ERIC OJO ABISOYE v. THE STATE
(2016)LCN/8234(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2016
CA/AK/156ca/2012
RATIO
APPEAL: RETRIAL; THE DUTY OF THE COURT TO ORDER A RETRIAL IN SITUATIONS WHERE THE JUDGEMENT OF COURT IS SAID TO BE LOST
In situations where the judgment of Court is said to be lost or the record of proceedings or part thereof are missing, the Courts have always leaned towards setting aside the lost or missing judgment on the circumstances of the case, ordered a retrial unless such order of retrial will be oppressive.
However, Justice is a four-way traffic; (1) Justice to the Accused. (2) Justice to the State. (3) to the Victim and (4) to the society at large. I appreciate that even in civil cases a retrial may be ordered. See the cases of Okoshi v. Animkwoi (2003) 18 NWLR (Pt. 851) page 1 at page 23 – 24 per Niki, Tobi, JSC; Akinmolaring v. Yeyebinu (1975) NWLR 45. In Heasting W.A Ltd v. Weding Eng. Co. Retrial was ordered in a civil case on the Application of the Appellant who had done all it takes by paying for the records of proceedings, which was not completely transmitted. His Constitutional right of Appeal had to be protected. Katsina Alu – JCA, as he then was stated thus at page 99 of the Report: “I have no doubt whatsoever that the only order that may be consistent with the Appellant’s Constitutional right of Appeal as provided by Section 22 of the 1979 Constitution is to give him another opportunity to start all over so that his right of appeal which he was deprived of may be restored if the result of the retrial warrants.”
The Courts have a duty to investigate and discover what in any particular case will satisfy the interest and demands of justice and the interest will certainly be dictated by the peculiar facts and the surrounding circumstances of each case. Not having scrupulously kept the record of proceedings, thus making the Record transmitted incomplete, the trial had been rendered a nullity. See Ogidi v. The State (2005) 5 NWLR Pt. 918, page 285 (Supreme Court). Being a nullity, it is like nothing had been done. It shall start afresh, as the fault appears not to be that of the Respondent. The Courts should be encouraged by the State to punish violators of duties or people who deliberately or carelessly abort or attempt to subvert Justice. There are relevant penal provisions in our corpus juris. The causes of the cancer or gangrene should be attacked. The Appellant’s Counsel, had in the Appellant’s Reply Brief on points of law filed on 5/1/16 urged that a retrial may be ordered and a time frame given for a re-arraignment within a specific time else an order of discharge be made. I agree. As afterall, as the Supreme Court pointed out in Adekeye & Ors v. Akin-Olugbade (1987) 2 N.S.C.C, 865 at 877 per Beigore, JSC in his concurring Judgment. “The raison deter of the Court trying a case is to do justice between parties. In our own background, apart from obeying the law, justice implies in a litigious matter, the settling of dispute between parties, Anything short of this can be dangerous to the integrity of the Court and impede confidence in trying Issues.” It is this desire to strive to settle disputes between contending parties on the merit that will in this circumstance necessitate the mellowing of the consideration of the interest of the other party in having his fate determined expeditiously, as the prosecutor/Respondent had not been shown to be responsible for the absence/disappearance of the Ruling of the trial Court, the cause of the protraction of this appeal. Now the law as stated by the Supreme Court in Okochi v. Animkwo (2003) 18 NWLR parts 851 – 852 page 1 at 23 is this:-
“As an Appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An Appellate Court must be wary to hear an appeal in incomplete records and must not hear an appeal on incomplete records unless the parties by consent agree that the appeal should be heard. And such a consent which will be a basis for a successful defence of waiver in the event of retraction on the part of any of the parties must be recorded by the Appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision. And an Appellate Court can only take it is very obvious and clear circumstances.
Where there is doubt in the mind of the Court as to the materiality or otherwise of the record, the doubt must be resolved against the hearing of the appeal in the interest of Justice. In such a situation other efforts should be made to procure the missing portion of the record.
Where all diligent efforts to procure the missing part of the record fails, the Court should take the most painful decision of ordering a re-trial in the matter if the missing portion of the record is material to the appeal.
This must be a decision of last report which must be taken after all efforts at locating the missing portion of the record fails. Although the decision to order a retrial will protract the litigation, an Appellate Court has no option in the matter. It is a better evil, if I may use that expression unguardedly, for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on incomplete record.”
This Court in the Registered Trustees of International Society for Krishna Consciousness v. Ketson Complex International Limited & Anor (2015) LPELR 25 7gG (CA) decided on Wednesday 11th November 2015 in Suit CA/B/260/2013 per Ibrahim Mohammed Musa Saulawa, JCA, appreciating the need to avoid denial of Justice, stated thus:-
“I think there is a need to re-iterate the trite principle that delay of justice is bad, but denial of justice is undoubtedly worse and outrageous. This is absolutely so, because the denial of justice inflicts excruciating pain, suffering and untold hardship upon those who rely on impartial administration of justice.”
As aptly and most authoritatively held by the Apex Court – “It is for this reason that when a case is not fought and heard on merits the order to be made must be one that does not shut out a party permanently from obtaining justice.” See Ceekay Traders Ltd v. General Motors Coy, Ltd. per Olatawusa, JSC. This trend, I will follow though not oblivious of the law that in glaring and deserving circumstances, a retrial may not be ordered and an appeal could be allowed and an order of discharge made. per. MOHAMMED ADEKUNLE DANJUMA, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
ERIC OJO ABISOYE – Appellant(s)
AND
THE STATE – Respondent(s)
MOHAMMED ADEKUNLE DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice C.E.T Ajama J. of Ondo State High Court sitting at Akure Judicial Division delivered on 25th July, 2012 in charge No; HKA/2C/2007.
The Appellant was charged with two others for the offence of conspiracy to commit murder and murder contrary to Sections 324 and 319 of the Criminal Code Cap 30 Vol. 11 Laws of Ondo State 1978.
The case of the prosecution against the Appellant was that on or about 21st January 2004, the Appellant conspired with 2 others and murdered one Sumaila Salami, known as Alhaji by removing his heart for money ritual.
The Appellant on his part denied doing same. In proof of its case, the prosecution called four (4) witnesses and tendered Exhibits.
While the accused Appellant testified in his defence and called no witness. It was the case of the prosecution that the deceased was a motorcyclist (Okada rider) on hire purchase on the 19th January 2004, one Segun the owner of the motorcycle came to inform the deceased’s father that his son Alhaji disappeared with his motor bike and
is nowhere to be seen with his motorcycle for 2 days. According to his father as PW1, several efforts were made to find him but to no avail and as a result a case of missing person and a stolen motorcycle was reported to the police at Owo Police Station. While still looking for the deceased in order to know the position of the motorbike, one Fatai a welder informed him that he saw the deceased last with the 1st accused person; subsequently, they saw the 1st accused person riding the motorbike and wearing the shirt of the deceased at Oka. They took him to Epinmi Police Station and later transferred to Owo Police Station. The 1st Accused told the Police that the deceased sold the machine to one Henry, the 3rd Accused person at the rate of N60,000 and he was a witness to it and that Alhaji had travelled to Lagos. He further stated that before he and Alhaji sold the motorcycle to Henry who later gave him to do Okada for him. Eric Ojo the 2nd Accused person brought hammer and a blade to chafe the engine number of the motorcycle then he and Alhaji the deceased left home i.e. Owo for Oka Akoko but he did not know his where about. During the investigation the 2nd and
3rd accused person were later arrested. At the Owo Police Station, the 2nd accused/Appellant admits knowing Ayo and Henry but denied conspiring with them to steal the motorcycle. The case was later transferred to SCID, Akure for being case of suspected robbery and missing person.
?By the evidence of PW4 – Sergeant Felix Ologun, the investigating Police Officer, the 2nd accused Appellant confessed his role in the murder of the deceased which led them to the scene where they murdered the deceased. The 3rd accused persons confessed that the deceased, a motorcyclist was hired only to use his heart for a money making ritual, they poisoned the deceased in a cup of drinks and he became unconscious then they took him to a place near Osse River at Igbo-Iwoye; the deceased’s two hands were tied to the back; the 2nd accused/Appellant strangulated him to death. His heart was then operated and removed. In proof of its case the prosecution tendered Exh. B, D & E among other Exhibits. PW3, Dr. Ajewole testified and tendered Exhibit ‘A’ – the Autopsy report. On the part of the Appellant he denied and gave evidence in his defence but did not call any witness.
On 25th July, 2012 the learned trial Judge delivered judgment in the case wherein he found the Appellant and two other accused persons guilty of conspiracy to commit murder and murder and convicted them accordingly.
Dissatisfied with the conviction and sentence, the Appellant at first filed a notice of Appeal on 3rd August, 2012 but later filed and relied on an Amended Notice of Appeal containing (8) grounds of Appeal filed on 3rd June, 2013.
Learned Counsel for the Appellant filed a brief of argument dated 29th May, 2013 on 3rd June, 2013. But later filed and relied on the Appellant’s Amended brief of argument dated and filed on 12th Sept, 2014.
Learned Counsel for the Respondent filed the Respondent’s brief of argument dated 5th June, 2014 and filed same day.
Learned Counsel for the Appellant nominated four (4) issues for determination, they are:
”1. Whether in the circumstances of this case, the trial Court was right in relying on Exhibits D and or B and E in convicting the Appellant of the offences charged. (Grounds 2, 3 and 4 of the Amended Notice of Appeal).
2. Whether the learned trial Judge was right in treating the Appellant’s evidence at the trial an afterthought, particularly in view of the Appellant’s claim of lack of authorship of Exhibit D. (Grounds 5 and 7 of the Amended Notice of Appeal).
3. Whether having regard to the evidence led at the trial, the Respondent proved its case against the Appellant beyond reasonable doubt. (Grounds 1 and 6 of the Amended Notice of Appeal).
4. Whether in view of the Appellant’s right to fair hearing, the trial Court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus (Ground 8 of the Amended Notice of Appeal).”
Learned Counsel for the Respondent also formulated four issues for determination they are:
”1. Whether the learned trial Judge was right to have evaluated Exhibit D amongst other evidence in convicting the Appellant on the offences charged.
2. Whether the learned trial Judge was right in believing the evidence of the Appellant as an afterthought in view of the totality of evidence before the Court.
3. Whether having regard to the evidence led at the trial, the Respondent proved its case against the Appellant beyond reasonable doubt.
4. Whether in view of the Appellant’s right to fair hearing, the trial Court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus.”
Because of the conclusion that I shall shortly reach in this judgment, I shall not discuss the issues raised and argued by the respective learned counsel. I, however express the disapproval of this Court to the scenario created in this matter on appeal. This appeal had to be re-opened and after the first hearing and judgment reserved when it was discovered that the record of appeal was incomplete, as it did not have the Ruling in the proceedings of the learned trial Judge admitting the sole Exhibit ‘D’ relied upon to convict the Appellant herein.
Upon a re-address on the non-existence of the trial Court’s complete record of proceedings of the trial-within-trial culminating in the admission of the Exhibit ‘D’, which is confessional in nature, both the prosecuting and defence Counsel/now Appellant’s and Respondent’s Counsel insisted that it had been transmitted to this Court. The Registrar of the lower Court also wrote in to the same effect. The Ruling admitting the Exhibit cannot be found. The printed Record of Appeal has no such content. Neither was a Supplementary Record to that effect transmitted.
The Appellant has been denied the benefit of having a complete Record of Appeal transmitted to this Court for a just determination of the appeal, therefore, it is the duty of the Court of Appeal not to hear an appeal on incomplete records. In the peculiar circumstances of this case, the voluntariness of Exhibit D was the basis of the case made out against the Appellant.
One of the Grounds of Appeal is that the Judgment was against the weight of evidence, which consisted of the facts surrounding Exhibit ‘D’ and its admissibility and whether it was in fact admitted beyond the ipsi dixit of the parties and the reflection of same in the judgment that is appealed against. All Grounds 1, 2, 3, 4, 5, 6 and 7 are hinged on Exhibit “D”.
In situations where the judgment of Court is said to be lost or the record of proceedings or part thereof are missing, the Courts have always leaned towards setting aside the lost or missing judgment on the circumstances of the case, ordered a retrial unless such order of retrial will be oppressive.
However, Justice is a four-way traffic; (1) Justice to the Accused. (2) Justice to the State. (3) to the Victim and (4) to the society at large.
I appreciate that even in civil cases a retrial may be ordered. See the cases of Okoshi v. Animkwoi (2003) 18 NWLR (Pt. 851) page 1 at page 23 – 24 per Niki, Tobi, JSC; Akinmolaring v. Yeyebinu (1975) NWLR 45.
In Heasting W.A Ltd v. Weding Eng. Co. Retrial was ordered in a civil case on the Application of the Appellant who had done all it takes by paying for the records of proceedings, which was not completely transmitted. His Constitutional right of Appeal had to be protected.
Katsina Alu – JCA, as he then was stated thus at page 99 of the Report:
“I have no doubt whatsoever that the only order that may be consistent with the Appellant’s Constitutional right of Appeal as provided by Section 22 of the 1979 Constitution is to give him another opportunity to start all over so that his right of appeal which he was deprived of may be restored if the result of the retrial warrants.”
The Courts have a duty to investigate and discover what in any particular case will satisfy the interest and demands of justice and the interest will certainly be dictated by the peculiar facts and the surrounding circumstances of each case. Not having scrupulously kept the record of proceedings, thus making the Record transmitted incomplete, the trial had been rendered a nullity.
See Ogidi v. The State (2005) 5 NWLR Pt. 918, page 285 (Supreme Court). Being a nullity, it is like nothing had been done. It shall start afresh, as the fault appears not to be that of the Respondent.
The Courts should be encouraged by the State to punish violators of duties or people who deliberately or carelessly abort or attempt to subvert Justice. There are relevant penal provisions in our corpus juris. The causes of the cancer or gangrene should be attacked.
The Appellant’s Counsel, had in the Appellant’s Reply Brief on points of law filed on 5/1/16 urged that a retrial may be ordered and a time frame given for a re-arraignment within a specific time else an order of discharge be made. I agree.
As afterall, as the Supreme Court pointed out in Adekeye & Ors v. Akin-Olugbade (1987) 2 N.S.C.C, 865 at 877 per Beigore, JSC in his concurring Judgment. “The raison deter of the Court trying a case is to do justice between parties. In our own background, apart from obeying the law, justice implies in a litigious matter, the settling of dispute between parties, Anything short of this can be dangerous to the integrity of the Court and impede confidence in trying Issues.”
It is this desire to strive to settle disputes between contending parties on the merit that will in this circumstance necessitate the mellowing of the consideration of the interest of the other party in having his fate determined expeditiously, as the prosecutor/Respondent had not been shown to be responsible for the absence/disappearance of the Ruling of the trial Court, the cause of the protraction of this appeal. Now the law as stated by the Supreme Court in Okochi v. Animkwo (2003) 18 NWLR parts 851 – 852 page 1 at 23 is this:-
“As an Appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An Appellate Court must be wary to hear an appeal in incomplete records and must not hear an appeal on incomplete records unless the parties by consent agree that the appeal should be heard. And such a consent which will be a basis for a successful defence of waiver in the event of retraction on the part of any of the parties must be recorded by the Appellate Court. There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision. And an Appellate Court can only take it is very obvious and clear circumstances.
Where there is doubt in the mind of the Court as to the materiality or otherwise of the record, the doubt must be resolved against the hearing of the appeal in the interest of Justice. In such a situation other efforts should be made to procure the missing portion of the record.
Where all diligent efforts to procure the missing part of the record fails, the Court should take the most painful decision of ordering a re-trial in the matter if the missing portion of the record is material to the appeal.
This must be a decision of last report which must be taken after all efforts at locating the missing portion of the record fails. Although the decision to order a retrial will protract the litigation, an Appellate Court has no option in the matter. It is a better evil, if I may use that expression unguardedly, for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on incomplete record.”
This Court in the Registered Trustees of International Society for Krishna Consciousness v. Ketson Complex International Limited & Anor (2015) LPELR 25 7gG (CA) decided on Wednesday 11th November 2015 in Suit CA/B/260/2013 per Ibrahim Mohammed Musa Saulawa, JCA, appreciating the need to avoid denial of Justice, stated thus:-
“I think there is a need to re-iterate the trite principle that delay of justice is bad, but denial of justice is undoubtedly worse and outrageous. This is absolutely so, because the denial of justice inflicts excruciating pain, suffering and untold hardship upon those who rely on impartial administration of justice.”
As aptly and most authoritatively held by the Apex Court – “It is for this reason that when a case is not fought and heard on merits the order to be made must be one that does not shut out a party permanently from obtaining justice.” See Ceekay Traders Ltd v. General Motors Coy, Ltd. per Olatawusa, JSC. This trend, I will follow though not oblivious of the law that in glaring and deserving circumstances, a retrial may not be ordered and an appeal could be allowed and an order of discharge made.
In the circumstance and pursuant to the powers of this Court under Section 15 of the Court of Appeal Act Cap C. 36, 2004, I, set aside the conviction and sentence by the trial judge, and order that the Appellant shall be re-arraigned for a re-trial denovo, and within a reasonable time, as provided by the 1999 Constitution of Federal Republic of Nigeria and by a different judge other than Honourable Justice C.E.T. Ajama, as the Honourable Chief Judge of Ondo State may designate.
MOJEED ADEKUNLE OWOADE, J.C.A.:I had the opportunity of reading in draft the judgment delivered by my learned brother Danjuma, JCA. I do agree with the conclusion in the said leading judgment that “the Appellant shall be re-arraigned for a re-trial … within a reasonable time …”
The parties to this appeal had earlier on adopted their briefs of argument and judgment in the appeal was reserved by this Honourable Court. In the course of preparing the judgment, the learned Justice of the Court of Appeal who wrote the leading judgment observed that the Ruling of the trial within trial as to the voluntariness of the Appellants confessional statement was not included in the record of appeal. Consequent on the above development this Court invited Counsel for further addresses.
Both the Counsel for the Appellant and the Respondent thereby filed Written?Addresses and/or supplementary briefs of argument and the Appellant’s Counsel in addition filed an affidavit of verification of Record.
The parties agreed that the transmitted Record of Appeal is incomplete having not encompassed the Ruling of the trial within trial of the Appellant.
Paragraphs 3, 7 and 8 of the Affidavit of verification of Records filed by the Learned Counsel for the Appellant read thus:
“3. That on the following day being the 27th day of October 2015, I went back to the said Court Registry but I was told that all records concerning the above appeal have been transmitted to the Court of Appeal, Akure Division.
7. That at the Court of Appeal, Akure Division, efforts were made to see if the Ruling was indeed in the Court’s Registry or even in the Judges file, but it was not found.
8. That every effort required for tracing the where about of this document has proved unsuccessful …”
The pertinent question that arises in this appeal therefore is whether this Court can come to a conclusion one way or the other on Exhibits which it did not see. The Supreme Court had to consider this important question in the case of Okochi & 2 Ors V. Animkwoi & 2 Ors (2003) 18 NWLR (Pt. 851) 1 where the Apex Court held as follows:-
“As an Appellate Court hears an appeal on the Records before it, it must ensure that the Records are complete as settled by the parties. An Appellate Court must be wary to hear an appeal on incomplete Records unless the parties by consent agree that the appeal should be so heard. And such consent which will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties must be recorded by the Appellate Court.
There could however be another situation where an appeal could be heard when the Records are incomplete. Such a situation will be where the missing part of the Record, in the view of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an Appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing Records, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the Record.
Where all diligent effort to produce the missing Record fails, the Court should take the painful decision of ordering a retrial in the matter if the missing portion of the Record is material to the appeal. This must be a decision of last resort which must be taken after all efforts at locating the missing portion of the Records fails. Although the decision to order a retrial will protract the litigation,
an Appellate Court has no option in the matter. It is a better evil, if I may use that expression unguardedly, for ill litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on incomplete records.”
Furthermore, the principles governing the consideration of an Order of retrial are as follows:-
“(a) that there has been an error in law including the observance of the law of evidence or an irregularity in procedure of such character that on the one hand, the trial was not rendered a nullity and on the other hand, the Court is unable to say that there has been no miscarriage of justice;
(b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant’s;
(c) that there are no special circumstances as would render it oppressive to put the appellant on trial the second time;
(d) that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial;
(e) that to refuse an Order of retrial would occasion a greater miscarriage of justice than to grant it.”
See F.R.N v. Joe Brown Akubueze (2010) 17 NWLR (Pt. 1223) 525 at 540 – 541; Ankwa v. State (1969) 1 All NLR 133; Yahaya v. State (2002) 3 NWLR (Pt. 754) 289, Damina v. State (1995) 8 NWLR (Pt. 415) 513; Okafor v. State (1976) 5 SC 13; Abodundun v. Queen (1959) SCNLR 162.
It is for these reasons that I also subscribe to the reasoning that the proper order to make in the present circumstance of missing record of appeal, is an order for the re-trial of the Appellant by another Judge of the High Court of Justice of Ondo State other than Honourable Justice C.E.T. Ajama.
JAMES SHEHU ABIRIYI, J.C.A.:I read in advance in draft the judgment just delivered by my learned brother Mohammed A. Danjuma, JCA.
I agree entirely with my Lord Danjuma JCA that on the face of the missing portion of the record of appeal, a trial de novo will best meet the justice of the case.
I too set aside the conviction and sentence of the Appellant by the lower Court.
The Appellant shall be re-arraigned for trial de-novo and within a reasonable time as provided by the 1999
Constitution FRN before another Judge other than Honourable Justice C. E.T. Ajama who tried the Appellant.
Appearances
Akinola Oladeji For Appellant
AND
A. A. Oladunmiye (PLO), Min. of Justice Ondo State For Respondent
