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.