In view of the preliminary objection filed against the pending charge of stealing by Senator Obasanjo-Bello’s lawyers the Senate has asked the EFCC to wash off its hands like Pontius Pilate. It is germane to state that an accused person who fails to show up in Court cannot be allowed to challenge the competence of the charge or the jurisdiction of a trial court. The authority for this submission is section 167 of the Criminal Procedure Act which provides that:
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”
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In Okeke v. State (2003) 15 NWLR (PT 843) 73 the Supreme Court held that:
“The accused must be present in court unfettered unless the Court shall see cause to otherwise order that he be fettered. The requirement that an accused person shall be present in Court makes a difference between our criminal jurisprudence and that of jurisdictions where trial in absentia is allowed.”
In the case of Anthony Alintah & Ors. v. Federal Republic of Nigeria (unreported) Suit No: CA/L/194/2004 (in which judgment was delivered on 26th February 2008) the Court of Appeal dwelt in extenso on the presence of an accused persons in a trial court before raising any objection against a pending charge. In his leading judgment Hassan Muhktar JCA held inter alia:
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“One even wonders how a bare charge on sheets of paper could be taken to court against accused persons who were not and have still not been produced in court. That appears to have given license to the Appellants to engage the court and the prosecuting counsel in a game of hide and seek, and yet want to move the court from the blues to seek for a remedy which they will only be entitled to do after the charge has been read over and explained to them in court before they make a plea.”
In his succinct contribution to the judgment Dalhatu Adamu JCA held:
“The learned trial judge was therefore right in my humble view to demand the presence of the appellant in line with the above provisions of the CPC in order to be arraigned as required before raising their preliminary objection in which they attacked both the competence of the charge and the trial court. If there is any earlier decision of this Court which suggests otherwise, that the objection must be heard first before the reading of the charge to the accused, and that the later’s presence is unnecessary, it will surely be contrary to the above statutory Provision of the CPA and therefore per-incuriam. It is only when an accused person pleads to the charge in the process of an arraignment that he has put himself to trial, which will then commence. It is also at that stage that he will be required to make any commence. It is also at that stage that he will be required to make any objection.”
In the light of the current state of the law, the Senate should stop encouraging any Nigerian, no matter how highly placed, to treat the criminal justice system with disdain. Furthermore, the Senate should appreciate that the limit of its powers under a Constitution that is anchored on the rule of law. On her own part Senator Iyabo Obasanjo-Bello should be advised to appear in Court and defend the criminal charge filed against her. Until that is done her preliminary objection is of no moment.
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