ELECHI v. STATE
(2022)LCN/16465(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, February 16, 2022
CA/PH/41CR/2018(R)
Before Our Lordships:
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Muhammed Lawal Abubakar Justice of the Court of Appeal
Between
CHINEDU ELECHI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
AN APPLICATION FOR LEAVE URGING THE COURT TO D=EXERCISE ITS DISCRETIONARY POWER
An application for leave, is a prayer, wherein, the applicant is urging the Court to exercise its discretionary power. The appellant/applicant has a duty to make available all relevant materials in the application to enable the Court to exercise its discretion, judicially. Where, therefore, as in this matter, relevant materials are not made available to the Court, the application will be refused, as leave is not granted, as a matter of course. See Tabai & Anor. v. The Vice Chancellor, R. S. U. S. and T. &Ors. [1997] 11 NWLR (Pt. 529) 373. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A
IN ORDER TO OBTAIN JUDGMENT ONE MUST PROVE BY AFFIDAVIT EVIDENCE
In a case fought on affidavit evidence, the applicant, in order to obtain judgment must prove by affidavit evidence, the reliefs sought, otherwise the claim will fail. The affidavit evidence would strengthen the facts or stories and must be cogent and substantial to create in the mind of the Court, a belief that the applicant has established the assertion contended by him. See A-G. Anambra State v. A-G., Federation [2005] 9 NWLR (Pt. 931) 572 at 634. OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgement): On 26/01/2022, this Court entertained arguments of learned counsel on a motion filed by the appellant/applicant on 06/05/2020. C. H. Chibueze Esq. appeared for the appellant/applicant and he argued the motion by relying on the written address filed on 22/03/2021. He urged the Court to grant the application.
J. A. Igwe Esq. appeared for the respondent. He warned the Court that the respondent’s opposition to the motion before the Court is signposted by a counter-affidavit filed on 22/05/2020, followed with a written address, filed on 04/10/2021, which he adopted. He urged the Court to dismiss the application.
The motion in contention, prays the Court to make:
“1. An Order granting leave to the Appellant/Applicant to raise and argue on appeal, the issue of non inclusion of Exhibit P (alleged confessional statement) in the information before the Court below as required by law.
2. An Order granting leave to the Appellant/Applicant to amend his notice of appeal in terms of the schedule of amendment and proposed amended notice of appeal attached hereto as Exhibit Band C respectively.
3. An Order deeming as properly filed and served the amended notice of appeal filed alongside this application.”
The grounds advanced for the application are:
“1. The present counsel to the Appellant was not the Counsel who appeared for the Appellant during trial.
2. That upon service of the Record of Appeal, the Appellant’s counsel discovered that Exhibit P (alleged confessional statement) was not attached to the information as required by law.
3. That leave of the Honourable Court is required to raise the issue of none inclusion of Exhibit P (alleged confessional statement) for the first time on appeal.
4. There is need to amend the Notice of Appeal to enable the Appellant include a ground of appeal challenging the non inclusion of Exhibit P (alleged confessional statement) to the information/proof of evidence.”
The deponent to the affidavit in support of the application is one Hope Akpan, who introduced herself as a Litigation Secretary, in the Law Firm of C. H. Chibueze & Associates, now representing the appellant/applicant in this appeal. In her affidavit, she testified as follows:
“3. That I was informed by C. H. Chibueze, Esq,. the principal solicitor in the law firm of C. H. Chibueze& Associates and who was personally briefed to represent the Appellant at No. 30 Igboukwu Street, D/Line, Port Harcourt on the 4th day of May, 2020 at about 3:00 pm and I verily believe him to be true and correct as follows:
a. That he was briefed by the Appellant to initiate this appeal after the judgment was delivered at the Court below.
b. That he was not the lawyer who represented the Appellant at the trial stage.
c. That the Notice of Appeal was filed on 19th day of June 2018 and a copy of the said Notice of Appeal attached hereto as Exhibit A.
d. That in the course of reviewing the case file, he discovered that the alleged confessional statement comprised in Exhibit P was not included in the proof of evidence, and not served on the appellant.
e. That the issue of none inclusion of Exhibit P (alleged confessional statement) to the information/proof of evidence and non service thereof on the appellant was not canvassed in the Court below.
f. That failure to include the alleged confessional in the proof of evidence and non service thereof on the Appellant rob the appellant of his right to fair hearing.
g. That there is need to amend the Notice of Appeal to include a ground of appeal challenging the reliance on Exhibit P in convicting the appellant when the said document was not served on the appellant and not included in the proof of evidence.
4. The Schedule of amendment of the notice of appeal is attached hereto and marked Exhibit B.
5. That the proposed amended notice of appeal is hereto attached as Exhibit C.
6. That amendment of the notice of appeal will enable the Appellant/Applicant include a ground of appeal challenging the reliance on Exhibit P in convicting the appellant when the said document was not served on the appellant and not included in the proof of evidence.
7. That this application will not prejudice the Respondent.”
The respondent’s counter-affidavit was deposed to by Mrs. C. I. Oba, of the Rivers State Ministry of Justice, Port Harcourt and she testified as follows:
“1. That I am a Confidential Secretary in the Department of Public Prosecutions, Hon. Attorney-General’s Chambers, Rivers State Ministry of Justice, Port Harcourt; and I have the responsibility of receiving and registering case files including police case files and Court processes in respect of criminal matters for the necessary action of the learned Director of Public Prosecutions; and that I have the authority of the office of the Hon. Attorney-General of Rivers State to depose to this counter-affidavit.
2. That by virtue of my aforesaid office, I am conversant with the facts and circumstances of this matter having read through the case file and all its contents including the motion under reference.
…
4. That while a new date for hearing is being awaited, the Appellant/Applicant brought the motion under reference seeking for the reliefs therein contained and in answer to the averments in his affidavit in support of the motion, the Respondent states as follows:
a. That save paragraphs 1, 2, 3(a)(b)(c) & (e) of the said affidavit, all other depositions therein are not true and are hereby denied seriatim.
b. That all through the trial at the trial Court, the Appellant/Applicant was ably represented by a counsel of his choice in the person of A. Adams, Esq.
c. That against the averment in paragraph 3(d) of the affidavit, the Appellant/ Applicant’s counsel has been with the case file and had studied its contents including the Record of Appeal and the judgment appealed against before he filed the Brief of Argument.
d. That the Appellant was present with his counsel at the trial when Exhibit P was tendered in evidence and raised no objection to its admissibility on any ground at all.
e. That contrary to the averment in paragraph 3(f) & (g) of the Applicant’s affidavit, the Respondent avers that the Applicant had enough time and facility allowed him at the trial to defend himself and was never in any way denied fair hearing and there is no need for any amendment on the ground of Exhibit P.
(f) is omitted in the numbering).
g. That contrary to the deposition in paragraph 8 of the Applicant’s affidavit, the Respondent avers that the grant of this application will overreach the Applicant at the detriment of the Respondent.
h. That the Appellant/Applicant had already argued the issue of Exhibit P in his Brief of Argument and it was after the Respondent filed its Brief of Argument responding to the Appellant/Applicant’s argument on Exhibit P that he brought this application. We refer to the Briefs of Argument by the parties.
i. That the non-inclusion of the Exhibit P in the Proofs of Evidence was not an act of ambush but due to the fact that the Applicant made numerous statements to the police and that was inadvertently omitted and it did not occasion a Miscarriage of Justice in any way.
j. That thought Exhibit P was not formally attached as part of the Proofs of Evidence, it was tendered in the open Court at the trial and was customarily shown to the Appellant/Applicant and he raised no objection.
5. That Proofs of Evidence is not but a summary of the case of the prosecution.”
In the written address, filed in argument of the motion on 22/05/2021, Sir. C. H. Chibueze, counsel for the appellant/applicant indicated that the question to be answered is whether in the interest of justice to grant the reliefs stated in the motion.
Learned counsel recounted the facts deposed to in the affidavit in support of the motion and submitted that the question or issue sought to be raised for the first time on appeal is substantial, in law. As no further evidence is required to be adduced, he submitted that the Court should grant the application, but with leave sought and obtained. He relied on the cases of Ajuwon v. Adeoti [1990] 2 NWLR (Pt. 132) 271 at 284 and Agbaje v. Adigun [1993] 1 NWLR (Pt. 269) 261. The Court was advised that the appellant/applicant was convicted solely on exhibit P (alleged confessional statement). The non-inclusion of the document in the proof of evidence, in the opinion of learned counsel, was not canvassed before the lower Court. It was pointed out that the current appellant/applicant’s counsel was not the counsel who represented the appellant/applicant, at that stage of trial. It was later that the current counsel for the appellant/applicant discovered the issue, upon reviewing the record of appeal.
Relying on the cases of Okumagba v. Esisi [2005] 4 NWLR (Pt. 916) 501; Ogundoyin v. Adeyemi [2001] 9 NWLR (Pt. 730) 403 and CBN v. Ahmed [2001] 11 NWLR (Pt. 724) 369, it was submitted that sins, inadvertence or mistakes of counsel should not be visited on the appellant/applicant. It was submitted that the non-inclusion of exhibit P in the proof of evidence is a violation of the right to fair hearing(Section 36 of the 1999 Constitution) and Section 386 of the Administration of Criminal Justice Law of Rivers State, 2015. He described the amendment sought as harmless and one, which may be made at any stage of proceedings, which should be granted, as far as it is not overreaching. The Rules of Court allows the grant of the application, learned counsel reminded the Court. Reference was made to Order 7 Rule 8 of the Court of Appeal Rules, 2016; Okpala v. Ibeme [1989] 20 N. S. C. C. (Pt. 1) 567; First Bank of Nig. Plc v. May Medical Clinics and Diagnostic [2001] 27 WRN 162 etc. He insisted that the amendment sought is a fundamental right of the appellant/applicant.
He prayed the Court to grant the application.
In the written address filed on behalf of the respondent, C.B. Ekeh Esq. recalled what transpired in the appeal, before the application being determined was filed, by the appellant/applicant. Learned counsel submitted that the appellant/applicant was not denied fair hearing at the trial. In view of the fact that the appellant/applicant was represented by learned counsel, at the trial, and no objection was raised when exhibit P was to be tendered. He submitted that Section 386 of the Administration of Criminal Justice Law of Rivers State, 2015 (ACJL) only provides what information should contain, but did not provide that an inadvertent omission of any of the items specified is fatal to the case of the prosecution or should result in acquittal, despite overwhelming evidence. The information was filed in 2012. The statute was promulgated in 2015. He is of the view that the ACJL is not applicable to the appeal. The Criminal Procedure Law, Cap. 38, Laws of Rivers State, which was applicable at the time the information was filed, only required that a summary of evidence should be included in the information.
The fact that the current counsel for the appellant/applicant’s counsel at the trial, would not make him know whether his client was served with a copy of exhibit P. Learned counsel insisted that the appellant/applicant had sufficient time to go through the case file and make any observation to form the grounds of his appeal. The appellant/applicant’s counsel also had opportunity to cross-examine the policeman who tendered exhibit P at the trial on the content, nature and manner exhibit P was obtained from the appellant/applicant. Inadvertence, leading to its being omitted in the proof of evidence, will not lead to acquittal, in view of overwhelming evidence.
While the appellant/applicant merely complained that he was denied fair hearing at the trial, respondent’s counsel complained that the appellant/applicant failed to explain how such occasioned miscarriage of justice and that the judgment of the lower Court would have been different if a copy of exhibit P had been included in the proof of evidence.
DETERMINATION OF THE APPLICATION
In the case of Lanre v. State [2019] 3 NWLR (Pt. 1660) 506 at 519, the Court stated that, ordinarily, an appellant/applicant who intends to raise a fresh issue or a new point on appeal is enjoined to seek and obtain leave to do so. Otherwise, where no such leave was previously sought and obtained by the appellant/applicant, to raise the fresh or new point canvassed in any ground of the grounds of appeal, the said ground would be incompetent and liable to be struck-out.
The appellant/applicant seeks the exercise of the discretion of this Court in respect of the application brought before us. As with all exercise of discretion, the Court is expected to discharge that duty judicially and judiciously. Acting judiciously means, (a) proceeding from sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense. Acting judicially is also said to import the consideration of the interests of both sides and weighing them in order to arrive at a just or fair decision. See Agbenyi v. Abo [1994] 7 NWLR (Pt. 359) 735 at 747 and Adejumo v. State [2006] 9 NWLR (Pt. 986) 627 at 643. The discretion is therefore to be exercised so as to do what justice and fair play may require, having regards to the facts and circumstances of the particular case. See Alsthom S.A. v. Saraki (2000) 4 NWLR (Pt. 687) 415.
The appellant/applicant’s request is that the Court should grant leave to amend his notice of appeal, with a view to raising an issue, which was not raised before the lower Court. The application is introduced to this Court under the auspices of Order 7 Rule 8 of the Court of Appeal Rules, 2016(same as in the Court of Appeal Rules, 2021) and the inherent jurisdiction of this Court. Order 7 Rule 8 of the defunct Court of Appeal Rules, 2016 provides that a notice of appeal may be amended by or with leave of the Court, at any time.
The first thing that is striking in the argument of the application is that the appellant/applicant’s counsel submitted that the lower Court convicted the appellant/applicant, based solely on exhibit P (the alleged confessional statement). This is contrary to the notice of appeal, which the same counsel signed and which is exhibited to the affidavit in support of the application, as exhibit A. Ground 4 in exhibit A, states:
“The learned trial judge erred in law by relying substantially on the evidence of PW 4 and exhibit J, P and R in convicting the appellant when their evidence should have been taken as conflicting and unreliable.
PARTICULAR OF ERROR
i. The trial Court cannot without reason pick and choose which is the prosecution witness to believe. See Onubogu V The State (1974) 9 Sc 1 @ 21.
ii. The trial Court believed and preferred the evidence of PW 4 ascorroborating the exhibit R not withstanding substantial defects inherent therein.”
Ground 4 also showed that the basis of the forceful argument of appellant/applicant’s counsel may not be holy. Ground 4 in the notice of appeal filed on 19/06/2018, quoted above, shows that the appellant/applicant already included a complaint about exhibit P in his existing notice of appeal. C. H. Chibueze Esq. signed exhibit A.
It is also clear, therefore, that the assertion of appellant/applicant’s counsel is not true, with due respect, regarding whether the lower Court solely relied on exhibit P to convict the appellant/applicant. There is usually need for candour to be exhibited, where the favour of the Court is sought. Such candour must be exhibited, in complete obviation of the possibility of misdirecting or misinforming the Court, in the quest to obtain an order from the Court.
I have also considered the affidavit filed in support of the application. There is no fact deposed to, therein, showing any reason or giving any explanation, why the issue of non-inclusion of “exhibit P” in the proof of evidence, or its not beingserved on the appellant/applicant, was not raised at the trial. Such objection should have been raised before exhibit P was tendered and admitted as exhibit, at the trial, in my view. The request before this Court is that it should allow an issue, which was not raised before the lower Court, to be raised, afresh, in this Court. The natural question to go in front of both the Court and parties is: why was the issue not raised before the lower Court? Where there is no reason or explanation given for the abstinence, the favour sought from the Court may not be capable of being obtained. Provision of reason(s) or explanation(s) would constitute materials placed before the Court, to excite the Court’s exercise of discretion, in favour of the appellant/applicant.
In the matter before us, there is nothing said or reason given, to explain what happened in the lower Court, which caused the previous counsel to have abstained from raising the issue, now sought to be raised before this Court. This Court is not expected to speculate or act on conjecture, but on facts presented in the nature of evidence before it.
A consideration of the simple request before thisCourt has to avoid determination of issues meant for the hearing of the appeal, even where, as in this matter, parties elected to argue such disparate issues, in seeking to persuade the Court to favour their side of the disputation.
The narration of facts in the affidavit in support of the application suggests that the issue sought to be raised is one arising from procedural approach to the trial, which A. Adams Esq., counsel to the appellant/applicant at the trial, did not object to. In the case of Akpa v. The State [2008] 14 NWLR (Pt. 1106) 72 at 99, the Court stated that if a procedure adopted in a trial Court is consented to by a party, he cannot complain or be heard to complain afterwards or on appeal that the procedure was irregular. See also Akhiwu v. Principal Lotteries Officer, Mid-Western State (1972) 1 All NLR 229.
The appellant/applicant’s counsel also argued that the sin of counsel should not be visited on the litigant. As sound as that principle is, there must, first, be an admission by the appellant/applicant that the erstwhile counsel for the appellant/applicant is, indeed, a sinner, needing judicial ablution, before the principlemay be principal to the consideration of the matter. Visiting the sin of counsel on his client is not permitted by the law Courts. But where a counsel commits a fundamental blunder, which affects his client’s case, the Court will not allow the argument to fly. See Okpe v. Fan Milk Plc [2017] 2 NWLR (Pt. 1549) 282 at 310-31 and Akinpelu v. Adegbore (2008) 10 NWLR (Pt. 1096) 531.
Thus, it is the duty of the appellant/applicant to lead evidence, which will clear the insinuations, sticking, aggressively, out of the affidavit in support of the application, that the named erstwhile appellant/applicant’s counsel, who appeared for the appellant/applicant, at the trial, either deliberately acquiesced with the procedure adopted at the trial Court or made a mistake or any other reason for his action or inaction. See, very importantly, the case of Ekwuruekwu v. State [2020] 4 NWLR (Pt. 1713) 114 at 134-135, (per Eko, J.S.C.), which is illuminating and directional.
An application for leave, is a prayer, wherein, the applicant is urging the Court to exercise its discretionary power. The appellant/applicant has a duty to make available all relevantmaterials in the application to enable the Court to exercise its discretion, judicially. Where, therefore, as in this matter, relevant materials are not made available to the Court, the application will be refused, as leave is not granted, as a matter of course. See Tabai & Anor. v. The Vice Chancellor, R. S. U. S. and T. &Ors. [1997] 11 NWLR (Pt. 529) 373.
In a case fought on affidavit evidence, the applicant, in order to obtain judgment must prove by affidavit evidence, the reliefs sought, otherwise the claim will fail. The affidavit evidence would strengthen the facts or stories and must be cogent and substantial to create in the mind of the Court, a belief that the applicant has established the assertion contended by him. See A-G. Anambra State v. A-G., Federation [2005] 9 NWLR (Pt. 931) 572 at 634.
The appellant/applicant did not establish that he was denied fair hearing at the trial. It is my view that there is no evidential basis for this Court to grant the prayers sought in the application being determined herein. The Court is not enabled to grant the prayers sought. The appellant/applicant’s application is without any merit. It ishereby refused. It is dismissed.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft form, the Ruling just delivered by my learned brother, O. A. Adegbehingbe, JCA in which he adjudged the Appellant’s Motion on Notice filed on 6/05/2020 as unmeritorious.
I really do not have any useful additions to make to the well reasoned decision of my learned brother, and I too dismiss the said motion.
The Appellant motion is accordingly dismissed.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading the draft Ruling just delivered by my learned brother Olabode A. Adegbehingbe J.C.A. and I entirely agreed with him. The Application has no merit.
It is hereby refused/dismissed.
Appearances:
Appellant counsel served through telephone call but absent. For Appellant(s)
Respondent counsel was contacted through telephone call but was not in Court. For Respondent(s)
