HOW TO WRITE AN APPLICANT WRITTEN ADDRESS TO A COURT OF LAW



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

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