➥ CASE SUMMARY OF:
Federal Republic of Nigeria V. Chike Charles Ononye (CA/E/58C/2016, 13 Jul 2018)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Compounding of offence by the complainant.
➥ CASE FACT/HISTORY
The Appellant filed a criminal charge against the Respondent at the trial Court, wherein the Respondent was arraigned before the High Court of Anambra state on the 23rd of March 2016 in Charge No: 0/5C/2015 on three counts of issuing dishonored cheques. The Respondent pleaded not guilty to the said charges. After the Respondent was arraigned, one Barrister Hippo C. Onwuegbuke announced his appearance for and on behalf of Chief Kenneth Ndejiobi and applied for the withdrawal and striking out of the charge and termination of the proceeding, consequent upon which the Court struck out the charge. Dissatisfied with the decision of the Anambra State High Court, the Appellant filed a notice of Appeal dated 17/06/16. The Appellants brief was filed on 7/12/17 Record of Appeal was transmitted on 18/8/16 and deemed transmitted on 9/10/17. The Respondent did not file a Respondents brief, and did not appear in Court to defend the ruling of the trial Court.
This is an appeal against the decision of the High Court of Anambra State, Onitsha Judicial Division, delivered by Hon. Justice M.N.O Okonkwo on 23/03/16 wherein the learned trial judge dismissed all charges against the Respondent.
➥ ISSUE(S)
I. Whether the learned trial judge was right when His Lordship entertained the application by Hippo Onwuegbuke Esq., who appeared as holding, watching brief for the complainant to discontinue the prosecution, and granted same?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE COMPLAINANT COMPOUNDED THE OFFENCE
‘However, I will add that the argument of learned Appellants Counsel that the complainant is a third party to the proceedings, whose views are irrelevant as he has no locus standi is completely misconceived. The complainant brought the charge and the charge of issuing dishonoured cheques can only be proved with his cooperation. According to Section 187 of the Administration of Criminal Justice law of Anambra State 2010, where the complainant fails to turn up in Court when the charge is put to the accused, the charge is liable to be struck out for want of prosecution.’
‘However, absence of a complainant even though it is a good reason, it is not a good enough reason because in this case, the complainant was represented by a counsel holding a watching brief on his behalf. I think Section 355 of the Administration of Criminal Justice Act which is in pari materia with Section 191 of the Administration of Criminal Justice Law of Anambra State is more apt. It states as follows: “Where a complainant at any time before the final order is made in a case, satisfies the Court that there are sufficient grounds for permitting him to withdraw his complaint, the Court may permit him to withdraw the complaint and shall thereupon acquit the defendant.” I cannot given the importance and position given to the complainant see how the said complainant can be regarded as a third party to the proceedings with no locus standi as claimed by the Appellants Counsel. Even though at the trial Court, the learned counsel for the complainant and the defence counsel did not use the particular phraseology, compounding of offence by the complainant is what has happened in this case.’
‘Of course, I understand the public policy implication of compounding offences by complainants. It is clear that where the offence is committed against tax payers and the citizens of this country, (for example, cases of corruption) no one citizen can come out as a complainant to presume to compound such an offence. Only the State itself who could complain against corruption can withdraw the charge by way of Nolle Prosequi. Also for public policy reasons, where life has been lost, the State is the complainant as the State must protect the right of the person whose life was unlawfully taken away by another who is not in a position to compound the offence even if he/she would have been willing to do so if alive. These are not the scenarios in this case. However, I can only conclude that the primary complainant in this case has the right to compound the offence and cause a withdrawal of the charge against the accused. If at all, the Federal Republic of Nigeria in this case was a secondary complainant who was unable or unwilling to put into effect the provisions of Section 14(2) of the Economic and Financial Crimes Commission Act as it would relate to the circumstances of this case even after the primary complainant had written officially to withdraw the complaint and to effectually compound the offence.’]
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✓ DECISION:
‘In the circumstances, this appeal fails for lack of merit. The ruling of Hon. Justice M.N.O. Okonkwo delivered in Charge No O/5c/2015 on 23/3/16 is hereby affirmed.’
➥ FURTHER DICTA:
⦿ THE COURT IS NOT BOUND TO RECORD EVERYTHING SAID BY COUNSEL
I want to say that the argument by learned Appellants counsel that the Appellants counsel was not heard on that day is not borne out by the clear records of the trial Court. The Court is not a stenographer bound to record everything said by counsel. What is important is that presence of the Appellants Counsel was noted, the fact that counsel gave a submission was noted even in the bench ruling. There is in my humble view no viable challenge to the decision of the Court on the grounds of lack of fair hearing. — H.M. Ogunwumiju JCA.
⦿ COMPOUNDING AN OFFENCE VERSUS COMPOUNDING A CRIME
My Lord Augie JSC explained this whole point in PML Nig Ltd v. FRN (2017) LPELR-43480(SC) where the difference between compounding a crime and compounding an offence was well explained. Compounding a crime is an offence which is defined as agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution (In both cases for material or financial consideration). Compounding of Offence on the other hand is an act on the part of the victim who decides to pardon the offence committed by the accused person and requests the Court to exonerate him. This does not mean the offence was not committed, it only means the victim is willing to pardon it, or has accepted some form of compensation for what she or he has suffered, so the compounding of the offence terminates the legal proceedings against the offender and he/she is entitled to an acquittal. — H.M. Ogunwumiju JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mainforce Adaka Ekwu Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
