IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU MBAISE
ON, MONDAY, 13TH MAY 2019.
BEFORE HIS LORDSHIP: – HON. JUSTICE I.M.NJAKA.
SUIT NO: HAM/70/2018
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
BETWEEN
- JACOB IROEGBU
- BENEDICT IWU APPLICANTS
- MRS. LILIAN IROULO
AND
- MR RICHARD UMEZURIKE
- COMMISSIONER OF POLICE, IMO STATE. RESPONDENTS
- HIS WORSHIP U.A.C OGOMA, CHIEF MAGISTRATE SITTING AT AHIAZU MBAISE MAGISTRATE COURT
JUDGMENT
This is an application for judicial review said to be brought pursuant to Order 40 Rule 5 and 6 of the Imo State High Court (Civil Procedure) Rules 2017, Order X of the Fundamental Rights (Enforcement Procedure) Rules 2009 and under the Inherent Jurisdiction of the Honourable Court. It prays for the following reliefs:
A declaration of the Honourable Court that Charge No. MAH/26C/2018 between the 2nd Respondent and the Applicants instigated by the 1st Respondent is grossly incompetent and constitutes an abuse of court process.
A declaration of the Honourable Court that the 3rd Respondent lacks the jurisdiction and competence to hear and determine Charge No. MAH/26C/2018 between the 2nd Respondent and the Applicants maliciously instigated by the 1st Respondent.
A prohibitive Order of the Honourable Court restraining the 3rd Respondent from hearing and determining Charge No. MAH/26C/2018 between the 2nd Respondent and the Applicants maliciously instigated by the 1st Respondent.
An Order of certiorari quashing Charge No. MAH/26C/2018 between the 2nd Respondent and the Applicants maliciously instigated by the 1st Respondent and the bench warrant order made therein by the 3rd Respondent on the 21st day of March 2018 against the 1st Applicant.
And for such further orders as the Honourable Court may deem fit to make in the circumstance.
It is accompanied with Statement of Particulars of names and descriptions of the Applicants and reliefs sought from the Court as reproduced above.
The grounds upon which the reliefs are sought are:
The 1st Respondent trumped up a malicious petition against the Applicants and got them unlawfully arrested and detained for no just cause.
The Applicants consequent upon the aforesaid unlawful arrest and detention, sued the 1st and 2nd Respondents amongst others before this court in HAM/63/2018 in a bid to secure an enforcement of their Fundamental Human Rights and to challenge the aforesaid arrest and detention, and served same to the parties therein including the 1st and 2nd Respondents.
Upon the service of the relevant processes in HAM/63/2018 on the 1st and 2nd Respondents, instead of respecting the court processes and the pendency of the suit and await its outcome, they went ahead and continued their harassment of the Applicants by inviting them to their station, giving the 2nd and 3rd Applicants arraignment notice without giving the 1st Applicant any arraignment notice and eventually arraigned the Applicants including the 1st Applicant who was not served any arraignment notice in charge no. MAH/26C/2018 before the 3rd Respondent albeit in the absence of the 1st Applicant.
The present charge no. MAH/26C/2018 sought to be quashed is an afterthought and is an abuse of court process as same was brought in disregard to the pendency of HAM/63/2018 and in utter disrespect to this Honourable court and its processes duly served on the Respondents.
The arraignment of the Applicants before the 3rd Respondent is illegal and grossly defective as the 1st Applicant was absent and not served with an arraignment notice. Moreso the charge is incompetent having contained the name of the 1st Applicant who was absent on the date of arraignment, thus raising the intention of the 2nd Respondent to try the 1st Applicant in absentia contrary to the trite position of the law in criminal trials.
That present Charge No. MAH/26C/2018 sought to be quashed is an abuse of court process and is brought to harass and irritate the Applicants for no just cause.
The 3rd Respondent lacks the requisite jurisdiction to hear Charge No. MAH/26C/2018 because same was caught up by the pendency of Suit No. HAM/63/2018 and is an abuse of court process and thus the arraignment of the Applicants before the 3rd Respondent was illegal and defective as an accused person ought not to be tried in absentia.
There is manifest error of law on the face of the proceedings of the 3rd Respondent on the 21st day of March 2018.
There were no investigations carried out by the 2nd Respondent and his men into the fictitious allegations of kidnapping and threat to life maliciously trumped up by the 1st Respondent upon which the present charge (MAH/26C/2018) sought to be quashed is predicated.
There is a 22 paragraphs affidavit in support deposed to by the 2nd Applicant. He deposed that the 1st Respondent maliciously trumped up a false petition at Area Command Police Station Uvuru, Aboh Mbaise, Imo State against the 1st Applicant and his elder brother Mr. Benedict Iroegbu, that the 1st Applicant attempted to kidnap him and threatened to kill him.
Upon the aforesaid malicious petition of the 1st Respondent, the 1st Applicant and some persons he engaged to repair his father’s dilapidated building (Mr. Chinedu Anyanwu and Mr. Canice Okafor) were arrested and detained at Uvuru Area Command Police Station, Aboh Mbaise, Imo State.
Consequent upon the arrest and detention of the 1st Applicant and his aforementioned workmen, him and 3rd Applicant who were the village Chairman and Chairlady respectively of the 1st Applicant and 1st Respondent’s village (Umuelemai, Nnemere Mpam) together with some other of our kinsmen went to the Area Command Police Station to inquire as to the propriety or otherwise of the arrest and detention of the 1st Applicant and his workmen from the policemen, over a land dispute between the 1st Respondent and the 1st Applicant and his brother Mr. Benedict lroegbu.
The policemen of Area Command Police Uvuru Aboh Mbaise, immediately upon his aforesaid inquiries with 3rd Applicant from them and upon the instigation of the 1st Respondent arrested and detained him and 3rd Applicant over an allegation that he and the 3rd Applicant attempted to kidnap the 1st Respondent and threatened to kill him.
After the release of all the Applicants, they, the Applicants together with the 1st Applicant’s workmen and other persons the policemen arrested upon the instigation of the 1st Respondent, filed Suit No. HAM/63/2018 before this court against the 1st and 2nd Respondents herein as well as the Area Commander, Area Command Police Station Uvuru, Aboh Mbaise and others to challenge the aforesaid arrest and detention and to enforce their violated fundamental human rights. A copy of Suit No. HAM/63/2018 is herein annexed as Exhibit A.
After filing the said suit (HAM/63/2018), same was served duly upon the 1st and 2nd Respondents as well as the Area Commander, Area Command Police Station Uvuru, Aboh Mbaise by the bailiff of the Honourable Court.
Despite the pendency of suit no. HAM/63/2018 before this court and the service of the suit on the 1st and 2nd Respondents as well as the Area Commander, Area Command Police Station Uvuru, Aboh Mbaise, the men of the 2nd Respondent led by the Area Commander, Area Command Police Station Uvuru, Aboh Mbaise who was the 2nd Respondent in HAM/63/2018, still disrespectfully ignored the pendency of the aforesaid suit and invited them, the Applicants to Area Command Police Station Uvuru, Aboh Mbaise.
At the Police station, the Area Commander who was the 2nd Respondent in HAM/63/2018, seriously scolded them and threatened to deal with him and the 3rd Applicant who went to honour his invitation for instituting suit no. HAM/63/2018 to enforce their fundamental human rights against him, the 1st and 2nd Respondents herein and other Respondents in that suit.
The Area Commander after a long secret consultations with the 1st Respondent in his office (Area Commander’s office), issued arraignment notice to him and the 3rd Applicant to appear in court for arraignment. A copy of the arraignment notice is herein annexed as Exhibit B.
On the 21st day of March 2018, the 2nd Respondent herein through the men of the Area Command Police Station Uvuru, Aboh Mbaise instituted Charge No. MAH/26C/2018 against them the Applicants in utter disregard of the pendency of HAM/63/2018 in this court against them. A copy of the charge is herein annexed as Exhibit C.
He was informed by their counsel Mahakwe M. Madu Esq of No. 23C MCC Road Owerri, Imo State on the 13 day of April 2018 at about 4.34pm and he verily believed him that by civilized legal practice, the 2nd Respondent herein who was the 3rd Respondent in HAM/63/2018 together with the Area Commander who was the 2nd Respondent in HAM/63/2018 ought not institute Charge No: MAH/26C/2018 against them the Applicants after been duly served with HAM/63/2018 wherein they were challenging their arrest and detention and seeking to enforce their violated Fundamental Human Rights.
He was informed by their counsel Mahakwe M. Madu Esq of No. 23C MCC Road Owerri, Imo State on the 13th day of April 2018 at about 4.34pm and he verily believed him that the Commissioner of Police (2nd Respondent herein) ought to have responded together with the Area Commander who was the 2nd Respondent in HAM/63/2018 to the processes served on them and then await the outcome of HAM/63/2018 instead of hurriedly instituting Charge No. MAH/26C/2018 albeit without any investigation.
On 21st day of March 2018, when Charge No. MAH/26C/2018 came up for arraignment, the 3rd Respondent herein, proceeded with the arraignment despite the fact that the 1st Applicant who was not served with any arraignment notice was not in court. Even when our counsel objected to such illegal procedure of arraignment, the 3rd Respondent proceeded and issued a bench warrant against the 1st Applicant and then adjourned the charge for plea. Certified true copy of the record of proceedings for that day and the order of bench warrant is annexed herein as Exhibit D.
He was informed by their counsel Mahakwe M. Madu Esq of No. 23C MCC Road Owerri, lmo State on the 13th day of April 2018 at about 4.34pm and he verily believed him that Charge no. MAH/26C/2018 is defective and an abuse of court process owing to the pendency of Suit No. HAM/63/2018 and the defective arraignment before the 3rd Respondent on the 21st day of March 2018.
He was informed by their counsel Mahakwe M. Madu Esq of No. 23C MCC Road Owerri, Imo State on the 13th day of April 2018 at about 4.47pm and he verily believed him that charge no. MAH/26C/2018 being an abuse of court process and the 1st Applicant being charged in the aforesaid charge despite the fact that he was not in court, the 3rd Respondent herein lack the requisite jurisdiction to entertain and determine the aforesaid charge. It further renders the proceedings 21st of March 2018 defective and the illegal arraignment a nullity.
Charge No. MAH/26C/2018 was brought against them the Applicants to harass and intimidate them for coming to the police station to inquire from them what offence the 1st Applicant and his brother together with his workmen committed to warrant their arrest and detention.
There were no investigations whatsoever into the trumped up allegation of their attempting to kidnap and kill the 1st Respondent by the 2nd Respondent and his men till date.
On the 10th day of April 2018, the Honourable Court granted them leave to apply for the judicial review of Charge No. MAH/26C/2018. A copy of the said order granting them leave to apply for judicial review of Charge No. MAH/26C/2018 is herein annexed as Exhibit E. It will serve the interest of justice to grant this application.
Counsel to the Applicants filed Written Address in support of the motion.
It is stated that that the present application is brought essentially on three main factors which constitute the grounds upon which the application is brought which are:
- Lack of Jurisdiction
- Error of law on the face of the record of the lower court
- Abuse of Court process. ‘
The counsel formulated issue for determination as:
Whether it will not serve the interest of justice to grant the present application.
It is submitted that it will adequately serve the interest of justice to grant the present application. This is so because a critical look at the grounds upon which the application is brought and the facts contained in the affidavit in support of the application clearly shows that the Applicants have made out serious case warranting the grant of the this application for an order of judicial review in terms of the reliefs sought on the face of the motion paper.
On the issue of lack of jurisdiction by the 3rd Respondent to hear and determine charge MAH/26C/2018, it is submitted that the 3rd Respondent in the present application lacks the requisite jurisdiction to hear and determine the present charge sought to be quashed. This, according to the counsel is because the charge sought to be quashed MAH/26C/2018 is grossly defective and is an abuse of court process same not brought or filed in compliance with the strict adherence to the principles and rules guiding the drafting of charges and the procedural laws governing criminal proceedings under the Criminal Procedure Act which is applicable in Imo State. First it was brought contrary to the trite provisions of sections 210 and 215 of the Criminal Procedure Act applicable in Imo State which prohibits criminal trial of an accused person in absentia. The law envisages that every accused person to be arraigned and tried before any court of competent jurisdiction, must of necessity be placed before the court or be present before the court so that the charge will be read over to him and he in turn pleads thereto, since our laws prohibits trial in absentia. Thus before a charge is brought against any accused person the law requires that the prosecution must comply with every necessary procedure such as serving the accused an arraignment notice where he is on police bail notifying him of the offence he is to charged for, the date, time and venue of the trial to enable him appear in court on the named date for his trial.
It is submitted based on the above submissions that the charge sought to be quashed (MAH/26C/2018) which contains the name of the 1st Applicant in the present application who was not in court presided over by the 3rd Respondent on the 21st day of March 2018 contrary to the provisions of the law, is grossly defective, bad in law, amounts to an abuse of court process and thus robs the 3rd Respondent in this application of the requisite jurisdiction to hear and entertain the aforesaid charge.
It is submitted that in line with the aforementioned sections 210 and 215 of the Criminal Procedure Act, for a charge to be competent before the court and give a court the jurisdiction to hear and entertain same, such a charge must not contain the name of any accused person who is not present before the court to take his trial. Thus where a charge before a court as in the instant situation contains the name of any accused person who is not present before the court to take his trial contrary to the trite provisions of the law, such a charge will be grossly incompetent as same will raise an insinuation on the part of the prosecution to conduct a trial in the absence of the named accused person.
It is submitted that the charge did not comply with the strict requirement of the rules of drafting charges pursuant to sections 150 and 78(b) of the Criminal police officer who must state his name, designation or rank and sign same for it to be competent. Thus it is mandatory that a charge sheet be signed by the police officer who prepared same and state his particulars. This is because the capacity in which the person is filing the charge is very important as clearly opined by the Supreme Court in Okafor Vs State (1976) 5 S.C 13; (2006) All FWLR (Pt. 1) and Olatunji Vs State (2000) FWLR (Pt. 30) 2635.
It is submitted that the charge sought to be quashed, the charge did not comply with the above mandatory provisions of the law stipulated in sections 150 and 78(b) of the Criminal Procedure Act. Thus the charge did not state the name of the person or police officer who prepared and filed same, the capacity in which he prepared and filed same, his rank or designation as required by law, thus leaving the charge grossly defective and incapable of activating the jurisdiction of the 3rd Respondent to entertain and hear the charge. The charge only bears a purported signature of an unknown person, who cannot be easily identified as a police officer, thus leaving the court to speculate whether it was a police officer or an ordinary person who signed same. Courts cannot and do not speculate or shop for facts but only acts on clear and cogent facts placed before it. The Charge No. MAH/26C/2018 runs fowl of the law as it not clear from its contents as to who signed same and the person’s designation and particulars, thus leaving the court to speculate and this renders same grossly defective and incompetent and equally robs the 3rd Respondent of the jurisdiction to hear and entertain same.
It is submitted that a signature which is anonymous and not ascribed to any person is a nullity and cannot authenticate or give effect to a document or any court process. Thus in Sarai Vs Haruna (200S) All FWLR (Pt. 432) page 1147 and Action Congress Vs Kaigama (2009) All FWLR (Pt. 473) 1325 @1337, it was held that “A signature by an unknown person or a signature that did not disclose who signed it is an incompetent signature and of no value”. Also in Omorimbola II Vs Military Administrator Ondo State (1995)9 NWLR (Pt. 415) 222, it is the law that for a signature to be authentic, it must contain the name of the signatory. Since the charge sought to be quashed bears an anonymous signature which was not ascribed to any known person not to talk of a police officer, it consequently renders the said charge a nullity and of no effect and thus robs the 3rd Respondent of the jurisdiction to entertain and hear the charge.
It is submitted that the charge was not initiated by due process of the law in that there was no arraignment notice issued to and duly served on the 1st Applicant herein informing him that he will be charged in the court of the 3rd Respondent as is mandatorily required by law, before the charge was filed in court against the 1st Applicant. It is the law in line with our criminal procedure that before a charge is filed against an accused person who was granted police bail, he must be duly informed via an arraignment notice of the fact that he will be charged to court on a particular day and in respect of a particular offence. He must also of great importance be served with such arraignment notice. This will enable him to be present in court before he can be competently charged before the court. In this case the 1st Applicant was not informed and this renders the charge grossly incompetent having not being initiated by due process and procedure of the law, as the mandatory condition precedent to the institution or filing of the charge was not complied with by the 2nd Respondent, thus robbing the 3rd Respondent of the requisite jurisdiction to hear and entertain the incompetent charge.
It is submitted that the charge is an abuse of court process and thus robs the 3rd Respondent of the requisite jurisdiction to hear and determine same, being filed after the institution of Suit No. HAM/63/2018 before this court challenging the legality or otherwise of their arrest and detention by the men of the 2nd Respondent upon the instigation and petition of the 1st Respondent.
It is submitted that a look at the Exhibits annexed therein such as the suit HAM/63/2018, the arraignment notice issued to the 2nd and 3rd Applicants, the charge sheet in MAH/26C/2018 and the certified true copy of record of proceedings in MAH/26C/2018 clearly reveals that both the arraignment notice, the charge MAH/26C/2018,and the order of bench warrant made on 21/3/2018 by the 3rd Respondent were all issued after the institution and service of HAM/63/2018 which was the Fundamental Rights suit filed by the Applicants to challenge the legality or otherwise of their arrest and detention and the 1st Respondent’s complaint/petition which led to the aforesaid arrest and detention.
It is submitted that where there is a pending suit over a subject matter with the same parties, any of the parties will not be allowed to bring further actions touching on the same subject matter or any issue arising therefrom which was already pending in court. Thus if there is any new suit (whether civil or criminal) filed by any of the parties, such a new suit will amount to an abuse of court process, as same will entail a multiplicity of actions on the same subject matter. In such a situation and circumstance, the judge or magistrate in whose court the new suit is pending will lack jurisdiction to entertain such case which is already an abuse of court process and would have no other option than to do the needful, which is to dismiss the new suit which poses as an abuse of court process.
It is submitted that the Charge No.MAH/26C/2018 together with the proceedings therein including the order of bench warrant issued by the 3rd Respondent on 21/3/2018 amounts to a gross abuse of court process owing to the fact that Suit No. HAM/63/2018 (which was filed by the Applicants together with other persons who are challenging the arrest and detention and the basis of their arrest and detention which is the allegation trumped up by the 1st Respondent which is now the subject matter in charge no. MAH/26C/2018 presided over by the 3rd Respondent), is still pending and has not been determined by this court. Thus the filing of the charge during the pendency of HAM/63/2018 is intended to interfere and overreach the pending suit. The court is urged to refuse such unlawful interference by quashing the charge which is an abuse of court process.
It is submitted that so long as Suit No. HAM/63/2018 filed by the Applicants is still pending before this court not yet determined, the 2nd Respondent in the present application has no locus standi or administrative right to file Charge No. MAH/26C/2018 against the Applicants who are challenging the allegation over which they were presently charged before the 3rd Respondent in suit no. HAM/63/2018. The dignity of our courts must be protected from abuse.
It is submitted that with the pendency of HAM/63/2018, the arraignment notice issued by the men of the 2nd Respondent through the Area Command Police Station Uvuru, Aboh Mbaise together with the Charge No. MAH/26C/2018 and the order of bench warrant issued by the 3rd Respondent against the 1st Applicant on 21/3/2018 all amount to a nullity (same being an abuse of court process which the court ought not to entertain) and to that extent the 3rd Respondent lacks the requisite jurisdiction to entertain the said charge no. MAH/26C/2018 and make the order of bench warrant issued by him on 21/3/2108 against the 1st Applicant.
Relied on Saraki V Kotoye (1992) 9 NWlR (Pt. 264) 156 and Unifam Ind. Ltd. V Oceanic Bank Int. (Nig.) Ltd. (2005) 3 NWLR (Pt. 911) 83; Seven Up Bottling Co.ltd V Abiola and Sons Bottling Co. ltd. (1996) 7 NWlR {Pt. 463} 714, Pavex International Co. Ltd. V IBWA (1994) 5 NWLR (Pt.347) 685.
It is submitted that the present Charge No. MAH/26C/2018 between the 2nd Respondent and the Applicants is vexatious, harassing and intimidating and is a gross abuse of court process and it ought to be dismissed and the proceedings therein quashed.
It is submitted that there is a manifest error of law on the face of the proceedings of the trial court (3rd Respondent) which forms one of the factors constituting the grounds upon which the present application to quash charge no. MAH/26C/2018, the orders and proceedings therein made on the 21st day of March 2018 is brought. Thus a look at the record of proceedings of the 3rd Respondent for the 21st day of March 2018 annexed to the present application, clearly reveals a manifestation of gross error of law on the face of the proceedings.
According to the counsel, the proceedings reveals that the 3rd Respondent who was not supposed to go on with the hearing or proceedings of that date since the 1st Applicant who was the 1st Accused in that charge was not present in court to take his arraignment, went on with the proceedings albeit in the absence of the 1st Applicant, made an order of bench warrant against the 1st Applicant who was not served with any arraignment notice, equally went on to arraign the 2nd and 3rd Applicants who were the 2nd and 3rd accused persons therein and over zealously granted them bail even without taking their plea and then adjourned the case to a date when the 1st Applicant will be produced before him. This proceeding runs contrary to the trite position of the law which prohibits trial in absentia. The 3rd Respondent ought not to have even entertained the defective charge upon observing that the 1st Applicant was not produced before him, knowing full well that such a trial in absentia will amount to a nullity.
It is submitted that absence of the 1st Applicant on the 21st day of March 2018 robbed the 3rd Respondent of the requisite jurisdiction to go on with the proceedings and make the orders contained in the proceedings including that of granting bail to the 2nd and 3rd Applicants without their plea. The proceedings adopted by the 3rd Respondent on the 21st day of March 2018 by arraigning the 2nd and 3rd Applicants in the absence of the 1st Applicant and granting them bail without first reading the charge over to them and taking their plea, amounts to a judicial rascality which was obviously done without jurisdiction by the 3rd Respondent as same were conducted contrary to the trite procedure of a valid arraignment in criminal proceedings. We most humbly urge the court to so hold. For a proper arraignment the counsel relied on Oibie Vs State (2007) 9 NWLR (Pt. 1038) 30 @ 46 paras E-H; (2007) 3 S. C (Pt. 1) 176, Tabby Vs State (2001) 4 S.C (Pt. 11) 160 @ 168 and Adeniji Vs State (2001) 13 NWLR (Pt. 730) 375 @ 390 paras A-O; (2001) 5 S. C (pt. 11) 100. Ganiyu Vs State (2013) 10 NWLR (Pt. 1361) 29 @ 39 paras E H,
It is submitted that the 3rd Respondent failed to adhere strictly to the above mandatory conditions and trite provisions of the law stipulated by the Apex court in the aforementioned cases in its proceedings of the 21st day of March 2018 sought to be quashed in this present application. Thus the non-compliance of the 3rd Respondent in its proceedings of 21/3/2018 renders the entire proceedings/arraignment defective and a nullity and thus robs him of the jurisdiction to entertain and hear the charge sought to be quashed.
In the circumstance it is submitted that the entire proceedings of the 3rd Respondent on the 21st day of March 2018, being defective and an error in law ought to be quashed and the court is urged to quash same by virtue of its controlling power over the 3rd Respondent.
It is submitted that it is settled law in Manuwa Vs N.J.C {2013} 2 NWlR {Pt. 1337} 1 that wherever a body of persons having legal authority to determine questions affecting the rights of the subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the High Court exercised in the writs of prohibition and certiorari. The court is urged in line with the above cited case to exercise its controlling jurisdiction on the 3rd Respondent who has acted ultra vires by granting the reliefs sought in the present application.
On the service of the 2nd Respondent’s Counter Affidavit, the Applicants filed Further Affidavit of 8 paragraphs deposed to by Mr. Benedict Iwu the 2nd Applicant. He stated that he is very conversant with the facts of this application.
He has the consent and authority of the other Applicants to depose to this affidavit on their behalf. They have been served through their counsel with the 2nd Respondent’s counter affidavit which he filed after their counsel had already argued their application for judicial review and the court reserved the case for judgment.
He was informed by their counsel Mahakwe M. Madu Esq in his office at No. 23C MCC Road Owerri, Imo State on the 5th day of July, 2018 at about 4.37pm and he verily believed him, that paragraphs 6, 7 and 8 of the 2nd Respondent’s counter affidavit are incompetent and offends the provisions of the Evidence Act, 2011; the aforesaid paragraphs 6, 7, 8 and 9 of the 2nd Respondent’s counter affidavit are false and are vehemently denied; the 1st Applicant was never served with any arraignment notice in person and he was not aware of the arraignment held on the 21st day of March, 2018 before the 3rd Respondent
It will serve the interest of justice to grant our application for judicial review.
The counsel filed a Reply on point of law. It is submitted that the counter affidavit of the 2nd Respondent ought not be allowed or used by the Honourable Court as same was filed after the substantive motion for judicial review had been argued and reserved for judgment.
According to the counsel, it is the law in Ramon Vs Jinadu (1986) 5 NWLR (Pt. 39) 100, that once an argument of a motion on notice has opened, a party is not entitled at his own option to file an affidavit in respect of the motion because the other side is entitled to object to the use of such an affidavit and if he does, the court will not admit it in evidence or use same. The court is urged to strike out the 2nd Respondent’s counter affidavit or disallow the use of same in determining the Applicants’ motion for judicial review.
Alternatively it is submitted that the totality of the counter affidavit did not raise any cogent issue or reason why the Applicants’ present application for judicial review should not be granted. The counter affidavit did not state anywhere in its entire paragraphs the competence of the invalid arraignment conducted by the 3rd Respondent on the 21st day of March, 2018. The aforesaid counter affidavit equally did not state that the charge which was signed and authored by an unknown and non-juristic person was valid, thus confirming that both the charge upon which the Applicants were arraigned with and the arraignment of the Applicants on the 21st day of March, 2018 by the 3rd Respondent is grossly incompetent and invalid.
In fact the 2nd Respondent in paragraphs 6 ix and 7 (b) and (c) of his counter affidavit admitted that both the charge as it was used to arraign the Applicants was incompetent being that the 1st Applicant who was the 1st Accused therein was absent on the 21st day of March, 2018 when the matter came up before the 3rd Respondent. It is also submitted that the Respondent admitted in the aforementioned paragraphs of his counter affidavit that the arraignment of the Applicants on the 21st day of March, 2018 before the 3rd Respondent was incompetent and valid owing to which it was adjourned by the 3rd Respondent to the 11th day of April, 2018. My lord it is the law that facts admitted need no further prove and thus the 2nd Respondent’s admission of the invalidity and incompetence of the charge sheet and the arraignment of the Applicants on the 21st day of March, 2018 confirms that our application for judicial review is meritorious and ought to be granted.
It is his submission further that if the 2nd Respondent has admitted that the charge sheet upon which the Applicants were arraigned and the arraignment of the Applicants on the 21st day of March, 2018 were incompetent owing to the absence of the I” Applicant, it is trite then that the order of bench warrant made by the 3rd Respondent against the absent 1st Applicant who was not served with the arraignment notice to appear in court on 21st day of March, 2018 is invalid and it behoves on the Honourable Court to vacate the said order since same was a nullity. We most humbly urge the court to so hold and act accordingly.
It is submitted further that the 2nd Respondent in paragraph 7a of his counter affidavit and his attached Exhibit NPF1 admitted the fact that the 1st Applicant was never served with the arraignment notice and as such was not aware of the arraignment date of 21st day of March, 2018. Thus from the contents of the aforesaid exhibit NPF1 which is not even certified being a public document, it could be seen that the date therein was 15th March, 2018 and not 21st March, 2018 and the court was Magistrate Court Oke Uvuru and not the court of the 3rd Respondent at Ahiazu Mbaise Magistrate Court. What is more pertinent is the fact that it was one Philip Anyanwu who collected it and signed for same and not the 1st Applicant. There was equally no evidence before the court to the effect that the 2nd Respondent confirmed if the said Philip Anyanwu actually served the 1st Applicant with the purported arraignment notice to notify him of the arraignment at Ahiazu Mbaise Magistrate Court on the 21st day of March, 2018.
It is submitted that this further confirms the assertion that the 1st Applicant who was being tried in absentia by the 2nd Respondent before the 3rd Respondent was not served personally with any arraignment notice as is required by law to enable him get notified of the criminal charge against him and appear in court to take his trial. Therefore the court is urged to hold that the 1st Applicant was never served personally with the arraignment notice and was not notified of the pendency of the criminal charge against him to enable him appear in court before the 3rd Respondent on the 21st day of March, 2018 and as such his trial in absentia before the 3rd Respondent on 21/3/2018 and the charge sheet containing his name are invalid and a nullity.
With respect to paragraphs 6, 7, 8 and 9 of the counter affidavit of the 2nd Respondent, we respectfully submit that those paragraphs of the counter affidavit offends the provisions of the Evidence Act 2011, as same contains legal arguments, and extraneous matters that are not allowed to be contained in an affidavit. Paragraphs 6 and 7 contain information derived from another source which the deponent did not disclose its source and did not equally give reasonable particulars of her source of the information as is mandatorily required by law. Further paragraph 8 did not fail to disclose the source of its information but equally contains serious legal arguments and conclusions. Also paragraph 9 contains serious legal argument and conclusion and as such we most humbly urge the court to most respectfully strike out the aforementioned offending paragraphs in line with the trite provisions of the law.
With respect to the legal submissions of the 2nd Respondent counsel, the court is urged to discountenance the misconceived arguments of the counsel as well as the cases cited by him which do not in any way avail the Respondents or challenge the power of the court to quash proceedings of the 3rd Respondent of the 21st day of March, 2018. It is submitted that the totality of the 2nd Respondent’s counter affidavit and the written address, do not provide any cogent reason why the court should not grant the application for judicial review and the court is urged to so hold.
In the final analysis, it is submitted that the Respondents have not placed anything before the court to competently challenge the grant of the application and therefore the court is urged to grant the application for judicial review and nullify the proceedings before the 3rd Respondent complained of in the interest of justice.
The 2nd Respondent filed 10 paragraphs COUNTER AFFIDAVIT IN OPPOSITION TO THE APPLICANTS’ APPLICATIO FOR JUDICIAL REVIEW DATED 20/04/2018 A D FILED ON 23/04/2018.
It is deposed to by one Sgt Eather Nze, legal clerk at the Police Headquarters Owerri. He deposed that in the course of her duties, he has read the processes in this suit and police case diary relating to it with full understanding and further explanation from counsel to the 2nd Respondent, T.O.B Okey (E5Q) and so she very conversant with the facts herein deposed.
She has the consent and authority of the 2nd Respondent to depose to this counter affidavit and she does so with his mandate and on his behalf. Apart from paragraphs 1 and 2 of the affidavit in support of the application which are not denied, the Respondent vehemently denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13,14,15, 16, 1 7, 18, 19, 20, 21, and 22 of the affidavit in support of the Application and state that they are blatant falsehood concocted to mislead this honorable court.
On 21/02/2018, the 1st Respondent reported a case of threat to life and conduct likely to cause a breach of the peace at area commander’s office, Uvuru, Aboh Mbaise against some of e applicants.
As a result of the complaint of the 1st Respondent above, the
1st Applicant and two other persons were arrested and taken to the station for interrogation. While the 1st Applicant and the two other persons arrest were being interrogated in the station, the 2nd and 3rd Applicants mobilized women in the village and led them to the police station to attack the police station in order to liberate the 1st applicant and the two other persons undergoing interrogation in the station in respect of the case.
When the police serving in the station succeeded in dispersing the women mobilized by the 2nd and 3rd Applicants, the 2nd and 3rd applicants were arrested and interrogated for offence of conspiracy, conduct likely to cause a breach of the peace and attempt to obstruct the police from performing their lawful duties. After investigation in the case there was sufficient evidence to prosecute the applicants for offence of conspiracy, threatening violence and conduct likely to cause a breach of the peace and they were accordingly informed of the outcome of investigation.
When the applicants became aware that they were to be charged to court, they stopped reporting to the police station in line with their bail and hurriedly instituted a fundamental right application in order to avoid being charged to court.
As a result of subparagraph vi above, it was on 21/03/2018 that the applicants were charged to court after all of them have been served arraignment notice.
Despite being served with arraignment notice, on 21/03/2018 when the applicants were charged to court the 1st Applicant failed to attend court. As a result of the failure of the 1st Applicant to attend court on 21/03/2018, the proper arraignment of the applicants could not take place on 21/03/2018. While adjourning the case to 11/04/2018 for proper arraignment, the court granted bail to the 2nd and 3rd Applicants who were present in court and issued bench warrant against the 1st Applicant who failed to attend court after being served with arraignment notice.
The 1st Applicant had been served arraignment notice before Charge No MAH/26c/2018 was filled in court on 21/03/2018. A copy of the arraignment notice served on the 1st Applicant before Charge No MAH/26c/2018 was filed on 21/03/2018 is hereby verified and attached as exhibit NPF1.
The 3rd Respondent did not proceed with arraignment in Charge No. MAH/26c/2018 on 21/02/1028 because of the absence of the 1st Applicant.
The 3rd Respondent took steps in line with the law for arraignment in Charge No. MAH/26c/2018 to take place and adjourned the case to 11/04/2018 for proper arraignment because of the absence of the 1st Applicant in court after being served with arraignment notice.
Suit No HAM/63/2018 is not the same with Charge No. MAH/26c/20 18. There is no order in Suit No. HAM/63/2018 stopping the 2nd Respondent from prosecuting Charge No MAH/26c/2018 or the 3rd Respondent from trying Charge No. MAH/26c/2018.
If all the reliefs claimed in Suit No. HAM/63/2018 are granted without any contest, it will not affect the power of the 2nd respondent to prosecute Charge No. MAH/26c/2018 or the power of the 3rd respondent to try Charge No. MAH/26c/2018.
Suit No. HAM/63 /2018 and Charge No. MAH/26c/2018 can be prosecuted simultaneously by the same party not to talk of the present position where they are being prosecuted by different parties.
The parties and subject matter in the two matters are not the same. The expected outcome or results from the two cases are also different.
It is just and right to dismiss this application as it IS grossly lacking in merit.
The counsel to the 2nd Respondent filed a written submission and submitted the following issues for determination:
Whether in the circumstances of this case, the applicants have established any good ground for the grant of the application of this nature?
If the question in issue one above is answered in the negative, whether it is not proper in law to dismiss this application?
On issue one, the urge the court to answer the question in the negative and hold that the applicants have not been able to establish any of the grounds for which an application for judicial review can be granted by this Honourable Court. It is our submission and now settled law that it is only where a body of persons having legal authority to determine questions affecting the rights of the subjects and age du y to act judicially, act in excess of their legal authority that they are subject to the controlling jurisdiction of the High Court, exercised in the writs of prohibition and certiorari: MANUWA V. N.J.C (2013) 2 N.W.L.R at page 1. It is our further submission that they are four grounds on any of which an order of prohibition or certiorari can be granted,
viz:
- Lack of jurisdiction by the adjudicating body;
- Breach of the rules of natural justice;
- Error of law on the face of the record; and
- That the decision has been obtained by fraud or collusion.
It is submitted that the applicants have woefully failed to establish any of the above grounds to warrant the grant of this application. It is not enough for the applicant to state the grounds upon which the application is brought; he has a duty to establish in evidence the existence of such grounds.
It is submitted that it is only the 1st Respondent (3rd) in the present case that has the legal authority to determine questions affecting the rights of the applicants and the duty to act judicially as any act in excess of his legal authority will be subject to the controlling jurisdiction of the High Court exercised in the writs of prohibition or certiorari in line with the decision in MANUWA V. N.J.C (Supra). The 2nd and 3rd Respondents cannot act judicially as to be subjected to the controlling jurisdiction of the High Court as envisaged in the case of MANUWA V. N.J.C (Supra). Hence, it behooves on the applicants to establish that the 1st Respondent in the present case has acted in excess of his legal authority.
It is submitted that the Applicants have not in any way shown that the 1st Respondent (3rd) has acted in excess of his legal authority to warrant grant of this application. In the first place, the 1st Applicant has failed and/or neglected to appear before the 1st Respondent in respect of the case after due notice of Charge No. MAH/26c/20 18 after due notice of the case and it became necessary for the 1st respondent to make order for the 1st Applicant to appear in court for proper arraignment of the case.
The point the applicants tried to establish is that Charge No. MAH/26c/2018 is an afterthought and an abuse of court process as it was brought in disregard to the pendency of Suit No. HAM/63/2018 and in utter disrespect of this Honourable Court. It is submitted that Charge No. MAH/26c/2018 is not in abuse of court process. This is because Suit No. HAM/63/2018 is a civil action which is not seeking any relief similar to charge No MAH/26c/2018 which is a criminal action. If all the reliefs sought in Suit No: HAM/63/2018 are granted without any contest, it will not in any way defeat charge No. MAH/26c/2018. There is no relief seeking to divest the 3rd Respondent of the jurisdiction to entertain Charge No. MAH/26c/20 18 or to remove the power of the 2nd Respondent from the prosecution of criminal offences including the offences contained in Charge No. MAH/26c/2018. The civil and criminal actions are initiated by different persons and the law permits a person to prosecute both civil and criminal actions simultaneously as the rule in SMITH V. SELWVN (1914) 3.K.B 98 no longer apply in Nigeria. Relied on VERITA INSURANCE CO. L TO V. CITI TRUST INVESTMENTS LTO (1993) 3 N.W.L.R (PT.281) 349
It is submitted that in their attempt to make out a good ground for grant of this application, the applicant claimed that Charge No. MAH/26c/2018 is in abuse of court process without stating how it is an abuse of process of court. To amount to abuse of court process there must be multiplicity of actions on the same subject matter between the same parties even where there exist a right to bring the action. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se: SARAKI V. KOTOYE (1992) 2NWLR (pt.264) 156 at 188, paras E-F. This is not the case with the present case as to amount to an abuse as the Applicant is erroneously claiming. The subject matter, parties and reliefs sought in suit No. HAM/63/2018 is not the same with Charge No: MAH/26c/2018 and we urge the court to so hold.
It is submitted that charge No. MAH/26c/2018 had been signed by a police officer as required by the law and cannot by any means be a good ground for any judicial review in our law. Section 78 (b) of the Criminal Procedure Law of Imo State empowers the police to institute criminal proceedings in the Magistrates’ Court. It provides thus:
“Where proceedings are instituted in a Magistrates’ Court, they may be instituted in either of the following ways:- (b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him and the time and place where the offence is alleged to have been committed; and the charge sheet shall be signed by the police officer in charge of the case”.
It is submitted that Charge No. MAH/26c/2018 is laid in line with the second schedule to the Criminal Procedure Law and in drafting charges one may be allowed some modifications. Assuming, though not conceding that Charge No. MAH/26c/2018 is in any way defective or not properly signed, such defect does not vitiate any proceedings on it provided that the accused is not misled. If a charge is defective because it contravenes any or all of the rules of drafting of charge and the defect are not amended in the course of the trial, the defect will only be regarded as material if the accused was prejudiced at his trial as a result of the defective charge. Referred to section 166 of the Criminal Procedure Law, OGBOMOR V. THE STATE (1985) 2SC 289, The President of the Federal Republic of Nigeria V. the President and members of the grade “C” Customary Court, IGUOSHODIN & ANOR, EX PARTE: IGBINIKHOGIE ODE, the High Court held thus:
“I will not be inclined to grant order of prohibition solely on the ground that venue is not stated on the charge if the charge can safely be amended, provided that in fact the venue lies within the area of jurisdiction of the court. If in fact the venue is not within its area, any amendment to bring it within its area will be a false on”
It is submitted that in the present case, there is no doubt at all that the 3rd Respondent has jurisdiction over the offences in Charge No. MAH/26c/2018. The only complaint of the applicants is that the Charge is defective in stating they require particulars and since a defective charge can be safely amended, this complaint is of no moment. The court is urged to so hold.
On issue 2 the court is urged to hold that since the applicants have woefully failed in their duty to establish any of the grounds upon which an application for judicial review can be granted, this application must fail. The court is urged to so hold and accordingly dismiss the application.
RESOLUTION OF MATTER:
The Applicants were on the 10th April 2018 granted leave to apply for judicial review in charge MAH/26C/2018. Subsequently on 23rd day of April this Application was brought. The Applicants are urging the court to quash the charge and the order of bench warrant issued against the 1st Applicant.
Having considered the affidavit evidence before me and having heard the counsel adopt their written addresses for and against this application I am of the view that the issue that calls for determination is whether the Applicants are entitled to reliefs sought having regard to the circumstances of this case.
The circumstances surrounding this case are that he Applicants were arrested by the Police. Subsequently they brought an application for the enforcement of their fundamental rights. It was while the application for the enforcement of right was pending that the Applicants were charged at the Magistrate Court in Charge No MAH/26C/2018
Before I proceed, let me note that the Applicants are not happy that the 2nd Respondent was allowed to bring in her Counter affidavit after the matter was heard and adjourned for judgment. I completely subscribe to the holding that speed, inflexible and strict rule application cannot be allowed to undermine the interest of justice and deprived parties the opportunity to fully ventilate the issues between them.
The Applicant would that the court deems their averment as uncontroverted and unchallenged. It is a general concept of law. There are exceptions to that. These exceptions are well spelt out in BELLO & ORS. V. AG LAGOS STATE & ORS. (2006) LPELR-CA/L/130/2002; (2007) 2 NWLR (PT.1017)115 where the court stated:
“As rightly contended by the counsel therefore it is an established rule that where depositions in an affidavit are not denied by way of a counter affidavit, they are generally deemed admitted and the court is to act thereon. That general rule not withstanding, the same law expects that for such a presumption to be correct, the facts on the affidavit must have properly been put before the court. This was the principle laid down by Kutigi JSC in the case of Attorney-General of Ondo State v. Attorney-General of Ekiti State reference supra. It follows therefore that the absence of a counter affidavit does not ipso facto amount to a conclusive exercise of a favourable discretion. There is a burden of proof on the applicant which same could only be discharged on the satisfaction to the court of material facts placed before it. In otherwords an unfettered burden lies on the applicants’ affidavit to stand or fall on its own merit. This is synonymous to the requirement placed on the plaintiff to succeed on the strength of his own case and not rely on the weakness of the defence. The presumption therefore that an unchallenged and uncontroverted averments in an affidavit are deemed admitted does not hold in all situations. In the case of Ejefor v. Okeke (2000) 7 NWLR (pt.665) 363 at 381 this court, Enugu Division had this to say:-
“The statement of the law that there is a presumption that unchallenged and uncontroveterted averments are deemed admitted does not hold in all situations where averments in affidavit in support of an application are contradictory or if taken together are not sufficient to sustain the applicant’s prayers, a counter-affidavit in challenge of such averments would manifestly become unnecessary. There is no rule of law that makes the filing of a counter affidavit to an application a sine qua non in every case”.
On the same proposition and also in another case of Orunlola v. Adeoye (1995) 6 NWLR (Pt 401) 338 at 353 this court again in aligning with the same principle had this to say on absence of counter affidavit:-
“There is no rule of law or practice which lays it down that an affidavit in opposition of or countering the averments of an affidavit in an application supported with an affidavit evidence is a sine qua non in any or every case. If an affidavit is self contradictory or the facts contained there in are presumed to be true and when taken together are not sufficient to sustain the prayers of the applicant, it would be needless for a respondent to swear to and file an affidavit in opposition. It may even be that there is nothing in the affidavit in support of application worthwhile countering by filing an affidavit in opposition.” Per OGUNBIYI, J.C.A. (Pp 16-18.Paras G-F)
When it comes to pleadings, the same is applicable. In MTN V. MUNDRA VENTURES (NIG) LTD (2016) LPELR-40343(CA) it is stated:
“It is the law that notwithstanding the absence of the case of the Defendant, a Plaintiff must lead credible evidence sufficient enough to establish his claims even if it be on a minimal proof. When therefore, a Plaintiff fails to make out at least a prima facie case of his claims against a Defendant, the mere absence of the case of defence alone would not result into a verdict in favour of the Plaintiff. This is so because in law if no prima facie case is made out by a Plaintiff against a Defendant such a defendant need not prove anything in his defence.
Having stated this, it is also important to note that the Applicants filed Further Affidavit and reply on point of law in response to the 2nd Respondents Counter Affidavit. So it can be said that no harm will be caused to any of the parties.
I will start with the submission of the Applicant that it was wrong for the charge to be brought against them while their application for enforcement of right was pending. It is important to note that as an incident of separation of powers, courts cannot interfere with the free exercise of the discretionary powers of the Police or the Attorney General in their control over criminal prosecutions.
I am of the view that where Applicants are standing trial before another Court, that cannot deprive them of their Fundamental Human Rights enforcement. In other word the fact that a person is standing trial does not prevent him from applying for the enforcement of his rights where he feels that it has been violated. See PETER NEMI VS A.G.F (1996) 6 NWLR (Pt. 452)2.; UMOULO VS STATE (2003) 3 NWLR (Pt. 808)493; MR. PAUL OKAFOR & ORS v. OBI VICTOR NTOKA & ORS (2017) LPELR-42794(CA)
Also the fact that a person is enforcing his right does not prevent the state from bringing a charge against him if there is need for that. In EDET V. THE STATE (1988) LPELR-1008(SC)the courts stated:
“The pendency of the matter in the Magistrate Court cannot restrict the power of the Attorney-General to file information in the High Court. As I said in Amaefule, he would in due course take legal steps to discontinue the proceedings in the Magistrate Court. My view is that ‘due time’ ought to be before, or contemporaneous with the filing of an information in the High Court.
The charge against the Applicants cannot be said to be an abuse of court process only because they have an application for the enforcement of their rights. There is no law that says civil and criminal suits cannot be pursued and heard pari passu. The rule in SMITH v SELWYN has been abolished not only in England but also in Nigeria. see VERITAS INSURANCE CO. LTD v CITY TRUST INVESTMENTS LTD (1993) 3NWLR (PT. 281) 239 . unless there is express order of the court prohibiting the institution of criminal trial while the civil action is pending, then the institution of same cannot be an abuse of court process.
Another grouse of the Applicant is the bench warrant issued against the 1st Applicant and the allegation that they charge was incompetent for containing the name of the 1st Applicant who was not present in court.
It is my considered view that the fact that all the parties mentioned or cited in a charge are not in the court on the day meant for arraignment or plea does not make the charge incompetent. The prosecution may decide to sever the name of the absentee Accused or the court may adjourn to enable the prosecution produce all the accused persons. If that be the case it will not be just to insist that Police should grant administrative bail because if they do and the suspect who by then is no longer in their custody fails to appear in court on the day for arraignment then the charge becomes incompetent. And according to the counsel to the Applicant deprives the court the jurisdiction to trial the charge.
On the issue of bench warrant, it is apparent that before arraignment the suspect/accused is expected to be in the custody of the police or is on police bail having being released to a capable and unswerving surety. So it is the duty of the police to produce him before the court. The Police are constitutionally empowered to arrest a suspect solely for the purposes of bringing him before the court of law. And customarily a suspect who is on administrative/Police bail, on being served with Arraignment Notice indicating the nature of offence, the place for arraignment and time of arraignment is expected to appear in court willingly.
In my view, a suspect who was arrested ab initio at the discretion of the arresting authority without the input of the court, has at its own discretion granted administrative bail, has concluded investigation and now wants to charge has the burden of bringing the suspect to court. It is after it has been clearly shown that the suspect/accused is properly served with an arraignment notice and he fails to appear on the said date that the arresting authority/prosecutor can now seek the assistance of the court. It is only then, as in this case, that the magistrate will be entitled to compel his appearance. But before the service of arraignment notice there is a little that court can do.
In this case the 2nd Respondent has exhibited the Arraignment Notice said to have been served on the 1st Applicant as the 1st Accused in charge HAM/26/2018. The said Arraignment Notice emanated from the Office of Area Commander, Mbaise/Ngorokpala, Imo State Commmand, and addressed to Mr. Jacob Iroegbu. It is dated 13/3/18. It is hinged on conduct likely to cause breach of police(sic-peace)/ threat to life. It indicated it will come up on 15th March 2018 at the Chief Magistrate Court Oke Ovuru. It has endorsed on it: “original copy collected by me. Signed. 13-03-2018. Paul Anyanwu.”
The proceedings wherein the bench warrant was issued against the 1st Applicant took place on the 21st March 2018 at the Chief Magistrate Court, Ahiazu Mbaise. It is observed that the said proceeding took place on a date different from the date indicated on the Arraignment Notice and it took place at a place different from the place indicated in the Arraignment Notice. The Arraignment notice also though addressed to Mr. Jacob Iroegbu was collected by one Paul Anyanwu.
I am not unaware of the provision of section 349(1) of the Criminal Procedure Act which by implication admits substituted service of summons and other processes in criminal trial. It provides that:
“ The sheriff or other proper officer aforesaid shall, as soon as may be after having received a copy of the information and notice of trial, and three days at least before the day specified therein for trial, or within such lesser time as the court may for good cause order, by himself or his deputy or other officer, deliver to the party charged the said copy and notice and explain to him the nature thereof, and when the said party is not in custody or shall have been admitted to bail and cannot readily be found he shall leave a copy of the said information and notice of trial with some one of his household for him at his dwelling-house or with one of his sureties for bail and if none such can be found, shall affix the said copy and notice to the outer or principal door of the dwelling-house of the party charged or of any of his sureties for bail:
Provided that nothing herein contained shall prevent any person in custody or awaiting trial at the opening of or during any sessions, from being tried thereat, if he shall have been served with a copy of the information and notice of trial not less than three days before the date on which he is to be tried: Provided further that such last-mentioned period of three days may be reduced to a shorter period if such person shall express his assent thereto and no special objection be made thereto on the part of the State.’
In this case there is nothing stated as linking the 1st Accused with the said Paul Anyanwu. On the face of these facts can one say with certainty that the 1st Applicant was aware of the proceeding of 21st March 2018. I do not think so.
I think it is only after the suspect has been properly served with the required notice and fails to appear to take his plea or stand his trial that the magistrate can issue a bench warrant. In APUGO v. FRN (2017) LPELR-41643(CA) the court consider an order of this nature made without prove of service. The court stated:
In this case, the Respondent had filed a motion ex-parte under Section 382 (5) of ACJA, 2015, to serve Appellant by substituted means. That motion was not argued, but the trial Court jumped the gun and ordered for the Bench Warrant to arrest Appellant; and when it found out that that was wrong, it suspended the implementation of the Bench Warrant (instead of setting it aside). The trial Court yet still ordered the Appellant to appear in Court on the next adjournment date to answer to the charge against him, pursuant to Section 87 of the ACJA, 2015. As earlier discussed and held, above, I do not think the trial Court had the vires to make such order, in the circumstances, as I think it went beyond its role as impartial adjudicator to that of prosecutor or Police or EFCC, to forcefully produce the Accused person, without serving him with any charge or Notice of trial. See Nwadike Vs State (2015) LPELR – 24550 (CA); Edet Vs State (2008) 14 NWLR (pt.1106) 52.
“…the law is that a Court has no jurisdiction to issue an order against a person who has not been served with a Court process to appear before it, and has not been formally arraigned or produced before it, as it lacks power to pronounce on/against such a person. See the Nwadike Vs State (2015) LPELR – 24550 CA, where this Court held: “… It is equally doubtful whether a Court can assume the trial of an accused person and make order(s) to curtail his liberty, when the accused has not been formally arraigned before the Court, thereby coming under or surrendering to the authority, protection and mercy of the Court. While arraignment is yet to be done, the Accused person is, usually, in the care and control of the prosecution, who has a duty to produce him in Court and surrender him to the Court, by formal arraignment, wherein he (accused) is made to take his plea.
What transpired on the 21st March 2018 is captured in the exhibit D of this application. It is recorded thus:
“1st Accused person is absent.
2nd and 3rd Accused persons are present.
Sergeant Nwancho Ikechukwu for prosecution.
Mahakwe Madu Esq. for the defence, is present with S.C. Nwadike.
Court: Bench warrant is hereby issued against the 1st accused person and must be produced on the next date. The 2nd and 3rd Accused are hereby granted bail based on an earlier bail in charge No: MAH/25c/2018. Upon the warrant of arrest being executed on the 1st Accused person, he can be granted bail with a reasonable surety who has o be within jurisdiction and a responsible citizen. Matter is adjourned to the 11th day of April, 2018 for plea” .
This record did not state what the contributions of the prosecutor and the counsel for the Accused persons were before the bench warrant was issued. But what is certain is that there was no arraignment of the Accused persons. It was adjourned to 11th April 2018 for plea which the hallmark of trial.
Also relevant here is sections 350 and 351 of the Criminal Procedure Act. They provide:
- The officer serving the copy of the said information and notices shall forthwith make to the registrar or other proper officer a return of the mode of service thereof.
- Where any person against whom an information has been duly preferred, and who is then at large, does not appear to plead to such information, whether he is under recognizance to appear or not, the court may issue a warrant for his apprehension.
From all I have so far said, it is now clearer to me that the bench warrant of 21st March 2018 was issued without jurisdiction. Since it was issued without jurisdiction, it is a nullity and ought to be set aside. In OKIYE v. STATE (2014) LPELR-22194(CA) it is stated:
“When a pre-trial process required by law to be served is not served before an Order is made, in this case, the notice to show cause, it is a fundamental defect as a matter of substantive law but when service of the process is irregular, it affects jurisdiction on procedure. In this case, the notice to show cause in the lower Court was issued on 02/06/2011. It is evident that there was no proof of service of the required pre-trial process on the Accused/Appellant. The bench warrant issued in the absence of service of the notice to show cause on the Accused/Appellant was thus issued in violation of the law and has to be set aside.” Per OGUNWUMIJU, J.C.A (P. 40, paras. C-F) –
The Applicants raised the issue of the signing of the charge. The only record of the lower court before this court is the record of proceedings of 21st March 2018. As I observed, the submissions of the counsel for the Accused persons and the Prosecutor if any were not recorded. The question of signature was not raised.
In the states where the Criminal Procedure Act is applicable, charges for use at the Magistrates Court are prepared and signed by police officers as provided under Section 78(b) of the Criminal Procedure Act. Despite this provision it has been held that there is nothing preventing a Law Officer from doing same. See STATE V. OKPEGBORO & ANOR (1980)2 N.C.R. 291
It is not in contention that the High Court of Justice has supervisory jurisdiction over the way and manner the Magistrate Court uses its powers. It has a duty to tell the court not to act ultra vires its powers and to quash any such abuse of powers. In DISTRICT OFFICER & ANOR V. QUEEN (1961) LPELR-25082(SC) it is stated:
“It has been stated that certiorari is discretionary; it will nevertheless be granted “ex debito justitiae” to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction see 11 Halsbury Laws of England, 3rd Edition, page 140 at paragraph 265. It has been held by Lord Green, M.R. in R. v. Stafford Justices ex parte Stafford Corporation (1940) 2 K.B. 33 C.A. at p. 44 that unless there is something in the circumstances of a case which makes it right to refuse the relief sought, the Court will grant it, and that that is the way in which the Court will and must on ordinary principle exercise its discretion.
Now, it is clear that it is of the utmost importance that the Court should act to prevent an injustice being done when the remedy sought is within its powers to grant. This to my mind, is one of such matters in which the Court should act.
The High Court has an inherent power, unfettered by statute, to control inferior tribunals in a supervisory capacity. Such control is by means of certiorari to keep the inferior tribunals within the law, within bounds and within such jurisdiction as the legislature deemed fit to confer upon it.
The principles that should guide a court while hearing an application for judicial review were stated in NWANKWO V. CUSTOMARY COURT NDIAWA, ARONDIZUOGU & ORS (2009) LPELR-4589(CA) thus:
“In determining an application for judicial review the Court is guided by the following considerations:
Whether or not the order will issue does not only depend on whether the errors complained of are errors of law, or fact. The error must disclose excess of jurisdiction and the error of law must be one on the face of the record
A person applying for an order of certiorari must show that the body concerned has in one way or the other failed to act judiciously where it should.
That it is not all errors of jurisdiction that will justify the making of an order of certiorari; while all errors going to jurisdiction can provoke an order of certiorari, all errors within jurisdiction are only caught if they are errors on the face of the record.
See: Ugo Vs B.S.L.G.S.C. (supra) @ 319 A-320 D.
The court went on to state:
A Court considering an application for judicial review must also bear the following factors in mind:
That judicial review is not an appeal.
The Court must not substitute its own judgment for that of the public body whose decision is being reviewed.
The correct focus is not on the decision ‘but the manner in which it was reached; and
That what matters is the legality and not the correctness of the decision.
See : Gov, Oyo State Vs Folayan (1995) 8 NWLR (413) 292 @ 322 – 323 H – B.
A reviewing court is not allowed to dabble into the realms of the appellate jurisdiction thus in MILITARY GOVERNOR OF IMO STATE & ANOR V. NWAUWA (1997) LPELR-1876(SC) it was stated:
“In a judicial review the Court must not stray into the realms of appellate jurisdiction for that would involve the Court in a wrongful usurpation of power – See R. v. Secretary of State for the Home Department, Ex parte Brind (1991) 1 AC 696, 7271 The power of the Court as a reviewing tribunal is better clearly stated by Lord Green M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, 234 when the noble Master of the Rolls said: “The power of the Court to interfere in each case is not as an appellate authority to override a decision MILITARY GOVERNOR OF IMO STATE & ANOR V. NWAUWA of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by action in excess of the powers which parliament has confided in them.”
However certiorari is not a means of taken over the matter before a lower tribunal. In this regard I found persuasive rhe decisions of Keyan courts. In THOMAS NYAKAMBI MAOSA V KIBERA CHIEF MAGISTRATE & 3 OTHERS [2015] EKLR the court stated:
“It is always important to remember that in these kinds of proceedings, the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution and that the mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review. This is so because judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.
Also in JORAM MWENDA GUANTAI VS. THE CHIEF MAGISTRATE, NAIROBI CIVIL APPEAL NO. 228 OF 2003 [2007] 2 EA 170, the Court of Appeal held:
“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings…Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”
A party must pursue all remedies available at the lower court before seeking reliefs at the Appellate court. The Accused persons have not been arraigned on any charge. See EVARISTUS MOZIE V. THE STATE (2012) LEPLER 14353 –CA. I will not say more on this. Only to say that it will be inappropriate to consider any other issue(s) raised by the Applicant.
The application succeeds only to the extent that the bench warrant issued against the 1st Applicant is quashed.
I so hold.
I.M. NJAKA
Judge
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