Eze Kalunta & Ors V. The State (2016)
LawGlobal-Hub Lead Judgment Report
IGNATIUS IGWE AGUBE, J.C.A.
This is an Appeal against the Ruling of the Honourable Justice J.E. Adiele of the Abia State High Court sitting at the Uzuakali Judicial Division which Ruling was delivered on Thursday, the 24th day of October, 2013 refusing the Accused Persons/Applicants/Appellants??? Applications for:
(a) An Order quashing or setting aside the information of murder against the four Appellants (then Accused Persons/Applicants; and
(b) Such further Order or Orders as the Court may deem fit to make in the circumstances.
It would be recalled that the four Accused Persons/Applicants/Appellants were indicted and information to that effect dated 10th day of October, 2011 was filed on the 3rd day of November, 2011 alleging that the Four persons committed the offence of murdering Chief Ogbonna Ihueze contrary to Section 319(a) of the Criminal Code. Before and without taking their respective pleas upon arraignment, Chief Nnamdi D. Uchendu of Counsel filed four separate Applications by way of Motions on Notice respectively on the 2nd day of July, 2012 but dated the 25th day of
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June, 2012.
In support of each of the Applications were Eleven(11) paragraphed Affidavits deposed to by each of the Accused/Applicants, a Written Address and the extra judicial Statements of the Witnesses as well as the Investigation Report from the Deputy Commissioner of Police, Zonal Criminal Investigation Department, Zone 9 Headquarters, Umuahia which Report is dated 31st August, 2010 and duly endorsed by Asst. Inspector General of Police Zonal Criminal Investigation Department Zone 9 Headquarters.
As can be gleaned from the Affidavits each of the Accused/Applicants deposed to the facts that:
1. They were the Accused/Applicants in the Application.
2. They had been shown the information wherein they were charged with the murder of one Ogbonna Ihueze.
3. For Ugoeze Iheoma A.Kalunta (2nd accused/Applicant) the 1st Accused H.R.H. Eze Dr. Ariwodo Kalunta was his late Husband who died and his remains was to be interred at a time to be decided by the members of her matrimonial family.
4. That they did not murder Ogbonna Ihueze or any person at all.
5. That on the 1st day of June, 2010; when Ogbonna Ihueze allegedly died and his
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remains found in a raven/pit, they were in their respective houses and respective villages.
6. That they never sent or arranged with any person to murder Ogbonna Ihueze.
7. That when the incident occurred, the Prosecution Witnesses made Statements to the Police at the Divisional Police Headquarters, Bende, to the effect that they did not know who murdered Ogbonna Ihueze or whether he was murdered. Copies of the Statements were Exhibited and marked Exhibit ???A???.
8. That the Police Officers found no merit in the allegation of murder against them and accordingly admitted them to bail.
9. That in his Investigation Report to the Assistant Inspector General of Police in-charge of Zone 9 Police Headquarters, Umuahia, Mr. John E. Achuam, in-charge of Zonal Criminal Investigation Department, stated that there was no ground on which to sustain our prosecution for murder.
10. That they had read the Statements made by the Prosecution Witnesses and they were informed and verily believed, that they do not contain/disclose any prima-facie case against them.
11. That they made the Affidavits bonafides and in accordance with the Oaths
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Act, Laws of the Federation, 2004.
A perusal of the Affidavits of the 2nd, 3rd and 4th Accused/Applicants/Appellants would reveal that whereas the 2nd Appellant was the wife of the 1st Accused His Royal Highness, Eze/Dr. Ariwodo Kalunta the 3rd Appellant was the Traditional Prime Minister to the deceased 1st Accused while the 4th Appellant was a junior brother to the deceased 1st Accused.
Upon being served with the originating processes, the Respondent through Tolu Omotehinse (then a Pupil state Counsel in the Department of Public prosecutions) swore to Counter-Affidavits on the 8th day of May, 2013 against the grant of the Applications. The grounds upon which the Respondents objection was anchored were as follows:
???1. That she was conversant with the facts of the case.
2. That she had the consent of the Respondent to swear to the Counter-Affidavit.
3. That paragraphs 4 ??? 10 of the respective Accused/Applicants were false.
4. That by the statement of Chinedu Ogbonna, there was prima facie case of conspiracy and murder of Chief Ogbonna Ihueze against the Applicants.
5. That the information sought to be quashed by
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the Applicants had no procedural error or formal defect.
Also accompanying the Counter-Affidavits were Written Addresses of Counsel to the Respondent. On the 16th day of July, 2013 the Written Addresses in support and against the motions were adopted after which the motion was adjourned for Ruling. In his Ruling delivered on the 24th day of October, 2013, the Learned Trial Judge at pages 117/5 to 118/6 of the Records/Ruling held as follows:
???This application was based on the affidavit evidence of the Applicants that they did not commit the offence. That the prosecution witnesses said that they did not commit the offence. That the prosecution witnesses said that do not know who murdered the said Chief Ogbonna Ihueze and further that the Asst. Inspector General of Police in-charge of Zone 9, Police Headquarters, Umuahia and in-charge Zonal Criminal Investigations Department stated that there was no ground on which to sustain the prosecution for murder.
The above notwithstanding, I hold that it is rather premature, when the Accused Applicants have not taken their pleas and hearing commenced for the Accused Applicants to talk about the case of
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the prosecution not raising a prima facie. It is neater and much better if the Accused/Applicants had taken their pleas and hearing commenced before raising the issue of lack of prima facie case. The picture then or the coast would have been made clearer for one to consider the submission of no case than at this stage.
The decision of the Supreme Court in the case of Abacha V. State (supra) relied upon by the Learned DPP that any information charging an indictment and without a procedural formal defect cannot be quashed, becomes quite helpful at this stage of this application. I find support in the above decision of the Supreme Court to hold that I have no procedural or formal defect in the information indicting the Accused/Applicants. And it accords more with the justice of the matter if the Accused applicants will take their plea, proceed to trial and raise issue of no case or lack of prima facts latter than at this stage.
Based on the above, this Application is dismissed. The Applicants are hereby ordered to attend Court and answer to the information filed against them.???
???The case was subsequently adjourned to 27/11/2013 for plea but
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rather than submit themselves for the plea and hearing of the charge, the Accused persons who hence forth shall be referred to as Appellants gave Notice of Appeal with a Sole Ground dated and filed on the 7th of November, 2011 in the following terms:
???GROUND 1:
That the Learned Trial Judge erred in law when she dismissed the Application to quash the charge because such on Application can only be taken by way of a no-case submission at the conclusion of the prosecution???s case.
PARTICULARS OF ERROR
(a) The Learned Trial Judge did not consider the Application to quash the information of murder against the Appellants on the merits.
(b) The Learned Trial Judge confused an Application for an order to quash information which does not disclose a prima facie case with a no-case submission normally made at the conclusion of prosecution???s case.
???RELIEFS SOUGHT
An Order reversing the Ruling of the Learned Trial Judge and substituting therefore an order quashing the information of murder preferred against the Appellants.???
???Following the transmission of the Record of Appeal from the Lower Court hereto, the
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Learned Counsel for the parties filed their respective parties??? Briefs of Argument.
The Appellants??? Brief dated the 15th day of January, 2014 but filed on 17th January, 2014 as settled by Chief Nnamdi D. Uchendu for the Appellants, and a Sole Issue for determination was distilled from the Ground of Appeal as reproduced below.
???Whether The applications For An Order To Quash The Information Of Murder Against The Appellants Which Discloses No Prima Facie Case Against The Appellants Are Premature And Untenable In Law Save the Appellants Wait For The Conclusion Of Prosecution???s Case And Thereafter Make Submissions of No Case?
On the part of the Respondent, A.U. Onukwube Esq, the Director of Public Prosecutions, Ministry of Justice, Umuahia, Abia State who settled the Respondent???s Brief also formulated a single Issue which is: ???WHETHER THE TRIAL COURT RIGHTLY DISMISSED THE APPLICATION TO QUASH THE INFORMATION AGAINST THE APPELLANTS????
???Before delving into the arguments of the respective Learned Counsel it is only apt at this juncture to reflect on the facts of the case as stated by the Learned Counsel for
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the parties in their respective Briefs of Argument.
The case of the Appellant is that an information of murder was preferred against the Appellants before the High Court of Abia State Holden at Uzuakoli, before the Hon. Justice J. E. Adiele after the murder allegation was investigated at different Police Stations in Abia State culminating in the investigation carried out by the Police Officers attached to Zone 9 Police Headquarters, Umuahia. At each of the Police Stations, according to the Appellants, each of the Appellants was given a clean bill of health as the investigation showed that the Appellants knew nothing about the murder of Ogbonna Ihueze whose corpse was found according to some of the witnesses whose extra-judicial statements featured in the proof of evidence, in either a pit or stream.
For reasons which according to the Learned Counsel to the Appellants, are far to seek, the Learned Attorney-General and Commissioner for Justice, Abia State insisted that the Appellants be prosecuted for the offence of murder they did not commit hence an information was preferred against the Appellants.
???The Appellants through their respective
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Learned Counsel filed their Applications praying the Court to quash the Information on the ground that it did not disclose a prima facie case as had earlier been stated, thus culminating in the Ruling and the Appeal herein.
As for the case of the Respondent, the Learned D.P.P. disclosed that in the Information are the Statements of the victim???s son, marry other witnesses and the Police Report, wherein they all stated that the Deceased, Ogbonna Ihueze, the Village Head of Umuorie Village in Bende Local Government Area of Abia State, was murdered and thrown into a stream-like pit, where he was found on 2/6/2010.
According to the Prosecution, there is a medical Report from Abia State University Teaching Hospital stating that the Deceased was strangulated (Exhibits at page 110 of the Records and the 10th Finding of the Police in their Report at P. 83 of the Records refer). We were also referred to pages 32 ??? 41 of the Records where the son of the Deceased, Chinedu Ogbonna, whose statements are therein contained disclosed that on the day Deceased was killed, being 1/6/2010 at about 8.pm, he saw Deceased with the 2nd Appellant, Chief Simeon
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Udensi and the Deceased informed him that they were going to the house of the 1st Accused (now deceased) Eze Ariwodo Kalunta, their traditional Ruler and also the husband of the 1st Appellant, Ugoeze Ihuoma Kalunta. When he (the Deceased???s son) came back from his night guard work the next day, being 2/6/2010 and was informed by his mother that the Deceased did not return to the house since he left it the previous day, he went straight to the house of the 2nd Appellant, who was the last person he saw with the Deceased, to ask for his father but the 2nd Appellant retorted: ???Am I your father???s keeper???? and did not give him any reasonable answer.
The said Chinedu also stated that after the body of the deceased was discovered, he went to the house of the 1st Accused to inform the 1st Accused about the death of his father, but on entering the house, he saw the 1st Accused, 1st Appellant, and 3rd Appellant, who covered their faces with face cap, and he overheard the 1st Appellant, saying that the men will not be paid since they did not deposit the body of Ogbonna the stupid Village Head where they were instructed to deposit it. Where upon,
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the 3rd Appellant counseled that since the men did the job they should be paid. The said son of the Deceased was also said to have seen the Deceased???s shirt and slippers inside the 1st Accused???s room and thereafter, the 3rd Appellant came out from the room and on seeing him went back into the room and informed the 1st Accused that he (the witness) was in the house.
The 1st Accused came out and asked the witness how long he had been in the house and if he overheard their conversation and the witness replied that he had just come and did not overhear their conversation. The witness then informed the 1st accused about the murder of his father and the dumping the body in a pit and the 1st Accused instructed that the witness deposit the body in the mortuary and not to report the matter to the police because if a child seeks to find out what killed his father, what killed the father will kill him (the son). The witness therefore left and deposited the body of the Deceased in the mortuary.
???Our attention was also been drawn to page 50 of the Records where the Statement of Paulina Ogbonna, the wife of the Deceased confirmed that her son, Chinedu,
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informed her on the 2nd day of June, 2010, while they were wondering why the deceased did not return home the previous night that Chinedu saw the Deceased with the 2nd Appellant and the Deceased told him that they were going to the place of the 1st Accused to discuss the Communities Electricity problem.
We were also referred to page 65 of the Records (the statement of Isaiah Samuel Adile) who confirmed that on 2/6/2010, by afternoon time, he was fetching water opposite the house of the 1st Accused when he saw Chinedu, the son of the Deceased going to the house of 1st Accusd and he spoke with him and thereafter Chinedu entered the house of the 1st Accused, while he, himself fetched the water and left.
Reference was also made by the Learned D.P.P to the Statement of Ekeke Enyi (Elder) who also said that on the day in question, when the Deceased was murdered at about 8.p.m, he saw the Deceased going to the palace with the 2nd Appellant.
???Further reference was also made to pages 66 ??? 69 of the Records which is the Statement of Richard Chibueze Iwueze, who said that he was among those who went to the scene of crime and saw the corpse of the
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deceased, that the Deceased had no shirt on but only his trousers, that no road led to the pit where the Deceased was found, so he must have been thrown into the pit by his killers. The said Iwueze was also quoted to have stated that when they went to the 1st Accused to decide what to do about the murder of the Deceased, the 1st Accused said that the Police must not be invited but agreed that his death should be investigated the traditional way. People then contributed money and consulted a shrine at Uruala, Imo State and the 1st Accused, the three Appellants, one Ogunka Nwokoro and one Kalu Iroha appeared in the mirror as those who murdered the Deceased. The witness also confirmed that Chinedu confided in him that he saw his father???s shirt and pair of slippers in the house of the 1st Accused. All these pieces of evidence according to Learned DPP, though circumstantial, clearly linked the Appellants with the death of the Deceased and that informed the Appellants being charged.
ARGUMENTS OF LEARNED COUNSEL ON THEIR RESPECTIVE ISSUES: ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANTS: ???WHETHER THE APPLICATIONS FOR AN ORDER TO QUASH THE
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INFORMATION OF MURDER AGAINST THE APPELLANTS WHICH DISCLOSES NO PRIMA FACIE CASE AGAINST THE APPELLANTS ARE PREMATURE AND UNTENABLE IN LAW SAVE THE APPELLANTS WAIT FOR THE CONCLUSION OF PROSECUTIONS CASE AND THEREAFTER MAKE SUBMISSIONS OF NO CASE????
???Arguing the Sole Issue, the Learned Counsel for the Appellants pointed out that our administration of Justice is accusatorial and not inquisitorial in which case it is not the function of the Court to carry out an investigation no matter the temptation so to do . For this submission he relied on Duriminiya V. C.O.P (1962) NWLR 70 Per Bate, J; A.C.N. V. Nyako (2013) ALL F.W.L.R. (Pt. 686) 424 at 464 paras. A ??? C; where the Court quoted with approval the dictum of Mohammed, JSC in A.C.N. V. Lamido (2012) ALL FWLR (Pt. 630) 560; to submit that in this case, he High Court of Abia State Holding at Uzuakoli is not clothed with the constitutional or statutory power to investigate the allegation that that the Appellants murdered Ogbonna Ihueze but that such power lies in the Police and that have so done and found the Appellants not blameworthy, the Court, with respect, is obliged to hold that there is no
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prima facie case on the basis of which the Appellants may be prosecuted.
On the above score we were referred to the finding of the Court below at page 117 of the Records which according to the Learned Counsel does not represent the position of the law. He also questioned the holding of the Learned Trial Judge to the effect that where there is no procedural or formal defect in a charge, it cannot be quashed as also not being the law. Abacha V. The State (2002) 100 LRCN 1588 also relied upon by the Court below in support of the holding was also pilloried as being strange and tenuous .
He then referred to the same authority at page 1602 of the Report per Belgore, JSC (as he then was) where the argument for the prosecution was also as held by the Learned Trial Judge that the Accused/Appellant ought to wait until the close of the prosecution???s case before applying for the charge to be quashed upon a No case submission and the Supreme Court disagreed and held the contrary.
The Learned Counsel for the Appellants also relied on Okoli V. The State ( 1992) 6 NWLR (Pt. 247) 381 and Ajidagba V. I.G.P. (1958) SCNLR 60; to urge us to resolve the Issue
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in favour of the Appellants and allow each of the Appellant???s Appeal in that from the extrajudicial statements of witnesses to the Police and the Police Reports of Investigation from the Divisional Police Headquarters, Umuahia, no prima facie case has been made for the prosecution of the Appellants.
The Law, he maintained, is not that whether or not there are formal defects in a charge, but that once there is no prima-facie case distillable from the proofs of evidence, the charge is liable to be quashed, or set aside so that an accrued person is not subjected to the ordeal of trial he ought not to be subjected to. He then finally submitted that the Learned Trial Judge did not properly direct herself as to the proper position of the law in this case.
ARGUMENT OF THE LEARNED DIRECTOR OF PUBLIC PROSECUTIONS FOR THE RESPONDENT: ???WHETHER THE TRIAL JUDGE/COURT RIGHTLY DISMISSED THE APPLICATION TO QUASH THE INFORMATION AGAINST THE APPELLANTS????
???In response to the argument of the Learned Counsel for the Appellants and the question posed by his (Learned Counsel for the Respondent???s) issue, the Learned D.P.P argued in the first
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place that the Court below rightly dismissed the Applications of the Appellants to quash the information filed against them for the murder of Ogbonna Ihueze and that Learned Trial Judge also considered the Applications on their merits since the Appellants were afforded the opportunity to be heard on the issue raised in their Applications to which the Respondent also replied.
He contended that a consideration of the totality of the Ruling of the Learned trial Judge, will show that he reached his decision after a consideration of all the materials placed before him and relying on the Supreme Court of case Abacha V. The State (2002) 11 NWLR (Pt. 779) 437 at 502 para. A accepted the argument of the Respondent that there is enough evidence linking the Appellants to the death of the Deceased that justified their being charged for his murder.
Placing reliance on the case of Ekwunugo V. F.R.N (2008) 15 N.W.L.R (Pt. IIII) 630 at 639 ??? 640 paras. H ??? B, the Learned Director contended that the grouse of the Appellants seems to be the refusal of the Learned Trial Judge to commence on an elaborate voyage of discovery and extensive consideration of
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whether there was a disclosure or none disclosure of prima facie case. The Learned Counsel for the Respondent however, opined that even in a Ruling on a No case submission which is far more advanced than an Application of the nature now on Appeal, the Supreme Court has admonished Courts to be brief as possible without going to the evaluation of evidence which follows that by the nature of Applications before us, a Ruling on them ought even to be briefer.
At that juncture, he commended the case of Nyame V. F.R.N. (2010) 7 NWLR (Pt. 1193) 344 at 392 paras. B ??? G, to us where the Supreme Court refused to interfere with the discretion of the Lower Court to delve into the issue of disclosure or non-disclosure of prima facie case since there were sufficient materials with which the Court acted and came to the conclusion that there was prima facie case against the Appellant. From the afore stated decision, we were urged to look at the materials placed before the Learned Trial Judge as marshaled out in the Respondent???s Brief which the Court must have taken into consideration in refusing to quash the information against the Appellants. Citing again
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Ajiboye V. The State (1995) 8 NWLR (Pt. 414) 408 at 418, the Learned Director insisted that because at the stage the Application was brought, the witnesses had not been called for cross-examination it cannot be safely argued that the witnesses statements contradicted each other or being believed or disbelieved as the quality of the evidence upon which the prosecution can base his decision to a charge a case to Court is not as high as that of establishing a prima facie case as defined in many cases particularly the cases cited.
On the principles guiding the grant of a motion to quash information we were further referred to Nyame V. F.R.N. (spra) at pages 420 0 421 paras. G ??? E; in submitting that against the 1st and 3rd Appellants, Ugoeze Kalunta and Chief Ekpe Kalunta, there is the claim of the Deceased???s son that he overhead them discussing whether or not those that killed his father should be paid for failing to deposit the corpse of the Deceased where they instructed them to so do and that he saw his father???s shirt and pair of slippers in the room the Appellants were having discussion. Against the 2nd Appellant, he further observed,
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was also the claim of the said Chinedu (Deceased???s son) and one Elder Ekeke Enyi, that he (2nd Appellant) was last seen with the Deceased going to the palace of the deceased 1st Accused before the Deceased was found murdered.
From the foregoing, the Learned Director asserted that those claims and others sufficiently linked the Appellants with the murder of Ogbonna Ihueze and thereby justified the Appellants being charged for murder and we were therefore urged to so hold.
In conclusion, he maintained that the trial Court adequately considered the issue in question and the sufficient materials on which it came to the conclusion that a prima facie case existed to support the criminal charge against the Appellants. We were accordingly urged to dismiss the Appeal for lacking in merit.
RESOLUTION OF SOLE ISSUES OF THE RESPECTIVE LEARNED COUNSEL FOR THE PARTIES TOGETHER.
In the resolution of these issues, I must remark that the Learned Counsel for the Appellants did not mention any of the Sections of the Criminal Procedure Act or Law upon which he predicated the Applications to quash the information of murder against the Appellants. However,
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I must not fail to refer in the first place to provisions of Section 167 of CPA (Criminal Procedure Act or Law) of Abia State which is to the effect that:
???167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read.???
Section 168 on the other hand provides that no judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the Accused or during the progress of the trial might have been amended as such objection would have been cured by the verdict of the Court.
Section 215 of the Criminal Procedure Law on the other hand, provides for pleading to indictment on information or charge and ordinarily the charge or information shall be read over to them (the Accused persons/Appellants) and same explained to their understanding or satisfaction of the Court and such Accused persons should have been called upon to plead instantly to the charge or information unless they objected to plead for want of service of the information or charge or any other ground.
Section 221(1) of the Act or Law makes for the special
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pleas of autrefois acquit or convict which procedure in legal parlance is also styled special plea at the Bar. By this procedure, where an Accused is arraigned he may plead that he had been previously convicted or acquitted or that he had been pardoned on the same offence. But the subsection that is of relevance as far as this Appeal is concerned is Section 221(4) which stipulates that:
???(4) Nothing in this Section shall prevent a person from pleading that by virtue of some other provision of law he is not liable to be prosecuted or tried for any offence with which he is charged???. See Edu V. Police (1952) WACA 163.
Above all, Section 340 of the Act which governs Procedure for Information of Offenders ??? Provisions antecedent to preferring information and information liable to be quashed states as follows:
???340(1) Subject to the provision of this Section an information charging any person with indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the Registrar shall,
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if he is satisfied that the requirements of the next following Section have been complied with, file the information and it shall there upon be proceeded with accordingly; provided that if the Registrar shall refuse to file the information, a Judge, if satisfied that the said requirements have been complied with, may, on application of the prosecutor or on his own motion, direct the Registrar to file the information and it shall be filed accordingly.
(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either ???
(a) the person charged has been committed for trial; or
(b) the information is preferred by the direction or with the consent of a Judge or pursuant to an order made under Part 31 to prosecute the person charged with perjury:
Provided that-
(i) Where the person charged has been committed for trial, the information against him may include, either in substitution for or in addition to the Courts for charging the offence for which he was committed, any Courts founded on facts or evidence disclosed in any examination or deposition taken before a Magistrate
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in his presence, being counts which may lawfully be joined in the same information;
(ii) A charge of a previous conviction of an offence or of being a habitual criminal or of being an habitual drunkard may notwithstanding that it was not included in the committal or in any such direction or consent as aforesaid, be included in the information.
(3) If an information preferred otherwise than in accordance with the provisions of the last foregoing subsection has been filed by the Registrar, the information shall be liable to be quashed: Provided that-
(a) if the information contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this Section; and
(b) where a person who has been committed for trial is convicted on any information or on any count of an information, that information or count shall not be quashed under this Section in any proceedings on appeal, unless application was made at the trial that it should be so quashed.???
The above provisions are quite elaborate but one is at a loss under which of the
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subsections the Appellants brought their applications to quash the indictment or the information as the Learned Trial Judge rightly observed in his Ruling at page 117 of the Records that following Abacha V. The State relied upon by the D.P.P., that any information charging an indictment and without a procedural or formal defect cannot be quashed.
Considering the positions of Sections 166, 167 and 168 read together with Section 340 of Criminal Procedure Law/Act, it would appear that objections can only be raised for any formal defects on the face of charge immediately after the charge had been read to the Accused.
However, in the course of brousing through judicial texts, I was privileged to come across ???The Criminal Procedure of the Southern States of Nigeria, 2nd Edition by Fidelis Nwadialo, SAN at pages 191 ??? 192 where under the heading ???Objections and other possible pleas at Bar??? the Learned Author remarked as follows:-
???The pleas discussed earlier (autrefois acquit and autrefoi convict) are not the only ones provided for by the Criminal Procedure Act. It has, however been suggested that before pleading not
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guilty to a charge or information and as an alternative to raising the point on the general issue, the Accused may either move to quash the charge or information for any defect or want of jurisdiction or put forward a plea in the nature of demurrer raising an issue as to the Constitutional validity of the written law creating the offence with which he is charged. Such preliminary objection may be made under the English Common Law.??? See further Archbolds Criminal Pleadings, Evidence and Practice paras. 231 and 430; Brett and Malean: CRIMINAL LAW AND PROCEDURE OF LAGOS, EASTERN NIGERIA AND WESTERN NIGERIA (SWEET & MAXWELL EDITION 1963) at page 396: and Practical Approach to Criminal Litigation in Nigeria (Third Edition, 2015) by J.A. Agaba at page 66 -2-663 paras. 14.4 and 14.5 where the Learned Author noted that:
???One possible reaction from the Accused upon arraignment may be a preliminary objection challenging the jurisdiction of the Court to either try him or to try the offence charged. Because jurisdiction is the foundation of adjudication, once it is raised, the Court must entertain the Application and determine the Application one way
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or the other. This is because if the Court has no jurisdiction, whatever it does amounts to a nullity including any defect. Madukolu V. Nkemdilim [1962] SCNLR 341. (para. 14.4).
???In Paragraph 14.5 he continued, that apart from objection on the ground of lack of jurisdiction, the Accused person may also raise objection to the defect in a charge where the charge suffers from any defect in the rules of drafting charges. Some defects, according to him are material such that a conviction based on it cannot stand while others are regarded as mere irregularity. Thus, where a defect is material, then it is incumbent on the Accused to raise an objection to such charge and the right time to raise such objection is at soon as the charge is read and before his plea is taken. Sections 167 and 168 of the CPA which I had earlier reproduced were cited by the Learned Author as well as Section 206 CPC, Section 158 ACJL and Section 220 ACJL in buttressing his stance on the above provisions and in asserting that:
???Where an Accused person or his Counsel fails to object to a defect in a charge, he cannot raise that objection later in the trial or on Appeal as
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pleading to a charge is submission to the jurisdiction of the Court. Obakpolor v. State (1991) 1 NWLR (pt. 165) 113 refers. If the objection of the Accused is sustained, the Court may discharge him or the Court may upon Application in appropriate cases, suo motu amend the defective charge and the trial of the Accused may commence.???
It is against the foregoing background that we shall consider the merits of the Application nay the Ruling of the Learned Trial Judge thereon. As we said earlier since the Application was not predicated on any defect in the information preferred against the Appellant, we shall decide this case on the Affidavits and Counter-Affidavits of the parties, the Legal Authorities cited by the respective Learned Counsel as well as the documentary Exhibits annexed to the Appellants??? Application since the ground for the Application in the Lower Court was that the Statements of the prosecution witnesses do not disclose any prima facie case and here on Appeal that the Learned Trial Judge did not consider the Applications to quash the information of murder against the Appellants on their merits.
???Now, a look at pages 14 and 15
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of the Records (the Affidavit of the 4th Accused/Applicant/Appellant Chief Ekpe Kalunta) would reveal that he averred in paragraphs 7 ??? 10 thereof after denying like his co-Accused persons that they did kil the Deceased Ogbonna Ihueze, as follows:
???7. That when the incident occurred, the prosecution witnesses made statement to the Police at Divisional Police Headquaters, Bende, to the effect that they did not know who murdered Ogbonna Ihueze or whether he was murdered. Copies of the Statements are exhibited hereto as Exhibit ???A???.
???8. That the Police Officers found no merit in the allegation of murder against me and others and admitted us to bail.
???9. That in his Investigation Report to the Assistant Inspector-General of Police in-charge of Zone 9 Police Headquarters, Umuahia, Mr. John Achuan, in-charge of Zonal Criminal Investigation Department, stated that there was no ground on which to sustain our prosecution for murder.
???10. That I have read the Statements made by the Prosecution Witnesses and I am informed by my Counsel and I verily believe him that they do not disclose any prima-facie case
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against me.???
All these averments run through the Affidavits of all the Appellants (now 2nd ??? 4th). I have also had a careful perusal of the Supplementary Records of Appeal filed on the 17th of January, 2014 which contain the statements of SP (Superintendent of Police AJAMEKWE ANDREW) of the Divisional Police Head quarters, Bende which is the immediate Division where the murder allegedly occurred as well that of Corporal Ajayi Kayode of the Bende Police Station and the following are their findings:
1. For S.P. Ajamekwe Andrew, his Report discloses that; He was the Divisional Police Officer for Bende who made it mandatory to visit their men posted on duty every night and to patrol the whole Town with his men every night. In the course of visiting the Stations he picked one or more personnel for that night patrol and that every person within the Division knew that they patrol the town every night. According to him;
???On the 1st June 2010, I got to the station picked up one CPL 390728 PC Sunday Idris to go for patrol with me. Two of us armed. As we go to the first village Okpotung they were on duty at alert. I picked up one Mr.
31
Okechukwu Offor to move with us. Three of us went to Umuakor Village where we met people on duty on alert as there was wake keeping of one Catherine Kalu. There we met a bee-hive of activities where some people were cooking and some were digging grave. We patrolled there for a long time and left for a nearby beat at Agbamuzu. The beat at Agbamuzu and Umuokoro are so close about two poles while the house of late Catherine Kalu is in between them. Agbamuzu people normally block the road and that night they blocked the road as usual. It is at that road block we got one drunkard man riding tricycle (Keke NAPEP)—————————————————————————————————————————
No Offender passes there in the night without being challenged. No group of people would pass the two nearby beats to that place of wake keep without being seen by those people on duty that night in question IF FOUL PLAY WAS SUSPECTED ONE OF THE CHILDREN WOULD HAVE COME TO THE POLICE STATION TO REPORT WITHIN THAT PERIOD THE MAN DIED. I WAS AMONG THOSE WHO WENT TO WHERE THE MAN FELL INTO AND I OBSERVED THAT HE WAS NOT KILLED AND
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THROWN INTO THAT PLACE AS ALLEDGED. ANY PERSON WHO FORMULATED THIS STORY DOES NOT FEAR GOD. HE IS ONLY BRINGING UNTOLD HARDSHIP TO INNOCENT PEOPLE.???
As for Corporal Ajayi Kayode who was the Investigating Police Officer, immediately the matter was referred to him for investigation, he left the company of the D.P.O. and D.C.O. (Divisional Police Officer and Divisional Crime Officer), to the scene of crime. According to him, the house of the Deceased was visited and the family members invited to the Police station for their statements. Times without number he paid visits to the wife and children of the deceased to come and make statements but all efforts to bring them to the station proved abortive. On the 7th day of June, 2010, two persons were able to come to the Police Station to make statements.
At the conclusion of his investigation the Investigating Police Officer came out with this ridiculous and unfortunate finding:
???WITH THE LOOK OF THINGS IT SEEMS THERE IS A MISUNDERSTANDING BETWEEN THE DECEASED AND THE WIFE WHICH RESULTED THAT THE WIFE WAS NOT TOUCHED BY HIS HUSBAND???S DEATH. THE PETITIONER REFUSED TO COME AND MAKE
33
STATEMENT AND NONE OF THE FAMILY MEMBERS AGREED TO REPORT THE MATTER TO THE POLICE. MEANWHILE, PHOTOGRAPHS OF THE SCENE OF CRIME WAS TAKEN SINCE THE CORPSE HAS BEEN REMOVED WITHOUT REPORTING THE MATTER TO THE POLICE THAT IS ALL MY STATEMENT.???
From the Investigation Reports of the Divisional Police Officer and the Investigation Police Officer as recorded and reproduced above, it is clear that at the Divisional Police Headquarters Level, the Accused persons/Applicants/Appellants were given a clean bill of innocence of the death of the Deceased Ogbonna Ihueze.
However, the Statement of Chinedu Ogbonna Ihueze (the Deceased???s son) ought to have jotted every reasonable person to discern that there are more things than meet the eyes from the above Investigation Reports. The Learned Counsel for the Appellants was therefore most uncharitable to have described the statement of Chinedu as cock and bull story on what he heard upon eavesdropping on the Appellants as they discussed in the house of the 1st Accused and 2nd Appellant and his seeing his father???s slippers and shirt in the house of the said 1st Accused and 2nd Appellant???s
34
house.
From the facts of the case as stated by the Learned Director of Public Prosecution which I had reproduced earlier in this Judgment, there are some posers which ought to be tried and at least some explanations demanded from the Accused persons/Applicants/Appellants notwithstanding the clean bills of innocence given to the Appellants by the Bende Divisional Police Headquarters if the statement of Chinedu Ogbonna is anything to go by. In the first place, at pages 36 ??? 37 of the Records, the said Chinedu had stated that he had met his father and the 3rd Appellant Chief Simeon Udensi on the fateful day standing by the road side as he (Witness) was going to deliver the drugs he bought for his father who complained of feeling cold.
When he demanded to know where his father was going to, the Deceased informed him that they were going to see the 1st Accused to discuss the Community???s Electricity problem and when the witness asked the Deceased whether it was not late as it was about 8.00 pm, the 3rd Appellant retorted: ???Ogbonna come let???s go. This your son askes too many questions???.
???Thereafter, the witness left for his
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shop. Subsequently, when he returned from the shop to prepare for his night-guard work, as his mother asked after his father, he explained how he met his father in company of the 3rd Appellant going to the 1st Accused???s palace to discuss electricity. He left for work and upon return the following day, his mother informed him that he had not seen his Deceased father. When subsequently the witness went to the 3rd Appellant to ask the where about of his father because he (the father) was last seen with the 3rd Appellant, the said 3rd Appellant whom the witness met on the way, greeted and so asked about his father, but 3rd Appellant replied and asked whether he (the 3rd Appellant) was his father???s keeper and directed the witness to go and look for his father.
???The witness then left for the house of his uncle Chief Richard Chibueze to inquire but he said his father did not come to his house. Thereafter, he left to the Eze???s Palace (1st Accused) to inform him of the development and along the road he met Ekpe Kalunta (the 4th Appellant) along with Paulinius Iloh Kalunta whom he broke the news to and who said that he (witness) should not raise
36
the issue so as not to disrupt the burial of Catherin Kalunta. After informing his mother that the person who died near the funeralplace was his father, his said mother shouted and directed that he should go and report to the Eze and on his way to the Eze???s Palace, he met one Isaiah Adiele who was fetching water at a borehole opposite the Palace and who asked him (the witness) why he was running and what happened, he explained to him (Isaiah Adiele).
On getting to the Eze???s Palace gate the gateman saw him and asked him(witness) what happened and he explained that his father was found dead in a pit and the gateman shouted and said that the Eze was with some people. He was however ushered into the Palace in order to wait for the 1st Accused .
According to the witness as he entered passing through the first building to the second building called ???Gracia Hall???, he overheard the 2nd Appellant/Eze???s wife (Ugoeze Kalunta) saying to three men with her who had their faces covered with face caps that they will not be paid fully because: ???where they asked to depose the body of Ogbonna, a stupid man that called himself
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Village Head is not where they disposed it. Ekpe Kalunta now said that they should be paid since they had done the job. Eze now congratulated them for a job well done and I have been standing there for over 5 minutes, before Ekpe Kalunta came out and saw me, and went back to report to Eze that Ogbonna???s son is here. Eze now came out and asked me how long I have been standing. I said it has not been long, he then asked me if I heard what they were saying. I said no. Eze now asked the reason of my presence in his house. I told the Eze that my father is found dead in a pit. Eze told me to go and put it in the mortuary. I then asked the Eze is it not good to involve the Police Eze said no, that I shouldn???t go to the Police that he will handle. Meanwhile, I should come back next day being on 3rd with my brother by 4 pm in the evening.
Early in the morning 3rd at about 6.30 ??? 7am, Ndi Ezieke compound met at Onyeachigbulam Ihueze to discuss on the sudden painful death of my father. After little discussion they now decided to go to the scene. Immediately, gotten to the door post Eze asked me to stop there I then stood up, he asked is it the time
38
he asked me to come, I told him that I have been trying my brother???s phone number since yesterday. The line was not through. Eze now said they are discussing on how to give my father a good burial, that I shouldn???t bother myself much that everything will be well (sic) taking care of. Meanwhile when a child looks for what killed his father, what killed his father will also kill him. In that Gracia Hall where they were I saw my father???s slippers shirt, tubers of yam and one he-goat. I so also saw the following people there, Eze Ariwodo Kalunta, Nnaji Onyegbulam, Chief Simeon Udensi, Okorie Nwaoriaku, Paulinius Wah Kalunta, Ekpe Kalunta, Ben Mgbonta, Stone Ogbonna and Umoma Kalunta.???
The witness also stated that when he left Eze???s Palace he went to Ekeke Enyi (Mr) who informed him that, he was with his father on that day to the extent that he bought the Deceased a bottle of malt at the vigil/grave digging ceremony of Catherine Kalunta which the Deceased could not finish but left the rest for his namesake Ogbonna. After some time, the Deceased told him (Ekeke Enyi) that he was leaving for the Eze???s house to discuss on
39
electricity and left. Ekeke was said to have informed him (the witness) that when he left for his shop to pick something, he was in front of the shop when the Deceased and Chief Simeon Undensi passed by heading to the Eze???s Palace.
Finally, at page 41 of the Records the said Chinedu Ogbonna also stated that in addition to his statement made on 10th August, 2010 when his Deceased father was alive, Eze Ariwodo Kalunta (1st Accused now deceased), had tried several times to remove the Deceased from being the Village Head of Umuorie and put Kalu Thompson. The youths disagreed with the Eze owing to his Deceased father???s self less services to the Village while alive.
???The witness also stated that second time of the attempt at the removal of the Deceased by the equally Deceased Eze/1st Accused was when the Eze wanted to replace his said father with Okorie Nwaoriaku and the youths also kicked against it for according to the youths, the man they knew was his late father. The Eze did not stop at attempts to remove his father but went as far as accusing his Deceased father of embezzling Electricity funds which the village finally discovered that his
40
late father was innocent.
To buttress the fact that the Deceased Ogbonna Ihueze was last seen with Chief Simeon Udensi (3rd Appellant) on the fateful date of the murder of the Deceased, the said 3rd Appellant, refer to case file at page 53 ??? 54 stated in his statement made on 14/06/2010, that he saw the Deceased last on the 1st day of June, 2010 while sitting on the same bench with him at the grave digging ceremony of Catherine Kalunta who was to be buried on the 2nd day of June, 2010. The Deceased later informed him that he was feeling cold and was about going to buy medicine. Before then the Deceased had informed him that one Simeon Udensi the Prime Minister of their Community informed him that the Traditional Ruler invited them to the Palace in the evening of that day. The Deceased then left him to meet the said Simeon as the Deceased said earlier.
The witness further stated that he later left to his shop where he sells provisions and while in front of his shop at about some minutes after eight O???clock in the night, he saw the Deceased with Simeon Udensi (now the 3rd Appellant) going to the Eze???s Palace. The witness said he later
41
left to where the grave digging ceremony was taking place and the next day he heard that Deceased was found dead inside a pit and the corpse later taken to the mortuary for preservation. In the morning of 3rd June, 2010 as earlier stated by Chinedu Ogbonna Ihueze, the said Chinedu came and asked him about his father since they were together during the grave digging ceremony and he explained to the said Chinedu about his Deceased father???s movement.
At page 63 of the Records the statement of Isiaha Samuel Adiele made on the 24th of June, 2010 also confirmed the assertion of the said Chinedu that on the 2nd day of June, 2010 in the afternoon he was fetching water from a borehole adjacent Eze Kalunta???s house when he saw Chinedu Ogbonna Ihueze going towards the Eze???s Palace. He called the said Chinedu to find out where he was going to and the said Chinedu told him that he was going report to the Eze that his father???s dead body was found inside a pit. The witness also stated that when Chinedu went inside the Eze???s gate and the gateman by name Deh Kalu opened the gate for him (Chinedu) and he went inside. Thereafter, the witness
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said, he fetched his water and left and did not know what he discussed with the Eze.
At page 65 of the Records/Proof of Evidence Solomon Ubani a mortician at the Bende Medical Services Mortuary in his undated statement stated that: ???The body of late Mr. Ogbonna Ihueze (m) was brought here for preservation on the 2nd of June, 2010 around afternoon time. When the corpse was brought he was naked and whole body was mutilated and lacerated. That is all I know about this case.???
Above all, the Police Investigation Report of 31st August, 2010 signed by John E. Achuam (ACP) Deputy Commissioner of Police Zonal Criminal Investigation Department, Zone 9 Headquarters, Umuahia addressed to the Assistant Inspector General, the Nigeria Police Force, Zone 9 Headquarters Umuahia, Abia State in his findings (3) ??? (10) particularly (7) ??? (10)is clear that there was sufficient evidence from the statements of the witness to establish a prima facie case warranting the preferment of the indictment or information against the Appellants. For the avoidance of doubt, the said findings (7) to (10) state as follows:
???(7) That the Petitioner
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Chinedu Ihueze met Messrs Ekpe Kalunta, Irokanulo Kalunta, Udensi Simeon, three strange faces, Ugoeze Ihuoma Kalunta and HRH Eze Dr. Kalunta Ariwodo in the Eze???s Palace.
???(8) That evidences of Messrs Isaiha S. Adiele, Solomon Ubani and Elder Peter Ekeke Enyi to the effect that they saw the Petitioner going to the Eze???s Palace, and also the Deceased in company of the suspect Simeon Udensi point to the fact that the complainant actually saw the father???s slippers, shirt, goat and tubers of yam at Eze???s Palace.
???(9) That the evidence of the mortuary attendant that the deceased was brought naked to the mortuary is relevant.
???(10) That the medical report from Abia State University Teaching Hospital, stated that the Deceased was (sic) strangulated (strangled?)???
Inspite of all these findings the Deputy Commissioner of Police in his Conclusion/Recommendation clained thus:
???I am afraid, the evidence adduced in this case cannot ground prosecution as it is essentially a mere suspicion. The dress of the deceased which the complainant said he saw at the Palace of HRH Eze Dr. Ariwodo Kalunta with
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the suspects was not secured neither was it recovered during diligent search of the Eze???s Palace.???
However, the Commissioner was magnanimous enough to suggest that the case file be transmitted after duplication to the Director of Police Prosecution of (DPP) for vetting and possible advice, this latter recommendation which the Assistant Inspector General of Police graciously approved by his endorsement at page 70 of the Records.
Going by the authority of Duriminiya V. C.O.P. (1962) NWLR 70; per Bate, J. there is considerable force in the submission of the Learned Counsel for the Appellants that our system of administration of justice is accusatorial and not inquisitional in which case it is not the duty of a Court to carry out investigation no matter how tempted to so do. As was rightly held by Bate, J: ???a trial is not an investigation, and investigation is not the function of a Court. A trial is a public demonstration and testing before a Court of the case of the contending parties.???
Furthermore, there is no doubt that the Supreme Court in A.C.N. V Nyako (2013) ALL FWLR (Pt. 686) 42 at 464 paras. A ??? C; Per
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Muhammad, JSC, had quoted with approval the decision in A.C.N. V. Lamido (2012) ALL FWLR (Pt. 630) 560 at 584 ??? 585, that: ???A judge is and adjudicator and not an investigator. It is not the duty of the Tribunal in the instant case, to sort out any documents on its own for purposes of linking same to the evidence before it to ensure the credibility and reliability of the evidence ascertained and applied towards the just determination of the case.
It is not the duty of a Court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the open Court not even by examination of documents which were in evidence but not examined in open Court. A Judge is an adjudicator not an investigator.???
I am afraid that as efficacious as the dicta of their Lordships of the Supreme Court are having fitted the peculiar facts and circumstances of the cases so decided, they do not apply to the facts and circumstances of the instant case. While conceding to the point that it is the Police that is clothed with the statutory and constitutional powers of investigation and not the Courts like the High Court of Abia State of Nigeria,
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Uzuakoli Division that decided the case now on Appeal, with the greatest respect to the Learned Counsel to the Appellants, even though the Police in their investigation gave the Appellants a clean bill of innocence; yet they still recommended that the case file be duplicated and transmitted to the Director of Public Prosecutions for directives after vetting. The Learned DPP in his wisdom vetted the case file and the proof of evidence and found sufficient evidence from the witnesses for the prosecution to establish a prima facie case against the Appellants. Indeed the Learned Trial Judge taking into consideration the entire findings of the Assistant Commissioner of Police Investigation, was duty bound under Section 340(1) and (2) of the Criminal Procedure Act or Law to file Information against the Appellants.
The Learned Trial Judge was not bound to hold that there was no prima facie case in view of the statements of the witnesses as earlier reproduced as well as the Medical Report from the Doctor who performed the autopsy on the body of Deceased.
It is gratifying to vote note that the Learned DPP had rightly cited Abacha V. The State (2002) 11 NWLR
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(Pt. 779) 437 at 502 para. A and Ekwunugo V. FRN (2008) 15 NWLR (Pt. 1111) 630 at 639 ??? 640 paras. H ??? ;B to debunk the claim of the Learned Counsel for the Appellant that the Court below erred in law to have held that it was rather premature when the Appellants have not taken their plea and hearing commenced for the Accused/Appellants to talk of the case for the prosecution not raising a prima facie case and that it is neater and much better if the Accused Appellants had taken their plea and hearing commenced before raising the issue of prima facie case; and further that the picture then or the coast would have been made clear for one to consider the submission of no case at that stage.
Definitely, the Learned Trial Judge must have misdirected himself when he held that the Appellants have to wait until pleas were taken and the case proceeds to the stage of no case submission at close of the prosecution???s case. As I had earlier said, apart from quashing a charge or charges, information/indictments upon formal defects in the charge, where the charge for instance is not backed up with sufficient evidence from the proof of
48
evidence/statements of the prosecution witness, the information is liable to be quashed as that is the purport of Section 430(1) of the Criminal Procedure Law/Act.
On the other hand in the self-same Abacha V. The State (supra) (2002) 100 LRCN 1618 JO (see also 2002) 11 NWLR (Pt. 779) 437 at 50 para. H ??? 502 para. A ??? B; per Kutigi, JSC (as he then was) re-emphasizing the need for Appellate Courts not to talk too much in an Interlocutory Appeal; held that: ???????????????because the case is yet to be tried, care must be taken not to talk too much or make observations on the facts in the judgment which might appear to pre-judge the main issue or issues in the proceedings relative to the interlocutory ruling or judgment (see for example Egbe V. Onogun (1972) 1 ALL NLR (pt. 1) 95; Ojukwu V. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39.???
Guided by the above dictum and although I have talked too much already, the Learned Trial Judge was right to have refused the Application to quash the information although for the wrong reason that the Appellants ought to have taken their plea and raise the issue of lack of
49
prima facie case at the stage of no case submission. Ordinarily, the Ruling of the Court below was as brief as it ought to be. The foregoing notwithstanding, I agree with the Learned Counsel for the Respondent that the Court below (the Learned Trial Judge) confused the circumstances under which an accused person would make a no case submission at the close of the prosecution???s case as provided under Section 286 of the Criminal Procedure Law Act.
For an Application of this nature all that the Applicants/Accused/Appellants ought to do in order to ground their Applications for the quashing of the information was to show that from the proof of evidence there are no sufficient facts to sustain the information charge or indictment. In other words, from the statements of the witnesses as contained in the proof of evidence, there exists no prima facie case warranting the Appellants as Accused persons to stand trial in the Lower Court.
In the Abacha V. The State case (supra) where the Court of Appeal frowned at the adoption of the procedure of quashing the indictment on the information just like the Court below in the present case deprecated the
50
inability or refusal of the Appellants to take their pleas before asking for the quashing of the information by way of no case submission at the close of the prosecution, Belgore, JSC (as he then) held at page 1604 para 00TT ??? 1605 paras 4 ??? U of (2002) 100 LRCN thus:
???It is a right that the law creating filing of information clearly confers, and it is conferred to be applied when a party is accused of any indictable offence to take advantage of it. It is therefore necessary when the application is made to quash indictment on the information for the trial Judge to attend to such an application dispassionately and rule on it. The best way to do this is to read all the depositions made by potential witnesses and Accused persons so as to find if there was a prima facie case for the Accused to answer. But what is prima facie case. Prima facie is difficult to define precisely and some vital ingredients are clear. Facts that are clearly revealing a crime and the crime links an accused person may be prima facie evidence that the Accused has something to explain at the trial. But that is not always the whole that is needed as circumstances must
51
indicate. It is even very difficult in the face of dearth of precise definition of prima facie. The best definition is the one offered in an Indian case of Sher Singh V. Jitend-dranthen (1931) 1 LR 59 Calc 275 quoted with approval by the Federal Supreme Court in Ajidagba V. Inspector-General of Police (1958) SCNLR 60 as follows:
???The terms as so far as we can final have not been defined either in the English or Nigerian Courts. In an Indian case, however, we find the following dicta: ???what is meant by prima facie (case? It only means there is ground for proceeding ??????.. But a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty??????.. and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the Accused.???
Thus if the facts in a deposition whether on oath in preliminary investigation or not on oath in mere statements attached to information do not disclose a prima facie case the indictment must be quashed. See Ajidagba V. Inspector General of
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Police (supra); Okoro V. The State (1988) 12 SCNJ (1988) 5 NWLR (Pt. 94) 255. Therefore the statements in this matter must be read by the trial Court and the Court of Appeal carefully to know whether there was a prima facie case for the Appellant to answer.???
???In Nyame V. F.R.N [2010] 7 NWLR (Pt. 1193) 344 at 391 paras. D ??? G; the Supreme Court again per Adekeye, JSC warned that what the information must disclose at the state of an Application to quash an indictment or charge is not the guilt of the Accused but prima facie case to answer. At that stage, he equally posited, in deciding whether to prefer a charge, the prosecutor is not obliged to decide as a trial Judge should, whether the available evidence is cogent enough to justify a conviction. Ikomi V. The State (1986) 3 NWLR (Pt. 28) 340.???
It seems from the authorities above cited, an Application to quash is akin to an Application to appeal out of time which one of its essential ingredients for the grant thereof, is that the Grounds or Ground of Appeal should disclose arguable issues without the necessity that the Appeal would at that stage of Application succeed. This is
53
because the likelihood of the success of the Ground of Appeal would be decided at the point of argument of the Appeal.
Therefore trial Courts and indeed Appellate Courts are admonished to apply their wisdom and knowledge by balancing he need to avoid letting an otherwise guilty person off the hook or to oppress an otherwise innocent citizen in view of his Constitutional rights as entrenched in Sections 36(5), (8) and (12) as well. Thus, the decision to try a person on information and refusal to quash an information must not be based on evidence of suspicion and in the determination of whether the proof of evidence discloses prima facie case the Courts are also admonished not to determine whether there is sufficient evidence that indicts the Accused person or capable of proving his guilt on the offence charged. The duty of Court therefore is to decipher from the statements of supposed witnesses and documentary Exhibits or other materials that tend to link the accused with the commission such that at least some explanation(s) is/are expected of the Accused.
This is because, as have been held in the Abacha V. The State case at page 1602 of the Report
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ably cited by the Learned Counsel for the Appellant, and Nyame V. FRN (supra) at 420 ??? 21 paras. G ??? E.
???All power to settle issues between parties is vested in Courts and the Court must be vigilant that genuine issues and controversies are settled so that no Accused person will be oppressed whether directly or indirectly through act of the prosecution, if not we will have persecution in place of prosecution. It is for this reason that an Accused person despite the power to file indictment on an information, should not be indicted to face trial, that from the outset, it was clear he should not face.???
See Okoli V. The State (1992) 6 NWLR (Pt. 247) 351; Aituma V. The State (2007) 5 NWLR (Pt. 1028) 466; Ikomi V. The State (1986) 3 NWLR (Pt. 28) 340; Ohworiola V. F.R.N. (2003) 21 NWLR (Pt. 803) 176; and finally the monumental judgment of my Learned brother H. S. Tsamani, JCA of the Ibadan Division of this Court in Mrs. Gbojubola Balogun V. F.R.N. (2015) LPELR ??? 24744 (CA) at PP 53 ??? 59 ;which I adopt completely as mine.
In the instant case although the Court below wrongly decided that the Appellant???s
55
Application was premature and in one breath held rightly that the there was/is no procedural or formal defect in the charge, this Court can step into the shoes of the Court of trial to decide the Application on the merits the crucial question which is whether there was/is prima facie evidence to link the Appellant with the murder of the Deceased Ogbonna Ihueze even if not directly but circumstantially and I dare answer the question in the positive.
Having gone through the proof of evidence including the Investigation Reports which gave the Appellants a clean bill of innocence, I hold that there are sufficient materials with which the Court below would have come to the inevitable conclusion that a prima facie case existed for the Appellants to answer.
???The Appeal is hereby dismissed and the Ruling of the Lower Court refusing to quash the information against the Appellants is hereby affirmed. The Appellants/Accused persons (if they on bail) shall be rearrested and rearraigned and their respective pleas taken in order for them to be tried so that the statements of the prosecution can be tested through the furnace of cross-examination in the interest of
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justice.
Other Citations: (2016)LCN/8954(CA)
