SIMEON DANIEL UDOIKE v. THE STATE (2016)

SIMEON DANIEL UDOIKE v. THE STATE

(2016)LCN/8168(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of February, 2016

CA/C/153CA/2015

RATIO

APPEAL: PRINCIPLES THAT MUST GUIDE THE APPELLATE COURT IN CONSIDERING QUASHING THE CHARGE AGAINST THE APPELLANT ON THE GROUND THAT THE PROOF OF EVIDENCE AND STATEMENTS OF WITNESSES DID NOT DISCLOSE A PRIMA FACIE CASE AGAINST THE APPELLANT

In considering an Application of this nature, to quash the charge against the Appellant on the ground that the proof of evidence and statements of witnesses did not disclose a prima facie case against the Appellant the Court must be guided by the following well laid down principles:

”1. The Court must confine itself to the proof of evidence and the witnesses statements attached thereto to show whether a prima facie case has been disclosed. Where the proof of evidence does not disclose a prima facie case, the Court will quash the charge against the accused.

The proof of evidence must sufficiently link the accused with the offence although it need not be a conclusive proof of the accused person’s guilt which is a matter to be determined at the substantive trial.
Where there is no sufficient linkage of the accused to the offence allegedly committed the Court would be on a good ground to quash the charge against the accused person. See ABACHA v. STATE (2002) 11 NWLR (pt. 779) 431, UBANATU v. C.O.P (2006) 2 NWLR (pt.643) 115. In IKANI v. THE STATE (1986) 3 NWLR (pt. 28) 340, it was held “No citizen should be put to the rigors of trail in a criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime.” per. PAUL OBI ELECHI, J.C.A.

CRIMINAL LAW: PARTICIPLES CRIMINIS; WHETHER PERSONS WHO ARE PARTICIPLES

Whether or not, the Law is settled that all persons who are participles criminis, whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with the actual commission of the crime. Parties, participles criminis to a crime, include inter alia every person who actually does the act or makes the omission which constitutes the offence, person who aided, abetted or assist them in the commission of the offence or who Counselor, procure others to commit the offence or knowingly facilitate the commission of the offence. See Section 7 of the Criminal Code. per. PAUL OBI ELECHI, J.C.A.

JUSTICES

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

SIMEON DANIEL UDOIKE – Appellant(s)

AND

THE STATE – Respondent(s)

PAUL OBI ELECHI, J.C.A. (Delivering the Leading ?Judgment): This is an appeal against the Ruling of High Court of Akwa Ibom State, Ukanafun Judicial Division delivered by the Hon. Justice Ezekiel Ennang on the 31st July, 2015. The 2nd Accused/Appellant was the 2nd Accused/person at the Lower Court whilst the 1st Respondent was the complainant and 1st, 3rd and 4th Accused person respectively.

The 1st- 4th Accused/Appellants were charged with conspiracy, Murder and causing grievous harm under Sections 331, 326 (1) of the Criminal Code Law respectively Cap 38 Vol. 2 Laws of Akwa Ibom State of Nigeria 2000. In Count 1, the 1st – 4th Accused/Appellants were alleged to have conspired on the18th March, 2015 among themselves to kill one Honourable Okon Joseph Uwah. In Count 2, the 1st -4th Accused/Appellants were alleged to have murdered one Honourable Okon Joseph Uwah on l8th March, 2015. In Count 3, the 1st – 4th Accused/Appellants were alleged to have on the 18th March, 2015 did grievous harm to one Uduak Jackson Essien.

Upon being served with the information on the charge on the Accused/Appellants Counsel filed an Application by way

of Motion on Notice on the 12th June, 2015. The 1st Complainant Counsel filed a 5 (five) Paragraph Affidavit with written Address in opposition.

The 1st – 4th Accused/Appellants sought to strike out the 3 (three) count information against them. The Grounds of their Motion is that the information filed does not disclose any prima facie case of conspiracy, Murder and causing grievous having against the Appellants for lacking in evidence in proof to connect the Accused/Appellants with the offence charged. The Lower Court on the 31st Jury, 2015 delivered its Ruling and dismissed the Application.

Dissatisfied with the said Ruling the 1st – 4th Accused/Appellants have now lodged an appeal against that Ruling. In trying to argue this appeal the 2nd Accused/Appellant distilled 4 (four) issues for determination:

1. “Whether the trial Court can rely on hearsay to establish prima facie case of conspiracy, Murder and causing grievous harm against 2nd Accused/Appellant when the 2nd Accused/Appellant was not present at the scene of crime.

2. Whether the trial Judge was right to have established prima facie case of Conspiracy Murder and grievous harm against

the 2nd Accused/Appellant when he help that the 2nd Accused/Appellant attacked the deceased on the instruction of the 1st Accused/Appellant base on the hearsay of the prosecution witness when the 2nd Accused/Appellant was not present at the scene of crime (ground 2).

3. Whether a criminal charge preferred In the Magistrate Court without Jurisdiction which was sent to Director public prosecution and adjourned since die amount to the termination of the Criminal proceedings and whether the filing of Information at the same time at High Court did not amount to abuse of Court process and criminal Jeopardy against the 2nd Accused/Appellant (ground 3).

4. Whether the Learned trial Judge can rely on disputed State Law to rule against the consent to proffer Information at High Court of Akwa Ibom State under a valid existing Law (Ground 4).”

In arguing this issue No. 1, Appellants Learned Counsel referred the Court to the case of OLATUNBOSUN v. STATE (2013) 17 NWLR (Pt. 1382) 167 at 197 where the Supreme Court held that it is the duty of counsel especially in Murder cases to promptly take objection to any or every perceived irregularity relating at least

to procedure or charge. The Learned Appellant Counsel then submitted that it was acting within the ambit of the Law when he applied to quash the Court charge when the 3 (three) counts disclosed no prima facie case against the 2nd Accused/Appellant to link him with the offence charged with. He then argued that the statement of Gideon Amos udoko at page 6 – 11 of the Record of Appeal as proof of evidence intending to be used to establish the fact that he 2nd Accused/Appellant conspired and indeed attack the deceased is hearsay on the fact that the evidence is credited to one Akaninyene Peter Abai who was purported to have received instructions via telephone cell to attack the deceased the 2nd Accused/Appellant according to Learned Counsel was not at the scene of crime neither did he personally involved in the attack of the deceased but what the Court relied upon to link the 2nd Accused/Appellant and made out a prima facie case against him is only hearsay evidence of one Gideon Amos Udeko and urged the Court to hold that this cannot by any shred of evidence link the 2nd Accused/Appellant to the offence of conspiracy, murder and causing grievous harm. see SHURUMO

v. STATE (2010) 19 NWLR (pt. 226) 73 at l04. The proof of evidence by the prosecution did not disclose any prima facie case against the 2nd Accused/Appellant and in view of that; the Court is being urged to resolve this issue in favour of the Appellants.

Issue No. 2, a greater part of the argument to be preferred in this issue has already been covered in issue No. 1 above and he thereby adopted same as his argument and submission under issue No. 2. Nonetheless, Learned Appellant Counsel still maintains that the hearsay evidence of Gideon Amos Udoko cannot link the 2nd Accused/Appellant with the offence charged. The reason is that the mere mention of the 2nd Accused/Appellant by the said Gideon Amos Udoko as one of the boys who attacked the deceased without stating any particular direct involvement in the crime only amount to suspicion which no matter how strong it cannot establish prima facie case against the 2nd Accused/Appellant or secures conviction against the 2nd Accused/Appellant. see AL-MUSTAPHA v. STATE (2013) 17 NWLR (Pt. 1383) 350 at 413. Even the 2nd Accused/Appellant statement on oath raised a defence of Alibi and gave particulars of his

whereabouts that is staying with his in-Law’s compound but there was no investigation by the police.

Learned Counsel then submitted that the essential element of the offence under Section 344 was not established vis-a-vis the deposition in the proof of evidence. In consequence, therefore, he urged the Court to resolve this issue in their favour.

Issue No. 3 under the issue, Learned Appellant counsel submitted that the Criminal charge preferred in the Magistrate Court without jurisdiction which was a result refer the matter to Director of Public Prosecution and thereafter adjourned that matter sine die does not amount to the termination of Criminal proceedings against the 2nd Accused/Appellant. Learned Counsel then submitted that the pending criminal proceeding in charge No. UKM/12C/2015 adjourned sine die at the Magistrate Court against the 2nd Accused/Appellant coupled with the filing of information to preferred charge in charge No. HUK/10C/2O15 at the same time at High Court against the same 2nd Accused/Appellant while the 2nd Accused/Appellant amount to an abuse of Court process and double jeopardy for the 2nd Accused/Appellant based on the fact

that the criminal proceedings was just adjourned sine die and not formally terminated against the 2nd Accused/Appellant while the 2nd Accused/Appellant was also arraigned before the High Court for the same criminal offence simultaneously. The render order by the Magistrate Court cannot termination a Criminal proceeding adjourned sine die at the Magistrate Court. see AHMED v. C.O.P. (2012) 9 NWLR (Pt.1304) 104. He then urged the Court to resolve this issue in their favour.

Issue No. 4 – under the issue Learned 2nd Accused/Appellant counsel submitted that publishing of Law criminal procedure (Amendment) Law 2006 of Akwa Ibom State on the State gazette without the Constitutional requirement of signature of the clerk of the house and the assent of the Governor make the Law invalid, null and void and of no effect. He then urged the Court to resolve this issue in their favour.

Before considering the issues raised in this appeal, it would be necessary to first of all consider the merit or otherwise of the Preliminary objection filed by the Respondent. The Respondent by a Notice of Preliminary Objection pursuant to Order 10 of the Rules of this Court filed

a Notice of Intention to rely on the preliminary objection which is incorporated in the Respondent Brief of Argument as issue No. 4 for determination before this Court in their argument.

In the said preliminary objection, the Respondent argued that the Appellant did not obtain the Leave of either the Lower Court or this Court before the filing of the interlocutory appeal. Consequent upon the failure to obtain same the Respondent alleged that this Court is being robbed of jurisdiction to entertain the appeal filed by the Appellant. On the other hand, the Appellant’s counsel stated that it is not every interlocutory appeal that needs the Leave of this Court or the Lower Court before an appeal is filed.

He referred the Court to Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria as Amended which provides for the instances where appeals as of right shall lie to this Court from the decision of the Federal High Court for a High Court of a State what must be noted in mind is that the appeal of the Accused/Appellant is against an interlocutory Ruling of the High Court of Akwa Ibom sitting at Ukanafun, on which Ruling of the Lower

Court dismissed the Motion filed by the Appellants herein to quash information No. HUK/10C/2015

Consequently, this appeal being an interlocutory Ruling of the Lower Court is not listed under Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 as Amended and so Section 241(1) of the Constitution of the Federal Republic of Nigeria applies and as a result the Appellants were duty bound to comply with the Constitutional requirement and to obtain Leave and failure to do so is failed to this appeal and I so hold.

Therefore, this preliminary objection therefore succeeds. This conclusion ought to be the end of this appeal. But being a penultimate Court?in this Country, it is expedient to also consider the merit of the appeal in the event that the ultimate Court (Supreme Court) does not agree with this conclusion, I shall therefore commence the consideration of the issues raised by the parties.

The main issue in contention of the Appellant’s argument in this appeal and in fact, the backbone is that the Learned trial Judge was in error to have held that the proof of evidence in this appeal discloses a prima facie case against the

Appellant when according to the Appellant, there was no evidence from the proof of evidence linking the Appellant with the offence of conspiracy, Murder, and causing grievous bodily harm.

2. The proof of evidence must sufficiently link the accused with the offence although it need not be a conclusive proof of the accused person’s guilt which is a matter to be determined at the substantive trial.

3. Where there is no sufficient linkage of the accused to the offence allegedly committed the Court would be on a good ground to quash the charge against the accused person. See ABACHA v. STATE

(2002) 11 NWLR (pt. 779) 431, UBANATU v. C.O.P (2006) 2 NWLR (pt.643) 115. In IKANI v. THE STATE (1986) 3 NWLR (pt. 28) 340, it was held “No citizen should be put to the rigors of trail in a criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime.”

In this case at hand, the prosecution witness Gideon Amos Udoko heard the phone call conversation between the 1st Accused/Appellant and one Akaninyene Peter Abai now at large and his statement to the Police touching on the telephone conversation is evidence of what he heard first hand.

The 2nd Accused/Appellant is a well known to the prosecution witnesses who recognized his voice on phone in his house giving directive over the GSM phone (which was on loud speaker) that the boys including the 2nd – 4th Accused/Appellant should not allow the deceased to move or Leave the venue of the meeting following which instruction, the deceased was assaulted to death.

In the instant case, the telephone conversation at speaker phone level which other witnesses of the prosecution heard while on the scene of crime has provided a link with the Accused/Appellant with

the offence of conspiracy, Murder and causing grievous harm although it need not be a conclusive proof of the accused person’s guilt which is a matter to be determined at the substantive trial.

It is on this ground that I am of the humble opinion that the information No. HUK/10C/2015 as filed with the proof of evidence thereon has disclosed a prima facie case against the 2nd Accused/Appellant and therefore, the Lower Court rightly dismissed the motion to quash same filed by the Accused/Appellant.

Consequently, I hereby resolve the above issue No. 1 against the Appellant and in favour of the Respondents. Another issue raised by the Appellant in their brief is:

“Whether the 1st Accused/Appellant can be herd liable for the offence of conspiracy murder and causing grievous harm when the killer of the deceased were Gideon Amos Udoko and as stated in the proof?of evidence which did include 2nd Accused/Appellant contrary to the principles of Law enunciated in ABACHA v. STATE (2002) 11 NWLR (pt. 779)473; AL MUSTAPHA v. STATE (2013) 17 NWLR?(pt.1383)350.”

?This issue is covered by ground 2 of the grounds of appeal. Under this issue one may ask a

simple question thus:

”Is the 2nd Accused/Appellant one of the participles criminis In the commission of this offence, the charge sought to be quashed at the Lower Court”

From the provisions of the above Section, the 2nd Accused/Appellant clearly falls into the category of aiding and assisting others to commit the offence which he had facilitated through telephone conversation.

It is on that note that I hereby resolve that the Learned trial Judge was right to have established a prima facie case against the

1st Accused/Appellant when he heard that the 1st Accused/Appellant procure and Counsel the attackers to kill the deceased through a phone call. And so I hereby resolve issues 2 and 3 respectively in favour of the Respondent and against the Appellant.

Another issue raised by the Appellants is to the effect that whether a Criminal charge preferred at the Magistrate Court without jurisdiction which was sent to the Director of Public Prosecution and adjourned sine die amounted to the termination of the criminal proceedings and whether the filing of information at the same time at the High Court did not amount to abuse of Court process and Criminal jeopardy against the 1st Accused/Appellant?

The information filed at the High Court is competent in charge No. HUK/10C/2015 upon which the 2nd Accused/Appellant is charged. The Learned Magistrate having declined jurisdiction did not adjourn the said charge No. UKM/12C/2015 to any future date and the 1st Accused/Appellant were no more required to show appearance in the Magistrate Court.

In view of the above, I hereby resolve this issue in favour of the Respondents.

Another issue raised by the 1st

accused/Appellant at the Lower Court was that the information No. HUK/10C/2015 is incompetent in that the consent of the Judge was not obtained before same was filed as required by Section 314(3) (b) of the Criminal Procedure Law Cap 39 Vol. 2 Laws of Akwa Ibom State 2000. This argument of the Appellant Counsel is of the old school. There is now an amendment to Section 314 of the Criminal Procedure Law of Akwa Ibom State 2006 which authorizes the filing of information without the statement of witnesses being verified on oath before a Magistrate and without obtaining the consent of a Judge.

In view of this, I shall and hereby resolve this issue in favour of the respondents as no Law is yet in dispute as contended by the Appellant.

Though the 2nd Accused/Appellant is not yet on trial but, the positive and credible evidence and unequivocal fixing of the 2nd – 4th Accused/Appellants and the telephone conversation at the scene of crime clearly debunks and dispenses with any plea of Alibi or defence of Alibi that may arise from any of the witnesses. See MOHAMMED v. STATE (2014) 5 SC (pt.III) 83; SOWEMINA v. STATE (2004) 4 SC (Pt. II) 2. There is

therefore a prima facie evidence disclosed against the 1st – 4th Accused/Appellant and the Lower Court was right to dismiss the Accused/Appellants motion to quash the information.

Therefore, I resolve this issue in favour of the Respondent. Having resolved all the issue in this appeal in favour of the Respondents, I find no merit in this appeal. The 2nd Accused/Appellant, his motion having been quashed at the Lower Court should go back there and take his plea alongside other Accused persons. The appeal therefore, fails; it is refused and accordingly dismissed.

I hereby affirm the Ruling of the Lower Court in charge No. HUM/10C/2015 delivered on the 31st of July, 2015 by Hon. Justice Ezekiel o. Enang at the High Court of Justice, Ukanafun Tribunal Division of Akwa Ibom State.

Appeal dismissed.

ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Paul Obi Elechi, JCA, made available to me a draft copy of the lead Judgment in this appeal, in which he dismissed this appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.

I also dismiss this appeal, which is totally

unmeritorious, and affirm the Ruling of the trial Court. I abide by the orders made in the lead Judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: An application to quash a charge on grounds of insufficiency of attached proof of evidence although available to an accused person under the extant criminal procedure law in Akwa Ibom State, is anachronistic in several jurisdictions within the country.

The justification for this is easily fathomed. At best the application only secures a mirage of a reprieve for the accused, virtual without being actual. It does not bar subsequent prosecutions as its success does not result in an acquittal. Furthermore, the prosecution is at liberty to file additional proofs of evidence and as held in UGURU v. STATE (2002) 10 NSCQR 37, it could amend the charge anytime until judgment.

The application is mainly premised on the contention that the information is not supported by the attached proof of evidence as to justify the accused being put on trial.

The proof of evidence must disclose a prima facie case, sufficient if believed, to link the accused with the alleged offence and justify

proceeding with the trial. The prima facie case must constitute ground for proceeding,

Where the proof of evidence fails to disclose an offence known to law, it would be quashed. see FRED EGBE v. STATE (1980) 1 NCR 341.

Where the proof of evidence although discloses an offence known to law but insufficiently links the accused person with it as to justify his being put on trial in respect thereof, it would also be quashed. see ABACHA v. STATE (2002) 11 NWLR (pt. 779) 437 and OHWOVORIOLE v. FRN (2003) 2 NWLR (pt. 803) 176.

Because this objection bothers on jurisdiction, for where a trial is based on a bad indictment it would be an exercise in futility, it could be entertained even if brought after plea. See IKOMI v. STATE (1986) 3 NWLR (pt. 28) 340 per ANIAGOLU JSC at 370.

With respect to the present case, I agree with the more detailed reasoning and conclusion in the lead judgment just delivered by my learned brother, PAUL OBI ELECHI, J.C.A, the draft of which I was privileged to have read, that the attached proof of evidence links the appellant sufficiently with the alleged offences as to justify his being put on trial in respect thereof.

I therefore find no merit in this appeal and I dismiss it. I also adopt the consequential orders in the lead judgment.

Appearances

VICTOR UKOD, ESQ. WITH HIM, ERNEST AKPAN, ESQ.For Appellant

AND

F.J. ITIM, ESQ.For Respondent