THE STATE v. DORATHY ONYEKACHI EZE & ANOR
(2019)LCN/13480(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/OW/344C/2017
RATIO
PRIMA FACIE: DEFINITION
PRIMA FACIE is defined in IKOMI v. THE STATE (1986) 3 NWLR (PT. 28) 340, where the Court held:-
No citizen should be put to the rigors of trial in a criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime.”PER RITA NOSAKHARE PEMU, J.C.A.
WHERE INFORMATION MIGHT BE QUASHED
As earlier stated in this judgment the apex Court in IKOMI v. THE STATE SUPRA held that the conditions under which information may be liable to be quashed are where:
(a) The Court has no jurisdiction to try the offence.
(b) The deposition do not disclose the offence or offences charged and
(c) The consent given in circumstances amounting to abuse of the Court’s process or contrary to Section 340 (3) of the Criminal Procedure Law.PER V
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
THE STATE Appellant(s)
AND
1. DORATHY ONYEKACHI EZE
2. VICTORIA ONUIGBO NWODU Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Imo State High Court, holden at Mbaise Judicial Division delivered on the 6th day of June 2017, in Suit No. HAM/60C/2016.
SYNOPSIS OF FACTS
The accused persons (Respondents in this appeal) were charged with the offence of hostage taking and kidnapping brought pursuant to the Provisions of Section 4 of the Imo State Prohibition of Hostage taking, and Other Related Offences Law No 4 of 2009 of Imo State.
On the 4th of April, 2017 instead of taking their plea the accused persons moved their motion to quash the information which motion was filed on the 13th of December, 2016.
?The particulars of the offence are that on the 15th day of July 2014 at Umuokirika Ahiazu Mbaise Local Government Area in the Mbaise Judicial Division, the Respondents and others now at large, assaulted and took hostage one Dustand Eze (M) and held him up to present day, on the allegation that he killed one Mrs. Janet Eze (F).
Instead of taking their respective pleas, they filed a motion to quash the charge. The Appellant filed
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a counter affidavit indicating that there was a prima facie case, and indeed sufficient evidence to proceed to hear the charge. The Respondents argued that there was no prima facie case against them.
On the 6th of June 2017 the Court below delivered its Ruling and upheld the argument of the Respondents.
Aggrieved, the Appellant filed a Notice of Appeal on the 5th of July 2017.
The Appellant filed its brief of argument on the 28th of November 2018, but same was deemed filed on the 7th of February 2019. It is settled by E. E. IBE DEPUTY D. P. P. Ministry of Justice of Imo State.
The Respondents? filed their brief of argument on the 1st of February 2019, but same was deemed filed on the 7th of February 2019. It is settled by L. M. ALOZIE SAN.
The Appellant filed a Reply brief on the 19th of February 2019.
The parties adopted their respective briefs of argument on the 25th day of March 2019.
The Appellant distilled two issues for determination from the Grounds of Appeal. They are:-
a. WHETHER OR NOT THE RULING WHICH QUASHED THE INFORMATION BROUGHT AGAINST THE RESPONDENTS IS AGAINST THE PROOF OF EVIDENCE AND UNSTAINABLE
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IN VIEW OF THE FACT THAT THE INFORMATION FROM BOTH THE PROSECUTION WITNESSES AND THE ACCUSED PERSONS DISCLOSED PRIMA FACIE CASES AND SUFFICIENT EVIDENCE LINKING THE RESPONDENTS TO THE OFFENCE CHARGED.
b. WHETHER THE TRIAL LOWER COURT WAS RIGHT WHEN HE HELD THAT THERE WAS NO PRIMA FACIE CASE OF THE OFFENCE CHARGED DISCLOSED IN THE INFORMATION AND PROOFS OF EVIDENCE AND CONSEQUENTLY QUASHED THE INFORMATION.
The Respondents distilled one sole issue for determination which is:-
WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN LAW TO HAVE QUASHED THE INFORMATION/CHARGE NO. HAM/60C/2016 ON THE GROUND THAT IT DID NOT DISCLOSE A PRIMA FACIE CASE AGAINST THE ACCUSED/RESPONDENTS.
The Appellant argued his two issues for determination together.
He contends that the information and proof of evidence filed at the Court below, disclosed a prima facie case.
He submits that the decision of the Court below was wrong in law, as what is required of the Court below is to consider not all the essential elements of the offence as at that time, but whether there is a ground to commence hearing the case before him.
?
Submits that lack of ransom, or
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threat to kill the victim, is an issue that should come up as a defence during the trial.
He argues that the facts contained in the statement or evidence of the proposed witnesses in this case, disclosed a prima facie case to warrant the Court to proceed to hear the matter.
That from the proof of evidence, the Respondents? mother died and the victim came home for her burial, but was attacked and kidnapped. That the Police investigated the incident, and found that the Respondents were involved in the conspiracy, kidnap, and murder of the victim ? Dustand Eze.
The Anti-kidnapping Police report incriminated and found that the Respondents were involved in the conspiracy, kidnapping, and murder of the victim.
Submits that the 2nd Accused/Respondent had nexus with the crime, and to the incident. The Mercedes Benz car keys were found in the custody of the 2nd Respondent by the Police.
That based on the fact that the Respondents have connection and link with the incident and/or the statements attached to the charge, there is a prima facie case entitling the trial Court to proceed to hear the matter citing AJIDAGBA v. I.G.P. (1958)
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3 FSC. 5; NYAME v. FRN. (2010) 42 NSCQR (PT 1) 45.
Urges Court that the Ruling quashing the information/charge cannot stand as there is a prima facie case disclosed.
Further urges Court to hold that the two issues be resolved in favour of the Appellant.
RESOLUTION OF ISSUES
ISSUES NO 1 AND 2
Arguing the two issues together, the Appellant submit that the information and proofs of evidence filed at the lower Court relating, to the offence of hostage taking pursuant to Section 4 of the Prohibition of Hostage taking and Other Related Offences Law No 4 of 2009 of Imo State, disclosed prima facie case of the offence charged.
Submits, referring to Page 97 Paragraph 2 of the Record of Appeal, that the Court below held contrary to the above definition/decision of the Supreme Court and quashed the Appellant?s information/charge.
He submits further that the decision of the Court below was wrong in law, as what is required, or what the trial Court should consider is not all the essential elements of the offence but whether there is ground to commence hearing the case before him.
?
Submits that when the Court held that there were
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no demand for ransom or condition for the release of the victim and threatening to kill, main or continue to detain the victim unless the condition were met, and thus there is no prima facie case disclosed, was wrong in law. Urges Court to hold that lack of ransom or threat to kill the victim is an issue, that should come up as a defence during the trial.
That the facts contained in the statements or evidence of the proposed witnesses in this case disclosed a prima facie case to warrant the Court to hear the matter.
Submits that a review of the proofs of evidence and the facts deposed to in the counter affidavit to the motion to quash the information will reveal that the victim Dustand Eze (Mr) was kidnapped in the 15th ? 16th of July 2014, after he was assaulted and taken away, up to date without demand for ransom.
?
Submits that the proposed prosecution witnesses PW1 and PW3 in their respective statements to the Police, stated how the Respondents and others now at Large who were their siblings alleged that the victim (Dustand Eze) was responsible for their mother?s sickness, and that the Respondents and the siblings now at large,
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threatened that if their mother died that, they will kill the victim. The Respondents? mother subsequently died and they kidnapped the victim after assaulting him.
It contends that the 2nd Respondent had nexus with the crime as the case file revealed that she and others, now at large, took part in the hostage taking under review. That the Police found the key to the Mercedes Benz car used for the kidnap, in the possession of the 2nd Respondent and this was sufficient evidence that she took part in the commission of the offence.
Therefore he submits, there is a prima facie case established against the 2nd Respondent.
Submits that the two Police officers who investigated this matter found that the Respondents and others now at large committed the offence alleged, and recommended that they be charged to Court.
?
Submits that the victim was kidnapped in July 2014 by the Respondents and others at large. He had not been seen whether his body found anywhere buried. That it was the Respondents and the brothers now at large that had the last encounter with the victim leading to the kidnap and death or disappearance of the victim, leading to the
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kidnap, and death, or disappearance of the victim for the past four years.
I have perused and painstakingly read the submissions of the Appellant.
The Respondents are charged on two Courts charge of conspiracy to commit felony to wit: hostage taking and hostage, an offence punishable under Section 3 of the Prohibition of Hostage taking, and Related Offences Laws of Imo State 2009. ? Page 5 of the Record of Appeal.
Simply put, the gist of the offence, as elicited from the facts in evidence is that at the trial of the Respondents, instead of taking their plea, they moved their motion to quash the information and proofs of evidence dated 12/12/2016 and filed on the 13/12/2016.
The particulars of the offence with which the Respondents were charged was that on the 15th day of July, 2014 at Umuokirika Ahiazu Mbaise Local Government Area of the Mbaise Judicial Division, the Respondents and others now at large assaulted, and took one Dustand Eze hostage, and held him up to present day on the allegation that he killed one Mrs. Janet Eze.
The Appellant filed a counter affidavit on the 14th of February 2017 ? Pages 51 ? 58 of the Record of Appeal.
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While the Appellant posited that there was prima facie case against the Respondents, the Respondents argued that there was no prima facie case to prosecute them.
Pertinent to note that there has not been any evidence elicited, except the motion on Notice to quash the information filed on the 13th of December 2016 (For an order quashing the information or criminal charge No HAM/60C/2016 against the Accused/Appellants in this proceeding on the ground that the proof of evidence does not disclose a prima facie case against the Accused/Appellants) ? Pages 38 ? 50 of the Record of Appeal.
The motion was brought pursuant to the Provisions of Section 6 (6) (A) and (B) of the 1999 Constitution (as amended) and under the inherent jurisdiction of the Court.
?
A cursory look at the charge; statements of PW1, PW2, PW3 PW4, PW5, PW6 and PW7; the Police investigative Report; the exhibits, show the following particularly the Police Investigative Report. Pages 34 ? 35 of the Record of Appeal. It is that on the 15th of July, 2014 at about 2300 hours, one Chinenye Eze (M) Chibuike Eze (M) Nwabugo Eze Dorathy Eze, Victoria
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Onuigbo Nwodu, Onyewuchi Eze and others conspired among themselves and broke into the house of Dustand Eze through the ceiling; killed him and put his remains into the boot of a red Mercedes Benz 190 with registration No. MQ534 AAA driven by Chibuike Eze (M) in company of Chinenye Eze (M) and Nwalugo Eze to unknown destination.
In the course of investigation the Respondents were arrested and made useful statements under caution. The 1st Respondent stated in her statement that one Pastor Chibueze told her that Dustand Eze killed her mother Mrs. Janet Eze. Based on this information, she told her brothers Chinyere EZe, Chibuike Eze and Nwalugo Eze who went to Dustand?s room while he was sleeping on 15/7/2014 at about 2300 hours attacked and killed him. They carried his body into a red 190 Mercedes Benz with Registration No MQ534AAA and drove to an unknown destination.
On the 1st of August, 2014 the Mercedes Benz 190 used by the suspects to commit the crime, was recovered at Ehime Mbano Local Government Area, vandalized, and abandoned.
?
The Respondents made additional statements identifying the Mercedes Benz 190 to be the same car used by their
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brother in lifting the deceased?s body to an unknown place.
The Mercedes Benz car key was recovered from the 2nd Respondent.
In the opinion of the investigating Police officer in his report, he stated that the Respondents were directly involved in the killing of the deceased together with three others at large.
The interim Police Report corroborates the investigating Police officer Report ? Pages 36 ? 37.
PRIMA FACIE is defined in IKOMI v. THE STATE (1986) 3 NWLR (PT. 28) 340, where the Court held:-
?No citizen should be put to the rigors of trial in a criminal proceeding unless available evidence points prima facie to his complicity in the commission of crime.”
The Court below did not take the plea of the Respondents before entertaining the motion to quash the charge/information.
Section 223 of the Administration of Criminal Justice Act (2015) stipulates that:-
?Where a Defendant is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he
11
is shown to have committed although he was not charged with it.”
Section 236 (1) and (2) has this to say:-
236 (1) ?Where a Defendant is charged with an offence consisting of several particulars, a combination of some of which constitutes a lesser offence in itself and the combination is proved, but the remaining particulars are not proved he may be convicted of, or plead guilty, to the lesser offence although he was not charged with it.”
236 (2) ?Where a Defendant is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.?
The Court below was seised of the charge, the information, the statement of the Prosecution witnesses, the Police Investigation Report, the Statements of the Accused Respondents, the inventory of exhibits. The Court below was expected to have perused these documents in limine, to find out whether a prima facie case exists. But it did not, but went on to quash the information. This is finding curious.
As earlier stated in this judgment the apex Court
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in IKOMI v. THE STATE SUPRA held that the conditions under which information may be liable to be quashed are where:
(a) The Court has no jurisdiction to try the offence.
(b) The deposition do not disclose the offence or offences charged and
(c) The consent given in circumstances amounting to abuse of the Court?s process or contrary to Section 340 (3) of the Criminal Procedure Law.
The Court below had observed inter alia:-
?Part of the proofs of evidence is two Police Interim Reports Captioned: RE: A CASE OF KIDNAPPING/SUSPECTED MURDER OF DUSTAND EZE ?M?. It is at least a summary of the Statement of the witnesses and the accused person. The first is dated 4th August 2014 and the second is dated 25th August 2014.?
The term ?Prima facie? can aptly be defined to mean ?at first sight ?on? the first appearance?; ?on the face of it? so far as it can be judged from the first disclosure presumably ?a fact presumed to be true unless disproved by some evidence to the contrary?. TRADE BANK PLC v. CHAMI (2003) 13 NWLR Pt. 836. 198 ? paras C ? H.
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However in SHATA v. FRN (2009) 10 NWLR PT. (1149) at Page 411 Paragraph H, ?prima facie? evidence was stated to mean evidence which on the face of it, is sufficient to sustain the charge preferred against the accused. ? ONAGORUWA v. STATE (1993) 7 NWLR (PT. 303) 49.
The Respondents were charged under Section 4 of the Imo State Prohibition of Hostage Taking and Other Related Offences law No 4 2009.
It provides thus:-
?Any person who takes another hostage and threatens to kill, main, injure, or cause panic in order to compel another person or a government organization or a corporate body to do or restrain from doing any act as a condition for the release of a person taken hostage, is guilty of an offence and is liable on conviction to sentence of death.”
Now, the Court having been faced with such a charge and the attendant information and documents, and after perusing same, would have taken the Respondents? plea, then decide whether on the face of the charge, there exists a prima facie case, instead of quashing the charge.
May I ask, upon what basis did the Court below quash the charge? The law
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requires that if an accused person is not convicted for the offence with which he is charged, he can be convicted for any lesser offence or a different offence under Section 223 of the Administration of Criminal Justice Act (2015).
In the face of the documents before the Court below there definitely exists a prima facie case against the Respondents that would have needed that they render some explanation.
To quash the charges at the portal where the Court below did was an error.
With due respect, the Court below should have entertained the case by finding out if there was a prima facie case in the first place, but this he did not do.
In a situation where there was a threat to kill, and a killing of the deceased indeed took place; In a situation where a key to a stolen car attached to the decision was found in the person of one of the Respondents (the 2nd Respondent); one wonders why the Court below proceeded to quash the charge based on an application to quash. It erred by doing this.
The decision of the Court below was grossly in error, premature and misconceived and I dare say that consequently the issues proffered by the Appellant
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are resolved in its favour and against the Respondents.
The appeal succeeds and same is hereby allowed. The Ruling of the Court below delivered on the 6th day of June 2017, in Charge No. HAM/60C/2016 is hereby set aside. The case shall be remitted to the Chief Judge of Imo State for reassignment to another Judge who shall hear and determine the same de novo.
ITA GEORGE MBABA, J.C.A.: I have read the draft of the lead judgment, just delivered by my colleague, Hon. Justice R.N. Pemu JCA, and I agree, completely, with her reasoning and conclusion.
It is not every defect in a charge that establishes ground for quashing the charge. John Vs State (2019) LPELR 4695 JSC.
I further observed that the style and procedure adopted by the requirements to ward off the charge does not appear to be the best, as it merely delayed and frustrated the trial, which, in my opinion, would have been concluded by now. for the Accused persons to know their fate, had the actual trial not been impeded. They were arraigned on an Information (HAM/60C/2016), over offence, purportedly committed on 15/7/2014. About 6 years
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down the line, going by the alleged date of the offence, the charge keeps hanging on their neck, and I think, the sooner they submit to trial, the better for them, to free themselves from that yoke! This is without prejudice to the need/right to challenge a defective charge.
I too allow the appeal and abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.
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Appearances:
E. E. Ibe, Esq. (Deputy D. P. P.) with him, N. N. Ekedebe, Esq.For Appellant(s)
L. M. Alozie, SANFor Respondent(s)
Appearances
E. E. Ibe, Esq. (Deputy D. P. P.) with him, N. N. Ekedebe, Esq.For Appellant
AND
L. M. Alozie, SANFor Respondent
