Okoye & Ors V Commissioner Of Police (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

In order to fully understand this case and the tenacity with which it has been fought by counsel to the parties from the Chief Magistrate’s Court Awka which went on appeal to the Anambra State High Court sitting in Awka and to the Court of Appeal, Enugu before its final destination in this Court, it is necessary to give the background facts before the Chief Magistrate Court set the ball rolling. However, it will be difficult to refer specifically to the pages in the record because of the haphazard way in which the record was compiled. The record being used in this appeal and the other appeals namely, SC.279A/2011; SC.279C/2011 and SC.279D/2011 was prepared in respect of Ejike Okoye & Ors vs Commissioner of Police in appeal No.CA/E/97/2008 whose appeal has been assigned SC.279A/2011.

The compiled record of the Chief Magistrate’s Court reflect the proceedings of 10/7/06 and 3/8/06 before the appeal went first to the High Court and later to the Court of Appeal. The charge sheet nonetheless shows that the accused/appellants were arraigned on 24/5/06 before Dr. (Mrs) V. N. N. Ibeziako, a Chief Magistrate in Awka and were granted formal bail. In the appellant’s brief which he filed at the Court of Appeal repeating the address he made at the High Court, the prosecuting counsel Mr. B. A. Onwuemekaghi stated as follows in the opening paragraph:

“On 24th day of May, 2006, the appellant charged the respondents to Chief Magistrate Court 1, Awka, in charges No.MAW/121C/2006 on a seven count charges of conspiracy to commit felony to wit serious Assault on Police Officers, and Malicious Damages to Properties. The Accused/Respondents took plea and pleaded not guilty to the counts. They were granted bail and the case was adjourned to 10th July, 2006 for the evidence of PW1. On that date fresh plea were taken by the Accused persons before a new Magistrate as the former one had been transferred”

(See page 81 of the record).

The proceedings of 3/8/06 was before S. N. Okoye Esq. He recorded the presence of all the accused and that of 1st complainant as well as those of the counsel prosecuting and defence counsel. Christian Okoye was reported sick and a medical certificate was furnished while one Sgt. Odoh was reported to be on a training course. Immediately after this it would appear Dr. Obiorah representing the accused moved his application which was opposed by the prosecuting counsel and the ruling by the Chief Magistrate. It is necessary to produce the record which went thus:

“Application for an order of court directing the Prosecution to furnish the defence with all documents. (Including statements of witnesses, and police investigation reports relating to this case) which are relevant to this case whether they tender same or not. Reply by prosecuting counsel that

(a) this is summary trial and furnishing of relevant documents up front is not provided for in the CPL as in the case of trial on information.

The cost of production of the photocopies shall be borne by accused persons I have deliberately omitted police investigation report from my order as relating to police internal administration. But this is not to hold that such a report became (sic) in issue in course of the trial the Court will be precluded from ordering its production.

Prosecuting police gives Notice of Appeal against the foregoing ruling Court:-

The prosecuting police is to file his written notice and grounds of appeal within 30 (thirty days hence).”

The sequence of events before the drama leading to the appeal unfolded is that on 10/3/06, Dr. Obiorah of counsel, had addressed a petition to the Inspector General of Police, the Assistant Inspector – General of police Zone 9 Area Police Command, Umuahia and the Commissioner of Police Anambra State Awka accusing Mr. Ben A. Onwuemekai (presumably Mr. B. A. Onwuemekaghi) the prosecuting counsel of compromising his position in the case and even conspiring with Christian Okoye to destroy the evidence which the accused intended to rely upon in establishing their bona fide claim of right to the disputed property. Apart from the petition, Dr. Obiorah went further to file notice to produce in the Chief Magistrate Court. When the appeal went before the court of Appeal after the High Court affirmed the decision of the Chief Magistrate allowing the prosecution to furnish the defence with photo copies of statements of witnesses at the expense of the defence, learned counsel to the accused in obvious reference to the items listed in the notice to produce argued that whether in civil or criminal actions the parties are compelled through front-loading to disclose their evidence to each other prior to the hearing. He forcefully submitted that in a criminal trial where the rights of the accused to adequate facilities have been constitutionally guaranteed and protected, full disclosure of evidence prior to trial must not only be required as a desideratum – it is mandatory. The court below did not accept this argument. It set aside the decision of the High Court and remitted the case to the Chief Magistrate for the accused to take their plea before proceeding to trial. The appellants felt aggrieved and each of them appealed against the decision of the Court of Appeal.

The Notices of Appeal dated 15th July, 2011 containing five grounds of appeal each carried the same complaints and the appellants who appealed are Ebele Okoye, Ejike Okoye, Chika Okoye and Onyeka Okoye (See pages 157 – 166 of the records). The Notice of Appeal of Chizoba Okoye is not contained in the record but his appeal was assigned SC.279B/2011 and briefs were filed for the appellant and the respondent. I shall say more about appeal No.SC.279B/2011 later in this judgment. Since all the appeals raised the same issues, the appellants could have applied to consolidate the appeals and proceed to file a joint brief on behalf of all the appellants. See: Abba Tukur vs Government of Gongola State (1998) ALL NLR 42; Ogboru vs Uduaghan (2012) 11 NWLR (Part 1211) 357. FRN vs Dairo Unreported SC.229/2012 delivered on 30/1/2015.

I shall now proceed to consider the appeal of Ebele Okoye vs Commissioner of Police which was assigned appeal No.SC.279/2011.

Dr. E.S.C. Obiora of counsel filed the appellant’s brief raising three issues for determination as follows:-

I. Whether the Court of Appeal should have still set aside the judgments of the two Lower Courts when it had already upheld the decision of the said Lower Courts on the main issue before it, namely: that the statements of witnesses and police investigation report obtained by the prosecution/police in the course of its investigation of the crimes for which the appellant was charged, were part of the “adequate facilities” which the appellant is entitled to in order to adequately prepare for his defence, as mandated by Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (Grounds 1 and 3 of the Notice of Appeal).

II. Whether the Court of Appeal was right in setting aside the decisions of the two Lower Courts on the ground that the appellant’s demand to be afforded the constitutionally mandated ‘facilities’ was premature, when Section 36 (6) (b) of the 1999 Constitution does not set any time frame within which such ‘facilities’ would be provided and when the issue was not even raised or canvassed by any of the parties. (Ground 2 of the Notice of Appeal).

III. Whether the Court of Appeal was right in failing to decide on the alternate issue presented by the appellant which issue the said court even adopted. (Ground 4 of the Notice of Appeal).

The respondent’s brief was settled by P. A. Afuba, Esq. He too raised three issues for determination in paragraph 3 of the respondent’s brief as follows:

(i) Whether the court below was right when it held that the appellate High Court was wrong to have affirmed the order of trial Magistrate for the prosecution to avail the defence with copies of statements obtained by the police from witnesses in the course of investigation (Distilled from Grounds 1, 3 and 5)

(ii) Whether the court below was right in relying on the record of appeal to find that the application by the defence for copies of statements of witnesses examined by the Police in the course of investigation was premature in that the accused persons had not elected either to be tried summarily or by information at the time the application was made (Distilled from Ground 2)

(iii) Whether it was necessary to consider any other issue, having regard to the findings already made by the Court below that the application of the defence for copies of statements of witnesses was premature (Distilled from Ground 4)

Having gone through the issues raised by the appellant and the respondent, I consider that there is only one issue for consideration and it is this:

When is an accused person entitled to facilities for the preparation of his defence as provided in Section 36 (6) (b) of the 1999 Constitution (as amended) and what are the facilities

Learned counsel for the appellant pointed out that what the High Court sitting on appeal decided which formed the basis of the appeal to the Lower Court was:

“Appellant is entitled to be provided with “the statements of the prosecution witnesses to the police” as “part of the facilities” constitutionally mandated by Section 36 (6) (b) of the 1999 Constitution.”

He said the court of Appeal upheld the above articulated decision of the appellate High Court and argued that having resolved the principal issue in the appeal in favour of the appellant, thereby upholding the decisions of the two Lower Courts, the Court of Appeal should have made the only logical order to affirm the decisions and dismiss the appeal. He submitted that the Court of Appeal’s somersault in allowing the appeal was caused by the issue it raised suo motu without giving the counsel appearing for the parties the benefit of being heard and deciding on the said issue. He urged that the issue of election which the Lower Court raised suo motu was not part of any of the grounds of appeal before the Court of Appeal; nor was it canvassed or disputed by any of the parties.

Learned counsel for the respondent argued that the accused persons had not been arraigned before the application by the defence was made for the supply of copies of statements obtained from witnesses during investigation. He asserted that the Court below was entitled to find out and hold as it did, that neither election nor plea had taken place before the trial court, at the time the application for the supply of copies of statements of witnesses was made by the defence and the law clearly allows the Lower Court to look at the record of appeal in order to determine whether the appellate High Court was right in affirming the order of the trial Magistrate.

I wish to observe that the record was poorly compiled. Whereas the registrar’s statement which forwarded the record to this court stated that the appellant in SC.279A/2011 was arraigned before the Chief Magistrate Court on 2/2/2006, the minutes of the proceedings started from 10th July, 2006 while there is an endorsement on the charge sheet showing that the accused/appellants were arraigned on 24/5/2006 before Dr. (Mrs) V. N. N. Ibeziako, a Chief Magistrate and were granted formal bail. It has become necessary to bring out this point in order to debunk the argument advanced by respondent’s counsel in this appeal that the accused persons had not been arraigned when the application for the supply of copies of statements obtained during investigation was made by their counsel.

When learned counsel for the appellant made his application to the court to direct the prosecution to furnish the defence with all documents (including statements of witnesses, and police investigation reports relating to the case), he was invoking the appellant’s constitutional right to fair trial as provided in Section 36 (6) (b) & (d) 1999 Constitution (as amended) which states –

“36 (6) Every person who is charged with a criminal offence shall be entitled to –

(b) be given adequate time and facilities for the preparation of his defence

(d) examine in person or by his legal practitioner the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”.

The word ‘facilities’ is not defined in the Constitution. Blacks Law Dictionary 5th Ed (1975) defines facilities’ as “that which promotes the ease of any action, operation, transaction, or course of conduct… the word facilities’ embraces anything which aids or makes easier the performances of the activities involved in the business of a person or corporation”.

The facilities that must be afforded the accused person are the ‘resources’ or ‘anything which would aid’ the accused person in preparing his defence to the crimes for which he is charged. These, no doubt, include the statements of witnesses interviewed by the police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify. In Layonu vs State (1967) 1 ALL NLR 198 citing with approval the case of R v. Clarke 22 Cr. App. R 58 held that a defendant is entitled to see a written description of himself given by a police officer to his superior, with a view to cross – examining that officer on alleged discrepancies between the content of that document and his sworn testimony.

The facts in Layonu’s case supra are quite informative and they are as follows:

At the beginning of the trial, defence counsel applied for statements made to police in connection with the case; prosecuting counsel was willing to supply only those made by prosecuting witnesses – though not till the time for cross-examining them came – but the trial Judge, citing a passage from the head note to R v Clarke, ruled that the defence must first establish that there were discrepancies between a witness’ previous statement to the police and his testimony and refused production of the statements. On being convicted on the strength of the evidence of two eye witnesses who identified the appellants as having taken part in the attack on the deceased, the appellants complained that they had been deprived of the opportunity of testing the stories of these witnesses against their previous statements to the police and further that there were sufficient discrepancies between the statements and the evidence of the two witnesses to make it unsafe to uphold the convictions, this Court in allowing the appeal held that the trial Judge improperly refused production of these statements when it stated:

“a defendant is entitled to see any written statement in the possession of the prosecution which was made by a witness called by the prosecution and which relates to any matter on which the witness has given evidence, and to cross-examine the witness on it and then tender it solely to impeach his credit.”

Interpreting Section 33 (1) of the 1979 Constitution (now Section 36 (1) of 1999 Constitution (as amended) Oputa CJ (as he then was) stated in Orisakwe vs Governor of Imo State (1982) 3 NCLR 743 at page 758:-

“If the right of fair hearing under Section 33 (1) of the Constitution and under the rule of natural justice is to be any real right, it must carry with it a corresponding and equal right in the person accused of any misconduct to know the case which is made against him. He must know the evidence in support – not merely bare und unsupported allegations – and then he must be given the opportunity to contradict such adverse or incriminating evidence.

This is the right of fair hearing and nothing short of it will suffice.”

This Court in Udo vs State (1988) 1 NSCC (part 19) 1163 at 1172 declared that Section 33 (6) (d) of the 1979 Constitution (which is in pari materia with Section 36 (6) (d) of the 1999 Constitution) is a provision of “equal opportunities for both the prosecution and the defence….”, Thus the prosecutor will not be allowed to have sole access to evidence. In a situation where the accused person does not know the case he will meet, while the prosecution knows everything concerning the case against the accused ahead of time, amounts to nothing less than procedural inequality which is a gross violation of the principle of fair hearing or fair trial and is tantamount to a violation of the said Section 36 (6) of the Constitution.

It seems the decision in Gaji vs The State (1975) A.N.L.R. 268 runs contrary to Layonu vs State supra which came after Gaji’s case. What happened in Gaji’s case was that the defence applied for the production of statements made to the police by prosecution witnesses but the applications were opposed by the prosecution contending that no foundation was laid for the compulsory production of those statements; furthermore their production is forbidden by the provisions of Section 122 of the Criminal Procedure Code.

The learned trial judge in refusing to grant the applications did not deal with the objection as to the absence of foundation. On appeal to this Court it was held that the trial court has a discretionary power to order the production of any document including such statement, if such production is necessary in the interest of justice. It was further held that where compulsory production is required, Section 122 CPC must be complied with, and the Section contains conditions and circumstances under which such statements must be produced. The decision in Gaji’s case was limited to the interpretation of Section 122 CPC but did not touch on the right to fair hearing and the equal opportunities that should be afforded the prosecution and the defence.

The appellant’s case in Gaji vs State supra was further weakened because his counsel had advised him not to plead to the charge and after the prosecution had closed its case, learned counsel for the appellant rested his case on the prosecution and the appellant declined to give evidence. If learned counsel had applied for the production of the statements to enable him prepare his defence instead of informing the Court he would challenge the statements of the prosecution witnesses, it is most likely that the refusal by the trial judge to order the production of the statements would have been upturned on appeal.

In the instant appeal, for the appellant to be on equal footing with the prosecutor at the commencement of the trial, the appellant should be given the statements the witnesses made to the police and relevant materials relating to the case such as the photographs of the property they are accused of damaging.

The argument being advanced by learned counsel for the respondent which is in tandem with the decision of the Court below is that the appellant ought to have elected to be tried summarily or on information before he would be entitled to the facilities he is requesting for to assist him in his trial. The reasoning by the court below is that:

“The Chief Magistrate Court is not the place to ask for what belongs to proofs of evidence. Besides, the Chief Magistrate Court cannot just direct the Prosecuting Counsel to give the Respondents the documents because he is a Policeman, and pursuant to Section 243 (1) of the CPL it is only after the accused has elected to be tried at the High Court that the Magistrate can direct the Prosecuting Police Officer to transmit the case file to the Attorney – General, who will then direct the DPP and other law officers in his office, to prepare the proofs of evidence. Apparently, the respondents and the two Lower Courts jumped the gun. The respondents had not been asked or elected to be tried at the High Court where they would have gotten the documents as a matter of right. They will have to go back to the finishing line und start all over again.” (See page 144).

I find it extremely difficult to accept this reasoning by the Lower Court which formed the basis for allowing the appeal. The High Court sitting on appeal after considering the Advanced Learner’s Dictionary definition of facility in relation to Section 36(6) (b) of the Constitution said at page 70 of the record:-

“By the above provision of the 1999 Constitution it means that adequate time and facilities shall be given to every person charged with a criminal offence for the preparation of his defence. The Constitution of the Federal Republic of Nigeria 1999 did not state that this is applicable only to persons who are charged with a criminal offence at the High Courts. It says to every person charged with a criminal offence. It does not therefore matter which court the person is charged with a criminal offence. By virtue of that provision of the 1999 Constitution of Nigeria once a person is charged with a criminal offence he is entitled to the facilities for the preparation of his defence.”

In resolving the issue the Court held at page 71 thus:

“The Court has a discretionary power to order the production of any document including such statement, if such production is necessary in the interest of justice. Although, the trial at the Lower Court in the case is a summary trial, but the defence are entitled in my view, since they have applied, to be given copies of the statements made by the prosecution witnesses as one of the facilities they require for the preparation of their defence as provided by Section 36 (6) (b) of the 1999 Constitution.”

This settled the issue more so as the High Court went further to point out that the Constitution is the grundnorm and fundamental law of the land which is supreme over all other laws. If Order 3 Rule 2 (1) of the High Court of Anambra State (Civil Procedure) Rules, 2006 provides for front – loading of documents to enable a defendant know what the claim against him entails so as to enable him prepare for his defence, how much more is it expected of the prosecution to provide the necessary facilities to a person accused of an offence to enable him prepare his defence. The prosecution by making available the facilities the appellant demanded in the notice to produce will help clear the air on the allegation made against Mr. B. A. Onwuemekaghi, the prosecuting counsel of what can be described as his partisanship and his becoming an agent of a wrong – doer in the pursuit of a private vendetta.

The moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself. It is immaterial whether he elects to be tried summarily or on information, once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the court must accede to his request and the prosecution has to comply. In Fawehinmi v. Inspector-General of Police (2002) 7 NWLR 606, Uwaifo JSC expressed the view at page 681 that-

“…. in a proper investigation procedure, it is unlawful to arrest unless there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect, before the police look for evidence implicating him.” In the notice to produce which the appellant filed at the Magistrate’s Court Awka, he clearly spelt out in item 12 that he needed a copy of all routine police reports concerning the instant case which excluded legal opinions from the Attorney – General’s Chambers. I wish to say that compliance with Section 36 (6) (b) of the Constitution is not subject to Sections 243, 244, 245, 246 and 247 of the Criminal Procedure Law of Anambra State. When a person is accused of an offence and requests for facilities to enable him prepare his defence, and the facilities in question are statements of witnesses, it will suffice if the prosecution makes available photocopies of the statements.

The court below was clearly in error when it made the election of the appellant to be tried on information as a condition precedent to exercising his right to request for facilities to prepare his defence.

The appeal has merit and it is hereby allowed. The order that the appellant must elect to be tried on information before he can be entitled to adequate facilities for the preparation of his defence as provided in Section 36 (6) (b) 1999 Constitution (as amended) is hereby set aside. It is hereby ordered that the appellant be provided with the facilities contained in the Notice to Produce which was filed in the Magistrate’s Court Awka by the respondent at no cost to the appellant.

Although no appeal has been filed in SC.279B/2011, in view of the fact that Chizoba Okoye is one of the accused in Charge No. MAW/2/C/2006, he too should be granted the facilities that the appellant has been given in this appeal to enable him prepare for his defence. Appeal allowed.

The facts and arguments in appeal Nos.SC.279A/2011; SC.279C/2011 and SC.279D/2011 are the same as in appeal No.SC.279/2011. The resolution and consequential orders made in SC.279/2011 shall therefore abide SC.279A/2011; SC.279C/2011 and SC.279D/2011.

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SC.279/2011(CONSOLIDATED)