MR. DONALD O. IKOMI & ORS. V. THE STATE(1986)

MR. DONALD O. IKOMI & ORS. V. THE STATE

In The Supreme Court of Nigeria

On Friday, the 23rd day of May, 1986

SC.28/1986

 

JUSTICES

ANTHONY NNAEMEZIE ANIAGOLU    Justice of The Supreme Court of Nigeria

AUGUSTINE NNAMANI    Justice of The Supreme Court of Nigeria

DAHUNSI OLUGBEMI COKER    Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE    Justice of The Supreme Court of Nigeria

SAIDU KAWU    Justice of The Supreme Court of Nigeria

Between

 

  1. MR. DONALD O. IKOMI
    2. MARTINS ETEMAH EKEZOKA
    3. REUBEN DANIEL UDOH Appellant(s)

AND

THE STATE  Respondent(s)

RATIO

THE PROVISION OF THE LAW THAT EMPOWERS A JUDGE TO CONSENT TO THE PREFERMENT OF AN INFORMATION AND THE PRINCIPLE OF LAW THAT GOVERNS SUCH CONSENT

I think it is necessary to examine the law empowering a Judge to consent to the preferment of an information and the principles of law governing the grant of such consent or the quashing of an information.
Section 340(2)(a), (b) of the Criminal Procedure Act (which is the same as the Bendel State Law) provides as follows:-
“(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either –
(a) the person charged has been committed for trial; or
(b) the information is preferred by the direction or with the consent of a Judge or pursuant to an order made under Part 31 to prosecute the person charged for perjury…
It is pertinent at this stage to mention that subsection 3 of Section 340 provides that –
“if an information preferred otherwise than in accordance with the provisions of the last foregoing subsection has been filed by the registrar the information shall be liable to be quashed”
These provisions are analogous to the provisions relating to a bill of indictment in England which can only be preferred with the consent of a High Court Judge pursuant to Section 2(2) of the Administration of Justice (Miscellaneous) Provisions Act, 1933 as amended by the Criminal Appeal Act, 1964. Both under English law and our law the procedure for applying for consent is as laid down in the Indictment (Procedure) Rules 1971 made under Section 2 of the Administration of Justice (Miscellaneous) Provisions Act 1933.   It is settled that if an information is preferred by leave of a Judge, criminal proceedings will be said to have been properly instituted See R. v. Zik’s Press Ltd. (1947) 12 WACA 202. It seems to me that the first, and indeed a fundamental principle, is that before granting consent a Judge must be satisfied that the depositions disclose an offence and that the trial will not amount to abuse of process. If the reverse is the case then of course the information will be quashed. The courts have inherent jurisdiction to prevent abuse of their process. The judicial power which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies. This powers of courts to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked. PER NNAMANI, J.S.C.

WHETHER AN ACCUSED PERSON SHOULD BE PUT TO TRIAL WHERE DISPOSITIONS ATTACHED TO AN INFORMATION DISCLOSE AN OFFENCE

The next principle is of course that even if the depositions and statements attached to the information disclose an offence, an accused person should not be put on his trial if there is no link between him and that offence. If the Judge grants consent to prefer an information in the absence of such link such information is bound to be quashed. PER NNAMANI, J.S.C.

DISTINCTION BETWEEN QUASHING A CONSENT GRANTED FOR THE PREFERMENT OF AN INDICTMENT AND MAKING OF A DEFENCE TO THE INDICTMENT 

SECONDLY, a distinction must be drawn between the quashing of a consent granted for the preferment of an indictment or information, and the making of a defence to the indictment. Consent is an alternative to committal although the Judge in a ‘consent’ is allowed a freer hand since in committal proceedings the accused is present and can cross-examine the witnesses.
A Judge granting ‘consent’ ought to be satisfied that a prima facie case has been established and a challenge of the ‘consent’ can only be successfully established by showing that no prima facie case could have been made on the proof of evidence put forward before the Judge. The issue is not whether the evidence is sufficient to ground a conviction. All that is necessary is whether the evidence discloses a prima facie case, even if weak, against the accused person.  ‘Prima facie’ means ‘on the face of it’. The true meaning of a prima facie case has been explained by Hubbard, J., in his judgment in REGINA v. COKER and Others (1952) 20 N.L.R. 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the Court could convict “even if the Court believed the evidence given.” PER ANIAGOLU, J.S.C.

THE GENERAL PRINCIPLE GUIDING THE PROCEDURE OF PROSECUTING CRIMINAL PROCEEDINGS

In either case, the principle involved is that no citizen should be put to the rigours of trial, in a criminal proceeding, unless available evidence points, prima facie, to his complicity in the commission of a crime. In the protection of a citizen’s right not to be unnecessarily harrased by criminal prosecution, the law enjoins a Magistrate in a preliminary inquiry, or a Judge consenting under S. 340 to a summary trial of an indictable offence, to be satisfied that the evidence there is establishes a prima facie case against the citizen. PER ANIAGOLU, J.S.C.

THE DUTY OF A JUDGE WHEN CONSIDERING AN APPLICATION FOR THE GRANT OF CONSENT

With regard to the second question for determination, it is pertinent to state that the first duty of a Judge when considering the application for the grant of consent is to satisfy himself that on the proof of evidence filed in support of the application an offence known to law, is disclosed. See  Egbe v. The State (1980) 1 NCR 341 and Atanda v. Attorney-Genera/for Western Region (1965) NMLR 225. PER KAWU, J.S.C.

NNAMANI, J.S.C. (Delivering the Leading Judgment): On 11th December, 1985 the Attorney-General of Bendel State addressed an application under Section 340 (2) (b) of the Criminal Procedure Law, Cap. 49 Vol. II Laws of Bendel State 1976 and the Indictment Procedure Rules. 1971 to the Honourable Judge, Judge’s Chambers, Benin City respectfully asking for His Lordship’s consent to prefer information against the accused persons:
1. Justice Donald Ikomi
2. Martins Efemah Ekezoka
3. Reuben Daniel Udoh.
Attached to the letter were the documents which constitute the proofs of evidence on which the State wanted to rely and they were marked Exhibits 4, 5, 6, 9, 10, 14, 22, 23, 24, 25, 33 and 36. B1-B3, 71, 72 and 57.
This application was considered in chambers by the Honourable Justice J. A. P. Oki, Chief Judge of Bendel State. The consent order is in these terms:-
“Upon application of the Attorney-General, Bendel State to the Chief Judge, Justice J. A. P. Oki. under Section 340 (2) (b) of the Criminal Procedure Law Cap. 49 Vol. II. Laws of Bendel State 1976 and the Indictment (Procedure) Rules (English), 1971, seeking His Lordship’s consent to prefer information against the above named suspects for the offence of murder, the Chief Judge (Justice J. A. P. Oki) after reading through the application in chambers ordered as follows:- “consent granted” 16th December, 1986.”
Following this, on 10th January, 1986, Chief F. R. A. Williams, learned Senior Advocate for the appellants filed a motion on notice in these terms:
“Take Notice that at the hearing of the above matter this Honourable Court will be moved as soon as counsel may be heard on behalf of the above-named 1st accused person for an order pursuant to the inherent jurisdiction of this Honourable Court and Section 340 (3) and 363 of the Criminal Procedure Law for an order that the information preferred against him be quashed on the ground that (1) the offences alleged therein is not disclosed by the statements and/or proof of evidence before the trial court and (2) the said information is an abuse of the process of the Honourable Court.”
On 13th January 1986, pursuant to the information earlier referred to, the appellants were arraigned before Maidoh, J. charged with the following offence/offences:-
“MURDER, punishable under Section 319 (1) of the Criminal Code Cap. 48, Vol.11, Laws of Bendel State of NIGERIA 1976.
Particulars of Offence
Justice Donald O. Ikomi (m), (2) Martins Efemah (m), and (3) Reuben Daniel Udoh (m) on or about the 4th day of July, 1985 at No.3 Obahon Street, Government Reservation Area in the Benin Judicial Division murdered one UANLIE AGBEDE (m) Police Constable No. 107231.”
The 1st Accused therein, Hon. Justice D. O. Ikomi, was a Judge of the High Court of Bendel State, and at the material time Chairman of the Bendel State Armed Robbery and Firearms Tribunal, Benin. The 2nd Accused was a clerical officer in the Bendel State Ministry of Justice though he lived in the Judge’s quarters and ran errands for him. The 3rd Accused was the Judge’s Cook/Steward.
This charge was read out to the accused persons/appellants, but before their plea to the charge, Chief Williams raised his objection to the information in the terms of his motion referred to earlier (See R. v. Chapple and Bolingbroke 17 Cox 455; R. v. Maywhort (1955) 1 W.L.R. 848.
The learned trial Judge, Maidoh J. listened to extensive submissions from Chief Williams and Mr. A. Okpewono, Director of Public Prosecutions of Bendel State, and on 21st January, 1986 refused the application. In a passage which must be regarded the kernel of his ruling, the learned trial Judge said:-
“The offence of murder is not in dispute. The identity of the person murdered is not in doubt. The scene of crime is clear. The premises (locus in quo) was fenced round with two exit gates which used to be permanently locked if not in use. The three accused persons were in the premises with the deceased on the fateful night etc. I have taken only a few of the statements available to the Chief Judge and which he must have considered before his consent to the charge of murder. The persons so charged are the 1st accused, Martins and Reuben. Martins opened and locked the gate after the deceased reported for duty on 4/7/85, while Reuben unlocked the gate in the morning of 8/7/85 only to find the constable lying dead. Can it really be argued that the few statements above do not show that Pc. U. Agbede was murdered in the premises occupied by the 1st accused and his two personal servants and is it not natural that all three of them should be suspects
I believe that all that is required of a Judge consenting to the Information is to prevent abuse either by the wrong persons being charged or by allowing persons to be charged when the statements do not support the offence charged. To say that the consent in the present case was wrong is to suggest that murder can no longer be proved by circumstantial evidence where direct evidence is unavailable. It is only when a trial commences that the trial Judge will be able to decide whether or not such circumstantial evidence is cogent enough to warrant a conviction”
The appellants appealed to the Court of Appeal (Omo Eboh, Alfa Belgore and Dahiru Musdapher JJ.C.A.) which on 7th February. 1986 dismissed the appeal and affirmed the learned trial judge’s ruling. The appellants have now appealed to this Court.
Four grounds of appeal were filed in this Court. In view of the seriousness of this matter. I shall set them down. They were as follows:-
“(1) The Court below erred in law in concluding that the statements filed in support of the application for the direction or consent of the Judge, without more, disclose or are capable in law of disclosing the offence of Murder against the accused persons or any of them.
(2) Even if the statements of Vincent Ehiawigna and Mrs. Mabel Ehiawigna (which were not before the Chief Judge) are taken into consideration, it cannot be said that the statements disclose or are capable of disclosing the offence of murder against the accused persons or any of them.
(3) For the reasons stated in grounds 2 and 3, the court below ought to have ruled that the prosecution of the appellants was an abuse of the process of the court.
(4) The court below erred in law in failing to observe that once it is established (as in fact it was established) that the prosecution had put forward the statement of the Chief Judge as part of the material they relied upon in their application for the direction or consent of the Judge, any determination by the Chief Judge on the question whether or not to give the required direction or consent is vitiated”
In his brief or argument, learned Senior Advocate Chief Williams, set down the questions for determination as:-
“(i) whether the fact that the Chief Judge of Bendel State is one of the witnesses whose statements were filed in support of the application for consent vitiates the order given by him
(ii) whether the statements filed in support of the application under Section 340 (2) (b) of the Criminal Procedure Law for the consent of the Judge-
(a) without more or
(b) together with the statements of Vincent Ehiawigna and Mrs. Mabel Ehiawigna (which were not before the Chief Judge) are capable in law of supporting the preferment of the Information for murder against the accused persons or any of them”
Both Chief Williams and Mr. Okpewono filed very copious briefs of argument which were most useful. These briefs were expatiated in very lengthy submissions to this Court and I think it is only fair that I should reproduce the substance of those submissions.
Chief Williams first submitted that of the two questions for determination, the most fundamental was question II which he claimed had not been dealt with by this Court. He then referred to abuse of process contending that the power of courts to stop abuse of their own process is an old one. Judicial power conferred on the courts, he submitted, are for trial of genuine controversies and genuine cases. He said that there has always been the need to protect the individual against arbitrariness. It was not enough, he further contended, to say that if a person is innocent he is free – that person ought not to be put on trial. He referred to Egbe v. The State (1980) 1 N.C.R. 341 at 345 and 346. He also quoted extensively from Connelly and D. P. P. (1964) A.C. 1254 at 1301, 1302, 1310 and 1311. Chief Williams submitted that the jurisdiction being invoked on the issue of consent is one which lies in the Court. What the Court is doing, in granting consent, he said, is to say that on the proof of evidence before it exercises its inherent power to see that its processes are not abused. The Court is not exercising executive power.
On the question whether the appeal court should interfere with the discretion of the trial Judge who granted consent, Chief Williams submitted that the Judge does not have power to grant consent if there is nothing on which a trial can be based; in other words the discretion cannot be arbitrarily exercised.
It was his further submission that since the issue of consent was heard behind appellants’ backs, this court should not hesitate in allowing the appellants to challenge it.
On what is sufficient to support the grant of consent by the learned trial Judge, Chief Williams referred to Atanda v. Attorney-General of Western Nigeria (1965) NMLR 225, 228. He submitted that it was only where there was a clear case on the Depositions that the learned trial Judge should grant consent. Evidence leading to mere suspicion, he said, is not enough but evidence sufficient to accuse a person of having committed the offence is all that is necessary. Chief Williams made copious reference to the depositions dealing with the blood groups and the statements of Mr. and Mrs. Ehiagwina. On Circumstantial Evidence, he referred to the decision of this Court in Ukorah v. The State (1977) S.C. 167. He drew attention to the Statement of the 1st Accused contending that there was nothing to show that his fence was unclimable or that his compound was inaccessible from outside.
On the second part, Chief Williams submitted that the learned Chief Judge in granting consent was exercising a quasi-judicial duty. Since he was also a witnessfor the prosecution, he submitted that the learned Chief Judge had committed a breach of natural justice having thus become a judge in his own cause. In his view, it was no answer to the point to say that the Chief Judge’s evidence was innocuous. This breach he submitted ought to vitiate the order of consent.
In his own submission, the learned D.P.P., Mr. Okpewono, referred to pages 1 and 2 of his brief where he had set down important depositions and contended that the circumstances surrounding the murder make the appellants suspects. He first submitted that where a person is suspected to have committed murder that will be enough to charge him with the offence, but later agreed that what was required at the stage of giving consent is prima facie case not mere suspicion.
In determining whether there was a prima facie case, he submitted that the issue is not whether if the facts are unexplained there would be a conviction.
He contended that an information cannot be quashed because it appears a trial may not result in conviction and referred to R v. Chairman of London County Sessions Ex parte Downes (1954) 37 C.A.R. 148. He distinguished the facts of this case from those in Egbe’s case (supra). In Egbe’s case, he said, the situation was clear – no offence was disclosed by the depositions.
As to circumstantial evidence, he was of the view that it was enough for consent. Mr. Okpewono both in his oral submission and his brief of argument made several references to the depositions to buttress his defence of the consent order. He referred to the issue of access to the 1st appellant’s premises drawing attention to the fact that in his statement to the Police the 1st appellant referred only to the fence at the back. As to the alleged exclamation of “Oga don kill me”! Mr. Okpewono conceded that this evidence was not available at the time that learned Chief Judge gave his consent. He thought it was at the trial that the issue of whose voice was heard by Mr. and Mrs. Ehiagwina could be resolved.
On the question of the Chief Judge being a judge in his own cause, the learned Director of Public Prosecutions submitted that the learned Chief Judge performed an administrative function. The Chief Judge, he said, is not trying the case – another Judge is seised of the matter. He also submitted that although the Chief Judge made a statement the prosecution was not obliged to call him at the trial.
Before dealing with the depositions and the facts of the case in hand, I think it is necessary to examine the law empowering a Judge to consent to the preferment of an information and the principles of law governing the grant of such consent or the quashing of an information.
Section 340(2)(a), (b) of the Criminal Procedure Act (which is the same as the Bendel State Law) provides as follows:-
“(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either –
(a) the person charged has been committed for trial; or
(b) the information is preferred by the direction or with the consent of a Judge or pursuant to an order made under Part 31 to prosecute the person charged for perjury…
It is pertinent at this stage to mention that subsection 3 of Section 340 provides that –
“if an information preferred otherwise than in accordance with the provisions of the last foregoing subsection has been filed by the registrar the information shall be liable to be quashed”
These provisions are analogous to the provisions relating to a bill of indictment in England which can only be preferred with the consent of a High Court Judge pursuant to Section 2(2) of the Administration of Justice (Miscellaneous) Provisions Act, 1933 as amended by the Criminal Appeal Act, 1964. Both under English law and our law the procedure for applying for consent is as laid down in the Indictment (Procedure) Rules 1971 made under Section 2 of the Administration of Justice (Miscellaneous) Provisions Act 1933.   It is settled that if an information is preferred by leave of a Judge, criminal proceedings will be said to have been properly instituted See R. v. Zik’s Press Ltd. (1947) 12 WACA 202. It seems to me that the first, and indeed a fundamental principle, is that before granting consent a Judge must be satisfied that the depositions disclose an offence and that the trial will not amount to abuse of process. If the reverse is the case then of course the information will be quashed. The courts have inherent jurisdiction to prevent abuse of their process. The judicial power which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies. This powers of courts to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked. In Connelly v. Director of Public Prosecutions (1964) A.C. 1254, 1301, 1302; (1964) 48 Cr. App. R. 168, 268269, 219, 280. The appellant and 3 others had been charged with murder and aggravated robbery. The trial for murder was taken separately and was convicted. This conviction was set aside by the Court of Criminal Appeal which ordered that the trial for the offence of robbery can proceed against C. The question was whether the plea of autre fois acquit availed C. Holding that it did not, Lord Morris of Borthy-Gest on the issue of abuse of Court process said at pages 1301 and 1302:
“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its process”
The learned law Lord continued:-
“The power (which is inherent in a court’s jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression and prejudice.
In a similar vein, Lord Devlin at pages 1346, 1347said-
“The appellant’s final contention was that the court has a general discretionary power to quash or stay an indictment when to try it would be oppressive to the accused. The substantial defence to both cases was the defence of alibi. The appellant was tried twice on the same set of facts; and that offends against the spirit (though not at this stage of the argument the appellant has to concede against the letter) of the rule against double jeopardy. The court, he submits, has power to prevent this and ought to exercise it. As I have said, Stephenson J. would have prevented it if he thought that he had the power to do so. To this contention there is a short and long answer…..My Lords, in my opinion the judges of the High Court have in their inherent jurisdiction, both in civil and criminal matter power (subject of course to any statutory rules) to make and enforce rules of procedure in order to ensure that the court’s process is used fairly and conveniently by both sides”
In R v. Riebold (1967) 1 WLR. 674 the defendants were charged in an indictment containing two counts of conspiracy and 27 counts of larceny and obtaining by false pretences. The latter counts related to overt acts in support of the conspiracy allegation. The prosecution proceeded on count 2 (conspiracy) alone. After conviction of both defendants and successful appeals by them, the prosecution sought leave to proceed on the remaining 27 counts of the original indictment. It was held that if leave were granted, it would amount to granting a complete retrial of the case, which would be oppressive to the defendants, and that, therefore, leave would be refused. Barry J. delivering the judgments said, applying the majority decision of the House of Lords in Connelly v. Director of Public Prosecutions (Supra)
“I am quite satisfied here that the prosecution do not desire to be oppressive, but I have to look at the matter in the light of the results which would accrue if I were to grant the application. It seems to me that I would be granting here a complete re-trial of the Staffordshire case, that there would be no different issues of fact at all and that in those circumstances in my judgment, it would in fact, be bad and oppressive to the accused to allow such a re-trial”.
It must of course be conceded that these cases in which the main issue is autrefois acquit is not on all fours with what is involved in the instant case, but I am of the view that the principle of the duty of the court to prevent abuse of its process, and in a criminal matter to protect an accused person from oppression, is unchallengeable,
To come closer home. the principle being considered was well dealt with in Egbe v. The State (1980) 1 NCR 341; a case on which the appellants in the instant case as I indicated have placed so much reliance.
In that case, the appellant was charged in the High Court of Lagos State with obtaining money by false pretences contrary to Section 419 of the Criminal Code and with stealing contrary to Section 390 of the Code. The charges alleged that the appellant had obtained the money from an insurance company by falsely pretending that he was authorised to execute a mortgage on a property owned by another company ..Before the trial came on, the appellant sought to quash the information filed against him on the ground that the depositions and statements did not disclose either of the offences. On the motion to quash, the appellant contended that the court could look beyond the face of the information to the depositions and statements, and that since these did not disclose the offences charged or even a complaint regarding the transaction in question, the information should be quashed. The State contended that as there was further evidence to be produced at the trial, the information should not be quashed. The High Court held that it could look at the statements and depositions. but agreed with the contentions of the State and dismissed the application. Allowing the appeal, the Court of Appeal, Coker, J.C.A. (as he then was) Nnaemeka-Agu and Mohammed JJCA. held that the depositions and statements did not disclose the offences charged.  Uthman Mohammed J.C.A. in the lead judgment said at page 346:-
“Having considered all these matters it is my view that the offences in the information preferred are not disclosed by the proof of evidence before the trial Court. Also there has been no committal for trial of those offences. I do not think it relevant as the learned trial Judge did that further evidence and documents might be introduced later. Since quashing an indictment could not support a plea of autrefois acquit or autrefois convict, where the prosecution has nothing to offer at the time of arraignment in support of the offences charged, it would amount to an abuse of process of the court to allow such an indictment to proceed”.
This case could be contrasted with R. v. Thomas 32 C.A.R. 50 in which the appellant was committed for trial on a charge of receiving stolen property consisting of a large quantity of rationed food. At the trial, a count charging unlawful obtaining of rationed food contrary to Article 4 of the Food Rationing (General Provisions) Order, 1946, was added to the indictment. Objection was taken that the adding of the count was improper on the grounds-
(i) that the proceedings had not been instituted by a police officer.
(ii) that the offence was not disclosed in the depositions as required by Section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act, 1933, in that the Statutory Rule and Order had not been produced before the Magistrates.
The Court of Criminal Appeal in England held that, as before the Magistrates a Food Enforcement Officer had given evidence that the articles of food found in the appellant’s possession were rationed foods, the offence was sufficiently disclosed on the face of the depositions, even though the statutory Rule and Order would ultimately have to be produced at the trial in order to justify a conviction. The Lord Chief Justice of England, delivering the judgment of the Court said, –
“The question, therefore arises whether or not, in the depositions taken before the Magistrates, the facts or evidence disclosed a rationing offence. The submission of Mr. Lavington was that, as the prosecution had not produced the actual Rationing order before the Magistrates, no offence was disclosed. But before the Magistrates, a Food Enforcement Officer had given evidence that the articles of food found in the appellant’s possession were rationed foods. That shows, therefore, on the face of the depositions, an offence, although the evidence to justify a conviction would have to be reinforced by the purely formal matter of producing the Statutory Rule and Order”
The next principle is of course that even if the depositions and statements attached to the information disclose an offence, an accused person should not be put on his trial if there is no link between him and that offence. If the Judge grants consent to prefer an information in the absence of such link such information is bound to be quashed.
The controversy in this case has centred around the question whether that link existed judging solely from the evidence contained in the depositions and statements, in the circumstances of this case in which there is no dispute that they do disclose an offence – murder.
In Atanda v. Attorney-General, Western Nigeria (1965) NMLR. 225. another case on which the appellants placed so much reliance, this Court held that although a Judge has power under Section 340(2)(b) of the Criminal Procedure Act to consent to an information being preferred without a committal for trial, the power should be exercised with discretion. It further held that as the need for the consent is to prevent a vexatious prosecution or one that will serve no useful purpose, it is only when there is a clear case on the deposition that the Judge gives his consent. As Bairamian, J .S.C. put it-
“We are sorry to think that the four co-defendants were put on trial; there had been a preliminary inquiry at the end of which they were discharged by the inquiring Magistrate; they were put on trial without any material evidence against them, and they were entitled to ignore it. We are sorry to think that the 4 co-defendants were put on trial in the company of Jimoh Atanda, and the trial came on in June. 1964; we wonder how long these four men were in custody to no purpose. We think it is a case worth the consideration of the Attorney-General of Western Nigeria, and shall direct a copy of this judgment to be sent to him. We do not know what happened before the application for leave to file an information was made; all we can say is this: that when the inquiring Magistrate declines to commit for trial, it is worth consulting the highest authority and considering the material with care before any such application is made – to avoid the unfortunate mistake that occured in this case in regard to the four co-defendants. We have to add that although a Judge has power under Section 340(2)(b) of the Criminal Procedure Act to consent to an information being preferred without a committal for trial, the power should be exercised with discretion, the more so as the exercise of the discretion will not be inquired into on appeal from conviction: (See Rothfield 26 CR. App. R. 103, 106). The Magistrate had refused to commit the four co-defendants for trial with Adisa inspite of Jimoh’s deposition against them, but no application was made to a Judge for consent to have them tried with Adisa, which was all the more reason for not granting the application to have them tried with Jimoh; who could not now be called by the prosecution to testify ‘against them. As Rothfield’s case shows, it is only when there is a clear case on the deposition that the Judge gives his consent the need for the consent is to prevent a vexatious prosecution or one that will serve no useful purpose”
(Italics mine)
Naturally as already indicated, Chief Williams for the appellants relied on Atanda’s case, but I must say that the requirement of a “clear case on the deposition” before consent can be granted is rather putting it too high. Infact this is almost the same as saying that consent should not be granted if on the evidence in the depositions a trial would not lead to conviction. Such a postulation is certainly not in accord with the authorities, for as Mr. Okpewono rightly submitted, a court will not quash an indictment because an examination of the depositions has led it to the conclusion that the prosecution will not succeed. See R v. Chairman of London Sessions ex parte Downess (1954) 1 Q.B.1; 37 Cr. App.R.148; Also R. v. McDonnell (1965) 1 Q.B. 233; (1966) 50 Cr. App. R.5. It is my view that Atanda’s case must be limited to the circumstances of that case. The requirement for a clear case may well have been justified against the background of the case. Two murder trials were involved. In the first one Atanda, though previously charged, was later used as a prosecution witness. His four co-defendants were discharged. In the second murder charge Atanda was now charged with the same 4 co-defendants but he could not be called as a witness against them. There was therefore no evidence to justify the trial of those 4 co-defendants. Besides, an inquiry Magistrate had refused to commit the accused persons for trial before leave to file an information was granted. The Supreme Court in Atanda’s case quoted with approval the decision of the Court of Criminal Appeal in England in Rothfield’s case in which it decided that once a court clothed with jurisdiction grants consent, a Court of Appeal cannot interfere with the exercise of discretion by the Judge. But See Sampson Gali v. The State (1974) 5 S.C. 67. If therefore the Supreme Court in Atanda’s case insisted on a clear case, it is understandable. The view of that court was coloured by the following circumstances:
(a) that there was no material evidence against the appellants
(b) that an Inquiry Magistrate had refused to commit the appellants for trial
(c) Following Rothfield’s case, the exercise of the Judge’s discretion in granting consent to prefer an information will not be inquired into on appeal following conviction once the court had jurisdiction.
In the course of argument, Chief Williams seems to have conceded this point for his definition of clear case as –
“where there is on the deposition evidence connecting the accused with the offence alleged in the information” appears to me to be nearer to what I conceive to be the standard a Judge granting consent ought to look for.
It is needless to add that the evidence may be direct or circumstantial. In my view, however, it is not necessary to get involved in such terms as clear case. It is sufficient if the depositions and statements attached to the information disclose a prima facie case against the accused persons. The question ought to be this. From these depositions, is it probable that the accused persons are linked with the offence in the information Section 324 of the Criminal Procedure Act, although more relevant to committal proceedings, gives some assistance as to what is a prima facie case. It provides that – “where there is a conflict of evidence the Magistrate shall consider the evidence to be sufficient to put the accused on his trial if the evidence against him is such as, if uncontradicted, would raise a probable presumption of his guilt”.
In R. v. Rutland and Sorrell (1945) 1 All E.R. 85, 87, P and S were charged with having conspired to acquire, and having acquired goods (viz, silk stocking) without surrendering the appropriate number of coupons in contravention of the Consumer Rationing (Consolidation) Order, 1944. It was submitted on their behalf that there was no case to go to the jury because there was no evidence in regard to non-surrender of coupons. Humphrey’s, J. held that the prosecution only had to establish a prima facie case. He said at p.87,
“The view we take of the onus of proof in such a case is this: we are not prepared to hold that the prosecution is bound to prove by evidence that in fact there was no surrender of coupons, because in many cases that would be quite impossible. But we do think that the prosecution, in making charges against persons of having contravened this order, must give some prima facie evidence to the jury upon which the jury would be entitled as reasonable people to find as a fact that there was no surrender of coupons. When the prosecution have done that, there is, in out opinion, not a change in the onus of proof, but there is a case against the defendants upon which the jury may convict them, unless they can upset the prima facie case which has been made against them. We are very far from saying that that means that the defendant must prove in the first instance anything at all”
Before returning to the circumstances of the instant appeal, there are 2 matters which I would wish to touch briefly. First, it was contended that the application to quash the information in this case was a non-starter because once the trial Judge had exercised his discretion to grant consent to prefer information, and his court is shown to have jurisdiction an appeal court would not interfere. This is no doubt based on the decision of the Court of Criminal Appeal in England in Rothfield to which I had earlier made reference. Of course the basis of this decision is that once a discretion has been exercised judicially it would not be upset because an appellate court would have exercised it differently. But in my view, that is precisely the point, for as Chief Williams rightly submitted, if the discretion has to been arbitrarily exercised it has to set aside. A Judge, said Chief Williams, does not have power to grant consent if there is nothing on which a trial can be based. I do not think that Rothfield represents the law on this point in this country. A Court of Appeal ought in my view to examine the statements and depositions in order to determine whether there was enough material on which the exercise of the trial Judge’s discretion was based. If that Court is not satisfied on this it ought to quash the consent order. I am strenghtened in my conviction that that ought to be proper course by the further realisation, as indeed pointed out by Chief Williams, that the application for consent to prefer information is usually ex-parte and is therefore taken as it were behind the accused person’s back.
The case of State v. Sampson Gali (Supra) appears to be authority for the views I have just been expressing. In that case, this Court proceeded to consider whether or not it had power to examine the manner in which the discretion, which the learned trial Judge undoubtedly has as to whether to grant the applicant leave, has been exercised, as well as whether or not the discretion has been judiciously exercised. In respect of the first point, this court held that since the Judge had given reason for the exercise of the discretion, it had power and duty to look at those reasons and examine the manner in which the trial Judge exercised his discretion. Referring to Atanda v. Attorney-General of Western Nigeria (Supra) which followed Rothfield, Fatayi-Williams, J.S.C. (as he then was) said at page 74
“That case is, however distinguishable from the case in hand in that the observation is limited to cases where there has been appeal against a conviction in a trial which followed the leave granted by the Judge in the exercise of his discretion. Moreover, that observation could not, and does not mean that an aggrieved applicant, as in the case in hand, who has been refused leave, after both sides have been heard, to prefer a charge under Section 185(b) of the C.P.C., has lost his constitutional right of appeal under Section 117(2) (b) of the Constitution of the Federation to appeal against the exercise of that discretion”
The second point relates to the nature of the evidence in this case, i.e. the evidence disclosed in the statements and depositions attached to the information. It is not in dispute that it is circumstantial. It has been settled that where what is in issue is conviction, circumstantial evidence which is considered adequate is that which leads irresistibly to the conclusion that the accused person, and no one else is guilty. (See Ukorah v. The State (1977) 4 S.C. 167; Adie v. State (1980) 1-2 S.C. 116; Lori and Anor. v. The State (1980) 8-11 S.C. 80) or as has been stated, that before drawing inference of the accused’s guilt from circumstantial evidence, there are no other co-existing circumstances which would weaken or destroy the inference. At the stage of considering an application for consent, how does circumstantial evidence fit into the prima facie case Chief Williams in argument defined the circumstantial evidence sufficient at this stage “as evidence which can lead to the inference that the suspect, and no other person, could have committed the offence”. I would say that that is putting it at the stand required for conviction. In my view, once there are circumstances from which it can be justly inferred that an accused person could have committed the offence, he should be put on his trial. Whether there are other co-existing circumstances which would weaken that inference, or whether the evidence leads irresistibly to accused person’s guilt, can only be determined at the trial.
I propose now to turn to the circumstances of this case to which I shall apply the principles of law I have set down above. Let me say straightaway that I do not propose to consider the statements made by Mr. and Mrs. Ehiagwina as they relate to “OGA DON KILL ME O”. It is conceded on all sides that their statements were proffered as additional evidence shortly before the appellants were arraigned, and were never before the learned Chief Judge at the time he considered the application for his consent. It is my view, therefore, that it cannot properly be taken into account in any examination of the exercise of the learned Chief Judge’s discretion. Nor can the prospect of further evidence at the trial be relevant at the time of considering whether to grant consent. To that extent I completely endorse the views of Uthman Mohammed J.C.A. in Egbe v. The State (Supra) where the learned Justice said at page 346-
“I do not think it relevant as the learned trial Judge did that further evidence and documents might be introduced later:”
Both Chief Williams and Mr. Okpewono dealt both in oral argument and in their briefs of argument with what I may call “blood group evidence”, I do not wish to prejudge the issue by considering the probative value of the evidence on this matter in the depositions. I can only say that if that was all that was available in those depositions, I would have had no difficulty in resolving this controversy in appellants’ favour.
There is other evidence in the depositions and statements crucial to the determination of the issues in this appeal. There are matters which are not really in dispute. For instance it is not in dispute that Police constable No.107231, Uanlie Agbede was murdered on or about 4th July, 1985. The medical evidence was to the effect that he was
“Discovered dead in a pool of blood (sic) his duty post. He was well before incident Clad in parts of Police Uniform (light blue cadral shirt black pair of socks and dark blue raincoat. Rigor mortis present. Brown sand all over the body. Oronasal bleeding. Face appeared puffy and congested. Pete chial haemorrhages present. External signs of violence: Loss of most of the penis and scrotum with only an inch and half of penile stump (showing bulbus spongi and bulbi carvanosa) left. Right molar region: Incised wound about 2 cm long, Right cheek stab wound about 2.5 cm long, long (ragged) Left cheek incised wound vertical) about 5 cm long left side of chin, incised wound 2 cm long ..
Bruising of the neck muscles. Bleeding into the tissues of the neck”
The findings were said to be consistent with manual strangulation and sharp cutting object in respect of peno-scrota injuries. Cause of death was said to be due to
“Multiple Injuries (strangulation and Haemorrhage)”
Nor is there any dispute as to the fact that the dead body of P. C. Uanlie Agbede was found in the compound of the 1st appellant. P. C. Sunday Abuya witness No.2 in the information stated in his statement:
“I was on morning duty on the 5/7/85 from 060 hrs. to 1400 hrs. at Justice Ikomi’s quarter. I was posted there with P.C. Ejamita. We arrived there 0605 hrs. When we got to the gate, it was lock (sic) with padlock as usual. The gate was opened for us by one of the boys in the quarter. He is called Martins. When we entered the compound we met the Judge standing outside and he beckoned us to come to him and see. When we drew near to where he was calling, he told us to come and see one of our men. On close, (Sic) we found that man was dead. We look (sic) carefully, we recognise him to be, one P. C. No. 102231 U. Agbede”
It is equally not in dispute that the deceased P.c. was on duty in the quarters of first appellant on the night he met his death. In his statement, Martins (the 2nd Appellant) said, inter alia:
“Late P.C.U. Agbede reported for duty before 10 p.m. yesterday night 4/7/85. I saw him when he reported for work. I opened the gate for late P.C. Agbede when he reported for duty last night. I locked the gate back after opening for the late constable. The Cook by name Reuben opened the gate this morning 5/7/85………… Reuben wake me up by banging on my door. When I opened, he was shivering but could not say anything. Then he said the Judge was calling me. When I got to him, I was shocked when I saw P.C. Agbede lying dead”
Without setting down all the statements, it is further not in dispute that the 1st appellant’s quarters was fenced round and had two exit gates which used to be permanently locked if not in use. The keys to the main gate were kept by the 2nd and 3rd appellants. On the fateful night, as was indicated by the statement above by Martins, the gate was locked after P. C. Agbede reported for duty, and there is nothing in the depositions to indicate that it was opened until morning when the late Constable’s body was discovered. It is equally accepted that apart from the three appellants, 1st appellant’s two daughters, and P. C. Agbede, no other person was in the compound that fateful night. In his statement to the Police, the 1st appellant denied any link with the murder of the deceased. He said that in the early hours of 5th July, 1985, his Cook/Steward, Reuben Udoh, drew his attention to the corpse of the deceased. On seeing the corpse, he was shocked and he went to his room, put on his trousers and a shirt and went to report the incident to the State Chief Judge. His two dogs, he stated, did not bark that night, although he added that they barked once in a while; that all the security lights in his compound were switched on that night except the ones by the sliding door and the garage. He did not hear the deceased scream.
One point on which there was dispute, and on which Chief Williams laid so much stress, was the question of possible access into compound by someone else. In his statement the 1st appellant on this point stated –
“when the police came, they saw that part of the iron railing in the fence behind my house was destroyed”
On this issue, George Amanze, Officer-in-Charge of the Homicide Section of the State C.I.D., Benin City said in his own statement:-
“While going round the compound to see if the assassins broke in and out from any where, I came to a point near the outside pump in the yard, where the protector put on top of the wall bent. There was noted mud mark on the wall. The height of the mark on the wall is about 5 feet. Directly behind the area where the protector bent is an uncompleted building. I took the photographer, the finger print man and the other Policeman all attached to State C.I.D. Benin City to the back of the fence through Sadoh Drive to see if we can discover the route through which the assasins passed. Surprisingly on arrival at the back of the fence, there were no foot prints and the grown up grass around the area were undisturbed. I instructed the photographer to take the photographs of the two possible areas from where any escapee if any from the alleged broken fence must have passed through which he did”
It seems clear that there is crucial conflict on this point. Is that a matter the learned Chief Judge would have resolved merely on the depositions I am of the view that that crucial conflict can only be resolved by further evidence by both sides at a trial.
From all the evidence I have set down, and the evidence contained in the depositions and statements, the first thing that is obvious is that the statements do disclose an offence known to the law – viz murder. This is the point which distinguishes this case from Egbe v. The State (Supra).
It is clear to me that from the facts in Egbe’s case no offence was disclosed on the face of the depositions and statements and that to proceed to trial would have been a gross abuse of the court’s process. There was no statement from Maiyegun Estate Limited. the company whose property was mortgaged to American International Insurance Company (Nigeria) Limited for the loan of N450.000. Nor was there a complaint from American International Insurance Company which was supposed to have been duped.
On the contrary, in its letter, the Insurance company wrote in these terms;-
“Re: our mortgage loan for N450,000 to Maiyegun Estates Limited. We wish to confirm herewith that no person in authority in this company has made any report to any authority concerning the stealing of the sum of N450.000 disbursed under the above loan. No such amount is missing from our company’s funds. We further confirm that the loan referred to above was properly processed and duly authorised in accordance with company policy. We presently hold in safe-keeping the title deeds on the residential property located at 14, Waring Road. Ikoyi. Lagos valued at N880,000 which represents the collateral for the loan and have requested you to finalise the mortgage documents as soon as possible” So both the mortgagee and mortgagor reported nothing unusual or contrary to their normal business transactions. There was no complaint and nothing being complained about. If of course no offence is disclosed on the face of the proofs of evidence. there can be no question of evidence linking the accused with the committal of it. But that is not the situation in the instant appeal. As I had earlier indicated, an offence has been disclosed on the face of the depositions. The only question is whether the evidence disclosed on the face of those proofs of evidence was enough for it to be said that it was probable the appellants were linked with that offence. To recapitulate, the picture is that the deceased Police Constable duly reported for duty on the fateful night and was let into the 1st appellant’s premises by the 2nd appellant; that the gate of that premises was locked and the key was held by either 2nd or 3rd appellant; that the premises was fenced round and had two exit gates permanently locked when not in use; that there was nothing on the face of those depositions to indicate that those gates were opened on the fateful night; that when the gate was opened by the 2nd appellant the next morning, the deceased Constable was found in a pool of blood clearly murdered; that during that fateful night only the appellants, deceased, and the 1st Appellant’s 2 daughters were known to be in the 1st appellant’s premises; that security lights were on barring one and no screams were heard, nor did 1st appellant’s 2 dogs, which barked once in a while, bark that night; that there was a dispute as indicated on the face of the proofs of evidence as to whether the fence railings at the back of the premises were broken or not. It is also pertinent to mention that as regards access to the 1st Appellant’s premises from the front, there was nothing on this in the proofs of evidence. I cannot see how the learned Chief Judge could have embarked on speculation as to possible access from the front at the point of granting consent. To my mind that possibility of access from the front of the premises is a proper matter for consideration at a trial where guilt based on irrefutable and conclusive evidence will be in issue. The question is, in all these circumstances, can it be justly said that there is nothing linking the appellants with the offence: I think there is. I hold that there was a prima facie case on the face to those proofs of evidence. Although Queen v. Ogucha (1959) 4 F.S.C. 64, 65 dealt with the status of evidence at the close of the prosecution’s case, I am of the view that as in that case all that is required at the point when a Judge grants consent to prefer information is that there be evidence which requires some explanation. Such evidence, in my view, is disclosed on the face of the depositions. Chief Williams’ first point must therefore fail.
The second point is more difficult. Chief Williams complains that the learned Chief Judge was a Judge in his own cause and since this is a breach of the principles of natural justice his order of consent was vitiated. Nemo debet esse Judex in propria sua, which is the latin maxim for the principle that no one should be a judge in his own cause, is indeed one of the pillars of the principles of natural justice, the other being the audi alteram partem rule. This maxim is usually examined in terms of bias or the likelihood of bias. See R. v. Rand (1866) LR. Q.B. 230. The rationale is of course that if the adjudicator has any interest in the matter in his court, he ought not to adjudicate.
Courts in England and in this country have handed down innumerable decisions on this principle and I do not think it appropriate that I should embark on a dissertation on it. Suffice it to say that the Courts are not concerned with whether the adjudicator is actually biased, but whether there was likelihood of bias which could be determined from all the circumstances of the relevant case. See R. v. Barnsley Licensing Justices (1960) 2 Q.B. 167, 187; (1960) 2 All E.R. 703 where Devlin L J. was of the view that the question should be determined “on the probabilities to be inferred from the circumstances, not upon the basis of the impressions that might reasonably be left in the minds of the party aggrieved or the public at large”; State Civil Service Commission v. Buzugbe (1984) 7 S. C. 19; The State, ex parte Joseph Ajidasile Olakunrin and 6 Ors. v. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and 6 Ors. (1985) 5 S.C. 161, 193,233 decisions of this Court. See also De Smith: Judicial Review of Administrative Action 4th Edition p.248 and fig; Constitutional and Administrative Law by O. Hood Phillips 6th Edition p. 602 and fig; Halsbury Laws of England, 4th Edition p. 76 para. 64 and fig.
The learned Chief Judge of Bendel State is certainly listed as one of the witnesses for the prosecution in the proofs of evidence attached to the application for consent to file information which was placed before him. According to the proofs of evidence, his statement was in these terms:
“Between 6.30 a.m. and 7 a.m. when I was in the bathroom my wife informed me that Justice Ikomi wanted to see me. I wondered why he should come to me so very early in the morning. So, immediately after I came from the bathroom, I put on my dressing gown and went downstairs to my parlour where I saw Justice Ikomi in a pair of trousers and a short sleeved shirt instead of in a suit as I expected. When I asked him what the matter was, he told me to my great shock that the Policeman who was on guard duty in his premises in the night had been murdered. He told me that he observed that matchet cuts had been inflicted on the man. He then said that he felt he should come and report to me immediately as Chief Judge.
After this he told me something which I am not quite sure of. It was either that he had informed the Police before he came to me or that he was going to report to the Police. By this time it was about 7 a.m. This was all on Friday the 5th of July 1985. Later at about 12.00 noon that same day I visited Justice Ikomi’s premises – his personal house – where I saw a lot of blood by the entrance to his garage. By the time I visited the body had already been removed”
It is pertinent to add that this statement contained nothing that was seriously at variance with what the 1st appellant had stated in his own statement. The learned Chief Judge as already indicated, later considered the application for leave to file information and granted it hence the present complaint. Contrary to usual practice in such matters, he assigned this case to another Judge for trial. It would be useful to state the attitude of the High Court and the Court of Appeal to the submissions of Chief Williams on this point. Maidoh J. in his judgment dealt with it in words which clearly indicated the little importance he attached to that submission. He said –
“The statement taken from the Chief Judge was to the effect that the 1st accused reported the alleged murder to him on 5/7/85. The 1st accused, in his statement, said so. The Chief Judge is not the complainant, nor the prosecutor, in respect of the charge of murder.
What is more, the official relationship between him and the 1st accused suggests that the 1st accused rightly reported an incident in his premises to his Chief Judge; it is a report necessitated by the course of business. One fails to understand how the 2nd and 3rd accused persons can benefit from this involvement of the Chief Judge when, at best, his evidence will only touch the 1st accused. In effect, Chief Williams has not shown what cause, the Chief Judge made his own and, as for being a judge in the cause, how he became such a judge when he is not the trial Judge! Unless the suggestion is that any of the Judges of the High Court of Bendel State who tries this cause is the alter ego of the Chief Judge, I can find no merit in the contention”
the Court of Appeal fully endorsed these views. Omo-Eboh, J.C.A. who wrote the leading judgment saw nothing on which the argument that the Chief Judge was a judge in his own cause could be justly pegged. He said inter alia:
“I find it difficult to agree that the consenting Chief Judge acted in his own cause while considering the application made to him for consent to prefer an indictment against the appellants just merely because his name appeared as one of the deponents in the matter. The Chief Judge was certainly, at this stage, not trying the case because no trial of the appellants had started. Furthermore, this was nothing more than an Exparte application to initiate the machinery for a trial. This procedure was at best a necessary preliminary step in which even the right of hearing (normally guaranteed by the Constitution of Nigeria 1979 for any judicial trial) does not avail possible “suspect” at that stage and so, it cannot rightly be contended that the Chief Judge was a person acting as a judge in his own cause during this preliminary step of merely granting the application for consent”.
It is understandable that the two lower courts should take this stand when one has regard to the nature of the statement made by the Chief Judge, the official relationship between the 1st appellant and the Chief Judge, the nature of the procedings at the stage when consent is granted, and the fact that the case is assigned to another Judge of the High Court. However, to the extent that it can be implied from these statements, and indeed Mr. Okepewono submitted as much to this Court, that the Chief Judge was acting in an administrative, and not judicial capacity, I find it unacceptable. Secondly, I think I ought to point out that the adjudication really relevant here is at the stage when he granted consent for Maidoh J. seemed to deal with cause only in relation to the trial. The learned Chief Judge was a witness for the prosecution, or perhaps more accurately a potential witness, for it is not in dispute that he need not be called by the prosecution although his name appears at the back of the information. See Samuel Adaje v. State (1979) 6-9 S.C. 18, 27-29; R. v. Chigieri 3 WACA 201. When he considered all the statements and granted consent, I hold that he was acting in a judicial capacity.  It has of course not been suggested by anybody that the learned Chief Judge was acting in any way other than in utmost good faith, his actions probably being dictated by what he perceived as his role as Chief Judge in the face of this tragedy. The question that arises is, would an ordinary man in Benin City seised of all these facts reasonably come to the conclusion that because the learned Chief Judge made the statement which made him a potential witness there was likelihood of bias at the time he considered and granted consent I am not quite sure that he would. In Whitford Residents and Rate Payers Association v. Manukan City Corporation (1974) 2 N.Z.L.R. 340, Mellor, J. put the test on bias as “whether there is a reasonable suspicion of bias looked at from the objective stand point of a reasonable person and not from the subjective stand point of an aggrieved party” And in R. v. Commonwealth Counciliation and Arbitration Commission ex parte Angliss Group (1969) 122 C.L.R. 546, 553 approved in Whitford to which reference has just been made, the test was stated as
“a suspicion of bias reasonably, and not fancifully, entertained by reasonable minds”
See also Metropolitan Properties Co. (F.G.C.) Ltd. v. Lammon (1969) 1 Q.B. 577, 599. It has also been settled that rules against interest and bias must be tempered with realism. In Ward v. Bradford Corporation (1971) 70 L.G.R. 27 where the governing body of a womens’ teacher’s college were the complainant and, in the last resort, Judges, the Court of Appeal held that they acted fairly.
Chief Williams, as I have indicated earlier, in this judgment had submitted that in considering whether there has been a breach of the rules of natural justice, it is immaterial that the evidence of the Chief Judge is innocuous or formal. He contended that the Chief Judge had to decide the substantiality of his own evidence while considering the application for consent. The stream of the administration of justice should left pure, he said, and once the Chief Judge was a witness he should not have adjudicated.
The authorities seem to show that whatever may be the formal requirements of natural justice, it will seldom be appropriate for a witness to adjudicate. On balance, therefore, I agree with Chief Williams that the rules of natural justice have been breached but, I am afraid, only in a technical sense. It is a technical breach for the Chief Judge, a potential witness, having made a formal statement which in almost every particular supports the 1st appellant’s case, to adjudicate in deciding to grant consent for preferment of information. Perhaps, I can best bring out the meaning of my point by reference to the recent decision of this Court in Garba v. University of Maiduguri (1986) 1 NWLR. 550. where it was held that there had been a breach of the principles of natural justice since the Chairman of the Investigating Panel was the Deputy Vice-Chancellor who had himself been a victim of the destruction of property during the students rampage. He was clearly ajudge in his own cause. In Dickason v. Edwards (1910) 10CLR 259, Dickason was expelled from his Club, that is, the Ancient Order of Foresters of the United Melborne District. The proceedings were set aside as invalid because of the presence of the District Chief Ranger on the Tribunal. The charge brought against Dickason was conduct calculated to bring disgrace on the society. The conduct complained of was personal abuse of the Chief Ranger and other officers of the society. The District Chief Ranger presided at the tribunal which heard the charge but took no part in the proceedings. Griffiths C. J. said, at p.252,
“I think it is clear that in as much as the District Chief Ranger is a member of both these committees, and is head of the District Executive, and as a charge may be brought by the District Executive against a member, it was not intended that he should be disqualified merely by the fact that he is formally a party to a charge brought against a member. But if he is not merely a formal party but is in substance an individual complaining of an offence against himself, then I think very different considerations apply.  Then it becomes his own cause, not in a technical sense, but substantially. He is a person complaining of a grievance. Is he a person who ought to be allowed to try the alleged offender”
The learned Chief Justice continued, –
“It is said the District Chief Ranger did not take part in the proceedings. I am willing to give the fullest credit to that, but I do not think it is material. He was a member of the tribunal that tried the case; he was present when it was heard and applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether”
Purely by way of analogy, the West African Court of Appeal refused to quash a conviction in Rex v. L. Val-Vannis (1949) 12 WACA. 414 on the ground that what was complained of was a mere technicality. There it was submitted for the appellant that the trial Court had no jurisdiction in as much as the Attorney-General’s consent to prefer information under Section 326(9) of the Code had not been fully proved. It would appear that a copy of the consent was not (as it should have been) included in the record of appeal although the Attorney-General’s consent was infact filed on the same day as the information.
Normally a finding that rules of natural justices have been breached would vitiate any order made. (See Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L. Cas. 759 at 786 where it was held that such an order was viodable not void). Chief Williams has contended that the question of miscarriage of justice such as the Court of Appeal found absent here is really irrelevant. But where an order is set aside following a breach of natural justice it is to my mind to obviate a miscarriage of justice. I think that having regard to my conclusion on the nature of the breach which has occurred here, it is relevant to consider whether a miscarriage of justice has been occasioned. I am inclined to agree with the Court of Appeal that none has been. I have also asked myself whether having found that the proofs of evidence did disclose the offence of murder, and that the evidence was such from which it was probable that the appellants were linked with the offence, I could agree that the order of consent be vitiated merely because the Chief Judge made a statement (making him a potential witness) and then later granted consent I decided that I would not be doing substantial justice if I did.
In the result, it is my firm view that this is not a case in which the trial of the appellants would amount to abuse of process which the Courts are admittedly in duty bound to avoid, or in which the Court is failing in its duty of protecting the appellants from oppression. This appeal must, therefore, fail, it fails, and I accordingly dismiss it.

ANIAGOLU, J.S.C. (Presiding): This appeal has aroused considerable public interest because of the status of the office, and the personality, of the 1st Appellant, Mr. Donald Ikomi, who, until this case, was a Judge of the High Court of Bendel State of Nigeria and had performed, variously, the duties of the Chairman of the Robbery and Firearms Tribunals of that State.
The facts and circumstances leading to these proceedings have been fully and adequately dealt with by my learned brother, Nnamani, J.S.C., in the lead judgment of which I had been privileged to have a preview before now and with which I am in complete agreement. Save as it is necessary to refer to any portion of those facts for the purpose of dealing with any point in discussion in this appeal, it will not be necessary to recapitulate the facts in this judgment.
There are three solid facts to which I would like to draw attention at this initial stage, namely:
FIRSTLY, that the stage at which the motion to quash the indictment in this case was brought, was the proper time to apply to quash, before plea. The obvious reason for this would be that where an indictment is bad, a trial on such bad indictment would inevitably end in futility by reason of the fact that, on appeal, the Appeal Court is bound to hold that a conviction based on such a bad indictment cannot stand. In some cases the entire exercise may founder on a lack of jurisdiction in the trial Court. An example of the latter is to be found in R. v. MAYWHORT(1955) 1 W.L.R. 848; 39 Cr. App. R. 107 in which the accused was indicted on three separate counts of fraudulent conversion contrary to S. 21 of the Larceny Act, 1916, in that, being a trustee of certain property, he fraudulently converted it to his now use. The defence moved to quash the indictment relying on S. 43(2) of the same Act, which provided that
“No person shall be liable to be convicted of any offence against section 6, section 7(1), section 20, section 21 and section 22 of this Act upon any evidence whatever in respect of any act done by him, if at any time previously to his being charged with such offence he has first disclosed such an act on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which has been bona fide instituted by any person aggrieved.”
Delivering the Judgment, at the Welsh Circuit quashing the indictment, SELLERS, J., remarked, in the course of that judgment, that:
“The procedure for bringing before the court the reliance on section 43(2) was discussed by counsel for the prosecution and for the defence, and it seemed to me appropriate, although there is no clear precedent to which I have been referred, that a motion to quash could and should be taken before plea and at the outset of the case, because, if the submission that section 43(2) applies is correct, the court would have no jurisdiction to try the case. If the case were tried, the trial would be a nullity if the submission later succeeded.”
An early example on the former is the 1892 case, of the Crown Cases Reserved, of REG. V. CHAPPLE AND BOLINGBROKE 17 COX 455 in which Chapple was charged with committing certain offences under the Debtors Act, 1869 and the Bankruptcy Act, J890 and Bolingbroke with aiding and abetting him therein. Hawkins, J., delivering the judgment to which the other four Judges (Wills, Charles, Lawrence and Wright, JJ.) concurred, stated that
“Although it is not necessary that an objection to an indictment should in every case be taken before plea is pleaded, yet both convenience and justice demand that the matter of the indictment which the defendant must answer should be settled. In this case the objection to the indictment was not made until the conclusion of the trial, and was therefore, in my opinion, made too SECONDLY, a distinction must be drawn between the quashing of a consent granted for the preferment of an indictment or information, and the making of a defence to the indictment. Consent is an alternative to committal although the Judge in a ‘consent’ is allowed a freer hand since in committal proceedings the accused is present and can cross-examine the witnesses.
A Judge granting ‘consent’ ought to be satisfied that a prima facie case has been established and a challenge of the ‘consent’ can only be successfully established by showing that no prima facie case could have been made on the proof of evidence put forward before the Judge. The issue is not whether the evidence is sufficient to ground a conviction. All that is necessary is whether the evidence discloses a prima facie case, even if weak, against the accused person.  ‘Prima facie’ means ‘on the face of it’. The true meaning of a prima facie case has been explained by Hubbard, J., in his judgment in REGINA v. COKER and Others (1952) 20 N.L.R. 62 where he held that a submission that there is no case to answer meant that there was no evidence on which the Court could convict “even if the Court believed the evidence given.”
But even in that case he singled out cases of circumstantial evidence as standing on a special footing. He stated that:
“There may, of course, be cases of circumstantial evidence where there may reasonably be arguments as to whether the circumstantial evidence does amount to evidence on which the Court could convict, if it believed it; and there might conceivably be cases where there was some doubt as to what exactly were the elements the prosecution had to prove. In such cases Counsel for the defence would naturally have to address the Court at some length. ”
In other words, in cases of circumstantial evidence, Counsel would be facing an uphill task in convincing the Court to discharge the accused on a plea of no case to answer, since in such a case all aspects of the evidence for the prosecution and the defence, if any, would have to be examined and the surrounding circumstances thoroughly studied, in the con of natural human conduct, in order to determine whether the accused person did commit, or could have committed, the offence; and THIRDLY, in the instant case, there was no doubt an offence had been committed. A policeman had been killed in circumstances in which it was clearly murder. The case of Egbe v. The State (1980) N.C.R. 341 has been referred to us with a plea that we should follow it. I agree that EGBE was rightly decided on its own particular facts. It could have been applied if, in the instant case, the alleged murdered policeman was found alive somewhere, in which case no suggestion that murder had been committed could be made. I shall return to EGBE later in his judgment.
Having dealt with these facts, it would appear convenient for me to recall the history behind the filing of information in England from where that aspect of our law was introduced into our country. But before then it is necessary to point out that the procedure generally for prosecuting criminal proceedings by information in the High Court in Bendel State, takes two forms, namely,
(a) by preliminary inquiry under Chapter 5 Part 36 of the Criminal Procedure Law, Vol. II Laws of the Bendel State of Nigeria and
(b) by consent of a Judge under section 340 of that Law.
In either case, the principle involved is that no citizen should be put to the rigours of trial, in a criminal proceeding, unless available evidence points, prima facie, to his complicity in the commission of a crime. In the protection of a citizen’s right not to be unnecessarily harrased by criminal prosecution, the law enjoins a Magistrate in a preliminary inquiry, or a Judge consenting under S. 340 to a summary trial of an indictable offence, to be satisfied that the evidence there is establishes a prima facie case against the citizen.
This inquiry, by the Magistrate or the Judge, has its origins, in historical retrospect, in the ancient Grand jury system in England starting with the Assize of Clarendon in 1166, in which not less than twelve and not more than twenty-three freeholders of a county were returned by the Sheriff to Sessions of the Peace, and Commissions of Oyer, Terminer and General Gaol Delivery, with the instruction, contained in the Articles of their Inquiry, as framed in a charge by the Judge, to hear evidence from the prosecution in the nature of an inquiry or accusation, and determine, upon their oaths, whether there was sufficient cause to call upon the person accused to answer it.
If after hearing evidence and deliberating on the evidence they thought the accusation was groundless, they indorsed upon the bill of Indictment the words:
“NOT A TRUE BILL”
OR
“NOT FOUND”
and, thereupon, the Bill was thrown out and the person accused discharged; but if they were satisfied of the truth of the accusation, they indorsed a
“TRUE BILL”
on the Bill of Indictment, meaning that the indictment was then found and that the party stood indicted.
It was an exercise designed to find if there was sufficient evidence to justify the case going for trial. It was not in itself the trial and the fact that the person accused could have a good defence to the indictment when it came for trial, would not justify the grand jurors in not returning a “true bill”.
Having dealt with a short part of the history, I now return to EGBE (supra). As I said before, that case is entirely different. It was a case in which the prosecution alleged in the charge that Mr. Egbe stole some money belonging to ‘Y’ – an American Company. But ‘Y’ came round and gave evidence that it lost no money; that Mr. Egbe did not steal any money from them. Surely, that is different from the present case. In EGBE the proof of evidence showed, totally, that no offence had been committed and that no F allegation of an offence would have been made.
The present case could only be compared with EGBE if, for instance, the dead policeman, UANLIE AGBEDE, was found somewhere, alive. In that case there would be a total lack of evidence that murder had been committed.
The case of the prosecution rested upon circumstantial evidence, namely: that the gate of the compound was securely locked during the night; that apart from the children of the 1st Appellant, the three Appellants were the persons who spent the night with the deceased police constable within the compound that night. I shall completely discard the evidence of Mr. and Mrs. Vincent Ehiagwina, including the “Oga don kill me o” evidence testified to by them, which was not placed before the Chief judge and which the said Chief Judge could not, and did not, take into consideration in deciding whether or not he should grant his consent for information to be filed without a committal.
But even without the evidence of the said Mr. and Mrs. Ehiagwina, the facts surely lend themselves for an explanation by the accused persons who spent the night with the constable within the compound that night. Where what is in issue is cogent circumstantial evidence, it must be very difficult for an accused person not to go on his trial.
A Judge ought to be satisfied, before giving his consent, that a prima facie case has been established on the evidence. Where a consent has been given, it can be successfully challenged if it be shown that no prima facie case could have been made on the proof of evidence.
It must be emphasized, once again that what we are dealing with, in the instant appeal, is circumstantial evidence and not evidence which irresistibly leads to conviction. Therefore, it would be a wrong approach for this Court, or any Appeal Court for that matter, to conduct a mental trial of the appellant and convince itself of the guilt of the appellant before it can say that the consent given was correctly given.
I have all along been using the term “Prima facie case”. In JIMOH ATANDA v. ATTORNEY-GENERAL OF WESTERN NIGERIA (1965) N.M.L.R. 225 at 228 the term used was a “clear case”. But that phrase requires clarification. The term “clear case” should not be taken to mean a case justifying a conviction, because, the grant of consent by the Judge is not tantamount to a verdict of guilty. The “clear case” there must not be put higher than “an arguable case”. But I believe that the best applicable phrase is a “prima facie case”.
Let me now look at a few English authorities for a comparative study. Our section 340 of the Criminal Procedure Law of Bendel State is in pari material with the English 5.2(2) of the Administration of Justice (Miscellaneous Provisions) Act, 1933 amended by the Criminal Appeal Act, 1964, section 5, Schedule ll. Decisions of the Courts of England will therefore be of help.
It is said that a Court must have power at Common Law to quash an indictment if satisfied from a perusal of the depositions that there must be an acquittal in the end. It was, however, held that a Court is not entitled to quash an indictment on the grounds that the evidence as disclosed in the depositions does not appear to be sufficient to justify a conviction.
In R. v. CHAIRMAN OF LONDON COUNTY SESSIONS ex parte DOWNES (1954) 37 Cr. App. R. 148 it was held (per Goddard, L.C.J.) at p.150, that
“No member of this Court has ever known or heard of a court quashing an indictment in such circumstances nor can authority be found to support it. The circumstance is one in which the Court thought that sufficient evidence to ground a conviction was lacking. ”
In the same vein, in a Divisional Court case of R. v. DEPUTY CHAIRMAN OF INNER LONDON QUARTER SESSIONS: ex parte METROPOLITAN POLICE COMMISSIONER (1969) 54 CR. App. R. 49, the Lord Chief Justice, sitting with Ashworth and Cantley, J.J. held, upon a demurrer to the indictment, that a Court is not entitled to quash an indictment because an examination of the depositions or statements in lieu of depositions has led it to the conclusion that the prosecution would not succeed on any count.
It is true that the Court must prevent oppression against an accused on the principle laid down in CONNELLY v. D.P.P. (1964) A.C. 1254 and R. v. RIEBOLD (1967) 1 W.L.R. 674 and that circumstances can exist which would justify the quashing of an indictment, such as in EGBE (supra) or in REGINA v. MCDONNELL (1966) 1 Q.B. 233. The process of the Court must not be made to oppress a citizen so that to charge a citizen with an offence with a view to harassing him will be an abuse of the process of the Court.
The principle, however, remains basic that an indictment may not be quashed merely on the ground that a doubt exists on whether the prosecution could secure a conviction – which is not the same thing as in EBGE (supra) where there is a total non-existence of evidence of crime. Where the Judge has exercised his discretion in granting his consent the doubt aforementioned notwithstanding, an Appeal Court should not interfere with the said discretion provided that he acted within jurisdiction (R. v. ROTHFIELD 26 Cr. App. R. 103 at 106) unless, as stated in R. v. FLYNN (1961) 45 Cr. App. R. 268 at 277, the Appellate Court feels satisfied either that he exercised the discretion on wrong principles or that he had failed to give weight to matters which he should have had in mind when exercising the discretion.
I agree with the emphasis laid by Appellant’s Counsel on the need to protect the citizen from unnecessary harassment so that where there is no prima facie case, it would be wholly wrong for the Judge to give his consent saying that the accused would, in any event, be set free after trial. A citizen does not deserve to go through the rigours of a criminal trial if no prima facie case is established against him and his innoncence can thus be established before he is called upon to bear that burden.
Finally, on the issue of natural justice on which the appellants have submitted that the Chief Judge who granted consent was both a witness who had made a statement to the police and who could be called, and was likely to be called, as a witness in the trial, and a Judge at one and the same time – a situation which infringed one of the principles of natural justice that a person may not be a Judge in his own cause – I think the submission is technically correct.
I have given careful thought to whether the function of the Chief Judge in giving consent was merely, as stated by the Court of Appeal, “a necessary preliminary step” or was merely administrative, or was in fact a judicial act. No doubt it would be “a necessary preliminary step” for preferring an indictment, instead of a committal after a routine preliminary inquiry but would it be “a necessary preliminary step” in an administrative action I think not. The grant of the consent is, in my view, “a necessary preliminary step” in a solid judicial process of filing an information against a citizen whose conduct is alleged to have infringed the criminal law of the land. In that information, in our adversary system of law, the Chief Judge cannot be on either side of the adversary fence and at the same time be a Judge in the case.
I have no doubt that that principle of natural justice has technically been  infringed in this case. But I hasten to add that the complaint is a ‘much ado about nothing’. The statement of the Chief Judge was as to how the 1st appellant came to his house, early in the morning, to tell him that a policeman on guard duty in his premises was found dead that morning. If the Chief Judge is to testify, that will be his only evidence – evidence which throws no light whatever on the case in the sense of helping to determine the circumstances of the death of the police constable.
I do not think that this technical breach of natural justice herein is substantial enough to vitiate the consent given by the Judge, in the face of the circumstantial evidence adduced, sufficient to warrant the appellants not going to their trial. I would also agree with the attitude of the Court of Appeal that while the consent granted in this case should not be vitiated, it is well worth the while to state that a Judge must always avoid appearing in a double role, of a Judge and a witness at the same time, however slight his evidence might appear to be in the case.
I must also add, speaking for myself that I fail to see any practical advantage to the appellants, in the particular con of this particular case based upon its peculiar facts, of the objection to the information.
For the above reasons and also the more elaborate reasons contained in the lead judgment of my learned brother, Nnamani, J.S.C., I would dismiss this appeal and hereby dismiss it.

COKER, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just read by my learned brother, Nnamani, J.S.C. with which I am in full agreement both with his reasoning and his conclusion.
I have had some serious doubts as to the true dividing line between the concept of “suspecting a person” for committing an offence on the one hand and “prima facie evidence against that person” for the offence. A person might be suspected for committing an offence even though there is no evidence – direct or circumstantial – whatsoever against him. In ouch a case further investigation leading to possible evidence of the person’s involvement becomes necessary before he could be charged with the offence. A prima facie case is made against a person where on the face of the available evidence an offence has been committed and there is evidence which could possibly ground convicting the suspect.
It is the suspicion which leads to investigation and discovery of evidence against the suspect. Suspicion alone is not enough to justify preferring a charge against a person, there must be evidence linking the suspect with the offence. There ought to be some evidence however remote which calls for some explanation from the suspect. At the stage of deciding whether to prefer charge the prosecutor is not obliged to decide, as a trial judge should, whether the available evidence is cogent enough to justify a conviction. But there must be evidence to meet all the essential elements of that offence. It is my view that if on a proper appraisal of the available evidence there is absence of any necessary ingredient of the offence, the judge who is requested to give his consent to preferment of the information should decline.
I have carefully read all the statements of persons attached to the application of the Attorney-General, Bendel State, for consent to prefer information against the three appellants for the offence of murder. Even though the quality of the evidence seem extremely tenuous and might possibly lead to the discharge of the accused persons if no further evidence is adduced at the trial, I am however unable to say that his discretion in granting consent was not judicially exercised. His duty at the stage was not to appraise the evidence in the statements of proposed witnesses. His duty was to decide, whether there was reasonable material before him on which the suspects could reasonably be called to stand trial for the offence. An Attorney-General is not a judge of the case but a prosecutor of the charge. His responsibility was not to decide the merit of the case but to ensure that the charge is not preferred irresponsibly, solely to embarrass. harrass or persecute. It is immaterial and not enough to say that if the judge himself were the Attorney-General he would not have advised preferment of the information on those materials. I have come to the conclusion hat the material in this case before the Chief Judge at the time he gave his consent was sufficient however slight to support the information even though another judge given the same statements as the Chief Judge could, equally with justification, have refused to give his consent. The line between the two is very thin and not one in which a court of appeal should interfere. It would be otherwise if no offence is disclosed or the suspect is not remotely connected with the offence.
As regards the submission of breach of rule of natural justice. I agree that the Chief Judge, having regard to his foreknowledge of the incident. His previous statement to the police and the likelihood of being called as a witness ought advisedly to have declined to deal with the application for consent to prefer the information against the appellants. He could, with candour, have requested that the application should he directed to another judge in order that justice will not only have been done but seen to have been done. I also share the view that having regard to the facts and circumstances of this case there has been no miscarriage of justice.
In the result, I see no reason to disturb the decision of the lower Courts. I will dismiss the appeal and further affirm the ruling of Maidoh. J. delivered on 21st January, 1986.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother A. Nnamani, J.S.C in this appeal. I agree with his conclusion that this appeal should be dismissed. I do not consider it necessary in this judgment to deal with the facts of the case in any length. This has been dealt with exhaustively and at considerable detail in the lead judgment.
I shall merely refer to the aspect which I consider relevant to support the conclusion 1have arrived at.
This is an appeal against the decision of the judgment of the Court of Appeal Division, sitting at Benin City which on the 7th February, 1986 affirmed the ruling of Maidoh, J. of the High Court of Bendel State sitting al Benin City.
Summarily stated the facts are that on the 23rd December, 1985 the Director of Public Prosecutions of Bendel State filed an information against the appellants after obtaining the consent of the Chief Judge in accordance with the provisions of sections 340(1) and (2) of the Criminal Procedure Law. Cap. 49 Laws of Bendel State. The appellants were charged with the offence of murder contrary to Section 319(1) of the Criminal Code, Cap. 43, Laws of Bendel State. The particulars of offence alleged that the appellants “on or about the 4th day of July 1983at No.3 Obeahon Street, Government Reservation Area in the Benin Judicial Division, murdered one Uanlie Agbede (m) Police Constable No. 107231″. On their arraignment, counsel to the accused raised the plea that the information ought to be quashed on the following grounds, that
(i) the offence alleged in the information is not disclosed by the proof of evidence in support before the trial court;
(ii) the consent to prefer the charge was sought and obtained from the Honourable the Chief Judge of Bendel State, who is one of the witnesses named on the back of the information; and
(iii) the said information is an abuse of the process of this Honourable Court,”
The learned trial Judge delivered his ruling on the 21st January 1986, and dismissed the plea, and invited the appellants to plead to the charge against them as laid in the information.
The facts disclosed on the proof of evidence are that
(a) there was the offence of murder is not in dispute;
(b) the victim of the murder, the Police Constable Uanlie Agbede was in the premises of the accused persons;
(c) the premises was locked by one of the accused persons on the entry of the victim, and was opened by another of them the next morning when the victim was discovered murdered;
(d) all the keys to the gates to the fenced premises which were locked were in the possession of the accused persons;
(e) there was no evidence that any persons other than the accused persons and the two daughters of the 1st appellant were in the premises during the relevant period.
It is on these facts that the learned trial Judge held as follows-
“Can it really be argued that the few statements above do not show that P.C.U. Agbede was murdered in the premises occupied by the 1st accused and his two personal servants and is it not natural that all three of them should be the suspects I believe that all that is required of a Judge consenting to the information is to prevent abuse, either by the wrong persons being charged or by allowing persons to be charged when the statements do not support the offence charged. To say that the consent in the present case was wrong is to suggest that murder can no longer be proved by circumstantial evidence where direct evidence is unavailable. It is only when a trial commences that the trial Judge will be able to decide whether or not such circumstantial evidence is cogent enough to warrant a conviction.”
The Court of Appeal affirmed this ruling. Appellants have filed four grounds of appeal against the decision of the Court of Appeal which are as follows: –
“(1) The Court below erred in law in concluding that the statements filed in support of the application for the direction or consent of the Judge without more, disclose or are capable in law of disclosing the offence of murder against the accused persons or any of them.
(2) Even if the statements of Vincent Ehiagwina and Mrs. Mabel Ehigwina (which were not before the Chief Judge) are taken into consideration, it cannot be said that the statements disclose or are capable of disclosing the offence of murder against the accused persons or any of them.
(3) For the reasons stated in grounds 2 and 3, the Court below ought to have ruled that the prosecution of the appellants was an abuse of the process of the Court.
(4) The Court below erred in law in failing to observe that once it is established (as in fact it was established) that the prosecution had put forward the statement of the Chief Judge as part of the material they relied upon in their application for the direction or consent of the Judge, any determination by the Chief Judge on the question whether or not to give the required direction or consent is vitiated.”
Chief Williams S.A.N. set down the questions for determination by this Court tersely as follows:-
“(i) whether the fact that the Chief Judge of Bendel State is one of the witnesses whose statements were filed in support of the application for consent vitiates the order given by him
(ii) whether the statement filed in support of the application under o section 340(2)(b) of the Criminal Procedure Law for the consent of the Judge –
(a) without more or
(b) together with the statements of Vincent Ehiawigna and Mrs. Mabel Ehiawigna (which were not before the Chief Judge) are capable in law of supporting the preferment of the information for murder against the accused ‘persons or any of them.”
This formulation of the question to be determined adequately covers all the grounds of appeal filed against the judgment.
Counsel to the respondent also so accepts having not suggested a contrary formulation. It is however pertinent to state at once that ground 2 of the grounds of appeal, reflected in item (ii)(b) of the questions for determination is strictly not necessary for the determination of this appeal. This is because it formed no part of the facts taken into consideration in the giving of consent to file information. I will therefore not refer to it in my judgment.
In his brief Chief Williams submitted that he regarded the second question for determination as the more fundamental. He went on to refer to cases of abuse of the court’s process and to powers of the court to prevent such abuses. He submitted and rightly too, that the power conferred on the court is for trial of genuine controversies and cases. The court has a sacred duty to protect the individual against arbitrariness. He cited and relied on Fred Egbe v. The State (1980) 1 N.C.R. 341, 345-346 and quoted extensively from Connelly v. D.P.P. (1964) A.C. 1254, 1301, 1302, 1310 and 1311. He argued quite forcefully that the learned Chief Judge in granting consent was exercising a quasi-judicial duty and that since he was also a witness for the prosecution, he had by exercising such quasi-judicial duty committed a breach of the rule of natural justice which precludes him from acting as a judge in his own cause. He submitted that it was irrelevant that the evidence of the Chief Judge was innocuous.
On the first question Chief Williams referred to Atanda v. A. -G. for Western Nigeria (1965) N.M.L.R. 225 and submitted that it was only where there was a cleat case on the depositions that the learned Judge should grant consent. He argued that evidence leading to suspicion merely is not enough. He admitted however that evidence sufficient to accuse a person of having committed the offence is all that is necessary. Chief Williams referred to Ukorah v. The State (1977) S.C. 167 and the situation where circumstantial evidence will be sufficient for a conviction.
On his part, the learned D.P.P. for Bendel State Mr. Okpewono referred to pages 1 and 2 of his brief and to pertinent passages of depositions to contend that the circumstances surrounding the commission of the offence make the appellants suspects. He agreed that what was required for the granting of consent to filing an information cannot be quashed because a trial may not result in conviction – He cited and relied on R. v. Chairman of London Country Sessions, ex-parte Downes (1954) 37 Cr. App. R. 148. He referred to and distinguished Fred Egbe v. The State (supra) on the ground that in that case no offence was disclosed on the depositions. He submitted that circumstantial evidence was sufficient to enable a Judge to give consent of filing information.
On the second question regarded by appellants as the more fundamental, the learned D.P.P. submitted that the Chief Judge was performing an administrative function and not a quasi judicial function as contended by appellants. Accordingly the question of the breach of the rule of natural justice of being a Judge in his cause did not arise. He pointed out that the Chief Judge was not trying the case as there was in actual fact no case before him. Finally he submitted that the prosecution was not obliged to call the Chief Judge as a witness at the trial.
Very briefly stated these were the main submissions addressed to us by Counsel.
The exercise of the power to consent to the preferment of an information and the principles of law governing the grant of consent or the quashing of an information is contained in section 340(2)(a)(b) of the Criminal Procedure Act (in pari materia with a Bendel State Law of the same title cap. 49) which provides –
“(2) subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either-
(a) the person charged has been committed for trial; or
(b) the information is preferred by the direction or with the consent of a judge pursuant to an order made under Part 31 to prosecute the person charged for perjury…..”
Sub-section (3) of the same section prescribes for the circumstance when an information may be quashed. It provides as follows –
“if an information preferred otherwise than in accordance with the provisions of the last foregoing sub-section has been filed by the registrar, the information shall be liable to be quashed ….. ”
The procedure for applying for or quashing consent is as laid down in the Indictment (Procedure) Rules 1971 of England made under the Administration of Justice (Miscellaneous) Provisions) Act 1933.
It is settled law that an information which is preferred by leave of a judge of the High Court will be said to have been properly instituted – see A S.340(2)(b). The application for consent must be accompanied by statement on oath or otherwise disclosing sufficient evidence of the commission of an offence. The exercise of the power to give consent is a quasi-judicial duty see R. v. Layiwola (1959) 4 F.S.C. 119 R v. Nwankwo (1959) 4 F.S.C. 274. Where the depositions in support of the information do not disclose the commission of any offence, it has been held that the information was liable to be quashed – see Atanda v. Att-Gen. for Western Region, (1965) NMLR. 225, and Fred Egbe v. Att-Gen (1980) 1 NCR. 341. R. v. Fadino (1958) 3 FSC. 11; Carpenter v. Bell (1952) 1 All E.R. 230. Although the effect of consent given by a Judge under s.340(2)(b) is identical with a committal for trial after the holding of a preliminary inquiry, it would seem that the requirements for the granting of consent are not identical. For instance, whereas a magistrate holding a preliminary enquiry with a view to committal must be satisfied that a prima facie case has been made against the accused, and the accused is entitled to be present and contest the issue, this is not the position where an information is to be filed on the consent of the Judge. It is ex parte.
The Judge may give consent to the filing of an information even after a magistrate had refused to commit an accused person for trial – see R v. o Fadina (supra). Thus a consent may even be granted in a case where the evidence was insufficient to support a committal.
The accused is stricto sensu not entitled to a hearing before the Judge considering consent. However a Judge giving consent is expected to do so where the offence in the information is supported by the depositions in support. It is necessary to observe in this case, that the Judge was being asked to consent to the filing of an information, with respect to an allegation of the commission of an offence against the appellants. Appellants were not being put on trial before the Judge. Accordingly, it was sufficient for his granting consent to be satisfied that an offence was disclosed on the proof of evidence filed in support of the information – see R. v. Fadina (1958) 3 FSC. 11. In Atanda v. Att-General for Western Region (1965) NMLR. 225, 223 and Egbe v. The State (1980) 1 NCR 341, where no offences were disclosed on the depositions it was held that the informations were liable to be quashed. An indictment is liable to be quashed where (a) the Court has no jurisdiction (b) the deposition does not disclose the commission of an offence; (c) the consent was given in circumstances amounting to an abuse of the courts process or contrary to S.340(3) of the Criminal Procedure Act.
In the exercise of this quasi-judicial duty, it is necessary that a prima facie case of the commission of the offence should be made out against the persons named in the information. It is sufficient to show that an offence has been disclosed on the information in respect to which the persons so named could be linked.
Where the information discloses the commission of an offence, as in this case, and the deposition supports the indictment, it is not sufficient to quash the indictment because the accused persons may not be convicted on trial. All that is required at this stage is that the evidence on the deposition should support the charge as laid in the information and link the accused persons.
As I have already stated, appellants are linked to the commission of the offence by the fact that they more than any other persons on the evidence before the consenting learned Chief Judge had the opportunity to commit the offence .
The search light of suspicion which is still flickering was clearly brighter when focussed on the appellants than on any other persons. The question whether it will finally flare on them will be determined at the end of the trial when they have denied the allegations against them and the court has had the opportunity of testing their version of the incident.
In the old English case of Omiehund v. Barker (1744) Wilkes 533, at p.550 Lord Hardwicke said “The fudges and sages of the law have laid it down that there is one general evidence, the best that the nature of the case will allow”. This is no doubt a view which has been accepted ever since.
It is well settled that circumstantial evidence if positive and direct will be sufficient to support a conviction, – see Ukorah v. The State (1977) SC. 167.
I cannot conceive therefore why on the same principle circumstantial evidence will not be sufficient to enable a Judge give consent to the filing of an information and send the accused to trial.
In my opinion there is a right not to be tried only when no offence is disclosed on the information. There is no such right when an offence is disclosed on the information and the accused persons are linked with its commission. There was therefore on the depositions sufficient evidence to enable the Chief Judge give consent to the filing of the information against the appellants.
Appellants have also contended that since the Chief Judge who consented to the filing of the information was a witness for the prosecution he has committed a breach of the rules of natural justice for being a judge in his own cause. There is no doubt that it is well settled that the power to consent to the filing of an information is an exercise of a quasi-judicial duty. – R. v. Layiwola (1959) 4 FSC. 119. The power under section 340(2)(b) which is identical with committal after preliminary inquiry is different in the following important respect. The application is considered ex parte, and the accused stricto sensu is not required to be heard, as distinct from committal proceedings where he is entitled to be heard – see State v. Gali (1974) 5 SC. 69. Notwithstanding, in the exercise of this quasi-judicial duty, the learned Chief Judge acted in his judicial capacity in giving consent. It is in this sense that his interest as a witness for the prosecution would seem to have come into conflict with his position as a Judge determining whether his evidence should support his decision to give consent. The position which seems anomalous is different from the situation approved by a judgment of the Federal Supreme Court in Queen v. Bello (1963) NRNLR. 35 at p.37 where it was stated:
“As for the submission that the Judge cannot give himself leave to prefer a charge it is enough to say that the wording of section 185(b) is designed to cover the case where one Judge gives leave for a charge to be preferred and the case is tried before another Judge (as in R. v. Rothfield 26 Cr. App. R. 103) as well as that where the same Judge gives leave and tries the case.”
Cited in State v. Gali (1974) 5 Sc. at p. 81. In such last mentioned cases the judge is not considering his evidence in giving consent. My brother Nnamani, J.S.C. has referred to and discussed several of the authorities which deal with the likelihood of bias where a person acts as a judge in his own cause. I adopt his reasoning and conclusion that Chief Williams was on good grounds in his submission.
The rule of natural justice has undoubtedly been infringed. But as I pointed out earlier, since appellants were not entitled to be heard, and the application was to be heard ex parte, breach could only be merely in a technical sense. The learned Chief Judge who was a potential witness who had already made a statement to the prosecution is not entitled to consider his statement in determining whether to grant consent for the filing of the information. It will seem to be resting both investigative and adjudicative functions in the same person. Though not unusual in certain cases, our strict adversary procedure frowns at such a practice as posing a potential risk of actual bias or prejudgment. Hence to guarantee fair trial the breach of the principle is vigorously watched and to safeguard the principles of natural justice in dealing with the rights of accused persons. The recent decision of this Court in Garba v. University of Maiduguri (1986) 1 NWLR. 550 a stronger case than the instant one, most forcibly illustrates the point. There, the Chairman of the Investigating Pane) who was also the Deputy Vice-Chancellor was a victim of the destruction of property in a students’ rampage. He was clearly a judge in his own cause.
The purpose of vitiating proceedings on a breach of the rules of natural justice is to obviate a miscarriage of justice. Chief Williams has contended that the breach of natural justice invariably results in a miscarriage of justice. I do not think it necessarily so follows. Where there is a technical breach as occurred in this case as opposed to an actual breach of the rule of natural justice, it is pertinent to consider whether a miscarriage of justice has been occasioned. I do not think there was any miscarriage of justice. I agree with the Court of Appeal that no miscarriage of justice has been occasioned thereby.
It seems to me more consistent with the doing of justice in this circumstance where the proofs of evidence disclose the commission of the offence of murder, in respect of which appellants appear to be connected, to hold that the technical breach of the rule of natural justice on the ground that the learned Chief Judge who gave consent to the filing of the information was also a formal witness for the prosecution has not occasioned a miscarriage of justice. The risk of a miscarriage of justice would have been intolerably high where the learned Chief Judge were both to give consent to the information and try the appellants after having been indicated as a witness. Appellants do not stand any risk of bias or prejudice in their trial resulting from this technical breach of the rule of natural justice. A more serious violation of the rule of natural justice is only occasioned during a trial. The exercise of granting consent not being a trial the breach is venial.
I am of the opinion that this is not a case in which the trial of the appellants would constitute an abuse of the process of the court. This appeal must therefore fail, and I dismiss it accordingly.

KAWU. J.S.C,: I agree with the judgment which has just been delivered by my learned brother, Nnamani, J.S.C. Having had the privilege of reading the judgment in draft, for the reasons which he has given therein, I too would dismiss the appeal.
On the 23rd day of December, 1985, the Director of Public Prosecutions for Bendel State filed an Information against the Appellants. The Information was preferred after obtaining the consent of the Chief Judge of Bendel State pursuant to the provisions of Section 340 subsections (1) and (2)(b) of the Criminal Procedure Law Cap. 49, Revised Laws of Bendel State. 1be offence stated in the Information was murder punishable under Section 319(1) of the Criminal Code, Cap. 48. The particulars of the charge read as follows:-
“Justice Donald O. Ikomi (m), (2) Martins Ekezoka (m) and (3) Reuben Daniel Udoh (m) on or about the 4th day of July, 1985 at No.3, Obeahon Street, Government Reservation Area in the Benin Judicial Division murdered ,me Uanlie Agbede (m), Police Constable No. 107231”.
On 13th January, 1986the appellants were arraigned before Maidoh, J. charged with the offence of murder of Police Constable U. Agbede and on that date a plea in bar was raised by the defence. It was argued that the information should be quashed because –
(1) “the offence alleged therein is not disclosed by the statements and/or proof of evidence before the trial court.
(2) the consent to prefer the charge was sought and obtained from tbe Honourable Chief Judge of Bendel State who is one of the witnesses named on the back of the information; and (3) the said information is an abuse of the process of the Honourable Court” .
After hearing all arguments and submissions of the parties the learned trial judge, Maidoh, l. on the 21st day of January 1986, dismissed the plea and called upon the appellants to plead to tbe charge.
The appellants appealed to the Court of Appeal (Omo Eboh, Alfa Belgore and Dahiru Musdapher, J.J. C.A.) which court, on 7th February, 1986, unanimously dismissed their appeal and affirmed the ruling of the learned trial Judge.
The appeal in this Court is against the decision of the Court below.
In his brief of argument, Chief Williams, S.A.N., for the appellants formulated two questions for determination in this appeal as:
“(i) whether the fact that the Chief Judge of Bendel State is one of the witnesses whose statements were filed in support of the application for consent vitiates the order given by him
(ii) whether the statements filed in support of the application under section 340(2)(b) of the Criminal Procedure Law for the consent of the Judge –
(a) without more or
(b) together with the statements of Vincent Ehiawigna and Mrs. Mabel Ehiawigna (which were not before the Chief Judge)
are eatable in law of supporting the preferment of the Information for murder against the accused persons or any of them.”
With regard to the second question for determination, it is pertinent to state that the first duty of a Judge when considering the application for the grant of consent is to satisfy himself that on the proof of evidence filed in support of the application an offence known to law, is disclosed. See  Egbe v. The State (1980) 1 NCR 341 and Atanda v. Attorney-Genera/for Western Region (1965) NMLR 225. In this case it is not in dispute tht P.C. Agbede was murdered in the Compound of the 1st appellant and/or about the 4th day of July 1985. In his statement the 2nd appellant, Martin Efemah Ekezoka said that on the 4th July, 1985, P.c. Agbede reported for duty at the Compound of the 1st appellant. The following morning his dead body was found lying on the ground in the Compound. The medial report certified the cause of death to be due to
“multiple Injuries (strangulations and haemorrhage)”
Secondly, there must be some evidence linking the appellants with the offence disclosed in order to justify their being put on trial. In this case, it is not in dispute that after the deceased had reported for duty on that fateful night, the two exit doors were locked and the keys to the entrance were kept by the 2nd and 3rd appellants. Only the appellants knew where the keys were kept. It is also not in dispute that the only persons in the 1st appellant’s Compound that night were the appellants, the 1st appellant’s two daughters and the deceased. There is no evidence that any other person or persons came to the Compound after the deceased had reported for duty. In the circumstances, is it not reasonable to conclude that the appellants were indirectly linked with the murder of the P.C. Agbede It is pertinent to point out that at this stage the question is not whether the appellants admitted the crime, but whether they could have done so. All that is required when a Judge grants consent is some prima facie evidence which connects the suspect with the Crime. Now the question may be asked: what is Prima facie evidence. It is defined in The Dictionary of English Law by Earl Jowitt as:
that which, not being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favour that it must prevail if believed by the jury unless rebutted or the contrary proved; conclusive evidence, on the other hand, is that which excludes or at least tends to exclude the possibility of the truth of any other hypothesis than the one attempted to be established. ”
Having given very careful consideration to the statements filed before the learned Chief Judge in support of the application for the grant of consent (excluding the statements of Mr. Vincent Ehiawigna and Mrs. Mabel Ehiawigna), I have firmly come to the conclusion that a prima facie case has been established against the appellants which requires some explanation from them. In my view therefore, the Chief Judge was right in giving consent to the filing of the information against the appellants.
It has been contended that since the Chief Judge who gave his consent was potential witness, he has committed a breach of the rules of natural justice for being a Judge in his own cause. I think there is some force in this submission. Since the Chief Judge’s name appeared at the back of the information as one of the prosecution witnesses, who might be called to give evidence, he should not have dealt with the application for consent.
However, for the reasons stated in the lead judgment, I am also of the view that this purely technical breach of the Rules of Natural Justice should not vitiate the consent given as the breach has, in no way, occasioned any miscarriage of justice.
For the above reasons and also for the fuller reasons contained in the lead judgment of my brother Nnamani, J.S.C., I would dismiss this appeal and I hereby dismiss it.
Appeal Dismissed.

 

Appearances

Chief F. R. A. Williams, S.A.N. (with him Chief Olisa Chukwura, S.A.N., Chief F. O. Akinrele, S.A.N., Mr. K. S. Okeaya-Inneh, S.A.N., Messrs. W. G. Egbe, T.A. Ogbe, M. E. Akporiaye, P.E.S. Ideh, V. Ologwutudu, Chief T. F. Jemide, Chief. O. P. Edodo, S. A. Omagbogho, S. E. Aganai, D. E. T. O. Pessu, C. I. Idehen, Chief J. O. Sadoh, D. E. Okondo-Egharegbemi, Mrs. Ayaha Wilson, E. Eghabamien, Chief B.O.N. Omoruwa, K. O. Longe, C. Ihensikhen, S. T. Osakwe, T. Esekody, Suru Akere, H.O. Otuya, A.A. Omorodion, T. A. Asagba, G. C. Akoro, D.A. Ejodo, F. R. A. Williams, Jnr., E. Rewane, Mrs. P. Igho Osagis, J. G. Bator, D.I.A. Popo, Jim I. Akere, M. Kubenje, Mrs. A.D. Adegbite, Dr. G. I. Emiko, A. O. Ediki, G. T. A. Emiko and M. Sagay) For Appellant

 

AND

  1. Okpewono, Director of Public Prosecutions, Bendel State, (with him A. J. Alufohai, Senior State Counsel Grade I, M. I. Edokpayi, Senior State Counsel II, B. Avwenaghagha, Senior State Counsel, O. A. B. Adegbesan , State Counsel Grade I, Bendel State) For Respondent