PETER AYODELE FAYOSE v. THE STATE
(2010)LCN/4175(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/IL/C.74/2007
RATIO
APPLICATION FOR WARRANT OF ARREST: CONDITION FOR THE GRANT OF APPLICATION FOR WARRANT OF ARREST
…it is my view that for the trial court to grant an application for warrant of arrest, there must be a statement on oath or a complaint on oath filed before the court as required by law, stating all the material facts necessary for the court to exercise its discretion. PER UWANI MUSA ABBA AJI, J.C.A.
LITIGATION : WHAT LITIGATION ENTAILS
Cases are not decided in vacuo. Litigation is a straight forward legal matter of adjudication which does not or better still, should not admit of pretence or tricks. Litigation is not a game of vain rhetoric or insincere polemics hut on reciprocal sincerity of the parties by placing their cards openly before the court for adjudication and final decision… The principles of equity and justice will not allow any party to play prank in litigation in court. In other words, litigation is not a game of cleverness, smartness or tricks. It is not a hide and seeks game. Neither is it a game of chess where one of the parties attempts to trap the opponent’s king to obtain a victory. On the contrary, litigation has an inbuilt dispute setting mechanism where the parties come out in the open to make their cases frankly and not cunningly or craftily. See Chief of Air Staff v. Iyen (2005) 6 NWLR (pt. 922) 496; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 423; Chedi v. A.G…Federation (2008) 1 NWLR (pt.1067) 166. PER UWANI MUSA ABBA AJI, J.C.A.
INTERPRETATION OF STATUTE: THE INTERPRETATION OF THE PROVISIONS OF SECTIONS 21 AND 23 OF THE CRIMINAL PROCEDURE LAW OF EKITI STATE AS REGARDING ISSUANCE OF WARRANT OF ARREST
Section 23 of the Criminal Procedure Code Law of Ekiti State provides. “No warrant of arrest shall be issued in the first instance such complaint or statement shall be on oath either by the complainant himself or by a material witness.” What in effect section 23 is saying is that no warrant of arrest shall be issued in the first instance in the respect of any complaint or statement unless such complain or statement is accomplished by a statement on oath either by the complainant, himself or by a material witness. The power to issue warrant of arrest is vested in the court by Section 21 of the said Law. It provides “Where under any written law whether pass before or after the commencement of this law, there is power to arrest a person without warrant, a warrant for his arrest may be issued.” The requirement for a complaint or statement to be on oath either by the complainant himself or by a material witness is limited to summary trial procedure where the accused person cannot be arrested without a warrant of arrest. PER UWANI MUSA ABBA AJI, J.C.A.
WARRANT OF ARREST: WHETHER AN ACCUSED CAN BE ARRESTED WITHOUT THE ISSUANCE OF A WARRANT OF ARREST
…section 10 (1) (a) of the Criminal Procedure Law states that a person may be arrested without a warrant who is suspected upon a reasonable ground of having committed an indictable offence against the Federal law or against the law of a state or against the law of any other state, unless the law creating the offence provides that the offender cannot be arrested without a warrant. In the instant case, the allegation against, the Appellant is for murder under section 319 of the Criminal Code. Under the Criminal Code, there is no such requirement that the accused could not be arrested based on an information filed against him without the issuance of a warrant of arrest. Section 21 of the Criminal Procedure Law quoted above, gives trial court the general power to issue warrant of arrest against the Appellant for an offence of murder even without complying with the provisions of section 23 of the Criminal procedure law. The requirement for a complaint or statement to be on oath either by the complainant himself or by a material witness is limited to summary trial procedure where the accused person can be arrested without a warrant of arrest. See Ikonne v. Commissioner of Police (1986) 4 NWLR (pt.36) 473 @ 493 – 494. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOHD TSAMMANI Justice of The Court of Appeal of Nigeria
Between
PETER AYODELE FAYOSE – Appellant(s)
AND
THE STATE – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of Hon. Justice C.I. Akintayo of the High Court of Justice, Ekiti State, sitting in Ado-Ekiti delivered on the 12th day of December, 2007 issuing conditional warrant of arrest against the Appellant.
The facts leading to this appeal are, pursuant to the consent granted by the Acting Chief Judge of Ekitit State, Hon Justice Modupe Fasanmi, (as he then was) on the 7th day of July, 2007, the prosecution i.e. the Respondent filed an information against the Appellant and one Olayisade Akintade on the 15th November, 2007 for conspiracy to murder one Tunde Omojola on the 25th May, 2005, pursuant to section 340(2) of the Criminal Procedure Act as applicable in Ekiti State.
When the Respondent could not serve the Appellant, it filed a motion ex-parte on the 4th December, 2007 for his arrest. That motion was withdrawn and struck out. The Appellant and the 2nd accused were absent on the adjourned date of 10th of December, 2007. The Respondent then applied formerly for the issuances of a warrant of arrest against the two accused persons to enable the prosecution bring them to court.
The Appellant filed a Notice of Preliminary Objection against the application for the issuance of warrant of arrest against the Appellant.
The Respondent also filed an affidavit of Complaint on Oath. The two applications, the preliminary objection and the oral application for the issuance of warrant of arrest were taken together. The lower court in its ruling of 12th December, 2007 granted the oral application of the Prosecution on the condition that the warrant of arrest shall be issued against the 1st accused person, the Appellant herein, Dr. Peter Ayodele Fayose upon the vacation of the order of the Federal High Court, Lagos.
The Appellant dissatisfied with the said order, and by the leave of this court granted on the 25th June , 2008, appealed to this court vide a Notice of Appeal dated and filed on the 7th July, 2008, upon six (6) grounds of appeal.
The grounds of appeal without their particulars are hereby reproduced.
1. The learned trial judge erred in law when he summarily granted an order of conditional warrant of arrest against the 1st accused person when the application praying for same has not been concluded.
2. The learned trial judge erred in law when he failed to comply with the conditions precedent as laid down in sections 22, 23, 24, 25, 26, and 27 of the Criminal Procedure Act before granting an order for issuance of warrant of arrest against the Appellant.
3. The learned trial judge erred in law in assuming jurisdiction over the charge when his learned brother Hon. Justice Daramola is presiding over the same matter with the same facts and consequences.
4. The learned trial judge erred in law when he erroneously held that
5. The learned trial judge erred in law when he considered extraneous factors in arriving at his decision.
6. The ruling is unwarranted; unreasonable and cannot be supported by evidence.
Parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by Ahmed Tafa, Esq., learned counsel formulated two (2) issues for the determination of the appeal to wit:-
(1) Whether the trial court did not err in law in assuming jurisdiction and granting an order of conditional warrant of arrest against the Appellant in the circumstances of this case.
(2) Whether the ruling of the trial court is not liable to be set aside for being unwarranted and unsupportable in the circumstances of this case.
The Respondent’s brief of argument was settled by Rotimi Jacobs, Esq. In the brief, learned counsel argued that there is only one issue that calls for determination in this appeal and that is:-
Whether the order of conditional warrant of arrest made by the lower court on the 12th December, 2007 is invalid and liable to be set aside by this Hon. Court.
At the hearing of the appeal on the 18th October, 2010, K.K. Eleja, Esq, adopted and relied on the Appellant’s brief of argument filed on the 6th/7/2009 but deemed properly filed on the 17th/5/2010 and urged the court to allow the appeal. Gbenga Daramola, D.D.P.P. Ekiti State adopted and relied on the Respondent’s brief of argument dated and filed on the 24th/5/2010 and urged the court to dismiss the appeal.
I have considered the two issues formulated by the learned counsel for the Appellant and the lone issue formulated by the Respondent’s counsel and I am of the view that, the Appellant’s issues No.1 and 2 are interwoven or inter-related while the lone issue of the Respondent could be subsumed into the issues formulated by the Appellant and they will be considered together.
ISSUE NO. 1
Whether the trial court did not err in law in assuming jurisdiction and granting an order of conditional warrant of arrest against the Appellant in the circumstances of this case.
In arguing this issue, learned counsel for the Appellant, Tafa, Esq, submitted that the application before the trial court which was taken on the 11th December, 2007 was the preliminary objection to the competence of the charge filed by the Appellant on the 10th December, 2007, and at the state of determining the preliminary objection, the trial court went ahead to grant an order of’ conditional issuance of warrant of arrest contrary to the reliefs prayed for in the preliminary objection. He submitted that a court of law can either grant a relief or refuse it, but it will, not substitute a relief with what was claimed before it’ He submitted that in the instant case, there was no application for the issuance of warrant of arrest pending before the trial court at the time the conditional order was made and that the trial court was clearly without jurisdiction when the order was made citing in support the case of Akinduro v. Alaya (2007) (pt.1057) 312-331 @ 332. He also referred to the submission by the Respondent’s counsel at pages, 70 line 6-14, 71 line 34 and page 72 lines 1-7 of the Record on whether there was a pending application and submitted that a court of law will, only invoke its adjudicatory power on issues or matters in controversy between litigants as the power is not invoked on matters not in controversy; citing also the cases of Chiwendu & Ors. v. Mbamali (1980) 3-4 SC 31 @ 68; Adewumi v. plastex Nigeria Ltd., (1986) B NWLR (pt.32) 767 @ 781. He therefore submitted that the trial court was in error and lacked competence to have set up a case of its own for the Respondent and then proceed to give a decision based on it by granting a relief not prayed for. He referred to the cases of, Liman v. Mohammed (1999) 9 NWLR (pt. 617) @124, Adeleke v. Iyanda (1974) 9 NWLR (pt. 336) 113 @ 124, and submitted that the court was not, competent to do so. Learned counsel further submitted that the issuance of the warrant of arrest constitute grounds 2 and 5 0f their preliminary objection and the appreciation for its issuance having been withdrawn by the Respondent, the trial court lacked jurisdiction to have made an order of conditional issuance in the circumstances. He submitted that a court of law is not a father Christmas, and will not grant a relief which a party did not pray for citing in support the case of Ado lbrahim & co., Ltd., v. B.C.C. Ltd., (2007) 15 NWLR (pt.1058). The court was urged to set aside the order made because it was made without jurisdiction.
Making an alternative submission Should this court find that there was an appreciation upon which the order for conditional warrant of arrest could be premised, learned counsel submitted that in the circumstances of this case, the trial court could still be bereft of jurisdiction to order the issuance of conditional warrant of arrest because the application in support of it has not been taken and the parties affected by the order were not heard. He cited in support the case State v. Onagoruwa (1992) 2 NWLR (pt.221) 33 @ 46 and 59 and submitted that the trial court acted in breach of the Appellant’s right to fair hearing when it pronounced and granted an order of conditional arrest when counsel submissions are yet to be taken on the application. The following cases were referred to; Ceekay Traders Ltd., v. General Motors Co. Ltd., (1992) 2 NWLR (pt.222)132 @ I47-148; Aliyu v. Chairman Rent Tribunal (2003) 10 NWLR (pt.829) 132 @ 147-148;
Mr. A. Tafa, Esq., for the Appellant also submitted that the trial court erred in law when it assumed jurisdiction to issue a conditional warrant of arrest pursuant to section 23 of the Criminal Procedure Law of Ekiti state’ Law He referred to section 2 of the law which defines. “Complaint” and submitted that a warrant of arrest can only be issued by a Magistrate court in a trial under section 23 of the Criminal Procedure Law of Ekiti state. He referred to the case of Ikonne v. C.O.P. & Nnana Nwachukwu (1986) a NWLR (Pt. 36) 473 @ 493-494. It is therefore his view that in the instant case, the offence alleged is murder and a Magistrate does not have jurisdiction to enterrtain an offence of murder and that there is no statement on oath or complaint on oath as required by law before the application can be granted.
Learned counsel cited the case of Iveinagbor v. Bazuaye (1999) 9 NWLR (pt. 620) 552 @ 561 and submitted that the trial court lacked the jurisdiction to make the order of conditional warrant of arrest in the instant case. He also cited the cases of Ndidi v. Akinsumade (2000) FWLR (pt.5) 750 @ 800; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 423 @ 661, and concluded that the failure of the Learned trial judge to comply with condition precedent to issuance of warrant of arrest had robbed the trial court of jurisdiction to make a valid order and the court was urged to resolved this issue in favour of the Appellant and to allow the appeal.
ISSUE NO.2
Whether the ruling of the trial court is not liable to be set aside for being unwarranted and unsupportable in the circumstances of this case.
Arguing this issue, Mr. Tafa Esq. for the Appellant submitted that an application for the issuance of warrant of Arrest is not granted as a matter of course but after due consideration of material facts deposed to in the application upon which the court may exercise its discretion judicially and judiciously. He submitted that section 21 of the criminal procedure Law vests the court with discretionally power and that the onus is on the applicant who seeks the exercise of discretion to place before the court material facts upon which the court is to exercise its discretion. He cited the case of Dangote v. C.S.C. of Plateau state (2001) FWLR (Pt.50). It is his view that in the instant case, the trial court erroneously and in the absence of any application seeking the exercise of discretionary power proceeded to grant a conditional warrant of arrest and this has occasioned a miscarriage of justice as the court acted on extraneous matters. This court was urged to interfere with the trial court’s exercise of discretion by allowing the appeal, relying on the case of Ammal Engineering Co. Ltd., v. MISR (Nig) Ltd (1992) 1 All NLR (PT.1) 322. Learned counsel further submitted that the court and the parties are bound by the prayers on the face of the motion paper which in the instant case was for the striking out of the entire suit and not for the issuance of conditional warrant of arrest. He relied on the case of Commissioner for Works Benue State v. Devcom Dev. Consultants Ltd., & Anr (1988) 7 SCNJ 1 @ 11. It is also the view the application before the trial court, having been withdrawn, there can be no evidence to support the finding of the trial court. It is also his view that affidavit thereof Simeon Momodu cannot be relied upon to make the order of conditional issuance conditional issuance of warrant of arrest, the affidavit not being an application before the court. He further submitted that the said affidavit of Simeon Momodu runs contrary to sections 86, 87, 88 and 89 of the Evidence Act and the court was urged to strike them out and cited the following authorities; Josein Holdings Ltd., v. Iomamead (1995)1 NWLR (pt.871 264i Cedar Stationary product Ltd., v. IBWA (2000) FWLR (pt.25). The court was thus urged to strike out paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit of Simeon Momodu and submitted that there is nothing left upon which the trial court could have exercised its discretion. The court was also urged to protect the Appellants right to personal liberty as enriched under section 35 of the constitution of the Federal Republic of Nigeria 1999, and to resolve the issue in favour of the Appellant and to allow the appeal.
The lone issue for determination formulated by the Respondent reads:-
Whether the order of conditional warrant of arrest made by the lower court on the 12th December, 2007 is invalid and liable to be set aside by this Hon. Court.
In arguing this issue, Mr. Rotimi Jacobs, Esq., for the Respondent submitted that, on of the face of rulling of the lower court at pages 78-79 of the record of appeal, it is true that the Respondent filed a motion ex-parte on the 4th December, 2007 praying for an order of arrest of the Appellant, however, the motion which came up for hearing on the 7th December, 2007 was withdrawn by the prosecution and same struck out.
Mr. Jacobs, Esq., submitted that it is not true that no subsequent application was made by the Respondent for the issuance warrant of arrest against the Appellant. He referred to the ruling of the trial court appealed against at page 79 of the record of’ appeal wherein the trial, court restated the submission of the learned. Counsel for the Respondent that the police need warrant for the arrest, of the accused persons and cited sections 23, 25 and 26 of the Criminal Procedure Act and requested that the court should issue warrants of arrest against the accused persons to enable the prosecution to bring them to court. Mr. Jacobs, Esq., submitted that it was when the matter was adjourned to 11th December, 2007 that Mr. Owoseni Ajayi. Esq., for the Appellant, came and appeared for the two accused persons and stated that he had filed a notice of preliminary objection in the matter. Arguments were taken and the matter adjourned for ruling on the 12th December, 2007. Mr. Jacobs Esq., also referred to the ruling of the trial court delivered 21st December, 2007 at pages 92 – 98 wherein he submitted the court reproduced the fact beyond any doubt, and posed the question whether from what transpired before the court between 10th and 11th December, 2007 it can be reasonably argued that there was no application for the issuance of warrant of arrest or that the Appellant was not heard before the order was made.
Learned counsel submitted that the Appellant’s submission failed to take into consideration what transpired during the said period which he took active part in the matter and that it follows that all the authorities cited by the Appellant, such as, Akinduro v. Alaya (2007) NWLR (pt.1057) 312; Adewumi v. plastex Nigeria Ltd., (1986) 3 NWLR (pt. 32) 767; Liman v. Mohammed (199) 9 NWLR (pt.617) 116, and others cited in the brief are inapplicable to the facts of this case. He cited the cases of Chief of Air Staff v. Iyen (2005) 6 NWLR (pt.922) 496 at 547 per Tobi, JSC; Chedi v. A.G. Federation (2008) 1 NWLR (PT.1067) 166 @ 162; and submitted that all what the Appellant is urging this court to do is to apply the law invacuo not in relation to relevant, facts and what transpired in the lower court. He urged the court not to honour such innocuous invitation since there is no factual basis for doing so.
Mr. Jacobs, Esq., also submitted that it is not enough for counsel in a matter to cite authority showing the infringement of the right of his client but does not go further to show facts that disclose infringement of such right. It is also submitted that the Appellant has failed to show that there was no application made by the prosecution for the issuance of a warrant of arrest and that the court, made the order without hearing the Appellant.
Mr. Jacobs, Esq., further argued that the Appellant’s counsel on the 10th and 11th December, 2007 failed to address the issue as to whether the prosecution has complied with the provisions of section 23 of the criminal Procedure Law, but predicated his argument on the purported ex-parte order made by the Federal High court, Lagos and refused to address the court on ail the possible grounds to oppose the application for the issuance of warrant of arrest.
It is the view of Mr. Jacobs, Esq, that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. He referred to the following cases; Bill construction Co. Ltd., v. Imani & Sons Ltd., (2006)19 NWLR (pt.1013) 1 @ 14; A.S.R. Co., Ltd., V. O.O. Biosah & Co., Ltd (1997) 11 NWLR (pt. 527) 145 @ 158; Kaduna ile Ltd., v. Umar (1994) 1 NWLR (pt.319) 143 @ 159. He submitted that the lower court having provided the required atmosphere for the parties to present their case, the duty of the court stopped there. That the Appellant having failed to utilize the opportunity created by the lower court, he cannot be heard to complain that he was not given fair hearing.
On the argument of the Appellant’s counsel that conditions under section 23 0f the Criminal Procedure Law, for the issuance of the warrant of arrest were not met, Mr. Jacobs, Esq, submitted that the argument is misconceived in raw. That sections 21-28 of the Criminal Procedure Law governs the issuance of warrant of arrest, and referred particularly to sections 21 and 23 and the case of Ikonne v. C.O.P. (1986) 7 S.C. (pt. 2)282 @ 314-315, and submitted that the requirement for thc complaint or statement to be made an oath either by the complainant himself or by a maternal witness under section 23 of the Criminal Procedure Law is limited to summary trial procedure where the accused cannot be arrested without a warrant of arrest. It is thus submitted that the allegation against the Appellant is for murder under section 319 of the Criminal Code and under the Code; there is no such requirement that the accused could not be arrested without a warrant.
Mr. Jacobs, Esq, also referred to word “complaint” defined in section 2 of the law and submitted that from the definition of the word, “complain” under section 23, cannot by any stretch of imagination be extended to a trial by information in the High Court filed by the prosecution. It is his view that the requirement for oaths is limited to summary offence where the accused is charge for a non indictable offence and could be arrested without any warrant of arrest.
Still dwelling on non compliance with the condition under section 23 of the Criminal procedure Law, Rotimi Jacobs Esq., submitted that assuming the conditions stated in section 23 of the criminal procedure Law must be complied with in the case of murder or other indictable offences, it is his view that the conditions have been substantially complied with by the prosecution. He cited the ruling appealed against delivered on the 12th December, 2007 wherein the court stated it would issue a warrant of arrest if the ex-parte order of the Federal High Court, Lagos was vacated or discharged. That the court issued the warrant of arrest on the 21st December, 2007 and submitted that the prosecution complied with section 23 of the Criminal Procedure Law, first by the affidavit of complaint on oath, sworn to by Simeon Momodu and an affidavit for issuance of warrant of arrest sworn to by Morakinyo Adegboyega, (at pages 21 & 22 and 52-55) of the record of appeal. That the deponents are litigation officers in the chambers of the Attorney General and had the consent of the Attorney General to depose to the affidavits.
On whether paragraph 4, 5, 6, 7, 8, 9 and 10 were legal arguments and that the deponent refused to disclose the source of his information, as contended by the Appellant, Mr. Jacobs, Esq., submitted that paragraphs 4, 5, 6 and 8 are matters which the litigation officer in the chambers of the Attorney General could have knowledge of and that paragraphs 7, 9 and 10 are factual situations deposed to by the deponent and that the said paragraphs of the affidavit did not run foul of the provisions of sections 86, 87, 88 and 89 of the Evidence Act.
Learned counsel further submitted that the lower court is competent to issue a warrant of arrest against the Appellant to compel his attendance or to apprehend him since he was still, at large and not in custody, citing on the case of Alamieyeseigha v. Federal Republic of Nigeria (2006) 9 NWLR (pt.1004) 1 @ 66. He also submitted that the learned trial judge is endowed with the power under section 21 of the criminal Procedure Law to compel the attendance or arrest of the Appellant and that the court correctly exorcised its power. It is his view that that the issue of propriety of warrant of arrest has to do with the Law of assault and not with the jurisdiction of the court to the criminal matter before it, and that no amount of illegality defect or error in the warrant or the issuing of same would vitiate the proceedings of the trial court, citing the case of Okotie v. Police (1959) 5 FSC 125. The court was thus urged to hold that the Appellant’s right to fair hearing was not in fringed upon by the lower court, and dismiss the appeal.
The main contention of the Appellant’s in is brief of argument is that there was no application by the Respondent for the issuance of a warrant of arrest before the court made the order for conditional warrant of arrest against the Appellant and that the granted the court suo-motu granted the application without hearing the Appellant, thereby infringing upon the Appellants right to fair hearing. This contention is premised on the ground that the only application before the trial court taken on the 11th December, 2002, was the preliminary objection to the competence of the charge filed by the Appellants on thc 10th December, 2007, but that the learned trial judge proceeded to make an order of conditional issuance of warrant of arrest against the Appellant contrary to the relief sought for in the objection.
The Respondent on the other hand, contended that there was an affidavit filed before the court on the 10th of December, 2007 for the issuance of warrant of arrest against the Appellant and 2nd accused to enable the prosecution bring them to court to stand their trial.
It is clear from the submissions of learned counsel in their briefs of argument, that following the consent given by the Acting Chief Judge of Ekiti State to the Respondent on the 17th July, 2007, they filed an information against the Appellant and one Olayisade Akintade, for conspiracy to murder and murder of one Tunde Omojola on the 25th May, 2005. When the Respondent could not serve the Appellant an, the other accused person’ it filed a motion ex-parte on the 4th December, 2007 for their arrest. However, the said motion ex-parte was withdrawn on the 7th October, 2007 and was accordingly struck out and the substantive matter was adjourned to 10th December, 2007 (see page 78 of the record of appeal)
On the 10th December, 2007, the Respondent filed an affidavit of complaint on oath. In the affidavit, sworn to by Simeon Momodu, it was averred particularly as paragraphs 3, 4, 5, 7, 8 and 10 as follows:-
“3. That I have the consent of the complaint to urgently depose to this affidavit.
4. That the accused persons were alleged to be involved in the murder of Tunde Omojola at Ifaki-Ekiti on or about 28th 12/2005.
5. That the details of the said allegation or complaint are contained in the information and the proof of evidence filed before the court
6. That the Accused Persons are still at Large and every effort to bring them to court failed.
7. The 1st Accused Person entered Ekiti State from his hiding on Wednesday, 5th December, 2007 and all effort made to get him arrested failed because the police authority claimed that since the matter is already in court, they could only arrest him if the court so directed.
8. That the Accused Person has gone back to their hiding since that 5th of December, 2007.
9. That it is in the interest of justice that the Accused persons are arraigned in court without any further delay.
10. That there is need for the Court to issue warrant of arrest on the Accused Persons”
In the same vein, the Appellant also on the 10th December, 2007 filed a Notice of Preliminary Objection in limine, to the hearing of the suit on the ground s inter-alia that:-
1. It is an abuse of court process
2. A court of co-ordinate Jurisdiction sitting High at the Federal Court Lagos had already granted an order restraining the arrest of the 1st defendant.
3. An accused cannot be charged to court inabstantia.
4. The application of the Applicant in this suit to be joined as a co-defendant in the above mentioned suit was refused and diemissed.
5. The state cannot take-over the function of the police on the power of arrest and detention.
In its ruling on the preliminary objection that is now the subject of the present appeal, contained at page 79 of the record of appeal, the learned trial judge reproduced the facts of the case as follows:-
“When the substantive matter came up on the 10/12/07 the two accused persons were not in court and Mr. Rotimi Jacobs counsel for the prosecution informed the court that the Honourable Acting Chief judge gave consent for the prosecution of the two accused persons 17/7/07 and since that time the two accused persons have been evading service and accused appeared in the state a week ago and left or disappeared again. That the police are saying that they need warrant to be able to arrest accused persons. He later asked for adjournment to regularize his position and the matter was adjourned till 11.12.07.’
In paragraph 5.03 of the Appellant’s brief of argument, learned counsel referred to page 70 lines 6-14 of the record of appeal as follows: –
“Mr. Gboyega Oyewole observe that ordinarily, Mr Owoseni has no cause in his case as no former (sic) empower(sic) has taking place of the accused and that there is no formal application before the court capable of objecting to. That the application before the court is purely administrative pursuant to the provision of section 22 and 23 of the Criminal Procedure law which could be taken ordinarily in chamber……. That the preliminary objection of (sic) premature as is like putting the cort (sic) before the horse.”
Again at paragraph 5.04, learned counsel referred to page 71 line 34 and page 72 lines 1.7, where the Respondent counsel stated as follows.
“That the application of the accused person is misconcerned (sic), misleading and misguided in law. That it is equally premature and a gross abuse of the process of the court. He says there is no former (sic) application before the court to which a preliminary objection could be filed. That the ex-parte order to which this application is targeted has been withdrawn on Friday 7th December, 2007 that to this extent this application is premature and should be refused (sic) by the court.”
Mr. Tafa, Esq, for the Appellant contended that the above statement, by the Respondent goes to show there was no subsisting application before the issuance of warrant of arrest against the Appellant and by this admission the court without jurisdiction was clearly to grant a relief not sought by a party.
However, the Appellant at page 1, Paragraph 2. 01 of his brief of argument, submitted as follows:-
2.01 – On the 10th December, 2007, One Simeon Momodu filed an affidavit headed the same way as the information and tagged same as “Affidavit of Complaint on Oath” and this can be found at page 21 to 22 of the record of appeal while the Appellant took objection to the entirety of the charge vide the preliminary objection on the same 10th December, 2007. The objection is at page 23 to 34 of the record of appeal. The argument in respect of the preliminary objection was taken on the 11th December, 2007 and is at page 70-74 of the record of appeal.
He again stated at page 2 of his brief, paragraph 2.02 as follows:-
2.02 No application for issuance of warrant of arrest was pending before the High Court and none of the parties was heard on any application for issuance of warrant of arrest before the trial court suo motu conditionally ordered the issuance of warrant of arrest on the Appellant in its ruling of 12th December, 2007.
The question now is, in view of the facts and the circumstances of this case as highlighted above, can it reasonably be argued that there was no application for the issuance of warrant of arrest or that the Appellant was not heard before the order was made or that the trial court acted suo motu when it made or granted the order for conditional arrest against the Appellant and his co-accused?.
With due respect to learned counsel for the Appellant this cannot possibly be so. By his argument as reproduced above, the counsel is breathing hot and cold at the same time. My apprehension of his entire argument is that he is appropating and reprobating. While in one breath the counsel is admitting that there was an affidavit for complaint on oath filed by the Respondent for the arrest of the Appellant, in another breath he is completely denying the fact that there was any pending application for the issuance of a warrant of arrest against the Appellant. Perhaps the contention that there was no application filed before the court for the issuance of warrant of arrest is premised on his argument that the “affidavit for complaint on oath” cannot be equated with an application. However, my limited searches of the Criminal procedure Rules did not reveal to me that any application for the issuance of warrant of arrest must be by way of motion on notice.
Learned counsel had argued in paragraph 5.20 of their brief of argument that:
“In the same vein, there is no statement on oaths or complaint oath as required by the law before the trial court at the time the court erroneously granted the conditional warrant of arrest.”
From the above submission, it is my view that for the trial court to grant an application for warrant of arrest, there must be a statement on oath or a complaint on oath filed before the court as required by law, stating all the material facts necessary for the court to exercise its discretion. Here again the Appellant somersaulted. Cases are not decided in vacuo. Litigation is a straight forward legal matter of adjudication which does not or better still, should not admit of pretence or tricks. Litigation is not a game of vain rhetoric or insincere polemics hut on reciprocal sincerity of the parties by placing their cards openly before the court for adjudication and final decision… The principles of equity and justice will not allow any party to play prank in litigation in court. In other words, litigation is not a game of cleverness, smartness or tricks. It is not a hide and seeks game. Neither is it a game of chess where one of the parties attempts to trap the opponent’s king to obtain a victory. On the contrary, litigation has an inbuilt dispute setting mechanism where the parties come out in the open to make their cases frankly and not cunningly or craftily. See Chief of Air Staff v. Iyen (2005) 6 NWLR (pt. 922) 496; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 423; Chedi v. A.G…Federation (2008) 1 NWLR (pt.1067) 166.
In the instant case, it appears that the learned counsel for the Appellants failed to take into consideration the proceedings that transpired on the 10th December, 2007. In view of this therefore, which he took active part. All the authorities’ cited on point of his contention such as Akinduro v. Alaya (supra) and Liman v. Mohammed (supra) and others, are inapplicable to the facts and circumstances of this case.
Section 23 of the Criminal Procedure Code Law of Ekiti State provides.
“No warrant of arrest shall be issued in the first instance such complaint or statement shall be on oath either by the complainant himself or by a material witness.”
What in effect section 23 is saying is that no warrant of arrest shall be issued in the first instance in the respect of any complaint or statement unless such complain or statement is accomplished by a statement on oath either by the complainant, himself or by a material witness. The power to issue warrant of arrest is vested in the court by Section 21 of the said Law. It provides
“Where under any written law whether pass before or after the commencement of this law, there is power to arrest a person without warrant, a warrant for his arrest may be issued.”
The requirement for a complaint or statement to be on oath either by the complainant himself or by a material witness is limited to summary trial procedure where the accused person cannot be arrested without a warrant of arrest. In the instant case, the information filed against the Appellant is for conspiracy to murder contrary to section 319 of the Criminal Code. Since when the order for the arrest of the Appellant was made, the Appellant and his co-accused have never appeared before the court, Infact they have been in hiding. Then in what circumstances would the principle of fair hearing be said to apply in the instant case?
The Appellant and his co-accused never appeared before court. Their plea was never taken. What then will the Respondent do in the circumstances to bring the Appellant to court to stand his trial Considering the nature and gravity of the offence against him? The Respondent complied with condition precedent under section 23 of the
Criminal Procedure law for the issuance of a warrant of arrest by filing an affidavit – of complaint on oath to secure the arrest of the Appellant to bring him to court to stand his trial.
I also agree with the learned counsel for the Respondent that paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit of Simeon Momodu did not contravene sections 86, 87, 88 and 89 of the Evidence Act. Paragraphs 4, 5, 6 and 8 are matters within the knowledge of the litigation officer in the chambers of the Attorney General, and paragraphs 7, 9 and 10 are factual situation deposed to by the deponent.
It is clear from the record of appeal as argued by the Respondent’s counsel that the learned counsel for the Appellant predicated his argument before the trial court on the ex-parte order made by the Federal High court Lagos and failed to address on possible grounds if any to oppose the application for the issuance of warrant of arrest. He cannot now therefore be heard to complain that his right to fair hearing has been breached’ what the court is enjoined by the provisions of section 36 of the 1999 constitution of the Federal Republic of Nigeria is to create a conducive atmosphere for the parties to exercise their right of fair hearing. See Bill Construction Co. Ltd., v. Imani & sons Ltd. (2006) 19 NWLR (pt.1013) 11 @ 4; Ajaokuta Steel Co. v.O.O. Biosah & Co. Ltd., (1997) 11 NWLR (pt. 527) 145 @ 158; Kaduna ile Ltd., v. Umar (1994)00 1 NWLR (pt.319) 143 @ 159.
Furthermore, section 10 (1) (a) of the Criminal Procedure Law states that a person may be arrested without a warrant who is suspected upon a reasonable ground of having committed an indictable offence against the Federal law or against the law of a state or against the law of any other state, unless the law creating the offence provides that the offender cannot be arrested without a warrant. In the instant case, the allegation against, the Appellant is for murder under section 319 of the Criminal Code. Under the Criminal Code, there is no such requirement that the accused could not be arrested based on an information filed against him without the issuance of a warrant of arrest. Section 21 of the Criminal Procedure Law quoted above, gives trial court the general power to issue warrant of arrest against the Appellant for an offence of murder even without complying with the provisions of section 23 of the Criminal procedure law. The requirement for a complaint or statement to be on oath either by the complainant himself or by a material witness is limited to summary trial procedure where the accused person can be arrested without a warrant of arrest. See Ikonne v. Commissioner of Police (1986) 4 NWLR (pt.36) 473 @ 493 – 494. In the circumstance of this case, I am of the humble view that the learned trial judge exercised his discretion judicially and judiciously in granting the issuance of conditional warrant of arrest against the Appellant. The said order is not made in vacum. The issues are therefore resolved against the Appellant. I therefore find no merit in the appeal. It is accordingly dismissed. The ruling of the trial court delivered on the 12th December, 2007 directing the arrest of the Appellant is hereby affirmed.
CHIDI NWAOMA UWA, J.C.A: I was privileged to read in advance the judgment delivered by my learned brother Uwani Musa Abba Aji, J.C.A.
His Lordship has analyzed the issues raised and resolved same in detail I adopt same is dismissed by me. I affirm the decision of the lower court of 12th December, 2007 directing the arrest of the Appellant.
HARUNA MOH’D TSAMMANI, J.C.A: I had the privilege of reading the lead judgment delivered by my learned brother Uwani M. Abba Aji, J.C.A. My lord has adequately and admirably resolved the issues arising from this appeal.
I agree with his reasoning and conclusions thereon and I have nothing to add. This appeal has no merit. It is hereby dismissed by me.
Appearances
K. K. Eleja, Esq, with B. Ajanaku, Esq, and B. Oluyode (Miss)For Appellant
AND
Gbenga Daramola, D.D.P.P. Ministry of Justice Ekiti State with Tayo Olukotun, S.C.For Respondent
