IN THE HIGH COURT OF JUSTICE OF (NAME OF STATE),
NIGERIA
IN THE (LGA) OF JUDICIAL DIVISION
HOLDEN AT (LOCATION)
MOTION
NO:
BETWEEN:
NAME HERE -
APPLICANT
AND
COMMISSIONER OF POLICE - RESPONDENT
APPLICANTS’ WRITTEN ADDRESS
1.0
Preliminaries
1.1. Applicants
filed application on 15th January 2009 at High Court. On 9th
February 2009 when motion came up for hearing, the Honourable Chief Judge transferred
applications to this Division of the High Court
1.2. On 3rd
March 2009, when applications came up for hearing before His Lordship in this
court, applicants’ counsel applied to Court to consolidate Motions Nos. HOW/ / 2009,
HOW/ / 2009 and HOW/ / 2009
involving applications of Jude (NAME HERE) and (NAME HERE) Against the Commissioner
of Police, which application for consolidation was granted; Court then ordered
counsel to file written addresses
1.3. Law Under Which Application is Brought:
1.3.1. Section
35 and 36 of Constitution of the Federal Republic of Nigeria (CFRN) 1999
1.3.2. Section 57 of the Criminal Procedures
Act
1.3.3. Inherent Jurisdiction of the
Honourable Court
1.4. Prayer Sought From Court in All Three Applications
1.4.1. AN ORDER discharging the applicant in
charge No. MAB / 471C / 2001 pending in the Chief Magistrate’s Court,
since 2001
1.4.2. AN ORDER striking out Charge No. MAB / 471C
/ 2001 from the case list of the Chief Magistrate’s Court
1.5. Affidavits and Exhibits Filed
All three Applications are supported by affidavits and
two Exhibits
(a)
“Exhibit A1”
is the Charge Sheet against applicants at the Magistrate’s Court
(b)
“Exhibit A2”
is the record of proceedings of the Magistrate’s Court when the charge was
first read on 18th September 2001
2.0. Arguments on Points of Law
2.1. The Applicants
(along with three others) were charged before the Chief Magistrate’s Court on 18th September 2001 on a Two
Count Charge of Conspiracy and Armed Robbery punishable under sections 1 (2) (a) &(b) of the Robbery
and Fire Arms (Special Provisions) Act. Cap. 398, Vol. XXII LFN 1990 (See Exh.
A1)
2.2. The Applicants
were not arraigned by the Magistrate Court in accordance with section 215 of
the Criminal Procedure Law (CPL). The Court lacked jurisdiction to try the
applicants for the offence which they were charged. The only reason why the
charge was read to the accused person (applicants) was to enable the Magistrate
Court take cognizance of the offence and remand
the accused persons in prison custody until they are charged before the
High Court
For the procedure of arraignment and the relationship
between arraignment and commencement of criminal trial, see the cases of:-
(a) Tobby vs. State (2001)10 NWLR (Pt. 720) 23
(b) Effiom vs. State (1995)1 NWLR (Pt. 372) 507 at 580-581,
paras. G-B
2.3. Notwithstanding that the Magistrate Court lacked
jurisdiction to try the Applicants,
the Court ordered that they be remanded in prison custody (see Exh. A2)
2.4. There is
no law applicable in (NAME OF STATE HERE) State which empowers the Magistrate Court
to remand an accused person in prison custody where the court lacks
jurisdiction to try the offence which the accused is charged. This special
power only exists in the Criminal Procedure Law of Lagos State and few other
jurisdictions in Nigeria, not including (NAME OF STATE HERE) State.
Section 236 of the Criminal Procedure Law, Cap. 61, Laws of
Eastern Nigeria, 1963, which is applicable in (NAME OF STATE HERE) State is the
only provision in the law that empowers the Court to remand an accused person.
But the provision only empowers the Court to remand an accused person when the
court is competent to try for the offence charged, in circumstances where it
becomes necessary to adjourn the matter to a further date. This is the
interpretation given by the Court of Appeal in the case of:
(a)
Eyu vs. State
(1988) 2 NWLR (Pt. 78) 602 at 609-610, paras. B-A
2.5. There is
consensus by the Courts that where a Court lacks jurisdiction to entertain a
matter, more so a criminal case, the proper order it ought to make is an order
striking out the Charge for lack of jurisdiction. See the case of:
(a)
Johnson vs.
Lufadeju (2002) 8 NWLR (Pt. 768) 192, at 214, paras. D-F and p. 222
2.6. There are
also plethora of authorities that where the Magistrate Court is incompetent to
try an offence, any remand order made by the Court will be invalid and a
nullity, and subsequently an unlawful detention of the accused person, in
contravention of his constitutional right to liberty as enshrined in section 35
of the 1999 CFRN, See the cases of:-
(a)
Eyu vs State
(Supra) pp. 609-610, paras. A - A
(b)
Enwere vs.
State (1993) 6 NWLR (Pt. 299) 333 at 342, paras. A-B
(c)
Anaekwe vs.
C.O.P (1996)3 NWLR (Pt. 436) 320 at 332-333, paras. G-E, p. 334
(d)
Shagari vs.
C. O.P (2007)5 NWLR (Pt. 1027) 272 at 298, paras. C - G
(e) Folade
vs. A. G. Lagos State (1981) 2 NCLR 270 at p. 278 - 279
All the cited authorities are affirmative that
in such circumstances described above, as
also in this case, the accused can apply to the High Court which is
the court of competent jurisdiction to invalidate the proceedings at the Magistrate’s
Court and release the accused person in accordance with section 35(4) of the
1999 CFRN either conditionally (through an application for bail) or
unconditionally (through an order for discharge). We particularly commend
to the court the cited cases of:-
a)
Eyu vs. State
(Supra) p. 610s para. A
b)
Folade vs.
A.G. Lagos State (Supra) pp.278-279
2.7. Concession:
My Lord we are not unmindful and certainly not unaware
of the general indulgence of courts in Nigeria to overlook the practice of
unlawful remand by Magistrate Courts in the Administration of criminal justice
Query:
Therefore, even if the Court should hold that the Magistrate
Court sitting at had power to remand the
applicants in prison custody under section 236 of the CPL or any other law whatsoever,
would such remand operate to keep the
applicants in prison indefinitely?
Submission:
2.7.1. The
combined provisions of sections 236 and 238 of the Criminal Procedure Law (CPL)
applicable in (NAME OF STATE HERE) State stipulates a time limit for which such
remand would be allowed, which is 8 days or such longer period as the Court may
deem necessary which must be communicated to the accused for the purpose of his
trial.
2.7.2. Even
in Lagos State where section 236 (3) of the Criminal Procedure Law of that
state specifically empowers the Magistrate Court to remand an accused person in
prison custody until such time as the person is arraigned in the appropriate
court, the Supreme Court in a recent decision held that such remand is not for
an indefinite period, and where it becomes too long, or there is an unreasonable
delay in filing a formal charge at the High Court, the accused is at liberty
apply to the High Court for review of the remand order and release from custody.
See the case of:
a)
Lufadeju vs.
Johnson (2007) 8 NWVR (Pt. 1037) 535, at 566 para. H
2.8. Secondly,
the continued detention (remand) of the accused persons without trial is in
breach of the constitutional provisions enshrined in sections 35 and 36 of the
1999 CFRN
2.9. Section
35 (4) of the constitution offers protection to a person who is arrested and
detained on reasonable suspicion of committing an offence, to be brought before
a court of law within a reasonable time, and if he is not tried within a period
of two months in case of a person who is in custody or is not entitled to bail,
or three months in case of a person who has been released on bail, he shall (without
prejudice to any further proceedings that may be brought against him) be
released either unconditionally or upon such conditions as are
reasonably necessary to ensure that he appears for trial at a later date
2.10. We submit
that where the constitutional period for detention (remand) of 2 or 3 months
stipulated in section 35(4) of the constitution is exceeded (as is expected in
Nigeria), the court has always found it difficult to invoke section 35 (4) so
as to release accused persons especially where trial has commenced. But where
trial has not commenced (as in this
case) and nothing is before the court to show a prima facie case against
the accused by way of filing the proof of evidence, both the Court of Appeal and
the Supreme Court have held that the court must exercise its power to preserve
the fundamental right of citizens enshrined in section 35(4) and 36 of the 1999
CFRN to release the accused person unconditionally or on such
appropriate conditions, since the requirement of reasonable suspicious would
have been absent. See the cases of:-
a)
Enwere vs. C.O.P
(supra) at pp.342 - 343 per Ndoma-Egbe, paras. G – B
b)
Johnson vs.
Lufadeju (supra) at p. 217 paras. D - H, pp.216 - 217, paras G – H
c)
Bolakale vs. State
(2006) 1 NWLR (Pt. 962) 507 at 518 - 520
d)
Shagari vs. C.O.P
(supra) at 296 - 297 paras. D - H
e)
Alamieyeseigha
vs. F.R.N (2006) 16 NWLR (Pt. 1004) 1, at 72 paras. C – E
f)
Olawoye vs. C.O.P
(2006) 2 NWLR (Pt. 965) 427 at 445 - 446 paras. C - B
g)
Suleman vs. C.O.P.
Plateau State (2008) 8 NWLR (Pt. 1089)
298, at pp.324 - 327 paras A - A and p.336 paras. B - G
h)
Nwinyima vs.
C.O.P (2005) 11 NWLR (Pt.936) 255 at 260 - 261 paras. C - C
2.11. Concession:
My Lord, we are not ignorant of Sub-section (7) of
section 35 of the 1999 CFRN which provides that in the case of persons arrested
and detained upon reasonable suspicious of having committed a capital
offence, sub-section (4) of section 35 would not apply
Query:
Does section 35 (7) therefore operates to keep a
person reasonably suspected of having committed a capital offence in detention
(remand) indefinitely?
Submissions:
2.11.1. The
court has held that the term “reasonable suspicion” used in sub-section (7) of
section 35 can only be satisfied where a proof of evidence is filed to show a
prima facie case against the accused, otherwise the accused is entitled to the
benefits of sub-section (4) of the section, see the case of
a)
Johnson vs.
Lufadeju (2002), (Supra) at p. 217. paras D - H.
2.11.2. The
court has also held that sub-section (7) cannot be used to deprive an accused
of his fundamental human rights enshrined in section 35 (4) and 36 of
constitution if there is inordinate delay in filing the proof of evidence that
would show a prima facie case. The mere parading of the words “murder” or
“armed robbery” to justify indefinite detention will not suffice, see the cases
of:-
a)
Atiku vs. State
(2002) 4 NWLR (Pt. 757) 265, at 277 – 278, paras. F –F
b)
Anaekwe vs. C.O.P (supra) at 332 - 333 paras. G - G, p.334, paras. B - E
c)
Enwere vs.C.O.P.
(Supra) p. 333
d)
Suleman vs. C.O.P.
Plateau State (Supra) pp. 324 - 327 paras. A – A
e)
Olawoye vs. C.O.P
(Supra) at p. 445 - 446 paras. C - B
2.12. Query:
Is an application for discharge or unconditional
release of the applicants the appropriate relief to seek in an application of
this nature? Most of the cases cited to enforce section 35 (4) of the 1999 CFRN
were applications for bail or conditional release, are they relevant in this
application?
Submissions:
2.12.1. The
principles enunciated in all the cases cited above in support of this
application are relevant to this application. The difference with some of those
cases and the present application is with the time within which action was
taken to remedy the rights of the applicants. That is, most of the cases were
commenced within a short period after the unlawful detention or failure to file
proof of evidence was occasioned thus, the condition was unripe to apply for
outright discharge, for instance:-
a)
In Anaekwe
vs. C.O.P. (Supra) the
duration between charge at Magistrate Court and application for bail was less
than three months
b)
In Enwere vs. C.O.P (Supra) the duration
was seven months
c)
In Eyu vs. State (Supra) the duration was
less than one month
d)
In Olawoye vs. C.O.P (Supra) the duration
was less than one month
e)
In Suleman vs. C.O.P Plateau State (supra),
the duration was five months
2.12.2. In
the present applications, the duration between when the applicants were charged
and this application is seven years and
six months, within which period no proof of evidence has been filed and
there is no evidence that the proof of evidence will ever be filed, more so
that none has been filed after service of this application on the State. It is therefore
safe to conclude that the State has no evidence against the accused, and the
charge at the Magistrate Court should not be left to hang on the neck of
applicants for ever. It is better to discharge them pending when if at all, the
state has evidence to prosecute them.
3.0. Arguments on Affidavit Evidence
3.1. The
applicants have stated in the affidavit in support of their applications that
they did not commit the offences which they are alleged to have committed, and
that there is no evidence against them that can be brought forward by the State
to facilitate their trial (see paragraphs 12,13,17,18 and 19 of Jude Okoro’s
affidavit; paragraphs 8,9,13,14 and 15 of Kelechi Okoro’s affidavit and paragraphs
7,8,12,14,15, of Uzordinma Iroka’s affidavit). These averments of fact are not
controverted by the respondent, which means that they are true and the court ought
to accept and rely on them. See the case of:-
a). Suleman
vs. C.O.P Plateau State (Supra) at p.336 paras. B - G
3.2. The
applicants have also stated in their affidavit that one of their co-accused
have been discharge, the second has been granted bail by the High Court and the third has died in prison custody,
which facts have not be controverted by the State. The court ought to rely on
them and discharge the applicants as well
3.3. In an
application of this nature where an applicant places facts before the Court to
enable the Court exercise its discretion to release him unconditionally,
there is a duty on the prosecution which seeks to oppose such application to put
facts before the Court which manifestly show a prima facie case against the applicants. The Courts have held that
the only acceptable facts that can be placed before the Court in order to obviate
the applicants’ release is to show that the proof of evidence has been filed
and a prima facie case made up against the applicants. That has not been
shown by the prosecution in this case, see the cases of
a)
Anaekwe vs. C.O.P
(Supra) at 332 paras. B – C, p.333, paras. A - G, p.334, paras. A – D
b)
Shagari vs. C.O.P
(Supra) at 296 - 297 paras. D - H
c)
Suleman vs. C.O.P.
Plateau State (Supra) at 324 - 327 paras. A - A, p.329 - 330 paras. H - C
d)
Enwere vs. C.O.P (Supra) at 341 paras. E - F
4.0. Conclusion
4.1. Based on
all the arguments put forward by applicants in this written Address, the court should grant the prayers of
applicants contained in the motion i.e. discharge the applicants and strike out
Charge No. MAB / 471C/ 2001 pending in the Chief Magistrate’s Court
1,
Dated
this………………………. day of…………………………. 2015