‘No trial without a valid arraignment’ – Appeal Court

STANLEY NWADIKE v. THE STATE IN THE COURT OF APPEAL Holden at Owerri Monday, March 16, 2015 SUIT NUMBER: CA/OW/225/2012 CORAM ITA GEORGE MBABA PETER OLABISI IGE FREDERICK O. OHO Between STANLEY NWADIKE…. APPELLANT and THE STATE……. RESPONDENT JUDGEMENT

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the High Court of Imo State, Oguta, in an application to quash charge NO: HOG/9C/2011, pending before the High Court, presided over by Hon. Justice G.I. Anunnihu. The appellant had taken out a preliminary objection filed on 17/6/2011, seeking the following reliefs:

“An order striking out/dismissing the instant charge”

The grounds for the application were:

“(1) The accused/applicant had been tried for the same offence in charge NO.HOG/15C/06 by a court of competent jurisdiction, who (sic) heard the matter on the merit, dismissed the complaint and, accordingly, discharged the accused/Applicant on the merit.

(2) The alleged offence, facts, evidence and witnesses in the instant charge is one and the same with that of charge NO:HOG/15C/06 for which the accused/applicant was tried for five years before he was discharged on the merit, and the complaint dismissed.

(3) It is the same State Counsel who signed charge Number: HOG/15C/06 for which the accused/applicant was tried and discharged on the merit that also signed the instant charge Number: HOG/9C/11.”

The application was supported by affidavit and Exhibits – A & B – being copies of the charge/proof of evidence in charge NO.HOG/15C/06 and the judgment thereof, delivered on 13/1/2011.

The respondent had opposed the application by filing a counter-affidavit, saying:

“(6) That the applicant was merely discharged in the said case (HOG/15C/06) as shown in Exhibit B…

(7) That the information was not dismissed as shown in Exhibit B to the affidavit, contrary to the applicant’s averments in his affidavit.

(8) That at the end of the case, the respondent being dissatisfied with the judgment of the court (Exhibit B) appealed against the discharge and acquittal of the other five co-accused persons at Court of Appeal, Owerri Division.

(9) That the respondent further informed me and I verily believed him that mere discharge of the applicant does not amount to acquittal.

(10) That by necessary implication, the charge is still hanging on his head…

(12) That the applicant was neither acquitted nor convicted by the honourable court in the said case and was not even pardoned by the State for the offence for which he is charged.

(13) That the charge or information was not dismissed by the honourable court in Exhibit B…”

A brief facts of the matter at the lower court, shows that the above preliminary objection was still pending on 4/4/12, when the application was adjourned for hearing; that on that day appellant was in court but his counsel (L.M. Alozie Esq.) was absent, and the court, on its own, acknowledged that appellant could not take plea, as his counsel was absent, but it proceeded to order for the remand of the appellant in prison custody, and adjourned the case to 2/5/12 for plea, even when appellant’s application challenging the competence, legality/validity of the information against him, cum jurisdiction of the court, had not been heard and disposed of. Appellant, on noticing what happened, and having earlier stayed in prison custody for about 5 years along with his father and other brother, made a wrong move by eloping – running out of the court into the bush!

Appellant’s counsel later came to court on the same date and caused the case to be called again. He apologized for his absence, saying he was in another court and could not send a letter, to stand down this matter. He also condemned the action of the appellant for eloping and apologized to the court. He prayed that the order of court for remand be deferred. The court held:

“Apart from the charge for which the accused person is in court, there is then offence of escaping from lawful custody committed in the presence of the court. There is also the issue of contempt of court by defying the order of the court to stay in prison custody. Something must be done to protect the corporate integrity of the court which the accused person has tried to rubbish by his action. I cannot accede to the prayer of the learned defence counsel at this stage. Bench warrant is hereby ordered to issue for the arrest of Mr. Stanley Nwadike … who is the accused person in this matter, for him to be arrested and detained by any police officer or any person that sets his eyes on him. Meanwhile, the said Stanley Nwadike is hereby declared wanted and the Imo State Police Command is hereby directed to publish a bulletin, declaring him wanted to the Notice of the general public … and whenever the said accused person is arrested he should be detained in police custody until he is produced in court here on 2/5/12 or any other date convenient to the court.”

See pages 31-32 of the Records of Appeal.

Appellant’s counsel had, on 20/7/12, filed a motion praying for stay of execution of the bench warrant (Order) and further stay of proceeding of the charge NO: HOG/9C/2011, pending the determination of this appeal.

This appeal is against that ruling of the trial court, made on 4/4/12, as per the notice of appeal filed on 13/4/12 (pages 82 to 84 of the Records of Appeal) disclosing two grounds of appeal. Appellant filed his brief of argument on 4/3/13, upon the records of appeal being deemed duly compiled and transmitted to this court on 29/1/13.

The respondent did not file any brief and, on 16/1/14, appellant was granted leave for the appeal to be heard on his brief alone, and when this appeal was heard on 23/2/15, the respondent had still failed to take steps to respond to the arguments of the appellant.

The issues for determination, distilled by appellant’s counsel, were:

(1) Whether the learned trial judge was right in law when he ordered the remand in prison custody of the appellant without hearing and determining the appellant’s preliminary objection by way of motion on notice challenging the competence and validity of the charge cum jurisdiction of the honourable court to entertain the charge.

(2) Whether the learned trial judge was right in law when he, by way of order, issued a bench warrant for the arrest, detention and production of the appellant who was also declared wanted, when the court have (sic) not determined the appellant’s preliminary objection to the charge, i.e., before the Appellant was formally arraigned before him.

RESOLUTION OF ISSUES

I think it is proper to treat the two issues raised by the appellant for determination, together, but in doing so, I shall endeavor to avoid the aspect of Appellant’s arguments relating to the status of appellant’s charge in charge NO:HOG/9C/11, whether or not the same is valid or legal, vis-a-vis his trial and discharge over the same offence on 13/1/11, in charge No: HOG/15C/06, the reason being that the issues raised in appellant’s application, challenging the jurisdiction of the trial court to entertain that charge – HOG/9C/11, are yet to be heard and determined and are subjudice. The law forbids a court delving into the substantive matter before it, yet to be tried, at the time of considering a preliminary objection to the hearing of the substantive matter. See the case of Kwazo vs. Railway Property Co. Ltd & ors. (2014) LPELR – 23737 (CA); Agbaso vs. Iwunze & ors. (2014) LPELR 24108 CA; Global Fishing Ind. LTD VS. Coker (1990) 7 NWLR (Pt.162) 265; Akapo vs. Hakeem-Habeeb & ors. (1992) 16 NWLR (Pt.247) 266

Appellant’s main complaint in this appeal is that the learned trial court lacked the vires to order for the remand of the appellant on 4/4/12, when he appeared in court, as the criminal charge was not due for hearing or arraignment on that day. Rather, it was his application (preliminary objection) challenging the legality/validity of the charge (HOG/9C/11) and the jurisdiction of the trial court to entertain it that was due for hearing, in view of the fact that appellant had earlier been tried and discharged on the merit over the same offence on 13/1/11, in charge No: HOG/15C/06.

Of course, there is admission by the respondent that the said charge No: HOG/9C/11 was the same as No: HOG/15C/06, though they (respondent) argued that appellant’s trial (along with other accused persons), in the charge No: HOG/15C/06 did not end in acquittal.

The respondent also admitted that the appellant’s application filed on 17/6/11 was still pending, and due for hearing as at 4/4/12, when the learned trial court made the order remanding the appellant and adjourning the case to 2/5/12 for appellant to take plea to the charge!

The above facts were not, at all, in dispute as the learned trial court had acknowledged the fact that appellant could not be tried in the absence of his counsel, and so he (appellant) was not, at all, arraigned, formerly, on the said 4/4/12, when appellant was ordered to be remanded in prison custody.

It is also an indisputable fact that the case was adjourned on 1/2/12 to 20/2/12 for the preliminary objection but on that date, 20/2/12, the preliminary objection was not heard, rather the court adjourned the case for plea and threatened to order for bench warrant against the appellant, if he failed to attend court on the next adjournment date, which was 4/4/12! See page 3 of the Additional Records of Appeal.

Of course, on 4/4/12, appellant was in court, but his counsel did not come at the time the case was called, and the court appeared quite peeved and, appeared to have forgotten that what was before it, on that date, was the preliminary objection, which ought to be argued and disposed of, before the court could call on the appellant to take his plea, that is if the preliminary objection failed. The court also appeared to have forgotten that the appellant was in court and that it required the presence of his counsel to argue the application, contesting the legality/validity of the charge, after appellant had been tried and discharged on the same offence on 13/1/11.

It was bad enough that appellant’s counsel was not in court at the time this case was called and had sent no letter to explain himself, especially, as the court had earlier adjourned the case to that date, with threat, against the appellant, if he failed to attend court, and he (counsel) was to argue the application, to make way for the criminal charge to commence, if necessary. Such a scenario obviously can work on the nerves of a judge and task his patience. But a judge should not betray the foibles of the weak, and must refrain from acting in anger, or yielding to excitement that can compromise the right and interest/protection of a hapless applicant before him.

I think appellant needed the protection of the trial court, when his counsel failed to show up on time to argue his application or defend him in court, not harassment. Appellant had been through a lot from the previous trial, and had been in prison custody for the 5 years their trial in HOG/15C/06 lasted. He, his father and another sibling had been in prison for many years before the 13/1/11, when they regained their freedom, only for appellant to be charged again for the same offence, soon after the pyrrhic victory. I think that is the circumstances one should appreciate the state of mind of the appellant, when he did not see his counsel in court on 4/4/12 and when his case was called, and the trial judge handed down an order of remand against him to confine him in prison custody!

Again it’s like appellant reacted that way and could not take it any longer and so bolted, or zoomed, according to the court, into the bush, to the embarrassment of the court!

In the case of Mohammed Abacha vs. State (2002) 7 SC (Pt.1) 1 the Supreme Court said:

“The power of the court to prevent abuse of the process of court includes the power to safeguard an accused from oppression and prejudice . The process of court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view of harassing him.”

I also believe that where no criminal trial has commenced, pursuant to a valid arraignment, the court lacks powers to pronounce on the liberty of the accused, to order for the remand of the accused, except perhaps, where he is produced in court, specifically, under what is usually termed “a holding charge”, usually applicable in magistrates’ courts.

To that extent, I fault the order for the remand of the appellant and the other orders which followed, or resulted from the order for the remand. I therefore resolve the issues in favour of the appellant and allow the appeal.

The order for the remand of the appellant in prison custody is hereby set aside. I also set aside the order declaring the appellant wanted and the issuance of bench warrant to arrest him, as the said other orders were consequential or predicated on the wrongful order for the remand of appellant, which frightened him to negative behavior in court on the 4/4/12.

I cannot make order for the quashing of the charge No: HOG/9C/11, as the application for the quashing of the charge is yet to be heard. I, however, order that the case and the preliminary objection be transferred by the Chief Judge of Imo State, from Hon. Justice G.I. Anunnihu, to another High Court judge for hearing and determination in the interest of justice.

Counsel

L.M. Alozie for the appellant with him K.C. Okoroafor & C.A. OKWARA (Mrs.) For appellant.

C.N. Akowundu Esq. (D.E.T) (M.O.J) Imo State for respondent.