Legalpedia Electronic Citation: LER [2018]SC. 715/2015

AREAS OF LAW:

Appeal, Constitutional Law, Court, Pair Hearing, Law Of Evidence, Practice And Procedure

SUMMARY OF FACTS

The 4^th Accused person/Appellant was charged before the Anambra State High Court, Awka on an amended charge for the offence of conspiracy to commit murder and attempted murder. Before the arraignment could take place, the Counsel for the Appellant and other accused persons brought an application challenging the competence of the information and supporting proofs of evidence, hence, seeking orders of dismissal or striking out the Proofs of Evidence as same is incompetent and an abuse of court process, quashing the information filed in this Court against the Applicant as incompetent for failure to contain proper Proofs of Evidence as required by Section 220(f) of the Administration of Criminal Justice Law, 2010 amongst others. The application was opposed by the Prosecution and the court in its ruling dismissed the application on grounds of the Applicant’s failure to make a case that would warrant the grant of the application. Dissatisfied with the ruling, the Applicants appealed to the Court of Appeal, Enugu, which also dismissed the appeal and affirmed the ruling of the High Court. The Court of Appeal held that it is the Attorney-General and the Law Officers in the State who determine the material witnesses that can be listed at the back of the information and they may or may not be called and that the Attorney-General cannot be subject to the control of a police prosecutor in the Magistrate Court and consequently there was no infringement of the Applicants’ constitutional right to fair hearing.  Further dissatisfied with the judgement of the Court of Appeal, the Appellant has appealed to this court contending that the Respondent’s failure and refusal to disclose in the proofs of evidence every evidence and statement of witnesses, whether intended to be used or not in the prosecution of the case violates and run contrary to section 36(6)(b) of the Constitution.

 

ISSUE FOR DETERMINATION

• Whether an applicant can apply-to dismiss or strike out the proofs of evidence as being incompetent and move the court to quash the information filed in court against an accused person.

HELD

Appeal Struck out

RATIONES

COURT – DUTY OF A COURT WHEN AN APPLICATION IS MADE TO QUASH AN INDICTMENT ON AN INFORMATION

“This Court decided by a majority of 44 in Abacha v. State (2002) 11 NWLR (Pt. 779) 437 that when an application is made to quash an indictment on an information, it is necessary for the trial court to attend to such an application dispassionately and rule on it and the best way to do this is to read all the depositions made by potential witnesses and accused persons so as to find out if there is a prima facie case for the accused to answer. A prima facie case will consist of facts that clearly reveal a crime and show that the accused person is linked with it; hence has something to explain at the trial. PER K.B.AKAAHS, J.S.C

RIGHT TO PERSONAL LIBERTY – NEED FOR AN ACCUSED PERSON TO BE AFFORDED AN OPPORTUNITY TO DEFEND HIMSELF AND BE GIVEN FACILITIES TO PREPARE HIS DEFENCE WHEN HIS PERSONAL LIBERTY IS AT STAKE

“This Court held in Okoye v. C.O.P (2015) 17 NWLR (Pt. 1488) 277 that 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 an opportunity to defend himself and be given facilities to prepare his defence and section 36(6)(d) of the 1999 constitution (as amended) is a provision of equal opportunities for both the prosecution and the defence . PER K.B.AKAAHS, J.S.C

AFFIDAVIT EVIDENCE – MODE OF RESOLUTION OF CONFLICT IN AFFIDAVIT EVIDENCE

“A scrutiny of the affidavit and counter-affidavit filed reveals a conflict in the facts which can only be resolved by the calling of oral evidence especially as regards the exculpatory statement credited to the Abakaliki woman. See: Falobi v. Falobi (1976) NMLR 169. PER K.B.AKAAHS, J.S.C

WITNESSES – DUTY OF THE PROSECUTION WHERE IT DECIDES NOT TO CALL ALL WITNESSES TO PROVE ITS CASE

“While I agree with the submission made by Learned counsel for the respondent that it is the prosecution who determines who to call to prove its case, where it decides not to call all the witnesses, such witnesses should be produced for the purpose of cross-examination. See: Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663 at 695”.PER K.B.AKAAHS, J.S.C

LACK OF FAIR HEARING – WHETHER LACK OF FAIR HEARING CAN BE INVOKED TO INVALIDATE A HEARING

“Strictly speaking therefore he has not been denied fair hearing since the hearing is yet to start and so lack of fair hearing cannot be invoked to invalidate a hearing or trial and therefore cannot be employed to terminate the proceeding in limine. See Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 9150) 411”. PER K.B.AKAAHS, J.S.C

STATUTE REFERRED TO:

Constitution of Nigeria 1999 (as amended)