In the Court of Appeal,
Holden at Lagos,
On Tuesday, June 7, 2011,
Before their Lordships:
Clara Bata Ogunbiyi,
Justice, Court of Appeal;
Hussein Mukhtar, Justice, Court of Appeal;
Mohammed Ambi-Usi Danjuma, Justice, Court of Appeal;
Emmanuel Achukwu … (applicant)
and Commissioner of Police … (respondent).
Having said the above, I
shall now proceed to consider the arguments made on the issues raised. On issue No. one that asked the question whether the trial judge was right to have refused to quash the charge for disclosing no reasonable cause of action on the ground that the objection was belated as plea had been taken thereto.
To appreciate this issue, a resort must be had to the procedure of the law relating to the arraignment of an accused person. Section 215 of the Criminal Procedure Act applicable to Lagos State provides that: “A person accused of an offence shall be placed before the court and the charge against him shall be read and explained to him and his plea shall be taken instantly unless the objects on the ground that he is entitled to the service of a copy of the information and has not been served”.
Section 167: “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later”.
There is no doubt that upon the arraignment of an accused person, he takes his plea, which may be an admission of guilt or a denial of guilt or plea of innocence to the substantive claim or charge in avoidance of liability. It could be an objection as to a formal defect in the charge such as duplicity, ambiguity and such defects as the stating of the provisions or section of the law under which a charge has been brought In such later circumstance, Section 167 of the Criminal Procedure Act readily comes to play to ensure that justice is not defeated by technicality by providing that such objections must be taken before a plea is taken.
This in my view, contemplates the thinking that where an objection is not taken timorously, the presumption is that the formal defect in the charge is not substantial and, therefore, waived for non-prejudice and as injustice may not have been occasioned on account of the accused being misled by the defective charge.
The accused/appellant herein has brought his application for a striking out or quashing of the charges against him on the ground of the non-disclose of prima facie case. The application is brought under Section 6(6) of the Constitution 1999, the inherent i.e. common law powers of the court and under Section 167 of the CPA He submits by his counsel that the stating or inclusion of Section 167 of the CPA was an error or misstatement of the provisions of the law under which the application was brought and that the bringing of an application under a wrong law was not fatal as long as the essence of the relief sought was clear and obvious. It is obvious from the motion paper that the application was not brought under Section 167 CPA alone. It relied on the inherent jurisdiction of the court and more importantly the constitutional provision of Section 6(6) that focuses on justice beyond all other technical rules.
An application placed before the court constitutes adequate and sufficient object and should not be waived from consideration, as the constitution role of the judex to do justice cannot be cloistered. The appellant had placed his objection before the trial High Court when he filed same and before the charge was read and his plea denying guilt was made.
The cases cited by the appellant at pages 10 and 11 of his brief of argument are most apt in the statement of the law that an application is made as soon as it is placed before the court. I agree with the submission of the appellant’s counsel and hold that the said application was not belated and ought to have been considered on its merit.
Learned counsel sought to distinguish the case of Abacha vs The State (2002) 11 NWLR PT. 779. Page 437 relied upon by the trial judge and argued that the learned Justice of the Supreme Court, Kutigi J.S.C. (as he then was) in that case merely warned of the need to be brief in an interlocutory application so as not delve into the merit of the substantive matter and not an application was belated if taken after a plea.
“Although there may be no prima facie case disclosed for the accused/applicant’s trial for the offences alleged in the charge and not withstanding his subsequent reassertion of his prayer by a plea of not guilty, the prosecution may proceed to file all the necessary or required documents as advised by the court so that prosecution may proceed on the substantive case as desired”.
This, to my mind, amounts a gross violation of the applicant/appellant’s right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution. “This court has for some time now laid down as a guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined”.
Once prima facie case is alleged or shown not to have been disclosed, such an application could be taken up at any stage as it relates to the court’s jurisdiction to proceed in the matter. Such a plea could be taken at any stage. It is where no objection was taken at all that the accused/appellant would be prevented from relying on the complaint, except if the defect has misled him.
The trial court veered off the complaint before her by not restricting itself to the objection and the supporting affidavit and documents annexed thereto, but was in my view erroneously influenced by the counter-affidavit and the annextures thereto to hold that it was belated and incompetent.
For the views aforesaid and as expressed, I am inclined to and do resolve issue No. one in favour of the appellant in holding that the trial judge was wrong in holding that the application was incompetent and belated.
The application was timeous and well founded as rightly contend by applicant’s learned counsel.
On issue two, it was submitted that since the learned trial judge had found that the prosecution has annexed proof of evidence to the amended charge in accordance with the practice directions and the prosecution, having informed the court that it was relying on same and the court having found that the document referred to as proof of evidence was, in fact, not such document, it was wrong of the court not to quashed the charge as having no proof of evidence in support rather than proceed to order the witnesses intended to be called, statement of the accused on arrest and other statements and exhibits intended to be relied.
I have also heard appellant’s learned counsel in his submission on the fact that the objection to the charge was filed before the court. I do find contained at pages 39 to 42 of the record of appeal, in confirmation.
The proceedings wherein the plea was taken came up on May 12,2009, four days after the motion on notice was filed on May 8,2009.
The appellant did not only raise objection timeously but the trial court was seized of the application before the plea; and what is more, on the said same May 12, 2009, Okwesa, learned counsel for the appellant, formally moved the objection as filed.
The application was not considered rather the bail application, following which the respondent only filed a counter-affidavit dated June 23, 2009, (post dating the objection).
I should think the plea did not prejudice the consideration of the application as filed as it was not a plea of “guilty”. If it were, the argument on the waiver of the objection might have caught up with the accused/applicant.
In the circumstance, I think with respect that it is a red herring attempt and effort at over baking an issue to point accusing fingers to any act of forgetfulness on the part of learned counsel for appellant as to the essence of the time of raising the objection. The reason proffered by the learned trial judge is, in my view, with respect, simplistic, diversionary and a resort to technicality intended to lead to miscarriage of justice by shutting out the accused/appellant from the consideration of this motion on the merit.
In any case, on the authority of the cases of Abacha vs. The State; [komi vs The State, Owhovoriole V5. FRN (2003) 2 NLR (PT.803) page 179 at 203, the trial court ought have quashed the charge without regard to any other document or proof of evidence that was not yet annexed to the information or charge as filed. To have done the contrary at the hearing of the objection to the charge during the trial was wrong. Accordingly, it is concluded that Issue No. two should and is also hereby resolved in favour of the appellant.
As argued briefly by the learned counsel for the appellant, even the counter-affidavit of the prosecution/respondent and the exhibit thereto being a document purported to have been issued/written by one Inspector Victor Eyong (Exhibit DPPl), which is contained at pages 50-54 of the Record of Appeal coming as it were after the objection was raised and being unsigned, makes it non-existent in law and irrelevant to the objection raised. From the foregoing, I agree entirely with the learned counsel for the appellant when he submitted that the trial judge had only one obligation and that is to quash the charges when he found that there was no proof of evidence. That is as it should be, as there can be no reasonable cause of action disclosed upon a no proof of evidence in existence.
Accordingly and having resolved all the issues in favour of the appellant, it is my judgment that this appeal is meritorious and deserves to succeed. It succeeds and is allowed on all the two grounds of appeal as filed and argued.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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