Daniel Asuquo Edet V. The State (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an interlocutory appeal against the decision of S. M. Anjor, J., of the High Court of Cross River State, sitting in Calabar in Suit No. HC/39C/2005 delivered on the 3/5/2006.
In order to bring the issues involved in this appeal into proper perspective, it is necessary that I briefly state the facts which led to this appeal.
The appellant was arraigned before the court of trial on three (3) counts of stealing contrary to section 390 (12) of the Criminal Code, Cap. 31, Vol. II, Laws of Cross River State of Nigeria, 1983. On arraignment, but before the commencement of the trial, the appellant by a motion on notice dated 23/11/05 and brought pursuant to sections 167, 340(1), 72(2) of the Criminal Procedure Law of Cross River State, challenged the legality or validity of the information.
The grounds upon which the application was brought are stated at page 23 of the printed record supplied as follows:
“1. The Attorney-General lacks jurisdiction, power and authority to bring Charge No. HC/39C/2005 against the accused having discharged the accused on the 14 April, 2005 vide a letter with reference DPD/38/C/6986/2 to the Commissioner of Police, Cross River State Command, as the said Attorney-General cannot Approbate and Reprobate at the same time.
- The proof of evidence does not disclose a prima facie case against the Accused/Applicant requiring him to stand trial before this Court of Justice or any other court of law on any of the 3 counts described therein.
- All the 3 counts in the statement of offences are prejudicial to the Accused/Applicant and an abuse of judicial process.”
Sequel to the above application the appellant’s counsel addressed the court on the objection raised. See pages 49 – 51 of the record.
At the end of the proceedings for the day the learned trial Judge adjourned the proceedings to 15/3/06 for the respondent to reply. For reasons not clearly stated in the record the court did not proceed with the case on that day, instead it adjourned it to 11/4/06.
On 11/4/06 when the court resumed, learned counsel for the respondent, Mr. E. Henshaw, rather than reply to the submissions of the appellant’s counsel, applied to the court that the appellant be ordered to be in the dock.
Instead of hearing arguments conclusively on the objection and ruling on same, the learned trial Judge proceeded to hear the fresh application made by the learned counsel for the respondent urging that the appellant enter the dock. The trial Judge ruled as follows:
“From the arguments of both counsel, what is at stake here is the interpretation of S. 167 CPA, cited by State Counsel which provides “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later”.
The question then is at what point can a charge or information be read to an accused person. Certainly it cannot be when accused is outside the dock, but made same.
I therefore agree with Prosecution Counsel that accused person ought to be inside the dock while taking his objection to the charge or information.
Consequently it is hereby ordered that accused/applicant should enter the dock while argument of his objection continues.
Matter adjourned to 27-6-06 for reply.
Sgd.
(S. M. ANJOR)
JUDGE
3-5-06″
Dissatisfied with the Ruling of the trial court the appellant appealed to this court on 4 grounds. From the 4 grounds of appeal, the appellant distilled only two issues for determination in his brief dated and filed on 4/4/07. The issues are:
“1. Considering the fact that there was objection to the legality or validity of the information whether the learned trial Judge was right in ordering that the appellant should enter the dock to face trial while the objection continues. Grounds 2, 3 and 4.
- Whether or not the learned trial Judge was correct when he held that what was at stake was the interpretation of section 167 of the Criminal Procedure Act. Ground 1.”
The respondent in his brief of argument dated 18/7/07 and filed on 20/7/07 formulated a lone issue for determination as follows:
“Whether on the peculiar circumstance of this case, the learned trial Judge was right in ordering that the appellant should enter the dock while argument on his application continues.”
On Issue NO.1, the appellant’s counsel, Mr. Nta, submitted that an accused person should only be called upon to enter the dock and plead to a charge or information where the said information or charge is properly and legally preferred and disclose a prima facie case against the accused. In the instant case on appeal, it is the appellant’s contention that the information as laid does not disclose a prima facie case to warrant a criminal trial against the appellant and that the statements and proofs of evidence do not disclose an offence against the appellant, therefore, he could not be called upon to plead to the charge.
On Issue NO.2, the appellant contended that the learned trial Judge misconstrued the submissions of counsel when he held that what is at stake here is the interpretation of section 167 of the Criminal Procedure Act.
Whereas appellant’s contention was that no prima facie case was disclosed in the information and that the proofs of evidence attached to the information do not disclose an offence to justify the criminal trial of the appellant. This was a challenge to the validity or legality of the information and not to a formal defect in the charge as the trial Judge thought. The appellant relied on Anu vs. I.G.P. (1958) 3 FSC 34.
Learned counsel for the respondent at first argued that the trial Judge was correct in his ruling. But in what could be described as a triple somersault the respondent’s counsel conceded that the overall effect of the appellant’s application before the court was that he should not be tried on the ground that the information upon which he was charged was invalid, therefore the physical presence of the appellant in court was not mandatory. He referred to Fawehinmi vs. A-G, Lagos State (No.1) (1989) 3 NWLR (Pt. 112) page 707 at 739 and Ezeze vs. The State (2004) 14 NWLR (Pt. 894) 491 at 504.
I have carefully considered the issues for determination formulated by the parties in this appeal and in my view those formulated by the appellant appear more apt, and derivable from the grounds of appeal, they are therefore germane for the determination of this appeal. I shall accordingly rely on them.
The appellant’s Issue No. 1 is predicated on grounds 2, 3 and 4 in the notice of appeal. It is important to note that for there to be a valid trial, there must be a proper arraignment in terms of the procedure laid down in section 215 of the Criminal Procedure Law of Cross River State, 1983. The three essential requirements which must be satisfied are:
“(a) the accused must be placed before the court unfettered unless the court shall see course otherwise to order;
(b) the charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and
(c) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise.”
These requirements are mandatory and not directory and must therefore be strictly complied with in all criminal trials. The requirements have been specifically provided to guarantee the fair hearing of an accused person and to safeguard his interest at such a trial. Failure to satisfy any of them will render the whole trial incurably defective, null and void. See Solola vs. State (2005) 2 NWLR (Pt. 937) 460 at Pp. 482 – 483 Paras. D – H; 494 – 495, Paras. H – E; Kalu vs. State (1998) 13 NWLR (Pt. 583) 531; Okoro vs. State (1998) 14 NWLR(Pt. 584) 181 and Udo vs. State (2005) 8 NWLR(Pt. 928) 521 at 536, para. E.
The charge or information to be read to the appellant must be properly preferred in accordance with the law. In other words, the charge or information containing the indictment must contain depositions disclosing an offence against the accused person otherwise the trial would be an abuse of court process. It follows therefore that where an information does not disclose a prima facie case against an accused person he cannot be called upon to plead to the charge or information. See Egbe vs. State (1980)1 NCR 341 and A-G, Federation vs. Isong (1986)1 QLRN 75. In the instant appeal, the appellant’s contention is that the information as laid did not disclose a prima facie case to warrant a criminal trial against him because the statements and proofs of evidence did not disclose an offence against him therefore he could not be called upon to plead to the charge.
It is not in dispute that the appellant filed a motion on notice dated 23/11/05 by which he challenged the legality or validity of the information and urging the lower court to quash the information. The trial Judge had not resolved the question whether or not there was a prima facie case against the appellant justifying the criminal trial against him before ordering him to enter the dock while arguments on the objection continues.
By ordering that the appellant should enter the dock it meant that the trial Judge had made up his mind on the objection before him when arguments of both parties on the motion had not been concluded. This act of the trial Judge smacks of denial of fair hearing to the appellant. Fair hearing is guaranteed by the provisions of section 36(1) of the 1999 Constitution. Moreover, the principle of fair hearing is fundamental to all judicial proceedings. Any violation of it or absence of it vitiates the proceedings however well conducted. Fair hearing implies that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It is a bounding obligation that a court hearing a case should be fair and impartial without showing any degree of bias against any of the parties. See Atano vs. A-G, Bendel State (1988) 2 NWLR (Pt. 75) 201; Salu vs. Egbeibon (1994) 6 NWLR(Pt. 348) 23 and Usman vs. R. S. H. A. (2007) 11 NWLR (Pt.1044) 148 at 198. It is crystal clear that the objection raised by the appellant before the court below is related to the competence of a procedural step. Therefore, the court is duty bound or obliged to first consider the objection and rule on it. Once the competency of a procedural step is challenged, it means that the jurisdiction of the court to determine the procedural step is put in issue. Jurisdiction is radically fundamental to any judicial proceedings, it must be clearly shown to exist at the commencement of or during the proceedings otherwise such proceedings no matter how well conducted and any judgment arising therefrom no matter how well considered or beautifully written will be a nullity and waste of time. See Dangatoe vs. Civil Service, Plateau State (2001) 4 SCNJ 131; Galadima vs. Tambai (2000) 11 NWLR(Pt. 677) 1; S. D. P. C. Ltd. vs. Isaiah (2001) 11 NWLR(Pt. 723) 108 and Adekanye vs. Comptoller of Prisons (2000) 12 NWLR(Pt. 682) 563.
A decision on the issue raised by a party in a case can only be reached by a court after both parties have been heard or have been duly granted the opportunity to be heard. A decision reached by the court without hearing or without giving both parties the full opportunity to be heard, is a nullity. See Amoo vs. Alabi (2003) 12 NWLR (pt. 942) 537 at 557.
It is a grave error for the court below to abandon the objection of the appellant’s counsel which is very fundamental and crucial to the trial of the appellant, because it is the bounding duty of the court to deal with and pronounce on issue placed before it for determination. See Cookey vs. Fombo (2005) 15 NWLR (Pt. 949) 182 at 200, the Supreme Court held inter alia that:
“As a matter of general principles, a court should deal with and determine all issue placed before it for determination.”
See also Balogun vs. Labiran (1988) 3 NWLR (Pt. 80) 66.
Prudence, common sense and the interest of justice demands that the trial Judge should have heard and concluded the proceeding relating to the appellant’s objection and rule one way or the other. A procedure where a court abandons an application half way and jumps hastily to another application is alien and unknown in our law.
In Ezeze vs. The State (supra) it was held that the court has the jurisdiction to safeguard an accused person from oppression or prejudice.
The court will fail in its fundamental duty if, in the face of a defective or bad charge, it refuses to entertain the application to quash the information and hastily proceeds to set the criminal case down for trial. The court has the power and a duty to stop a prosecution which on the facts creates abuse and injustice. If the information is defective, then it is immaterial whether the accused person is present in court or not.
In Fawehinmi vs. A-G, Lagos State (No.1) (supra), Ogwuegbu, JCA, (as he then was) stated at page 739 of the report that:
“It is my view that the court has the power and a duty to stop a prosecution which on the facts creates abuse and injustice. That was what the learned trial Judge did in the appeal before us. If the information was defective, it was immaterial whether the respondents were present in court or not.”
Also in Ezeze vs. State (supra), Aderemi, JCA, (as he then was) held inter alia that:
“……The Court has the power and duty to stop a prosecution which on the facts creates abuse and injustice. If the information is defective, it is immaterial whether the accused person is present or not…”
The objection of the appellant at the court below was on the legality or validity of the information brought against him, therefore, he could not be properly tried on the information filed against him. At the material time when the objection was raised no prima facie case had been established
justifying the criminal trial against the appellant. Moreover, a proper arraignment had not commenced since the appellant was challenging the legality or validity of the information brought against him. The appellant could only be ordered by the learned trial Judge to enter the dock and plead to the charges when he had heard full arguments on the objection and ruled one way or the other. There is merit in this issue and I resolve it in favour of the appellant and against the respondent.
Issue NO.2, is distilled from Ground 1. It is imperative that I begin with the provisions of section 167 of the Criminal Procedure Law of the Cross River State, Vol. II of 1983. It provides:
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge is read over to the accused and not later.”
From the above, it is clear as crystal that the provisions of section 167 of the Criminal Procedure Law is referable to “any formal defect in a charge” and not “an information”. In section 2 of the Criminal Procedure Law of Cross River State, “Charge” means:
“the statement of offence or statement of offences with which an accused is charged in a summary trial before a court.”
In Fawehinmi vs. A-G, Lagos (No.1) (supra), it was held that an information is not a charge. The filing of an information is a proceeding preliminary to trial. See sections 340 – 343 of the Criminal Procedure Law of the Cross River State. Unlike in a charge, the accused is not directly indicted in an information. Rather the court is “informed” by the Attorney-General, who is responsible for the prosecution, that the accused committed the offence or offences. In other words, an “information” is a mode of instituting criminal proceedings.
The learned trial Judge misdirected himself when he stated “The question then is at what point can a charge or information be read to an accused person.”
Certainly, the question before the trial court was not at what point should a charge or information be read to an accused person. Rather the question is whether on the face of the information a prima facie case was disclosed or whether the proofs of evidence attached to the information disclose an offence to justify the criminal trial against him. It is glaringly clear that this was an objection which affect the jurisdiction of the trial court and not an objection to a charge for any formal defect. It is therefore apparent that the trial Judge misconstrued the objection of the appellant before the trial court.
In Ikomi vs. The State (1986) 3 NWLR 340, the Supreme Court listed the various conditions under which an information may be liable to be quashed. These 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 objection of the appellant comes within the purview of the condition stated under Paragraph (b) above.
An objection to an information for whatever reason may be taken at any stage before the trial of the offence charged in the information. This is exactly what the appellant did at the court below. See Fred Egbe vs. The State (supra).
It is glaringly clear that the appellant’s objection is directed to the competence of the information filed before the trial court and afortiori, the jurisdiction of the trial court. It has nothing to do with a formal defect on the charge as the learned trial Judge thought. Admittedly, the appellant brought his application pursuant to section 167 of the Criminal Procedure Law of the Cross River State. Apparently that was the wrong section having regard to the nature of the application. However, there was a clear reference to the provisions of section 340 and 72 of the same law which the trial Judge should have considered in his Ruling.
In the final analysis, I find merit in this appeal and it richly deserves to be allowed. Accordingly I allow this appeal. The Ruling and or Order made by trial Court in Suit No. HC/59C/2005, delivered on 3/5/2006 be and is hereby set aside.
Other Citations: (2008)LCN/3047(CA)
