Mrs. E.A. Lufadeju And Anor. V Evangelist Bayo Johnson (2007)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, J.S.C.

This appeal emanated and got its root from the proceedings in the Chief Magistrate Court of Lagos State, where the respondent and some others were taken on the allegation of committing the offence of conspiracy to commit treason and actually committing treasonable felony. The respondent with the others were arrested and detained at the Police Criminal Investigation Department, CID, Alagbon Lagos on 12th of January 1997. The respondent sought bail, but the appellant said she had no jurisdiction to entertain the application for bail, and remanded the respondent in custody. As a result of this refusal of bail and the remand in custody, the respondent sought a judicial review in the High Court. The learned judge ruled that by virtue of Section 236 (3) of the Criminal Procedure Law, the 1st appellant was authorized to remand persons who may have been arrested for indictable offence. Dissatisfied with the decision, the respondent appealed to the Court of Appeal, who in turn allowed the appeal. The respondents in that appeal have now appealed to this court, having been aggrieved by the decision of the Court of Appeal. In the High Court of Lagos State, Ikeja Division, the appellant filed and moved a motion on notice pursuant to Order 1, Rule 2 and 6, and Order 3 of the Fundamental Rights (Enforcement-Procedure) Rules 1979, for the following reliefs:

“1. A DECLARATION that the arraignment of the Applicant before a court without jurisdiction in charge No. MIK/A/100/97 and the order remanding him in custody made on the 12th March, 1997 by E. A. Lufadeju (Mrs.) Chief Magistrate Grade I are unconstitutional and violate Applicant’s right to liberty and fair hearing under Sections 32 and 33 respectively of 1979 Constitution.

2. AN ORDER removing into this Honorable Court the proceedings comprised in charge No. MIK/A/100/97 Specifically the remand Order of 12th March, 1997. “Accuseds are to be remanded at Force C.I.D. Alagbon meanwhile” to be quashed forthwith.
3. AN ORDER releasing the Applicant from illegal detention forthwith. 4. N5 million being compensation/damages for Applicant’s illegal detention.

GROUND UPON WHICH THE RELIEFS ARE SOUGHT

1. The Chief Magistrate has no jurisdiction to try a charge of treason.
2. The arraignment of the Applicant before a Chief Magistrate for a capital offence is wrongful and unconditional.
3. The remand of the Applicant in force or other custody by a court without jurisdiction to try the charge is unconditional and violates Applicant’s right to personal liberty.”

The verifying affidavit sworn to by one Sam Amadi contain inter alia the following salient depositions:

“4. The Applicant was arrested on 12th January, 1979 at his residence, No. 2, Olufemi Adebanjo Street, Sango-Ota by a team of Policemen. He was severely beaten and later taken to Force C.I.D. Alagbon in handcuff.

5. On 13th January, 1997, the Applicant while still in detention in Alagbon was asked to make statement about one Adewale as a supplier of Computers, when he (the Applicant) needed some Computers.
6. The Applicant has been in detention in the Force C.I.D. cell, Alagbon since his arrest.
7. On the 12th March, 1979, the Applicant and 12 others were charged before an Ikeja Chief Magistrate for conspiracy and treason. Attached as Exhibit BJ 1 is a copy of the charge sheet.
8. The Chief Magistrate after declaring she had no jurisdiction to try the charge Ordered that the Applicant be remanded in custody of the Force C.I.D. Alagbon, where the Applicant is presently detained. Attached herewith is Exhibit BJ2 a copy of the order.
9. The Applicant has suffered grave hardship financial loss and his family life is deteriorating because of his detention. Learned counsel made their submissions which the learned trial judge considered, and at the end of the day dismissed the applicant’s application.

The applicant was not happy with the turn of events, so he appealed to the Lagos Division of the Court of Appeal, where he argued his appeal based on a bundle of documents, after an order of departure from the rules had been obtained. The appeal succeeded and the learned Justices of the Court of Appeal nullified the proceedings of the learned Chief Magistrate which remanded the applicant/respondent, (as is contained in the following excerpt of the lead judgment) which reads thus:

“From the foregoing I must say that this is a proper case for certiorari. The learned judge was not right, to have upheld the remand of the Appellant by the Chief Magistrate. There is clearly jurisdictional error on the face of the record of proceedings. She had no jurisdiction as admitted by her. She unlawfully used the concept of holding charge to remand the appellant. Where an inferior court exceeds its jurisdiction, its proceedings are a nullity and a superior court has jurisdiction to annul it. Accordingly, I hereby set aside both the order of the learned Chief Magistrate remanding the Appellant at Force C.I.D. Alagbon Close, Lagos and the ruling of the Lagos State High Court on 3/6/97.”

Dissatisfied with the decision of the Court of Appeal, the present appellants appealed to this court on four grounds of appeal. In accordance with the rule of the court, Learned counsel exchanged briefs of argument, which were adopted at the hearing of the appeal. The following issues for determination were raised in the appellants’ brief of argument:

“1. Whether the Court of Appeal was right to hold that the proceedings before the 1st Appellant on the 12th of March, 1997 was an arraignment proceeding as opposed to a remand proceeding and that consequently once the 1st Appellant lacked jurisdiction to try the respondent for treasonable felony she could not remand him under Section 236 (3) of the Criminal Procedure Law.

2. Whether the Court of Appeal was right to hold that Section 236 (3) of the Criminal Procedure Law Cap 32 Volume 2 Laws of Lagos State, 1994 is in direct conflict with Section 32 of the 1979 Constitution of the Federal Republic of Nigeria (now Section 35 of the 1999 Constitution) and other relevant constitutional provisions and whether the above-mentioned Section 236 (3) of the CPL is in effect unconstitutional.”

In his own brief of argument, the respondent formulated the following issues:

“(1) Was the Court of Appeal right to hold that the proceedings leading to the order of remand made by the 1st Appellant against the Respondent is an arraignment proceeding not within the purview of Section 236 (3) CPL and that the consequent remand order by the 1st Appellant was a nullity having declined jurisdiction to try the offence of conspiracy to commit treason and treasonable felony.

2. Was the Court of Appeal right to declare the provisions of Section 236 (3) CPL unconditional for impacting on the Respondent’s constitutionally guarantee right as contained in Section 32 (I) (c), Section 33 (4), (5) and (6) of the 1979 Constitution and Article 7(1) (b) and (d) of the African Charter on Human and Peoples’ Right.”

The treatment of this appeal will be based on the appellants issues supra, starting with issue (1). I will commence by reproducing the provision of Section 236 (3) of the Criminal Procedure Law Cap. 32, Volume 2 Laws of Lagos State 1994 hereunder. It reads:-

“If any person arrested for any indictable offence is brought before any Magistrate for remand such Magistrate shall remand such person in custody or where applicable grant bail to him pending the arraignment of such person before the appropriate court or tribunal for trial.”

In this section unless the context otherwise requires, “indictable offence” means any offence

(a) which on conviction may be punished by a term of Imprisonment exceeding two years.

(b) Which on conviction may be punished by imposition of a fine exceeding five hundred naira or

(c) Which on conviction may be punished by death by hanging or by firing squad. The manner in which criminal proceedings may be instituted in a Magistrate Court is stipulated in Section “78 of the Criminal Procedure Law as follows:

“78. Where proceedings are instituted in a Magistrate’s Court they may be instituted in either of the following ways:

(a) Upon complaint to the court whether or not on oath that an offence has been committed by any person whose presence the magistrate has power to compel, and an application to such magistrate in the manner hereafter set forth for the issue of either a summons directed to, or a warrant of arrest to apprehend, such person; or

(b) by bringing a person without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and time and place where the offence is alleged to have been committed. The charge sheet shall be signed by the police officer in charge of the case.”

In arguing this issue learned counsel for the appellants considered the meaning of the word ‘proceedings’ as is defined in ‘Blacks Law Dictionary”, 5th Edition page 1083. The said word is defined therein as “the form and manner of conducting judicial business before a court or judicial officer. Regular and orderly prayers in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals; bureaus or the like. All the steps or measures adopted in the prosecution or defense of an action. The proceedings of suit embrace all matters that occur in its progress judicially. Term “proceeding” may refer not only to a complete remedy but also to a mere procedural step that is part of a large, action or special proceeding. A ‘proceeding’ includes action and special proceedings before judicial tribunals as well as proceedings pending before quasi-judicial officer’s and boards.”

Learned counsel for the appellants has submitted that even if in the instant case the police instituted proceedings before the first appellant under Section 78 (6) of the Criminal Procedure Law by bringing respondent and others before the court upon a charge containing a charge sheet, this could not and did not automatically turn the relevant proceedings of that day into an arraignment proceedings, especially when it was clear that the offence alleged could not be tried by a Magistrate court, and he referred to Section 215 of the Criminal procedure Law, which states as follows: “The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court and such person shall be called upon to plead instantly thereto unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served there with.” Learned counsel further submitted that instituting proceedings before the first appellant by virtue of Section 78 (b) of the Criminal Procedure Law supra was simply a means of bringing the respondent before the court. Counsel drew the court’s attention to the fact that although the charge presented to the court was read out to the respondent, and others they did not plead ‘guilty or not guilty’ and there was in effect no arraignment. He placed reliance on the case of Asakitipi v. State 1993 5 NWLR part 296 page 641. Learned counsel for the respondent has in reply submitted that the proceeding leading to the appellant’s remand in prison custody, after the Magistrate had declined jurisdiction was an arraignment proceeding which is not within a purview of Section 236 (3) of the Criminal Procedure Law and the Court of Appeal was right to have so held, because Section 236 (3) does not envisage the existence of a charge, whereas it can be seen from the records that the process of commencing criminal proceedings pursuant to Section 78 (b) of the Criminal Procedure Law, had been initiated. Now, I will look at the controversial proceedings in the Chief Magistrate Court, over which the 1st appellant was presiding. In fact it is on page (6) of the record of proceedings. It reads:-

“Between: Commissioner of Police v. Adegbenga Adebusuyi and 12 Others Accused present. Charge read and explained to each accused in English Language. Each accused states that he understands the charge. No plea taken. Sup. of Police Ribadu for the prosecution and with him are A.S.P. M.T. Mkpa and Mr. S. K. Atteh. Mr. Femi Falana for the 1st, 2nd, 3rd and 4th accused, and with him are Messers Tokunbo Ajomaja, Ebunolu Adegoruwa Giwa Jacobs, C. O. Onyewu and Funmi Falana (Mrs.). Ruling After a careful consideration of the submissions of both counsel for defence, together with the objection of S. P. Ribadu, I find as follows:

1. Even though Section 118 (2) of the C. P. L. permits the court to grant bail to the accused in certain cases, this does not apply in a case involving a capital offence like treason for which the accused persons stand charged.
2. As Mr. Femi Falana has rightly stated what is before the court is a holding charge pending the filing of the information and the arraignment of the accused persons before the High Court. As such, the court lacks jurisdiction to make any order whatsoever in respect of this case. The application for bail is therefore, hereby dismissed. The accused may apply to the High Court for their bail”.

It is instructive to note that the submissions of counsel were not recorded, as is apparent in the supra proceedings (which in my view is missing), for we can only surmise that the submissions had something to do with bail, in view of the content of paragraphs (1) and (2) supra. As far as the nature of the proceedings or the actual purport of what transpired on that 12th of March, 1991 is concerned, I think it fell within the ambit of the procedure prescribed by Section 78 (b) of the Criminal Procedure Law supra, in that the accused/respondent was taken before the Magistrate Court with a charge in a charge sheet that contained all particulars and the offence allegedly committed by him. This was read over to him and I suppose it was for him to know the reason for his remand in custody. Even though Section 78 (b) of the Criminal Procedure Law supra is silent about reading the charge out to the accused/respondent, the very fact that it was read to him does not mean he was arraigned or charged to court under Section 215 of the Criminal Procedure Law supra. It is instructive to note that the provision of this later section necessitates the taking of plea, and in this proceedings plea was not taken, as is clearly and specifically stated in the reproduced proceedings of above. Perhaps I should state here that the offence the accused/respondent was alleged to have committed was that of a treasonable felony which the 1st appellant had no jurisdiction to try/and in fact she said so in her ruling, so there was no way how it can be said there was an arraignment, since she had no power to try the accused/respondent of the said treasonable offence, which only a High Court can try. The requirements of a valid arraignment are set out by Ogwuegbu JSC in the case of Tobby v. State 2001 10 NWLR part 720 page 23 at page 33 (2001) 6 SCM, 178 as follows:-

“(a) the accused must be placed before the court unfettered unless the court shall see cause 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;

(c) It must be read and explained to him in the language he understands;

(d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith. The above-stated requirement of the law are mandatory and must therefore be strictly complied with in all criminal trials. As they have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial, failure to satisfy any of them will render the whole trial defective and null and void”.

I am fortified by the above pronouncement, which especially makes the fulfillment of all the requirements stated above absolutely necessary. My understanding of this is that once one of the four requirements is missing, (as it is in the instant case) then it is virtually tantamount to no arraignment at all. What transpired in the Magistrate Court and as is contained in the proceedings reproduced above is definitely no arraignment, nor does it in fact derail from the provision of Section 236 (3) of the Criminal Procedure Law. The learned High Court judge was right to make the following observation in his ruling:

“Firstly the proceeding is titled “suit No. MI KM/100/97 not charge No. A/100/97 which show that although the Applicant was brought to the court by a charge No. A/100/97, the proceeding was an administrative or quasi-criminal proceedings. Paragraph 2 of the Ruling states:

“As Mr. Femi Falana has rightly stated that before the court is a holding charge pending the filing of the information and the arraignment of the accused persons before the High Court.”

Then he went on to deal with the said provision of Section 236 (3) and made a finding. That excerpt of the judgment reads thus:- “I refer to the definition of indictable offence” in Section 236 (3) C. P. L. and hold that before a Magistrate can exercise power pursuant to Section 236 (3), he must first hold as did the Chief Magistrate in this case that he had no jurisdiction whatsoever under the law in which the accused was brought before him. The Magistrate will then proceed to remand the accused person as did the Chief Magistrate in this case. The fact that the Chief Magistrate did not refer to Section 236 (3) C.P.L. was not fatal to her remand Order since in law she had the power under Section 236 (3) to remand the accused.’” In the light of the above discussions I resolve this issue in favour of the appellant and so dismiss ground of appeal No (1) to which the issue is married. Now, to issue (2) supra. In arguing this issue, learned counsel for the appellants referred to the cases of Anaekwe v. C.O.P. 1996 3 NWLR part 436, page 320, and Chief Pat Enwere v. C.O.P. 1993 6 NWLR part 299 page 333, in which it was held that holding charge is unknown in Nigeria Criminal Law. Learned counsel’s submission, however is that holding charge may be unknown but remand proceedings are well known and recognized under our laws by virtue of Section 236 (3) of the Criminal Procedure Law supra. He further submitted that the issue this court is called upon to determine in the instant case relates essentially to the impact and effect of Section 236 (3) of the Criminal Procedure Law as it relates to the powers of remand of the 1st appellant as well as the constitutionality or otherwise of the said Section 236 (3). It is his view that the issue of holding charge dealt with in the Court of Appeal cases can be distinguished from the issues that have arisen in this case for the determination of this court. Learned counsel further submitted that Section 263 (3) of the Criminal Procedure Law rather than conflict with relevant provisions of the Nigerian Constitution fully compliments such provisions. In his own submission the learned counsel for the respondent is of the view that Section 236 (3) supra under which the 1st appellant purportedly acted in remanding the respondent in prison custody violates the respondent’s fundamental rights as contained and clearly defined in the 1979 Constitution of the Federal Republic of Nigeria. He submitted that the said Section 236 (3) violates the respondent’s rights to: (1) Liberty as guaranteed under Section 32 of the 1979 Constitution. (2) Right to fair trial within a reasonable time Section 33 (4). (3) Right to presumption of innocence – Section 33 (5). (4) Right to be charged promptly – Section 33 (6) (a). Learned counsel dealt with each of these subheads individually in his brief of argument, and I will also treat them individually, starting with (I) above. Learned Counsel has submitted that Section 32 (1) of the 1979 Constitution which guarantees the right and discloses no exception, does not contemplate the power of Magistrates to make remand orders, as contained in Section 236 (3). I will reproduce the provision of Section 32 (1) of the supra constitution here below. It reads:- “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following case and in accordance with a procedure permitted by law:- (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court in order to secure the fulfillment of any obligation imposed upon him by law; (c) for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence; (d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; (e) in the case of persons suffering from infectious or contagious disease, persons of insane mind persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the commu-nity; or (f) for the purpose of preventing the unlawful entry of any person in Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria of any person or the taking of proceedings relating thereto; Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprison-ment prescribed for the offence.”

It is the argument of learned counsel for the respondent that the above proviso as highlighted above talks about awaiting trial charge as a lawful process of detention. According to him it denotes the existence of a charge pending trial and by implication, it means due compliance with the pre-trial procedure has been fulfilled. In other words the arraignment procedure has been complied with and the accused person is in custody awaiting his trial, and so the holding charge or Section 236 (2) does not fall into any of the exceptions to the highlighted section. He further submitted that a conflict exists and it is trite that where a statute conflicts with the provision of the constitution, the statute to the extent of its inconsistencies is void. He placed reliance on the case of Labiyi v. Anretiola 1992 8 NWLR part 258 page 139. I do not see that there is conflict between the provision of Section 236 (2) of the Criminal law supra and the provisions of Section 32 of the Constitution supra. The fact is there was strong suspicion that the respondent and some others have committed an indictable offence to wit treason. After their arrest by the police, there was the need to properly and lawfully keep them in custody, and the only way to do this was to take them to a Magistrate court who would in turn remand them in custody. They couldn’t possibly continue to remain in police custody without the order of a court. Police investigations sometimes take time, and sometimes there is the fear of a likelihood of continued committal of the same or other offences. There is also a likelihood of interference with investigations. Whilst this process continues or is concluded, the legal advice of the Ministry of Justice is sought. Indeed, the lower court took cognizance of these processes in its lead judgment as illustrated in the excerpt of the judgment, which reads thus:-

“Before an accused is brought before the court it should be assumed that the case is ripe for hearing, not for further investigation. He must not be there on mere suspicion under Section 35 of the Constitution. If there can be no sensible and prima facie inferences that can be drawn that an offence has been committed then the accused cannot be deprived of his liberty even for a second. There cannot be a holding charge “hanging over an accused in court pending the completion of investigations into the case against him The police have not by Section 32 (1) (C) of the 1979 Constitution been given unbridled powers to deprive citizens of their liberty while the case against them is still investigated. One often times hears the police claim that investigations have been concluded that the advice of the office of the Director of Public Prosecutions (DPP) is required before an information can be prepared during which period the accused must have to remain in custody.” Then Section 33(4) of the 1979 Constitution where the principle of fair hearing is entrenched. This provision stipulates thus: “Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn be entitled to fair hearing within a reasonable time.”

Learned counsel has argued that if Section 236 (3) of the Criminal Law is allowed to stand it would fetter the rights of accused persons to fair trial within reasonable time. Further, Article 7(1)(d) of the African Charter on Human and Peoples Rights makes the following provisions:- “Every individual shall have the right to have his cause heard. This comprises; (d) the right to be tried within a reasonable time by an impartial court or tribunal.”

At the stage at which the respondent applied to enforce his fundamental right, it is not feasible to calculate or guess the time within which investigations will be completed, and hearing (whether fair or otherwise) will commence. What is reasonable time is subjective, and since this is dependent on the completion of investigations, all factors will be taken into consideration. Learned counsel for the respondent is talking about a detention of accused’s by Magistrates for periods not less than 7 years. It is instructive to note that the appellant was remanded in custody by the Magistrate on 12/3/97, and he filed his motion for enforcement of fundamental rights on 3/6/97, a period of less than 3 months. I am not unmindful that the respondent’s verifying affidavit in the High Court says he was arrested on 12th January, 1997 and detained in police custody. See paragraphs (4) and (5) of the said affidavit. I therefore disagree with the submission of learned counsel that there has been any infraction. On the presumption of innocence as laid down in Section 33 (5) of the supra Constitution, I fail to see anything in the record before us that there was a contrary presumption in respect of the appellant. The appellant and his co-accuseds were taken before the Magistrate Court for the purpose of lawful remand in custody; and that was exactly what the Chief Magistrate did. She did not ask him of whether he was guilty or not, so the issue of his innocence didn’t come to play at that stage of the proceedings. I need not go into the argument proffered in respect of Section 33 (6) of the 1979 Constitution supra by learned counsel for the respondent as they have been adequately covered by my reasoning above. Indeed I don’t think I need to belabour this issue any further, for it will be tantamount to over flogging it. For the foregoing reasoning I resolve issue (2) supra in favour of the appellant, and so grounds of appeal Nos (2), (3) and (4) which cover the issue succeed, and they are hereby allowed. In the final analysis this appeal succeeds in its entirety. The judgment of the court of Appeal, Lagos Division is hereby set aside. The order of Chief Magistrate and the Ruling of the High Court are affirmed. I assess costs at N 10,000.00 in favour of the appellants against the respondent.

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SC. 247/2001