IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE AHIAZU MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU
ON, WEDNESDAY 8TH FEBRUARY 2017.
BEFORE HIS LORDSHIP: HON. JUSTICE I.M.NJAKA.
SUIT NO: HAM/57/2016
BETWEEN
THE STATE COMPLAINANT
Vs
REGINALD IHEMERE ACCUSED
RULING
The accused was charged with the offence of attempted murder. He took his plea on the 28th day of September 2016. His application for bail was heard on the 12th October 2016. The ruling was delivered on the 19th October 2016 wherein he was granted bail.
On that same 19th October 2016, the prosecution opened his case and called the alleged victim who testified as Prosecution Witness Number 1. He testified how he left his School, Federal Polytechnic Nekede, Owerri on the 25th January 2016 with the intention of effecting some repairs on their soak away and return back to school. For some reasons he was not able to so do and had to stay till the following day, the day of the incident 26-1-16. That day he heard his father screamed outside from where he was inside the soak away effecting repairs. He rushed and saw the accused, his brother, grabbing his father and pushing him to and fro. He rushed and pushed away the accused from the father. How in his effort to run away the accused pick bottles broke same and stabbed him with it. He fainted and was rushed to the hospital.
At the end of his evidence he was cross-examined by the counsel to the accused.
The Prosecution called the father of the alleged victim who testified as the Prosecution Witness Number 2. He testified of how on two occasions, 21-1-16 and 24-1-16, he stopped someone who came to mount a rod. Informing them that the accused has been asked to come and beg him over the land. On the 26-1-16 at about 9am he was relaxing in his frontage when he saw the accused came with force and remove a bamboo stick he used to cross his gate. When the accused passed he went and replaced the bamboo. The accused saw him replace the bamboo and came back and held him on the neck and he fell down and had wound. He shouted and it was the shouting that attracted the son, PW1. And the accused took two bottles from his shop because he used to sell drinks. The accused jammed the bottles together and they broke. As he wanted to stab him he ran. The accused caught up with the PW1 and stabbed him in the arm.
The matter was adjourned for the cross-examination of the PW2.
Before the PW2 could be cross examined, on the 25th of January 2017, the State Counsel, C. Anyaoha Esq., informed the court thus: We have instruction to withdraw the charge. Parties said they have settled. We urge the court to discharge and acquit the accused person.
I have looked at the evidence led so far and the application of the Prosecution counsel, I can only state that it is the sole duty of the State to prosecute. I am of the view that prosecution is commenced on the belief that there is the existence of prima facie evidence. That is the evidence upon which a court, properly directing itself upon law and fact is likely to convict in the absence of an explanation. But in a situation where the State in the middle of the prosecution decide not call further witnesses or continue with the prosecution citing the fact that the parties have settled, in other word the complainant has forgiven the accused or they have reconciled their differences, there is not much the court can do. It is no longer necessary to call on the accused for any explanation.
Although it is trite that all offences are committed against the State and thus the nominal complainant may not have a control over withdrawal of a case, the State in some circumstances, may consider the disposition and attitude of the nominal complainant and what is best in the interest of justice and society. In this clime where most of the crimes are family rooted or connected, the prosecution may take this into consideration to withdraw charges.
When this occurs, the court will encourage reconciliation. It must not appear to the accused that the court wants him or her convicted by all means and therefore not happy that the prosecution is unwilling to continue or call further evidence. In situation like this I know it will give or cause the accused person great concern if it appears that the court is questioning whether or not it is appropriate for the state to call no further evidence. It is not the duty of the court to achieve conviction by all means.
Furthermore, Section 284 of the Criminal Procedure Act provides:
“If a complainant at any time before a final order is made in any case under the chapter, satisfies the court that there is sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the same and shall thereupon acquit the accused unless the court directs that the accused instead of being acquitted shall be discharged”.
Although this section said “under the chapter” referring only to summary trial, I think it can be extended to trial by information. A complainant and by necessary implication the State can withdraw his/its complaint.
I am of the view that prosecution at any stage can drop criminal charges, if they feel they do not have sufficient evidence to make progress, which could be because the witnesses have remembered that blood is thicker than water, or have decided to leave everything in God’s hand and consequently have withdrawn or recanted their stories, unwilling to cooperate with the prosecution (as may be the case here) or other issues have arisen.
In circumstances like this it will be acquittal. In any case the Prosecution has by itself called for discharge and acquittal. And even if the court ordered discharge, it will have effect of acquittal. In THE STATE V. CHRISTOPHER EDE & THREE OTHERS (1964) LREN 60, at a previous trial, counsel to the prosecution discontinued the proceedings after the prosecution’s evidence and consequent upon which the Judge discharged the accused. Subsequently, another indictment was preferred against the accused on the same facts. At the trial, the defence counsel submitted that the discharge of the accused was a bar to subsequent prosecution against him for the same offence. In the court’s considered ruling, Phil – Ebosie J, held that a discharge after all the evidence of the prosecution had been led is a bar to subsequent proceedings on the same set of facts.
Again in INSPECTOR-GENERAL OF POLICE V. MARKE, (1957)2 F.S.C. 7 AT P.8 the court held that when trial of an accused person had begun and after the accused had been called upon to make his defence that withdrawal of the charge by prosecution would operate as an acquittal.
The conclusion of all I have so far said is that the accused person, that is, Mr. Reginald Ihemere is hereby discharged and acquitted.
I so hold.
Hon. Justice. I. M. Njaka
8/2/17
Appearances:
- Anyaoha Esq., (Assistant Chief State Counsel) for the Prosecution
Accused not represented.