CAN A SUBPOENAED WITNESS BE INDICTED FOR AN OFFENCE FOR WHICH HE WAS NOT CHARGED?

DASUKI v. FRN & ORS (2020) LPELR-52287(CA)

JUDGMENT DATE: 16TH DECEMBER, 2020

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: STEPHEN JONAH ADAH, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Criminal Law and Procedure.

FACTS

The appellant, Col. Mohammed Sambo Dasuki appealed against the Judgment (in part) of the Federal High Court, sitting in Abuja, delivered on 25th February, 2020, coram: O.E. Abang, J.

The original parties to the case were the 1st, 2nd and 3rd Respondents. The Charge laid before the Federal High Court against the 2nd and 3rd Respondents was of seven counts.

The appellant was specifically mentioned in counts 1, 2, 3, 4 and 7 of the amended charge as the source and the motivator of the predicate offence in counts 1, 2, 3, 4 and 7 of the charge.

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The appellant was not charged as an accused person neither did he under any circumstance made a plea to any of the counts. In fact, the appellant was not arraigned at the Federal High Court. From the record before the Court, the only formal thing the appellant did in the case was to come in as a subpoenaed witness for the 2nd and 3rd Respondents. Despite the fact that the appellant was not charged before the Federal High Court, he was thoroughly indicted in the judgment of the Federal High Court.

Aggrieved with the said decision, the appellant appealed to the Court of Appeal. The crux of the appeal was the conclusion of the trial Court that the appellant was guilty of criminal breach of trust and corruption.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

1. Whether in the circumstances of this case, there was a violation of breach of right of hearing of the appellant by the lower Court.

2. Whether the lower Court acted without jurisdiction when in analysis, the essential ingredients of the offences of money laundering under Section 15(2) (a) – (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) as constituted in counts 1, 2, 3, 4 and 7 of the charge, the lower Court made pronouncements on the role of the appellant in the predicate offence of criminal breach of trust and corruption that gave birth to the secondary offence of money laundering upon which the 2nd and 3rd respondents stood trial and were convicted and sentenced.

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. The aspect of the judgment of the Federal High Court indicting the appellant was set aside.

RATIOS:

• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: What fair hearing requires and the effect of the absence of fair hearing in a court proceeding; condition for the enforcement of a right to fair hearing
• APPEAL- RIGHT OF APPEAL: Whether a person not charged for any offence but was in court as a subpoenaed witness and was indicted by the court without a hearing has a right to appeal against a breach of his right to fair hearing
• APPEAL- GROUND(S) OF APPEAL: Effect of a ground of appeal from which no issue for determination is formulated

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