CORAM

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JAMES OGENYI OGEBE JUSTICE, COURT OF APPEAL

PIUS OLAYIWOLA ADEREMI JUSTICE, COURT OF APPEAL

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PARTIES

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GABRIEL EZEZE AZUBUIKE EZEZE APPELLANTS

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THE STATE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellants was charged with other persons for criminal offences in particular, with the offence of perversion of court of justice contrary to Section 126 (1) of the Criminal Code Law, Cap 32 Volume 2, Laws of Lagos State 1994. Before the trial of the accused persons commenced, the learned counsel for the Appellants (there as the 7th and 8th accused persons) brought, on behalf of his clients, a motion on notice praying for an order quashing the preferment of information, counts of charges, trial, production or reproduction warrants and every other process in the above charge and information against the Appellants. After two consecutive adjournments, the Accused persons still didn’t appear in court, their Counsel, hence sought to move the application in their absence but the Prosecuting Counsel opposed and argued that the application cannot be moved unless the Appellants/ Accused persons are in court. The Court ruled in favour of the Prosecutor, and set the case for trial. Dissatisfied, the Appellants appealed to the Court of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Should the lower court have fixed the criminal matter for trial when the appellants (sic) above motion to quash the charge and other processes against them or for stay of same had not yet been taken or heard.Should the lower court have fixed the criminal matter for trial when there was no application before it for the case to proceed to trial.Is the physical presence of an accused person in court mandatory before a motion to quash filed before trial on behalf of such an accused can be heard or taken by the court before trial.

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RATIONES DECIDENDI

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ABUSE OF COURT PROCESS – POWER OF THE COURT TO PREVENT AN ABUSE OF COURT PROCESS

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‘‘The power of the court inherent in its jurisdiction to prevent abuses of its process and control its own procedure will, in a criminal court, include the power to safeguard an accused person from oppression or prejudice. The court will be failing in its fundamental duty if, in the face of a defective or bad charge, it refuses to entertain the application to quash and hastily proceeds to set the criminal case down for trial.’’- PER ADEREMI, JCA

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ARRAIGNMENT- REQUIREMENT FOR ARRAIGNING AN ACCUSED PERSON

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‘‘Indeed, it is very crucial that the physical presence of a mentally alert person is sought and obtained at the time the arraignment of the accused is to take place and thereafter during the proceedings”. PER ADEREMI, JCA

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ARRAIGNMENT- WHAT CONSTITUTES A VALID ARRAIGNMENT

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(1) the accused person who is to be tried shall be physically placed before the trial court unfettered
and (2) the charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the judex by the registrar of the court or any other designated officer of the court
and (3) and the accused shall then be called upon to plead instantly to the charge
and (4) the plea of the accused shall also be instantly recorded by the judex’’- PER ADEREMI,JCA

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INDICTMENT – WHAT CONSTITUTES A VALID OBJECTION TO AN INDICTMENT

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‘‘The list of what constitutes valid objection to an indictment can therefore be summarized as follows;-
(1) If the indictment has been preferred otherwise than in accordance with the provisions of the law
(2) If it is drafted otherwise than in accordance with the law e.g. if it is insufficiently or incorrectly particularized or if it charges more than one offence in one court.
(3) If it has not been preferred within the time allowed by the law.
(4) If it has not been signed in accordance with the dictates of the law.
(5) If the time limits for the beginning of trials have not been Complied with
(6) If it charges an offence that is unknown to law
(7) If it charges any offence in respect of which necessary consents to the institution or confirmation of the prosecution have not been obtained
(8) If it charges an offence in respect of which any relevant limitation period had expired before the commencement of the prosecution.
(9) If it charges the accused of an offence of which he had already been convicted or acquitted or pardoned
(10) If it charges a person who is immune from prosecution or whose acts at the relevant time are not susceptible to the jurisdiction of the court either by reason of age or being incapable, in law, of committing the offence charged or
(11) It charges a person who has been extradicted from abroad with an offence that was not covered by the extradiction proceedings’’. PER ADEREMI, JCA

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CASES CITED

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Barmo Vs. The State (2000) 1 NWLR (PT 641) 424.Fawehinmi Vs. A-G., Lagos State (No. 1) (1989)3 NWLR (PT. 112)707.R. vs. Central Criminal Court & Nadir Ex Parte Director Of Serious Fraud Office, 96 CR. APP R. 248Rufai Vs. The State (2001) 13 NWLR (PT 731) 718

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STATUTES REFERRED TO

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Criminal Code Law of Lagos State 1994Criminal Procedure Law 1994

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