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UZOCHUKWU v. STATE
CITATION: (2018) LPELR-44643(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON FRIDAY, 25TH MAY, 2018Suit No: CA/E/23C/2017
Before Their Lordships:
HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealTOM SHAIBU YAKUBU Justice, Court of AppealJOSEPH TINE TUR Justice, Court of Appeal
BetweenUCHE UZOCHUKWU - Appellant(s)
AndTHE STATE - Respondent(s)
RATIO DECIDENDI1. CRIMINAL LAW AND PROCEDURE - INFORMATION: Position of the law where an application is brought to quash an information
"It is settled law that in application placed before a Court in a criminal trial as in the instant case, there are certain factors which the applicant must allege, indicating some deficiencies in the charges(s)against him, may necessitate the Court quashing such charge(s). In Chief Lere Adebayo v. The State (2012) LPELR - 9464 (CA) at page 21 thereof, his Lordship, Kekere-Ekun, JCA (as he then was) statedthat the "essence of an application to quash charges in an information, is that the information is inherently defective for one reason or the other or that the proofs of evidence do not establish a primafacie case against the appellant sufficient to warrant his being called upon to provide some explanation." Further see: David Effiom v. The State (2014) LPELR - 22646 (CA); Agboola v. Federal Republic ofNigeria (2014) LPELR - 22932 (CA); Mrs. Gbonjubola Balogun v. Federal Republic of Nigeria (2015) LPELR - 24744 (CA) and Abai v. The State (2016) LPELR - 40127 (CA). In the instant matter, none of thegrounds upon which the application to quash the information containing the charges against the appellant, was anchored on any defect in any of the charges on the information. Therefore, the dismissalor quashing of the information could not have been considered on that ground."Per YAKUBU, J.C.A. (Pp. 22-23, Paras. F-F) - read in context
(201
8) LP
ELR-44
643(
CA)
2. CRIMINAL LAW AND PROCEDURE - RIGHT(S) OF AN ACCUSED PERSON: Right of an accused person to be tried timeously; whether an accused person who contributed to the delay in his trial cancomplain of same on appeal"Unarguably, it is generally expected that an accused person who is facing/undergoing a criminal prosecution, is tried timeously so that he knows his fate in respect of the charge(s) preferred againsthim. For, as long as the charge(s) are hanging on his head, it cannot be said that he is totally free in the exercise of his fundamental rights to freedom of movement. Such an accused person, naturally issubjected to an emotional stress and a resonating feeling of uncertainties regarding his fate and for as long as the trial lingers on, the charges against the accused person, hangs as the sword ofDamocles over his head. That is why it is axiomatic that a speedy trial is preferable at all times, to a long and delayed trial for as it is said, justice delayed is justice denied. And that is where thefundamental rights of the accused person comes into play and focus.Therefore, in the conduct of both civil and criminal proceedings in our Courts, the hallowed principles of natural justice and fundamental rights donated to individuals in our Constitution must be strictlyobserved. The nature and importance of fundamental rights was re-echoed and reiterated by the apex Court in Ransome-Kuti v. Attorney General of the Federation & Ors (1985) LPELR - 2940 (SC) at pp.33 - 34, inter alia: "What is the nature of fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primarycondition to a civilised existence and what has been done by our Constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in council 1960up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have theserights enshrined in the Constitution so that the rights could be "immutable" to the extent of the "non-immutability" of the Constitution itself. It is not in all countries that the Fundamental Rightsguaranteed to the citizen are written into the Constitution. For instance, in England, where there is no written Constitution, it stands to reason that a written code of fundamental rights could not beexpected. But notwithstanding, there are fundamental rights. The guarantee against inhuman treatment, as specified in Section 19 of the 1963 Constitution would for instance, appear to be the same assome of the fundamental rights guaranteed in England, contained in the Magna Carter 1215 - Articles 19 and 40 which provide - "no freeman may be taken or imprisoned, or disused of his freehold orliabilities in free customs or be outlawed or exiled or in any way molested nor judged or condemned except by lawful judgment or in accordance with the law of the land and the crown or its ministersmay not imprison or coerce the subject in an arbitrary manner". In the United States, the Eighth Amendment to the United States Constitution provides - "Excessive bail shall not be required, norexcessive fines imposed, nor cruel and unusual punishment inflicted." -per Eso, J. S. C.Therefore, the entrenchment of fundamental rights and the mode of enforcing its breach in the Nigerian Constitution over the years since our independence, undoubtedly underscores its importance andthe need to zealously protect the sanctity and inviolability of human life. Accordingly, the Courts do not usually shirk their judicial responsibility in ensuring that thehuman rights of the individual is not compromised and on no account should such rights be swept under the carpet or taken away by any person or government under any guise, without justification.It is gratifying that it is in recognition of the importance of the quick and timeous dispensation of criminal justice that the framers of the 1999 Constitution of the Federal Republic of Nigeria, (asamended), had promulgated in Section 36(4) of the same to the effect, inter alia, that:"Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal."Now, the word "reasonable" as defined by the learned authors of Black's Law Dictionary, Eight Edition, at page 1293, connotes what is:"1. Fair, proper, or mode under the circumstances."The phrase "reasonable time" appears to be relative vis-a-vis the facts and circumstances of each case. For the Supreme Court, in determining the factors that delay the conclusion of a case within areasonable time had this to say, in Ezeala Nnajiofor & Ors v. Linus Ukonu & Ors (1985) LPELR - 2056 (SC) at pages 17 - 18, that:"It is not therefore possible to lay down a fixed rule as to what "reasonable time" is in the trial of every case. Some cases are by their nature short or lengthy by reason of the number of witnesses to becalled or the length of the testimonies of the witnesses. Others involve witnesses who do not live in the country or within the Court's jurisdiction. Documents to be put in evidence may be in the custodyof a third party and may not as such be readily available for production at the trial. The health of a vital witness or even the trial judge may fail. All these and many more are factors which canreasonably delay the conclusion of a trial. Surely, such delay cannot be taken to be unreasonable. I am strengthened in this view by the observation of my learned brother Eso, J. S. C., in the leadjudgment in Ariori & Ors v. Elemo & Ors. where he said at p. 58: "And so the right to speedy trial is necessarily relative. It depends on each circumstance." - Per Uwais, J. S. C. (as he then was). And morerecently the Supreme Court, in Alhaji Sani Abubakar Danladi v. Barr. Nasiru Audu Dangiri & Ors (2014) LPELR - 24020 (SC) at page 44, reiterated that:"In my view, the phrase "within reasonable time" implies that the time for the determination of the matter should not be too short or too long, depending on the nature and facts of the case." - PerNgwuta J. S. C.Following the decisions of the apex Court in Nnajiofor v. Ukonu (supra) and Danladi v. Dangiri (supra), in order to determine the reasonableness or otherwise of the length of time involved in the trial ofthe appellant herein, it is imperative to consider the facts and circumstances of the instant matter.The appellant's application at the Court below, which led to this appeal was made pursuant to Sections 6(6) B and 36(1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)and under the inherent jurisdiction of the Honourable Court, and prayed for the following reliefs, namely:1. AN ORDER of this Honourable Court quashing and/or dismissing all the charges brought against the Accused Persons/Applicants under Charge No. AG/26C/1997.2. AN ORDER of this Honourable Court quashing all the charges preferred against the Accused Persons/Applicants in Charge No. AG/26C/1997 and discharging them of the said charges before this Court.3. AND FOR SUCH FURTHER or other Orders as the Honourable Court may deem fit to make in the circumstances.TAKE FURTHER NOTICE THAT the grounds upon which this application is brought in addition to those contained in the accompanying Affidavit are as stated hereunder;1. The Accused Person/Applicants were arraigned before this Court on 30th June, 1997 under the instant Charge No. AG/26C/1997 wherein they were charged with various offences.2. The Accused Persons/Applicants under the said Charge No. AG/26C/1997 were arraigned on six (6) counts of the offences of malicious damage, rioting, stealing and riotous demolition of property in1997 and have been standing trial for the alleged offences since the said 1997.3. Since the arraignment of the Applicants on 30th June 1997, trial has not in fact commenced in the matter as the trial has always suffered unnecessary adjournments and incessant transfer of theJudges handling the matter.4. It is a constitutional requirement as enshrined in Section 36 of the 1999 Constitution (as amended) that a person accused of a criminal offence must be tried within reasonable time.5. More than eighteen (18) years has lapsed since the Accused Persons/Applicants were charged with the said offences and trial of the same has not commenced.6. The Accused Person/Applicants have all spent more than double of seven (7) years being the maximum sentence any of them would have spent in prison if convicted of the offences, waiting to betried for the alleged offences.7. The intendment of Section 36 of the 1999 Constitution (as amended) is to unconditionally ensure that an Accused Person who is arraigned for an alleged commission of an offence is tried speedily andfairly.8. The Accused Persons/Applicants are constitutionally entitled to fair hearing and a fair trial within a reasonable time in accordance with the Constitution.9. The failure to conduct the trial of the Accused Persons, for the past 18 years amount to oppression injustice and/or fairness inter alia in that:(a) The delay has the effect of prejudicing the Accused Persons in the preparation or conduct of their defence;(b) The Accused Persons have been deprived of the protection offered by Section 36(5) of the Constitution which guarantees a fair hearing within a responsible time;(c) The Accused Persons cannot in the circumstances receive a fair trial;10. It is contrary to the public interest in the integrity of the Criminal Justice System that any trial should now take place after 18 years.11. The continued prosecution of this matter or the continuation of any proceedings with regard thereto in the premise constitutes an abuse of the Court's process.12. The prosecution is not interested in the trial of the matter as it only preferred the charges so as to harass, oppress, persecute and intimidate the Applicants and this constitutes an abuse of processof Court and should be dismissed.13. The failure to conduct the trial of the Accused Persons/Applicants within a reasonable time as required by law is a fundamental breach of their constitutional right to fair hearing thereby renders thecontinued trial of the charges a nullity."There is an affidavit of 16 paragraphs filed in support of the application and also a written address by applicants' counsel in support of the application. The respondent filed a Counter-Affidavit of 55paragraphs in opposition to the application. Several documentary exhibits were attached to it and also a written address by respondent's counsel was filed contemporaneously with the counter-affidavit.Thereafter, the applicant/appellant filed a Further Affidavit of 49 paragraphs, and also a written reply by the applicant's counsel.The learned trial judge in his decision, came to the conclusion that the applicant/applicant's right to fair hearing was not breached by the long delay of his trial, because according to the learned trialjudge, the appellant contributed to the delay of the prosecution of the case against him.I have painstakingly perused the affidavit evidence and the documentary exhibits filed in support of the application by the appellant and those filed in opposition to it by the respondent.?It is very clear to me that both parties contributed to the delay in the prosecution of the appellant.For example, where some of the appellant's co-accused persons were absent from Court for one reason or the other, the trial certainly could not have proceeded in their absence. And this was evencompounded by the absence from Court by appellant's counsel on 20th September, 1999; 9th February, 2001; 13th July, 2004 and 17th March, 2005 etc, as indicated at pages 69, 75, 84 and 88 of therecord of appeal. For the respondent, the trial suffered adjournments at her instance on 20th January, 2003; 8th November, 2004; 17th March, 2005 and 6th November, 2006; etc as shown at pages 81,85, 87 and 95 of the record of appeal. Instructively, because of the demise of some of the accused persons being tried along with the appellant, the information upon which they were all arraigned forprosecution, had to be amended two times in order to weed off the deceased accused persons. This resulted to the 2nd Amended Information which was filed against the remaining accusedpersons/defendants on 14th March, 2016, as shown at pages 125 to 129 of the record of appeal.?Instructively too, is a fact that from the available record as reflected in the record of appeal at pages 221 to 245, the learned trial judge came in to handle this matter only on 4th May, 2015. Thedefendants were not in Court on that day. And on the 15th June, 2015 when the matter next came up, it was reported that the 5th, 6th and 9th defendants on the 1st Amended Information had diedwhilst the 11th defendant was absent, hence the case was adjourned to 30th September, 2015. There is no record of what happened on 30th September, 2015. However, the record of appeal at page224 shows that the Court sat again on 19th January, 2016 but since the parties were absent from Court, the case was then adjourned to 10th March, 2016, which was the day that the pleas of thedefendants were taken in respect of the 1st Amended Information. On the 10th May, 2016, the record shows that there was a report that the 7th defendant was dead. Nevertheless, on the said 10thMay, 2016, the pleas of the defendants were taken in respect of the 2nd Amended Information. On the same 10th May, 2016, the defendants' counsel moved his application filed on the same day for thecharges against the defendants to be quashed. The ruling on it was adjourned to 21st July, 2016. All the defendants were re-admitted to bail on the same 10th May, 2016.The Court did not sit on 21st July, 2016. However, from the record at pages 232 - 234, it is evident that the ruling earlier scheduled for delivery on 21st July, 2016 was not delivered. It is evident that onthe 6th February, 2017, the learned counsel to the parties, re-adopted their written addresses in support of the motion on notice filed on 9th March, 2016, to the effect that the charges against thedefendants, be quashed or dismissed and thereupon the ruling was eventually delivered by the learned trial judge on same 6th Feb., 2017.My Lords, a very salient factor which cannot be over looked or underrated which contributed to the delay in the prosecution of this matter is that of the long period of almost seven years of the non-sitting of the Court from 11th July, 2006 till 30th May, 2013 as deposed to at paragraph 36 of the respondent's counter affidavit to the effect that there was virtually only one judge in Aguata JudicialDivision sitting in Court 1 thereof. Furthermore, is the notorious fact of the Junior Staff Union of Nigeria in the Judiciary (JUSUN) strike action in Anambra State which lasted from 15th September, 2015 to15th January, 2016 - a period of four months, that the Court below did not sit.Flowing from the above chronicled facts, it is as clear as crystals, that the delay in the prosecution of the appellant, is not only at the instance of the respondent, but also at the instance of the appellant.Therefore, he cannot heap all the blame for the delay in his trial on the respondent and expect to take benefit from the allegation in which he too has clear complicity. In Alabi v. Doherty (2005) LPELR -6145 (ca), where there was a long delay in the determination of the case, and both parties therein and the Court itself had complicity in events which led to the delay, this Court had this to say:"An examination of the record of appeal readily reveals that the decision of the lower Court had evolved after a prolonged delay. It is scandalous to say the least that such a matter had taken almosttwelve years to be determined. This is a justice service delivery, at the Court of trial, in a society where the average life expectancy has been put at fifty years. Neither party to the litigation nor theCourt that resolved the conflict between these parties had come through clean in the disgraceful shortcoming. The defendant and by extension the appellant/party interested, was as if not more guiltythan either the respondents or the Court as to the delay the matter had suffered before it was determined. Where a matter had not been determined within a reasonable time as required by Section 36of the Constitution, and the delay is equally attributable to the commission or omission of the party complaining, public policy would disentitle such a complaint from succeeding in his complaints. It doesnot truly lie in the mouth of such a culprit or any person who draws title through him to say that a delay perpetrated by him or in conjunction with other litigants or even with the complicity of the Courtshould form the basis of overturning a decision arrived at inspite of any delay. It would be most inequitable given the peculiar circumstances of the instant case to allow appellants to reap from atardiness that had resulted predominantly from their own deliberate lapses. See Kaiyaoja v. Egunla (1974) 12 SC 55; Ajibade v. Pedro (1992) 5 NWLR (pt.214) 257." - Per M. D. Muhammad, J. C. A. (asthen was) at pages 22 - 23.I am afraid, I cannot say anything any less in agreeing with the opinion of his Lordship, Muhammad, J. C. A (as he then was) in Alabi v. Doherty; in my opinion on the instant matter. Therefore, I am of theconsidered and firm opinion that since the appellant also had complicity in the long delay in his prosecution at the Court below, he cannot equitably take benefit of his counsel's tardiness and also thenon-attendance in Court by some of his co-defendants, to insist that because of the long delay in his trial, the charges against him must be quashed or dismissed. It is a truism that he who comes toequity must come with clean hands. Nevertheless, I do not think that the facts and circumstances in Mohammed v. The State (2015) 10 NWLR (pt. 1468) 496 at 511 - 512, are apposite to the instantmatter."Per YAKUBU, J.C.A. (Pp. 6-22, Paras. F-E) - read in context
(201
8) LP
ELR-44
643(
CA)
3. JUDGMENT AND ORDER - JUDGMENT OF COURT: Proper tag to be given to determinations of the Supreme Court and the Court of Appeal"I shall render my opinion in conformity with provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows:"294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion In writing, or may state In writing that he adopts the opinion of any other Justice, who delivers awritten opinion:Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by anyother Justice whether or not he was present at the hearing."Determination of disputes or controversies by Justices of the Court of Appeal or the Supreme Court as the case may be are either an "opinion" or a "decision" as provided in Section 294(2) of theConstitution. Though the word "opinion" is not defined, a "decision" is defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered in the following manner:"318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires:"Decision" means, in the relation to a Court. any determination of that Court and includes judgment decree, order, conviction, sentence or recommendation."Besides, the right of appeal in Criminal or Civil Proceedings has to be against decisions of the Courts that determined the dispute or controversy under Section 294(1) of the Constitution. The provisionprovides as follows:"294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to thecause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof."Section 294(1) of the Constitution comes into play in "Every Court" that is "...established under this Constitution," etc. The Court of Appeal exercises original jurisdiction under Section 239(1)-(2) of theConstitution as follows:"(1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law In Nigeria, have original jurisdiction to hear and determine any question as towhether:a. any person had been validly elected to the office of President or Vice-President under this Constitution, orb. the term of office of the President or Vice President has ceased, orc. the office of President or Vice President has become vacant.(2) In the hearing and determination of an election petition under paragraph (a) of Subsection (1) of this Section, the Court of Appeal shall be duly constituted if it consists of at least three Justice of theCourt of Appeal."But the appellate jurisdiction of the Court of Appeal is under Sections 240 to 247 of the Constitution of the Federal Republic of Nigeria 1999 as altered to wit;"240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal HighCourt, the National Industrial Court, the High Court of the Federation Capital Territory Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory Abuja, Sharia Court of Appeal ofState, Customary Court of Appeal of a State and from decisions of a Court Martial or other Tribunals as may be prescribed by an Act of the National Assembly.24 1(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-a. final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;b. where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;c. decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;d. decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been is being or is likely to be contravened in relation to anyperson;e. decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;f. decisions made or given by the Federal High Court or a High Court:I ) where the liberty of a poison or the custody of an infant is concerned,ii) where an injunction or the appointment of a receiver is granted or refused,iii) in the case of a decision determine the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,lv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, andv) in such other cases as may be proscribed by any law in force in Nigeria.(2) Nothing in this Section shall confer any right of appeal:-a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action,b) from an order absolute for the dissolution of nullity or marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has notappealed from that decree nisi, andC) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of theFederal High Court or High Court made with the consent of the parties or as to costs only.242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal HighCourt or that High Court or the Court of Appeal.(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appealhas been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justicedo not require an oral hearing of the application.243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other personhaving an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon theAttorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may beprescribed;b) exercised accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court of Appeal.(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates tomatters upon which the National Industrial Court has jurisdiction.(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly; Provided that where an Act or Lawprescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.(4) Without prejudice to the provisions of Section 254C (5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall befinal.244(1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamicpersonal law which the Sharia Court of Appeal is competent to decide.(2) Any right of appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal conferred by this Section shall be:-?a. exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or the Court of Appeal, at the instance of any other person having an interest in the matter, andb. exercised in accordance with an Act of the National Assembly and rules of Court for the time being in forceregulating the powers, practice and procedure of the Court of Appeal.245(1) An appeal shall lie from decisions of a Customaiy Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question ofCustomary law and such other matters as may be prescribed by an Act of the National Assembly.(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this Section shall be:-a. exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;b. exercised in accordance with any Act of the National Assembly and rules of Court for the time being In force regulating the powers, practice and procedure of the Court of Appeal.246(1) An appeal to the Court of Appeal shall lie as of right from:a. decision of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;b. decisions of the National and State Houses of Assembly Election Tribunals; andc. decisions of the Governorship Election Tribunals on any question as to whether:I. any person has been validly elected as a member of the National Assembly or of a House of Assemblyof a State under this Constitution,ii. any person has been validly elected to the office of a Governor or Deputy Governor, orIII. the term of office of any person has ceased or the seat of any such person has become vacant.(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or Tribunal established by the National Assembly.(3) The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.24 7(1) For the purpose of exercising any jurisdiction conferred upon It by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of theCourt of Appeal and in the case of appeals from:a. a Sharia Court of Appeal, If it consists of not less than three Justices of the Court of Appeal learned in Islamicpersonal law; andb. a Customary Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Customary law.The Court of Appeal hears evidence and relies on addresses from the parties or their learned counsel in order to determine the dispute or controversy when exercising original jurisdiction over personsand causes or matters expressly mentioned or provided in the Constitution. The Justice have to render an opinion or a decision in compliance with the provisions of Section 294(1) of the Constitution. Butrarely does the Court of Appeal hear evidence and relies on addresses of counsel or the parties to determine a dispute or a controversy.I have read the proceedings, the argument of learned Counsel and the decisions cited in the briefs. I have also considered the reasoning of my learned colleague on the bench who has rendered adecision to dismiss this appeal. I shall refer to the provisions of Section 294(3) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows:"(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members."I adopt the opinion of my learned colleague that there is no merit in this appeal."Per TUR, J.C.A. (Pp. 25-36, Paras. C-C) - read in context
(201
8) LP
ELR-44
643(
CA)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading
Judgment): This appeal is sequel to the ruling of the
Anambra State High Court of Justice, holden at Aguata-
Ekwulobia, delivered on 6th February, 2017.
The appellant was arraigned at the Court below on 30th
June, 1997 vide the Charge No. AG/26C/1997 along with 16
others, on a six count charge of conspiracy, malicious
damage, rioting, stealing, forceful entry and riotous
demolition of property. The appellant pleaded not guilty to
the said charges, upon his arraignment on 30th June, 1997.
The trial of the appellant commenced on 8th November,
1999 and the respondent fielded her first witness (PW1).
Thereafter, for one reason or the other, the trial became
stalled. The proceedings were then before Ezeani, J., who
admitted the appellant as his co-defendants to bail.
On 9th March, 2016, the appellant filed a motion on notice
wherein, he sought an order to the effect that the charges
preferred against him, be quashed/dismissed, which would
lead to his discharge from the said charges against him.
There was a written address filed in support thereof.
1
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The respondent resisted the application and filed a counter-
affidavit against it with a written address by the
respondent’s counsel. Thereafter, the appellant filed a
Further Affidavit and a Reply on Points of Law.
The learned trial judge, Mbonu-Nwenyi, J., in his ruling
delivered on 6th February, 2017, dismissed the appellant’s
application, as lacking in merits.
The appellant, not unnaturally, was distraught with the
ruling aforementioned, hence he headed to this Court,
armed with a notice of appeal, which was filed on 20th
February, 2017. An amended notice of appeal was filed by
appellant on 18th April, 2017.
In order to activate the prosecution of the appeal, the
appellant’s brief of argument, was filed on 18th April, 2017.
In opposition to the appeal, the respondent’s brief of
argument was filed on 21st November, 2017.
Chima Okereke, who settled the appellant’s brief, identified
five issues therein for the determination of the appeal, to
wit:
i. Whether the failure and/or refusal of the lower Court to
consider the totality of pleadings before it especially the
Appellant’s Further Affidavit and Reply on Points of
2
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8) LP
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643(
CA)
Law filed on 13th May 2016 in support of his application to
quash and/or dismiss the charges does not constitute a
gross breach of the Appellant’s right to fair hearing.
(Distilled from Grounds 2 & 4 of the Amended Notice of
Appeal).
ii. Whether the lower Court was right when it failed and/or
refused to be guided by its record and held that the delay in
hearing the charges for over eighteen (18) years was due to
the absence of the Appellant and his counsel. (Distilled
from Ground 6 of the Amended Notice of Appeal).
iii. Whether the lower Court was right when it held that the
fundamental right of the Appellant to fair hearing within a
reasonable time as guaranteed by Section 36(4) of the
Constitution of the FRN 1999 (as amended) has not been
breached by the delay in hearing the charge. (Distilled from
Grounds 3 & 5 of the Amended Notice of Appeal).
iv. Whether the delay in hearing the charge for over
eighteen years does not constitute an abuse of Court
process. (Distilled from Ground 7 of the Amended Notice of
Appeal).
v. Whether the learned trial judge rightly dismissed the
Appellant’s application to quash and/or dismiss the
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charge. (Distilled from Ground 1 of the Amended Notice of
Appeal).
In the respondent’s brief of argument, settled by Dr. Edwin
S. C. Obiorah, he nominated a sole issue therein, for the
determination of the appeal, namely:
Whether the learned trial Judge was right in dismissing the
Appellant’s motion to quash the Information in Charge No.
AG/26C/1997.
Having perused the record of appeal, the ruling of the
learned trial judge and the grounds of appeal against it, vis-
a-vis the issues nominated by learned counsel for the
parties, I think that appellant’s issues iii and v will suffice
to determine this appeal. That is:
Whether the lower Court, was right when it held that the
fundamental right of the Appellant to fair hearing within a
reasonable time as guaranteed by Section 36(4) of the
Constitution of the FRN 1999 (as amended) has not been
breached by the delay in hearing the charge.
Whether the learned trial judge rightly dismissed the
Appellant’s application to quash and/or dismiss the charges
against him.
I shall consider and determine the two issues together.
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A resumé of the appellant’s contentions on the two issues
above mentioned, are that by virtue of Section 36(4) of the
1999 Constitution of the Federal Republic of Nigeria (as
amended), the appellant was expected to have been tried
within a reasonable time. Learned appellant’s counsel
contended that the delay in the trial of the appellant, for
over eighteen (18) years is unconstitutional and against
public interest. And that the said delay in the trial of the
appellant, cannot be said to be a trial within a reasonable
time, as constitutionally guaranteed to the appellant. He
insisted that an undue delay in the trial of a criminal
charge as in the instant case, is tantamount to a breach of
the appellant’s constitutional right to fair hearing.
Therefore, according to learned appellant’s counsel, the
learned trial judge ought to have quashed and/or dismissed
the charges against the appellant.
On the part of the respondent, it was submitted that under
Section 36(4) of the 1999 Constitution (as amended), where
an accused person is not tried within three (3) months, he
should be released on bail.
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Learned respondent’s counsel furthermore, submitted that
in the circumstances of the instant matter, where according
to him, the delay in the trial of the appellant, was caused by
him, the requirement that he should be tried within a
reasonable time, will not avail him. He insisted that if the
appellant perceived and believes that his fundamental
rights have been infringed and breached, he ought to have
approached the Court with an application for the
enforcement of his fundamental rights. Learned
respondent’s counsel referred to some paragraphs of the
respondent’s counter-affidavit against the appellant’s
application to the effect that the appellant was absent from
Court on several occasions which led to the delay in the
trial of the case. Therefore, he submitted that the appellant
cannot be allowed to take benefit of his own default.
Learned respondent’s counsel insisted that the learned trial
judge was right in refusing the appellant’s application, to
quash the charges against him.
Resolution:
Unarguably, it is generally expected that an accused person
who is facing/undergoing a criminal prosecution, is tried
timeously so that he knows his fate in respect
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of the charge(s) preferred against him. For, as long as the
charge(s) are hanging on his head, it cannot be said that he
is totally free in the exercise of his fundamental rights to
freedom of movement. Such an accused person, naturally is
subjected to an emotional stress and a resonating feeling of
uncertainties regarding his fate and for as long as the trial
lingers on, the charges against the accused person, hangs
as the sword of Damocles over his head. That is why it is
axiomatic that a speedy trial is preferable at all times, to a
long and delayed trial for as it is said, justice delayed is
justice denied. And that is where the fundamental rights of
the accused person comes into play and focus.
Therefore, in the conduct of both civil and criminal
proceedings in our Courts, the hallowed principles of
natural justice and fundamental rights donated to
individuals in our Constitution must be strictly observed.
The nature and importance of fundamental rights was re-
echoed and reiterated by the apex Court in Ransome-Kuti
v. Attorney General of the Federation & Ors (1985)
LPELR – 2940 (SC) at pp. 33 – 34, inter alia:
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“What is the nature of fundamental right? It is a right
which stands above the ordinary laws of the land and which
in fact is antecedent to the political society itself. It is a
primary condition to a civilised existence and what has
been done by our Constitution, since independence,
starting with the Independence Constitution, that is, the
Nigeria (Constitution) Order in council 1960 up to the
present Constitution, that is, the Constitution of the
Federal Republic of Nigeria, 1979 (the latter does not in
fact apply to this case: it is the 1963 Constitution that
applies) is to have these rights enshrined in the
Constitution so that the rights could be “immutable” to the
extent of the “non-immutability” of the Constitution itself. It
is not in all countries that the Fundamental Rights
guaranteed to the citizen are written into the Constitution.
For instance, in England, where there is no written
Constitution, it stands to reason that a written code of
fundamental rights could not be expected. But
notwithstanding, there are fundamental rights. The
guarantee against inhuman treatment, as specified in
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Section 19 of the 1963 Constitution would for instance,
appear to be the same as some of the fundamental rights
guaranteed in England, contained in the Magna Carter
1215 – Articles 19 and 40 which provide – “no freeman may
be taken or imprisoned, or disused of his freehold or
liabilities in free customs or be outlawed or exiled or in any
way molested nor judged or condemned except by lawful
judgment or in accordance with the law of the land and the
crown or its ministers may not imprison or coerce the
subject in an arbitrary manner”. In the United States, the
Eighth Amendment to the United States Constitution
provides – “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment
inflicted.” -per Eso, J. S. C.
Therefore, the entrenchment of fundamental rights and the
mode of enforcing its breach in the Nigerian Constitution
over the years since our independence, undoubtedly
underscores its importance and the need to zealously
protect the sanctity and inviolability of human life.
Accordingly, the Courts do not usually shirk their judicial
responsibility in ensuring that the
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human rights of the individual is not compromised and on
no account should such rights be swept under the carpet or
taken away by any person or government under any guise,
without justification.
It is gratifying that it is in recognition of the importance of
the quick and timeous dispensation of criminal justice that
the framers of the 1999 Constitution of the Federal
Republic of Nigeria, (as amended), had promulgated in
Section 36(4) of the same to the effect, inter alia, that:
“Whenever any person is charged with a criminal offence,
he shall, unless the charge is withdrawn be entitled to a
fair hearing in public within a reasonable time by a Court
or Tribunal.”
Now, the word “reasonable” as defined by the learned
authors of Black’s Law Dictionary, Eight Edition, at page
1293, connotes what is:
“1. Fair, proper, or mode under the circumstances.”
The phrase “reasonable time” appears to be relative vis-a-
vis the facts and circumstances of each case. For the
Supreme Court, in determining the factors that delay the
conclusion of a case within a reasonable time had this to
say, in
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Ezeala Nnajiofor & Ors v. Linus Ukonu & Ors (1985)
LPELR – 2056 (SC) at pages 17 – 18, that:
“It is not therefore possible to lay down a fixed rule as to
what “reasonable time” is in the trial of every case. Some
cases are by their nature short or lengthy by reason of the
number of witnesses to be called or the length of the
testimonies of the witnesses. Others involve witnesses who
do not live in the country or within the Court’s jurisdiction.
Documents to be put in evidence may be in the custody of a
third party and may not as such be readily available for
production at the trial. The health of a vital witness or even
the trial judge may fail. All these and many more are
factors which can reasonably delay the conclusion of a trial.
Surely, such delay cannot be taken to be unreasonable. I
am strengthened in this view by the observation of my
learned brother Eso, J. S. C., in the lead judgment in Ariori
& Ors v. Elemo & Ors. where he said at p. 58: “And so the
right to speedy trial is necessarily relative. It depends on
each circumstance.” – Per Uwais, J. S. C. (as he then was).
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And more recently the Supreme Court, in Alhaji Sani
Abubakar Danladi v. Barr. Nasiru Audu Dangiri & Ors
(2014) LPELR – 24020 (SC) at page 44, reiterated that:
“In my view, the phrase “within reasonable time” implies
that the time for the determination of the matter should not
be too short or too long, depending on the nature and facts
of the case.” – Per Ngwuta J. S. C.
Following the decisions of the apex Court in Nnajiofor v.
Ukonu (supra) and Danladi v. Dangiri (supra), in order
to determine the reasonableness or otherwise of the length
of time involved in the trial of the appellant herein, it is
imperative to consider the facts and circumstances of the
instant matter.
The appellant’s application at the Court below, which led to
this appeal was made pursuant to Sections 6(6) B and 36(1)
and (4) of the Constitution of the Federal Republic of
Nigeria, 1999 (as amended) and under the inherent
jurisdiction of the Honourable Court, and prayed for the
following reliefs, namely:
1. AN ORDER of this Honourable Court quashing and/or
dismissing all the charges brought against the Accused
Persons/Applicants under Charge No. AG/26C/1997.
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2. AN ORDER of this Honourable Court quashing all the
charges preferred against the Accused Persons/Applicants
in Charge No. AG/26C/1997 and discharging them of the
said charges before this Court.
3. AND FOR SUCH FURTHER or other Orders as the
Honourable Court may deem f it to make in the
circumstances.
TAKE FURTHER NOTICE THAT the grounds upon which
this application is brought in addition to those contained in
the accompanying Affidavit are as stated hereunder;
1. The Accused Person/Applicants were arraigned before
this Court on 30th June, 1997 under the instant Charge No.
AG/26C/1997 wherein they were charged with various
offences.
2. The Accused Persons/Applicants under the said Charge
No. AG/26C/1997 were arraigned on six (6) counts of the
offences of malicious damage, rioting, stealing and riotous
demolition of property in 1997 and have been standing trial
for the alleged offences since the said 1997.
3. Since the arraignment of the Applicants on 30th June
1997, trial has not in fact commenced in the matter as the
trial has always suffered unnecessary adjournments and
incessant transfer of the Judges handling the matter.
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4. It is a constitutional requirement as enshrined in Section
36 of the 1999 Constitution (as amended) that a person
accused of a criminal offence must be tried within
reasonable time.
5. More than eighteen (18) years has lapsed since the
Accused Persons/Applicants were charged with the said
offences and trial of the same has not commenced.
6. The Accused Person/Applicants have all spent more than
double of seven (7) years being the maximum sentence any
of them would have spent in prison if convicted of the
offences, waiting to be tried for the alleged offences.
7. The intendment of Section 36 of the 1999 Constitution
(as amended) is to unconditionally ensure that an Accused
Person who is arraigned for an alleged commission of an
offence is tried speedily and fairly.
8. The Accused Persons/Applicants are constitutionally
entitled to fair hearing and a fair trial within a reasonable
time in accordance with the Constitution.
9. The failure to conduct the trial of the Accused Persons,
for the past 18 years amount to oppression injustice and/or
fairness inter alia in that:
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(a) The delay has the effect of prejudicing the Accused
Persons in the preparation or conduct of their defence;
(b) The Accused Persons have been deprived of the
protection offered by Section 36(5) of the Constitution
which guarantees a fair hearing within a responsible time;
(c) The Accused Persons cannot in the circumstances
receive a fair trial;
10. It is contrary to the public interest in the integrity of
the Criminal Justice System that any trial should now take
place after 18 years.
11. The continued prosecution of this matter or the
continuation of any proceedings with regard thereto in the
premise constitutes an abuse of the Court’s process.
12. The prosecution is not interested in the trial of the
matter as it only preferred the charges so as to harass,
oppress, persecute and intimidate the Applicants and this
constitutes an abuse of process of Court and should be
dismissed.
13. The failure to conduct the trial of the Accused
Persons/Applicants within a reasonable time as required by
law is a fundamental breach of their constitutional right to
fair hearing thereby renders the continued trial of the
charges a nullity.”
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There is an affidavit of 16 paragraphs filed in support of the
application and also a written address by applicants’
counsel in support of the application. The respondent filed
a Counter-Affidavit of 55 paragraphs in opposition to the
application. Several documentary exhibits were attached to
it and also a written address by respondent’s counsel was
filed contemporaneously with the counter-affidavit.
Thereafter, the applicant/appellant filed a Further Affidavit
of 49 paragraphs, and also a written reply by the
applicant’s counsel.
The learned trial judge in his decision, came to the
conclusion that the applicant/applicant’s right to fair
hearing was not breached by the long delay of his trial,
because according to the learned trial judge, the appellant
contributed to the delay of the prosecution of the case
against him.
I have painstakingly perused the affidavit evidence and the
documentary exhibits filed in support of the application by
the appellant and those filed in opposition to it by the
respondent.
It is very clear to me that both parties contributed to the
delay in the prosecution of the appellant.
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For example, where some of the appellant’s co-accused
persons were absent from Court for one reason or the
other, the trial certainly could not have proceeded in their
absence. And this was even compounded by the absence
from Court by appellant’s counsel on 20th September,
1999; 9th February, 2001; 13th July, 2004 and 17th March,
2005 etc, as indicated at pages 69, 75, 84 and 88 of the
record of appeal. For the respondent, the trial suffered
adjournments at her instance on 20th January, 2003; 8th
November, 2004; 17th March, 2005 and 6th November,
2006; etc as shown at pages 81, 85, 87 and 95 of the record
of appeal. Instructively, because of the demise of some of
the accused persons being tried along with the appellant,
the information upon which they were all arraigned for
prosecution, had to be amended two times in order to weed
off the deceased accused persons. This resulted to the 2nd
Amended Information which was filed against the
remaining accused persons/defendants on 14th March,
2016, as shown at pages 125 to 129 of the record of appeal.
Instructively too, is a fact that from the available record as
reflected in the record of appeal at pages 221 to 245, the
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learned trial judge came in to handle this matter only on
4th May, 2015. The defendants were not in Court on that
day. And on the 15th June, 2015 when the matter next
came up, it was reported that the 5th, 6th and 9th
defendants on the 1st Amended Information had died whilst
the 11th defendant was absent, hence the case was
adjourned to 30th September, 2015. There is no record of
what happened on 30th September, 2015. However, the
record of appeal at page 224 shows that the Court sat again
on 19th January, 2016 but since the parties were absent
from Court, the case was then adjourned to 10th March,
2016, which was the day that the pleas of the defendants
were taken in respect of the 1st Amended Information. On
the 10th May, 2016, the record shows that there was a
report that the 7th defendant was dead. Nevertheless, on
the said 10th May, 2016, the pleas of the defendants were
taken in respect of the 2nd Amended Information. On the
same 10th May, 2016, the defendants’ counsel moved his
application filed on the same day for the charges against
the defendants to be quashed. The ruling on it was
adjourned to 21st July, 2016.
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All the defendants were re-admitted to bail on the same
10th May, 2016.
The Court did not sit on 21st July, 2016. However, from the
record at pages 232 – 234, it is evident that the ruling
earlier scheduled for delivery on 21st July, 2016 was not
delivered. It is evident that on the 6th February, 2017, the
learned counsel to the parties, re-adopted their written
addresses in support of the motion on notice filed on 9th
March, 2016, to the effect that the charges against the
defendants, be quashed or dismissed and thereupon the
ruling was eventually delivered by the learned trial judge
on same 6th Feb., 2017.
My Lords, a very salient factor which cannot be over looked
or underrated which contributed to the delay in the
prosecution of this matter is that of the long period of
almost seven years of the non-sitting of the Court from 11th
July, 2006 till 30th May, 2013 as deposed to at paragraph
36 of the respondent’s counter affidavit to the effect that
there was virtually only one judge in Aguata Judicial
Division sitting in Court 1 thereof. Furthermore, is the
notorious fact of the Junior Staff Union of Nigeria in the
Judiciary (JUSUN) strike
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action in Anambra State which lasted from 15th
September, 2015 to 15th January, 2016 – a period of four
months, that the Court below did not sit.
Flowing from the above chronicled facts, it is as clear as
crystals, that the delay in the prosecution of the appellant,
is not only at the instance of the respondent, but also at the
instance of the appellant. Therefore, he cannot heap all the
blame for the delay in his trial on the respondent and
expect to take benefit from the allegation in which he
too has clear complicity. In Alabi v. Doherty (2005)
LPELR – 6145 (ca), where there was a long delay in the
determination of the case, and both parties therein and the
Court itself had complicity in events which led to the delay,
this Court had this to say:
“An examination of the record of appeal readily reveals that
the decision of the lower Court had evolved after a
prolonged delay. It is scandalous to say the least that such
a matter had taken almost twelve years to be determined.
This is a justice service delivery, at the Court of trial, in a
society where the average life expectancy has been put at
fifty years.
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Neither party to the litigation nor the Court that resolved
the conflict between these parties had come through clean
in the disgraceful shortcoming. The defendant and by
extension the appellant/party interested, was as if not more
guilty than either the respondents or the Court as to the
delay the matter had suffered before it was determined.
Where a matter had not been determined within a
reasonable time as required by Section 36 of the
Constitution, and the delay is equally attributable to the
commission or omission of the party complaining, public
policy would disentitle such a complaint from succeeding in
his complaints. It does not truly lie in the mouth of such a
culprit or any person who draws title through him to say
that a delay perpetrated by him or in conjunction with
other litigants or even with the complicity of the Court
should form the basis of overturning a decision arrived at
inspite of any delay. It would be most inequitable given the
peculiar circumstances of the instant case to allow
appellants to reap from a tardiness that had resulted
predominantly from their own deliberate lapses. See
Kaiyaoja v. Egunla (1974) 12 SC 55; Ajibade v. Pedro
(1992) 5 NWLR (pt.214) 257.”
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– Per M. D. Muhammad, J. C. A. (as then was) at pages
22 – 23.
I am afraid, I cannot say anything any less in agreeing with
the opinion of his Lordship, Muhammad, J. C. A (as he then
was) in Alabi v. Doherty; in my opinion on the instant
matter. Therefore, I am of the considered and firm opinion
that since the appellant also had complicity in the long
delay in his prosecution at the Court below, he cannot
equitably take benefit of his counsel’s tardiness and also
the non-attendance in Court by some of his co-defendants,
to insist that because of the long delay in his trial, the
charges against him must be quashed or dismissed. It is a
truism that he who comes to equity must come with clean
hands. Nevertheless, I do not think that the facts and
circumstances in Mohammed v. The State (2015) 10
NWLR (pt. 1468) 496 at 511 – 512, are apposite to the
instant matter.
In any event, the above is not the end of this matter. It is
settled law that in application placed before a Court in a
criminal trial as in the instant case, there are certain
factors which the applicant must allege, indicating some
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deficiencies in the charges(s) against him, may necessitate
the Court quashing such charge(s). In Chief Lere Adebayo
v. The State (2012) LPELR – 9464 (CA) at page 21
thereof, his Lordship, Kekere-Ekun, JCA (as he then
was) stated that the “essence of an application to quash
charges in an information, is that the information is
inherently defective for one reason or the other or that the
proofs of evidence do not establish a prima facie case
against the appellant sufficient to warrant his being called
upon to provide some explanation.” Further see: David
Effiom v. The State (2014) LPELR – 22646 (CA);
Agboola v. Federal Republic of Nigeria (2014) LPELR
– 22932 (CA); Mrs. Gbonjubola Balogun v. Federal
Republic of Nigeria (2015) LPELR – 24744 (CA) and
Abai v. The State (2016) LPELR – 40127 (CA).
In the instant matter, none of the grounds upon which the
application to quash the information containing the charges
against the appellant, was anchored on any defect in any of
the charges on the information. Therefore, the dismissal or
quashing of the information could not have been
considered on that ground.
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In the end, on all fronts, I am of the considered and firm
opinion that the two issues discussed and analysed in this
appeal must be resolved against the appellant. They are
each resolved in favour of the respondent against the
appellant.
It is hoped that the learned trial judge, will keep faith with
his decision at page 245 of the record of appeal, that:
“The Court is prepared to adjourn the hearing of this
matter from day to day until is determined.”
That is how it should and must be.
Having resolved both issues in the appeal against the
appellant, I am satisfied that the appeal merits a dismissal.
It is accordingly dismissed.
The ruling of C. N. Mbonu-Nwenyi J., in re-charge No.
AG/26C/1997 delivered on 6th February, 2017 is hereby
affirmed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have
read the judgement just delivered by my Learned brother
TOM SHAIBU YAKUBU JCA. I am in complete agreement
with his Lordship’s reasoning and conclusion that this
appeal should be dismissed as lacking in merit. In the
circumstances, the ruling of the Hon. Justice C.N. Mbonu-
Nwenyl delivered in Charge No. AG/26c/1997 on 6/2/17 is
hereby affirmed.
Appeal Dismissed.
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JOSEPH TINE TUR, J.C.A.: I read an advance copy of the
decision of my Lord, Tom Shaibu Yakubu, JCA and I agree
that the appeal against the interlocutory decision of the
learned trial Judge rendered on 6th February, 2017 has no
merit but is calculated to delay speedy trial. I shall make
some observations concerning appeals of this nature which
galore in this jurisdiction of the Court of Appeal.
I shall render my opinion in conformity with provisions of
Section 294(2) of the Constitution of the Federal Republic
of Nigeria 1999 as altered which provides as follows:
"294(2) Each Justice of the Supreme Court or of the
Court of Appeal shall express and deliver his opinion
In writing, or may state In writing that he adopts the
opinion of any other Justice, who delivers a written
opinion:
Provided that it shall not be necessary for all the
Justices who heard a cause or matter to be present
when judgment is to be delivered and the opinion of a
Justice may be pronounced or read by any other
Justice whether or not he was present at the hearing."
25
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Determination of disputes or controversies by Justices of
the Court of Appeal or the Supreme Court as the case may
be are either an “opinion” or a “decision” as provided in
Section 294(2) of the Constitution. Though the word
“opinion” is not defined, a “decision” is defined in
Section 318(1) of the Constitution of the Federal Republic
of Nigeria 1999 as altered in the following manner:
"318(1) In this Constitution, unless it is otherwise
expressly provided or the context otherwise requires:
“Decision” means, in the relation to a Court. any
determination of that Court and includes judgment
decree , o rder , conv i c t i on , s en tence o r
recommendation."
Besides, the right of appeal in Criminal or Civil Proceedings
has to be against decisions of the Courts that determined
the dispute or controversy under Section 294(1) of the
Constitution. The provision provides as follows:
“294(1) Every Court established under this
Constitution shall deliver its decision in writing not
later than ninety days after the conclusion of
evidence and final addresses and furnish all parties to
the cause or matter determined
26
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with duly authenticated copies of the decision within
seven days of the delivery thereof."
Section 294(1) of the Constitution comes into play in
“Every Court” that is “...established under this
Constitution,” etc. The Court of Appeal exercises original
jurisdiction under Section 239(1)-(2) of the Constitution as
follows:
“(1) Subject to the provisions of this Constitution, the
Court of Appeal shall, to the exclusion of any other
Court of law In Nigeria, have original jurisdiction to
hear and determine any question as to whether:
a. any person had been validly elected to the office of
President or Vice-President under this Constitution,
or
b. the term of office of the President or Vice President
has ceased, or
c. the office of President or Vice President has
become vacant.
(2) In the hearing and determination of an election
petition under paragraph (a) of Subsection (1) of this
Section, the Court of Appeal shall be duly constituted
if it consists of at least three Justice of the Court of
Appeal."
But the appellate jurisdiction of the Court of Appeal is
under Sections 240 to 247 of the Constitution of the
Federal Republic of Nigeria 1999 as altered to wit;
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“240. Subject to the provisions of this Constitution,
the Court of Appeal shall have jurisdiction to the
exclusion of any other Court of law in Nigeria, to hear
and determine appeals from the Federal High Court,
the National Industrial Court, the High Court of the
Federation Capital Territory Abuja, High Court of a
State, Sharia Court of Appeal of the Federal Capital
Territory Abuja, Sharia Court of Appeal of State,
Customary Court of Appeal of a State and from
decisions of a Court Martial or other Tribunals as may
be prescribed by an Act of the National Assembly.
24 1(1) An appeal shall lie from decisions of the
Federal High Court or a High Court to the Court of
Appeal as of right in the following cases:-
a. final decisions in any civil or criminal proceedings
before the Federal High Court or a High Court sitting
at first instance;
b. where the ground of appeal involves questions of
law alone, decision in any civil or criminal
proceedings;
c. decisions in any civil or criminal proceedings on
questions as to the interpretation or application of
this Constitution;
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d. decisions in any civil or criminal proceedings on
questions as to whether any of the provisions of
Chapter IV of this Constitution has been is being or is
likely to be contravened in relation to any person;
e. decisions in any criminal proceedings in which the
Federal High Court or a High Court has imposed a
sentence of death;
f. decisions made or given by the Federal High Court
or a High Court:
I ) where the liberty of a poison or the custody of an
infant is concerned,
ii) where an injunction or the appointment of a
receiver is granted or refused,
iii) in the case of a decision determine the case of a
creditor or the liability of a contributory or other
officer under any enactment relating to companies in
respect of misfeasance or otherwise,
lv) in the case of a decree nisi in a matrimonial cause
or a decision in an admiralty action determining
liability, and
v) in such other cases as may be proscribed by any
law in force in Nigeria.
(2) Nothing in this Section shall confer any right of
appeal:-
a) from a decision of the Federal High Court or any
High Court granting unconditional leave to defend an
action,
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b) from an order absolute for the dissolution of
nullity or marriage in favour of any party who, having
had time and opportunity to appeal from the decree
nisi on which the order was founded, has not
appealed from that decree nisi, and
C) without the leave of the Federal High Court or a
High Court or of the Court of Appeal, from a decision
of the
Federal High Court or High Court made with the
consent of the parties or as to costs only.
242(1) Subject to the provisions of Section 241 of this
Constitution, an appeal shall lie from decisions of the
Federal High Court or a High Court to the Court of
Appeal with the leave of the Federal High Court or
that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any
application for leave to appeal from any decision of
the Federal High Court or a High Court in respect of
any civil or criminal proceedings in which an appeal
has been brought to the Federal High Court or a High
Court from any other Court after consideration of the
record of the proceedings, if the Court of Appeal is of
the opinion that the interests of justice do not require
an oral hearing of the application.
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243(1) Any right of appeal to the Court of Appeal
from the decisions of the Federal High Court or a
High Court conferred by this Constitution shall be:
a) exercisable in the case of civil proceedings at the
instance of a party thereto, or with the leave of the
Federal High Court or the High Court or the Court of
Appeal at the instance of any other person having an
interest in the matter, and in the case of criminal
proceedings at the instance of an accused person or,
subject to the provisions of this Constitution and any
powers conferred upon the Attorney-General of the
Federation or the Attorney-General of a State to take
over and continue or to discontinue such proceedings,
at the instance of such other authorities or persons as
may be prescribed;
b) exercised accordance with any Act of the National
Assembly and rules of Court for the time being in
force regulating the power, practice and procedure of
the Court of Appeal.
(2) An appeal shall lie from the decision of the
National Industrial Court as of right to the Court of
Appeal on questions of fundamental rights as
contained in Chapter IV of this Constitution as it
relates to matters upon which the National Industrial
Court has jurisdiction.
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(3) An appeal shall only lie from the decision of the
National Industrial Court to the Court of Appeal as
may be prescribed by an Act of the National
Assembly; Provided that where an Act or Law
prescribes that an appeal shall lie from the decisions
of the National Industrial Court to the Court of
Appeal, such appeal shall be with the leave of the
Court of Appeal.
(4) Without prejudice to the provisions of Section
254C (5) of this Act, the decision of the Court of
Appeal in respect of any appeal arising from any civil
jurisdiction of the National Industrial Court shall be
final.
244(1) An appeal shall lie from decisions of a Sharia
Court of Appeal to the Court of Appeal as of right in
any civil proceedings before the Sharia Court of
Appeal with respect to any question of Islamic
personal law which the Sharia Court of Appeal is
competent to decide.
(2) Any right of appeal to the Court of Appeal from
the decisions of a Sharia Court of Appeal conferred by
this Section shall be:-
a. exercisable at the instance of a party thereto or,
with the leave of the Sharia Court of Appeal or the
Court
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of Appeal, at the instance of any other person having
an interest in the matter, and
b. exercised in accordance with an Act of the National
Assembly and rules of Court for the time being in
force
regulating the powers, practice and procedure of the
Court of Appeal.
245(1) An appeal shall lie from decisions of a
Customaiy Court of Appeal to the Court of Appeal as
of right in any civil proceedings before the Customary
Court of Appeal with respect to any question of
Customary law and such other matters as may be
prescribed by an Act of the National Assembly.
(2) Any right of appeal to the Court of Appeal from
the decisions of a Customary Court of Appeal
conferred by this Section shall be:-
a. exercisable at the instance of a party thereto or,
with the leave of the Customary Court of Appeal or of
the Court of Appeal, at the instance of any other
person having an interest in the matter;
b. exercised in accordance with any Act of the
National Assembly and rules of Court for the time
being In force regulating the powers, practice and
procedure of the Court of Appeal.
246(1) An appeal to the Court of Appeal shall lie as of
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right from:
a. decision of the Code of Conduct Tribunal
established in the Fifth Schedule to this Constitution;
b. decisions of the National and State Houses of
Assembly Election Tribunals; and
c. decisions of the Governorship Election Tribunals on
any question as to whether:
I. any person has been validly elected as a member of
the National Assembly or of a House of Assembly
of a State under this Constitution,
ii. any person has been validly elected to the office of
a Governor or Deputy Governor, or
III. the term of office of any person has ceased or the
seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction
upon the Court of Appeal to hear and determine
appeals from any decision of any other Court of law or
Tribunal established by the National Assembly.
(3) The decisions of the Court of Appeal in respect of
appeals arising from the National and State Houses of
Assembly election petitions shall be final.
24 7(1) For the purpose of exercising any jurisdiction
conferred upon It by this Constitution or any other
law, the Court of Appeal shall be duly constituted if it
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consists of not less than three Justices of the Court of
Appeal and in the case of appeals from:
a. a Sharia Court of Appeal, If it consists of not less
than three Justices of the Court of Appeal learned in
Islamic
personal law; and
b. a Customary Court of Appeal, if it consists of not
less than three Justices of the Court of Appeal learned
in Customary law.
The Court of Appeal hears evidence and relies on addresses
from the parties or their learned counsel in order to
determine the dispute or controversy when exercising
original jurisdiction over persons and causes or matters
expressly mentioned or provided in the Constitution. The
Justice have to render an opinion or a decision in
compliance with the provisions of Section 294(1) of the
Constitution. But rarely does the Court of Appeal hear
evidence and relies on addresses of counsel or the parties
to determine a dispute or a controversy.
I have read the proceedings, the argument of learned
Counsel and the decisions cited in the briefs. I have also
considered the reasoning of my learned colleague on the
bench who has rendered a decision to dismiss this appeal.
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I shall refer to the provisions of Section 294(3) of the
Constitution of the Federal Republic of Nigeria 1999 as
altered which provides as follows:
“(3) A decision of a Court consisting of more than one
Judge shall be determined by the opinion of the
majority of its members.”
I adopt the opinion of my learned colleague that there is no
merit in this appeal.
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Appearances:
Chima Okereke, Esq. For Appellant(s)
Miss E. I. Chukwuka For Respondent(s)
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