The State V. James Ashe & Anor (1981)
LawGlobal-Hub Lead Judgment Report
G. IRIKEFE, J.S.C. (Delivering the Leading Judgment): The Court of Appeal, because its attention was not drawn to Exhibit “A”, took the view, quite rightly, that the trial of the appellants was a nullity in as much as it had not been shown that leave to prefer charges against them had been obtained from a Judge as required by law before the commencement of the trial. Since the trial is now valid prima-facie, it seems to me that the Court of Appeal is obliged in law to entertain arguments on the merit of the appeal. Accordingly, I would order that this appeal be remitted to the Court of Appeal for a hearing and determination on its merit. This means in effect that the conviction and sentence passed in this matter by the High Court of Benue State on 4/11/77 still stand.
I order that the two appellants who were discharged and acquitted by the Court of Appeal and who are now in this court be re-arrested. They are however to be admitted to bail in the sum of N1,000 in their own recognisance pending the determination of their appeal by the Court of Appeal.
A. O. OBASEKI, J.S.C.: This appeal is against the decision of the Federal Court of Appeal declaring the whole proceedings in the trial of the respondents before the Benue State High Court a nullity on the ground that no leave was obtained under Section 185(b) Criminal Procedure Code L.N.N. 1963 before the trial of the respondents.
The only point to be established in this appeal therefore is that there was leave granted under Section 185(b) Criminal Procedure Code before the respondents were tried. .
We have been shown Exhibit A, the record containing the leave granted by Adesiyun, CJ., Benue State and I am satisfied that leave was granted to prefer charges before the trial of respondents commenced.
Mr. Brown Peterside, respondents’ counsel has been satisfied by Exhibit A that leave was granted and no longer pursues the point of his objection. He has asked that the appeal be allowed and an order remitting the appeal to the Federal Court of Appeal for hearing on the merits, made.
I agree with this request, wisely made, in the interest of justice. I would allow the appeal and remit the case to the Federal Court of Appeal for hearing. The appeal to this court is hereby allowed; the orders declaring the whole proceedings in the Benue State High Court a nullity and discharging the respondents are hereby set aside and the case is hereby remitted to the Federal Court of Appeal for hearing of the appeal on its merit.
The respondents are to be taken into custody and released on bail in recognizance ordered by my learned brother, Irikefe, JSC.
A. NNAMANI, J.S.C.: The main ground on which the Federal Court of Appeal, Kaduna Judicial Division, allowed the appeal of the respondents was that there was nothing to show that leave to prefer charges against the respondents under Section 185(b) of the Criminal Procedure Code was granted.
The learned counsel for the appellant swore to an affidavit dated 7th June, 1979, to the effect that leave was in fact granted, but that that evidence could only be seen in the correspondence file of the Benue State High Court in relation to this case. This fact was not brought to the notice of the Federal Court of Appeal before they delivered judgment in this matter on 18th May, 1979. Having examined the court file, it is clear from it that leave to prefer charges under Section 185(b) of the Criminal Procedure Code was granted by Adesiyun, CJ., on 5/9/77. The relevant note was admitted in this court as Exhibit ‘A’ and forms part of the records of this court.
I am of the view that it is certainly desirable that the grant of leave in these circumstances should be set down in the records of the High Court. In the interest of justice, however, I also agree that this appeal should be remitted to the Federal Court of Appeal, Kaduna, for that Court to hear it on its merits. I also agree with all the orders made by my learned brother Irikefe, JSC., presiding.
SC.5/1981
