Protocol
Distinguished Ladies and Gentlemen,
I have come to this workshop to rub minds with you on the implications of Section 393(2) of the Administration of Criminal Justice Law recently enacted by our legislature in which the identical provision of the Administration of Criminal Justice Act of the Federation was adopted hook line and sinker. The provisions read:
“After the plea has been taken, the Defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment”
My grouse is with the proviso to Section 393(2) is predicated on two legs;
Interpretation of the Section
On a question of interpretation of Section 393(2), it ought to be clear to us all that the objection contemplated under the sub section is an objection taken after the Accused Person had pleaded to the Charge. In other words, there is a distinction between an objection taken before plea and an objection taken after plea.
Our Legislators in enacting Section 393(2) seems to have overlooked the provisions of the Criminal Procedure Act which regulated Criminal prosecution in the Southern part of Nigeria well before independence. It is recognized that in the course of criminal prosecution and trial, Accused persons have vested rights to raise an objection before plea.
The question of an Accused Person to have the charge quashed is part of his Fundamental and Constitutional rights. Our case law recognized and therefore supports the rights of an Accused person to object to his being tried on various grounds. He may object that the Courts have no jurisdiction to try him or that the depositions of witnesses attached to the information discloses no reasonable evidence upon which he can be called upon to stand trial or that the case is an abuse of the process of courts. For example that he has been tried previously and acquitted on the same Charge. Under the practice we have known for over a century. The Accused person has a right to object to the charge and have the objection determined before plea. The right to do so was provided for in S. 167 of the CPA thus:
“An objection to a Charge for any defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later”
Commenting on this provision in Alintah v. FRN (2010) 6 NWLR PT. 1191 at 508, the court per Mukhtar JCA at PG 528, F-G held thus:
“This provision in my humble view, hits the nail straight on the head. It shows without any ambiguity the stage of the proceedings during arraignment when an objection to a charge on ground of any defect therein will be raised and that is as soon as the charge has been read to an accused and before he pleads to it”
The question of an accused person asking for the Charge against him to be quashed is part of his fundamental rights, Case law therefore supports the rights of the Accused person to do so.
In the case of Egbe v. State (1981) 1 NCR 341, page 346, it was held thus:
“Having considered all these matters, it is my view that the offences on the information preferred are not disclosed by the proof of evidence before the trial court. Also there has been no committal for trial of those offences. I do not think it is relevant as the learned trial judge did that further evidence and documents might be introduced later. Since quashing an indictment could not support a plea of autrefois at the time of arraignment in support of the offences charges, it will amount to an abuse of process of the Court to allow such indictment to proceed”
Also in the case of Okoro v. State (1988) 5 NWLR (PT 94) 255 at 277, PARA E the Supreme Court amplified the principle thus:
“It is both the constitutional duty imposed on the court and the right conferred on the accused by the constitution to ensure the purity of our criminal justice administration that the presumption of innocence of the accused is maintained inviolate. Accordingly, even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court, it should be taken by the court”
There is also the case of EZEZE V. STATE (2004) 14 NWLR (PT 894) 491 at 504, Para D-F, the court per Aderemi JCA held thus:
“The grounds upon which the appellants sought to quash the charge are ex facie, that the charge constitutes an abuse of court process and/or capable of prejudicing the accused or inflicting oppression on them. As was decided in several cases, the power of the court inherent in its jurisdiction to prevent abuses of its process and control its own procedure will, in a criminal court include the power to safeguard an accused person from oppression or prejudice. The court will be failing in its fundamental duty if, in the face of a defective or bad charge, it refused to entertain the application to quash and hastily proceeds to set the criminal case down for trial”
Finally on Case law, is the case of Abacha v. State (2002) NWLR (PT 779) 437 at 485 Para A-D , 496- Para H, the Court emphasized the need for courts to guard against abuse thus:
“…..all perceived abuses should (not) be tested if confidence is to be preserved for courts as final arbiter in people’s rights. The courts have inherent power to prevent abuse of their process by any of the parties whether plaintiff or defendant, prosecution or defence, so that as long as democratic process exists nobody will have his rights curtailed. All power to settle issues between parties is vested in courts and court must be vigilant that genuine issues and controversies are settled so that no accused person will be oppressed either directly or indirectly through act of prosecution. If not we shall have persecution in place of prosecution. It is for this reason that an accused person, despite the power to file an indictment on an information should not be indicted to face trial that from the outset it was clear, he should not face………to face a trial is not a matter to be treated with levity, a trial somehow infringes on the liberty of the subject, most especially when it involves a serious offence…”
My humble view is that our Legislators did not intend to take away the rights of the Accused person to raise an objection before plea and have his objection determined before his plea is taken if necessary. If the Legislators have intended otherwise, they will not have used the word “After the Plea has been taken” in Section 393(2).
Violation of the Constitutional Provision
In the second leg of my position is that the proviso to section 393(2) violates the provisions of the Constitution in two (2) respects.
The proviso provides for a postponement of the Ruling of on a Preliminary objection taken after plea. The effect of this, is that the trial have to continue whether or not there is evidence against the Accused person. As it’s well-known to Judges and Practitioners, a criminal trial may last up to six months to conclude. To suspend determination of the Accused person’s Application to quash the indictments until the conclusion of the final trial will be a violation of section 294(1) of the 1999 Constitution which requires the Court to deliver its Ruling or Judgment within 90 days.
A preliminary objection of an accused person that the Court have no jurisdiction or that the Charge against him is an abuse of Court’s process or that the deposition of witnesses attached to the information do not show prima facie evidence while he should be charged is a separate proceeding in the process of trying a criminal case. The conclusion of the argument on the preliminary objection calls for a decision of the trial court or a Ruling of the trial court. By Section 294(1), the court is required to deliver its decision within a specified period. The provision which postpone a decision on a preliminary objection is one capable of delaying the position of a preliminary objection beyond the time prescribed by the Constitution. To that extent, section 393(2) of the Administration of Criminal Justice Law is voided by the doctrine of inconsistency with the Constitution under Section 1(1), (2) and (3) of the Constitution.
Section 35 of the Constitution guarantees the right to personal liberty of the Accused person. This gives the right of the Accused and the duty of the court to presume that the Accused person is innocent until his guilt is proved. It follows that the accused person’s right to be presumed innocent will be greatly violated if section 393(2) is interpreted as conferring on the court jurisdiction to proceed with the trial of an Accused person whose objection to the jurisdiction of the court remains undetermined. Such procedure will be compelling an Accused person to face a trial that “from the onset it was clear he ought not to face”. This will be a violation of the Accused person’s rights to liberty and his rights to be presumed innocent under section 36(5) of the Constitution.
Conclusion
Your lordships, your worships and my dear colleagues both at the official and private Bar to take a second look at the provisions of the Administration of Criminal Justice Law, critically and so prevent the rights of citizen from being eroded through enactment of laws inimical to rights of citizens.
Dated at Warri, this 16th day of March, 2018
Chief T. J. Onomigbo Okpoko, SAN
