: The learned trial judge in the court below erred in law when she held that the acknowledgement of service of Exhibit D letter of discontinuance by Anyanwu Lionel U. Esq. was not challenged.
In compliance with the practice of this court, the Appellant filed a brief of argument settled by Nwabueze I. Nwankwo Esq. dated 4/3/2013 but filed on 14/3/2013, wherein he distilled the following issues for determination;
“1. Whether the alleged discontinuance of the proceedings in the magistrate court by the state counsel acting for the Attorney General of Abia State does not constitute an abuse of the judicial process and whether the proceedings can be said to be discontinued in the light of the record of proceedings in the trial magistrate court as to render a nullity the decision of the chief magistrate court discharging and acquitting the Appellants.
2. Whether the learned judge below did not err and misdirect herself in law when she held that alleged service of the letter for withdrawal on the Appellant’s counsel was sufficient notice of the termination of proceedings in the chief magistrate court as to validate the information fired before him during the pendency of the trial at the said magistrate court.
3. Whether the judge in the court below did not misdirect herself in law when she held that the Appellant’s counsel did not challenge the letter of discontinuance, against the weight of evidence”.
On its part, the Respondent in a brief of argument deemed filed on 3/7/2013 settled by A. Obasi, Esq, Principal State Counsel, Ministry of Justice Abia State, distilled the following issues:
“1. Whether charge No. MAS/307C/2009 was properly discontinued by officers of ministry of justice by their letter Exhibit C.
2. Whether the learned judge of the lower court was right in dismissing the application to quash charge No. A/7C/2009”.
A careful perusal of the issues reveals that Appellant’s three issues are substantially the same as Respondents issue one, while the Respondent’s issue two aptly captures the crux of the instant appeal. In view of this, I will therefore adopt the issues distilled by the Respondent.
ISSUE ONE:
In arguing this issue, learned counsel submitted that the powers of the Attorney General conferred by section 211 of the 1999 constitution are limited and qualified by subsection 3 of the section. Counsel stated that the powers are not to be exercised arbitrarily or subjectively but in procedure Act. Counsel opined that contrary to the decision of the judge, where the exercise of the power of the Attorney General is found to be in contradiction to the proviso, the court can intervene and declare it null and void. Counsel contended that the judge mis-interpreted AMAEFULA V. STATE (1988) 2 NWLR (PT. 75) 156; and EDET V. THE STATE (1988) 12 SCNJ (PT. 1) 79.
Continuing on this issue, counsel contended that the act of the state counsel in purporting to discontinue a charge that has reached defence stage only to re-file it at the High Court, is oppressive to the accused person and arose from improper motive to cause further hardship and embarrassment to the accused person. Counsel stated that the motive of the Attorney General is a relevant consideration and failure of the trial judge to address same is a clear error in law. Counsel cited JIMOH ISHOLA V. THE STATE (1978) 9-10 SC 81 At. 100 and EMMANUEL NWAEBONYI V. THE STATE (1994) 5 NWLR (PT. 343) 138 at 157 in support of the point that motive is a relevant consideration in criminal cases.
Arguing the second arm of this issue, counsel submitted that sections 75 (1) (b) (ii) of the CPA has elucidated the adjectival course of conduct for the Attorney General or his officers in invoking the said section 211 of the constitution. Counsel opined that it is contemplated that the Attorney General or his men shall duly and officially communicate to the trial magistrate their intention to withdraw or discontinue prosecution of a given charge.
Learned counsel contended that it amounts to reprehensible disrespect to court for a prosecuting counsel to claim to have withdrawn from a case he is prosecuting without first making sure that the trial magistrate is actually and constructively aware of any such application, especially where there is no evidence that any such letter is in the court’s file. Counsel cited EKPETO & 2 ORS V. WANOGHO & 4 ORS (2004) 18 NWLR (PT.905) 394 At. 412 PARAS. B-C to support the view that the court deals only with issues and matters before it, and does not speculate or assume matters.
Further on this, counsel submitted that the judge erred in holding that the prosecution properly withdrew from the matter, since from the records there is nothing to show that the magistrate had knowledge of the withdrawal. Counsel called in aid OGIDI V. THE STATE (2005) 1 NCC 163 At. 165 RATIO 1, to buttress the point that the proper place to impeach the record of proceedings is at the trial court. Counsel concluded on this issue by stating that it is clear that any alleged communication from state counsel to the magistrate was never received nor any formal application for withdrawal made at that level.
On its part, the Respondent whose issue one though slightly differently couched is substantially the same as Appellant’s issue one, in arguing this issue, reviewed section 211 of the 1999 constitution and section 306 of the Criminal Procedure Act and submitted that charge no MAS/307C/2008 was properly discontinued. Counsel found solace in this contention in AMAEFULA v. STATE (1988) 2 NWLR (pt 75) 156 at 159 PARAGRAPHS F-G. Learned counsel for the Respondent opined that the state counsel took legal steps to terminate the proceedings at the magistrate court having filed information at the High Court by writing a letter to the magistrate. Counsel contended that contrary to the submission of the Appellant, a look at the letter (exhibit C) will show an endorsement by the Registrar of the court indicating that the Registrar and the learned magistrate were actually aware of the letter.
Counsel referred to pages 40 and 77 of the records to submit that both the magistrate and counsel for the Appellant were aware of the letter of discontinuance.
In resolving this issue, it is important to bear in mind that the powers of the Attorney General to institute, undertake, continue and discontinue any criminal prosecution is guaranteed by the constitution. However, the procedure for doing so is not clearly spelt out. However, in order to ascertain how a matter pending before a court can be discontinued, recourse would be made to the practice and procedure of the said court. In the instant case, the prosecution opted to discontinue a matter by writing a letter. By Order IV of the Magistrate Court Rules, Interlocutory Applications to a magistrate may be made orally to the magistrate, and with leave of the magistrate in writing. In my humble view notice of discontinuance falls within the ambit of applications to a magistrate which ought to be orally except where the magistrate has give leave for it to be in writing. I therefore do not think that writing a letter to a magistrate stating that a charge has been withdrawn without leave is appropriate.
Moreover, there is no evidence that the magistrate had notice of the letter since it was not in the court’s file. It is settled that the court acts only based on documents before it. Can it then be said that the letter addressed to the Registrar which was not brought to the court’s attention was a legal step in discontinuing a matter? In my humble view therefore the charge before the magistrate court was not properly withdrawn. This issue should be resolved in favour of the Appellant.
ISSUE TWO:
In arguing this issue, counsel stated that the service of a copy of the letter of discontinuance on the Appellant’s counsel without ensuring that the trial magistrate properly has knowledge of same is of no legal moment. Counsel stated that the duty of communicating to the magistrate on the discontinuance of prosecution rests on the Attorney General or his officers, and the defence counsel has no legal burden to do their duty for them, EKPETO & 2 ORS V. WANOGHO & 4 ORS (SUPRA) was called in aid.
RESPONDENT’S ISSUE TWO
Learned counsel for the Respondent submitted on this that the learned judge was right in dismissing the application to quash charge no A/7C/2009 because there was no substance to bring the said application. He stated that there is no abuse of legal process in the actions of the Attorney General in filing the information and discontinuing the matter at the magistrate court.
ISSUE THREE
In arguing this issue learned counsel for the Appellant submitted that the judge erred in law and mis-directed himself when he held that the Appellant did not challenge the letter of discontinuance. Counsel observed that the judge had in his evaluation of evidence ad pages 87 & 88 of the records noted that the Appellant filed a notice of preliminary objection. Counsel cited ADEGOKE MOTORS LTD v. ADESANYA (1989) 3 NWLR (PT. 109) 205 to state that a preliminary objection is one of the legal means of challenging an irregular procedure.
This issue is on whether the judge was right in dismissing the application to quash the charge.
The law is settled beyond per adventure that nobody should be tried for the same offence twice, see STATE V. DUKE (2003) FWLR (pt.171) 1654 At. 1685-86 PARAGRAPHS F-B and Section 36(9) & (10) 1999 Constitution. In the instant appeal there is evidence as can be gleaned from the records that the magistrate had discharged the appellant on the merit. Whether the order of discharge was rightly or wrongly made can only be determined if and when there is an appeal against it; and at the moment there is none. The order is therefore still subsisting.
In ATUFE V. OGHOMIENOR (2004) ALL FWLR (PT.224) 2061 at 2076 PARAGRAPH B, it was held inter alia that “Any finding of the trial court that has not been appealed against or challenged by any ground of appeal is subsisting and valid’.
In the same vein, Section 75 of the Criminal Procedure Act unequivocally provides what ought to be done when the prosecution discontinues a charge that has gotten to defence stage. When the provision of section 36(4) of the 1999 Constitution which provides that an accused has a right to be tried within a reasonable time is juxtaposed with section 75 of the CPA, it becomes clear that the prosecution though empowered to discontinue a matter at any stage before judgment, can not however re-file same without infringing on the rule against, double jeopardy.
As rightly argued by the Appellant’s counsel, the power of the Attorney General under Section 211 of the constitution is not at large but circumscribed by the sub sections to the said section, which among other things is that it must be exercised in the interest of the public. It will certainly not be in the interest of the public to put an accused person through the excruciating hardship of being tried twice.
Certainly not be in the interest of the public to put an accused person through the excruciating hardship of being tried twice.
In the light of all I have said so far, and in view of the fact, that the appellant had been discharged on the merit of the offence contained in the charge, I am of the humble view that the learned judge erred in not quashing the charge. This issue ought to be resolved in favour of the Appellant.
Accordingly, this appeal is considered meritorious and is hereby allowed. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Lord PHILOMENA MBUA EKPE (JCA).
I agree with the reasoning and conclusions therein. I abide with the consequential order made on costs.
Appearances
Nwabueze Nwankwo, Esq.For Appellant
AND
For Respondent
