DOKITA SANNI & ORS v. COMMISSIONER OF POLICE
(2018)LCN/11795(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/AK/86/2017
RATIO
EQUITY AND THE RULE OF LAW AS CONTAINED IN SECTION 6(6) OF THE 1999 CONSTITUTION
…equity follows the law, and therefore it is obvious that no discretion exists to operate against the law of fairness as enshrined in the Constitution, 1999, Section 6 (6) thereof and the trite procedural laws on the procedure of rendering a Judgment after the closure of the cases of both sides per MOHAMMED AMBI-USI DANJUMA, J.C.A.
AMENDMENT CAN BE MADE BEFORE THE CLOSURE OF A CASE
Amendment could be made at any stage before Judgment where the trial has not been concluded by the closure of the cases of the parties or where an application is made for the re-opening of a closed case by the Defendant and is granted per MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
- DOKITA SANNI
2. DELE ADEWUMI
3. ADEMOLA OYAN
4. ADEBIYI DAUDA
5. TAJUDEEN AGBOOLA Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Justice of Ondo State delivered on the 9th day of January, 2017 in suit No. HOW/SCRA/2016 by which it dismissed the appeal of the Appellants from the Chief Magistrate Court Owo and ordered that the trial of the Appellants as Accused persons continue there at inspite of their no case submission and adjournment granted for delivery of Judgment therein.
This was aborted by a subsequent order for continuation made on a later date by an application to amend the charges as filed. It is against this Judgment that the Appellants appealed to the High Court. The appeal was allowed on the 1st and 2nd Issues raised thereat to wit:
(i) Whether the Administration of Criminal Justice Act 2015 applied to Ondo State and (ii) whether the trial Magistrate Could apply Suo Motu apply the equivalent administration of Justice law of Ondo State to the proceedings;
At the hearing of the appeal, the lower Court, (High Court) resolved the first 2 issues above in favour of the Appellants and resolved the 3rd, 4th and 5th Issues thereat to wit:-
(iii) Whether to allow the Respondent to amend the charges in this case after the Appellants have rested their case on that of the prosecution, addressed the Court and the case had been adjourned for Judgment
(iv) Whether the failure to give Judgment in this case within three (3) months as required by law will not render the judgment given afterwards as Nullity
(v) Whether it is not the abuse of Court process to allow the Respondent to amend the charge in this case; against the Appellants.
The Appellants are irked by the invocation of the Administration of Criminal Justice Law of Ondo State without asking the parties to address on same and also particularly on the continuation of the trial without a Judgment been rendered since his clients had rested their case on a no case submission and Judgment had been reserved. The appellants see it as being forced to defend and that Judgment had been delayed beyond the constitutionally limited period for delivery and that the appeal be allowed.
In accordance with the practice of this Court, the Appellants filed the Appellants Brief of Argument on 13-7-17, but it was deemed filed on 23-1-18 upon application for leave to file out of time and a deeming order granted on 23-1-18.
On its part, the Respondents Brief filed on 2 11 17 was deemed filed on 23 1 18 upon leave granted for regularisation granted on that date. The Appellants Learned Counsel at the hearing of this appeal on 3 5 2018 adopted his clients Brief of Argument by which he raised the following five (5) Issues for determination, viz
(a). Whether by resolving the 1st and 2nd Issues in favour of the Appellants the learned High Court Judge ought not to have allowed the Appellants appeal.
(b). Whether the Learned High Court Judge ought to have restricted himself to the issues raised on appeal
(c). Whether the Learned High Court Judge is allowed to raise issue Motu without allowing the parties to make any contributions before taking a decision on the Issue.
(d). Whether the appellants can be forced to continue with the trial of this case after resting their case on that of the prosecution and addressing the Court
(e). Whether there is any justification for not giving Judgment in this case within three (3) months as required by law
An Appellants reply Brief was also filed and deemed filed on 23 1 18.
On its part, the Respondent by its Brief of Argument filed on 13 9 17 and deemed filed on 23 1 18 raised a preliminary objection to the appeal.
According to its Learned Counsel, the points therein the objection needed be settled before the hearing of the substantive appeal on its merit.
The Issues raised are:
(a) Whether or not the reliefs sought by the Appellants are grantable.
(b) Whether or not ground three of the Memorandum
and grounds of Appeal is competent.
The Learned Counsel had argued that the reliefs sought by the Appellants to wit a declaration that the trial was a nullity and an order that the Appellant was not guilty and should be discharged and acquitted are incompatible and cannot be granted at an interlocutory appeal.
It is also argued that there is no legal basis as they do not flow from the decision complained against; that the reliefs be struck out. Reference is made toM.B.N Plc V. Nwobodo (2005) 14 NWLR (Pt. 949) 379.
That the stage had not been reached to declare the proceedings a nullity, Counsel enumerates the grounds for so declaring a proceedings or suit a nullity and on the grounds thus:-
1. Where the very foundation of the trial, that is the charge or information is null and void;
2. Where the trial Court has no jurisdiction to try the offence.
3. Where there is serious blunder or error by the Judge in the course of the trial.
He relies on Jiddun V. Abuna (2000) FWLR (Pt. 24) 1405 to contend that none of the above conditions existed and therefore the application for the relief was incompetent.
That for a Court to make an order of discharge and acquittal the trial must have been concluded and the rights of the parties determined and the Court then becomes functus officio. Refers to Nwekeson Vs Onuigho (1991) 3 NWLR (Pt 178) 125; Okon V. Ekanem (2002) 15 NWLR (Pt. 789) 106, (2003) FWLR (Pt. 136) 981 Dickson V. Okon (2003) FWLR (Pt. 136); and a host of other cases.
That the reliefs sought in the application were incompetent.
That the grounds No. 3 of the Notice of Appeal was incompetent for not arising from the Ruling delivered.
Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) Bhojsons Plc Vs Daniel Kalio (2006) 5 NWLR (Pt. 923) 330; Iloabuchi Vs Iluobuchi (2000) 5 NWLR (Pt. 656) 194; Egbe V. Alhaji (1990) 1 NWLR (Pt. 128) 546) @ 490 were relied upon.
That the Issues D and E of the appellant be struck out as incompetent, not having arisen from a competent ground of Appeal. Ngige V. Obi (2006) 14 NWLR (Pt. 999) 1 @ 165 relied upon.
On the whole, it was contended that an incompetent ground of appeal cannot ground a competent issue for determination.
The Appellants Reply Brief of Argument responds to the Respondents brief and objection by also objecting to the Respondents Brief of argument in its entirety as being incompetent as it was filed out of time and without leave of this Court, the Learned Counsel proceeded to submit that even if the respondents Brief of Argument was filed within time, the Grounds of Appeal clearly arose from the decision and the Appeal was, therefore, competent.
RESOLUTION OF THE PRELIMINARY OBJECTION
I have perused the objection and the grounds thereof. I do not agree that an objection based on the merit or otherwise of a relief sought; that is whether the relief could be granted or not is such a circumstance that would be adjudged to be a basis to raise a preliminary objection.
An objection is raised to the competence of the suit or action or the jurisdiction of a Court to adjudicate a matter and not on whether a party will be entitled to a relief sought for.
That at the end of a case, the relief claimed may not be granted for lack of proof or entitlement does not ipso facto remove the fact of the competence of the suit or application or jurisdiction of the Court in the case.
The other aspect is that relating to Issues not arising from a Ground of appeal. Where an Issue does not so arise from a ground of appeal such an Issue is adjudged incompetent and liable to be struck out or disregarded. This does not affect the competence of the action itself if there is no vitiating factor.
In the same manner, an incompetent Ground of Appeal may be struck out for not arising from the decision appealed; this does not make the appeal incompetent if there are other grounds of appeal, be it an omnibus Ground of Appeal.
In the instant preliminary objection, I am unable to see any merit in the objection as raised at all. It is even worse where a Notice of objection is anchored on a complaint on Grounds of appeal that are discernibly seen to arise from the ratio of the Judgment of Court appealed. In this case the Appellant complains in his Notice of Appeal about Judgment given beyond 3 months of the reservation of Judgment on a no case submission and that approving that stance as done by the (lower) Court was wrong.
Ex-facie the Judgment or Ruling and proceedings the Ground of appeal properly emanated from the Ruling/decision complained of. I do not see the Grounds 3 as incompetent, nor the Issue arising there from.
The objection is overruled for lack of merit. It is dismissed.
SUBSTANTIVE APPEAL
Arguing Issues One and Two, the Appellants Counsel submitted that having resolved the 1st and 2nd Issues raised before the Court, the lower Court ought to have allowed the appeal, without more. That it ought to have restricted itself to the issues raised on appeal to it.
The Learned Counsel refers toJ. A. Aderibigbe & 1 Or Vs Tiamiyu Abidoye(2009)173 LRCN 60 where it was so held; Udom Gabriel Emmanuel Vs Umana Okon Umana & 5 Ors (2016) 256 LRCN 32 @ 82 … on the need to restrict Judgment to Issues raised by the parties was relied upon.
On the 3rd Issue, whether the learned High Court Judge was right to have raised suo motu issues without allowing parties to make contributions before taking a decision on same.
The learned Counsel argued that the reference and reliance on the Administration of Criminal Justice Act of Ondo State, without asking for address by the parties was wrong.
Indeed complains against all the statute laws referred to and that the decision anchored on that reliance without an address from the parties be set aside. The Learned Counsel refers to Dalek Nigeria Limited v. Oil Mineral Producing Commission (Ompadec) (2007) 146 LRCN 869 and Sunday Adonri V. Madam Funmike Ojo Osagie (1994) 18 LRCN 203 in aid of this contention.
On the 4th Issue, whether the Appellants can be forced to continue with the trial of this case after resting their case on that of the prosecution, addressed the Court and adjourned for Judgment.
That the prosecutions case was closed on 7th March, 2016 after calling its second witness and the Defendants/appellants on 19th April when they were supposed to open their defence decided to rest their case on that of the prosecution.
The case was adjourned for Judgment to be delivered on 18th May, 2016 by the Chief Magistrate but only to have an application brought on 16th August, 2016, about 4 months after for an amendment of the charge. That the grant of that prayer was wrong, and so also its endorsement by the High Court; the learned Counsel relies on the Administrators/Executors of the Estate of General Sanni Abacha (Deceased) Vs Samuel David EkeSpiff & 3 Ors (2009) 171 LRCN 43 to contend that once a Defendant rests his case on the Plaintiffs case, it may mean that:
1. The Plaintiff has not made out a case for the Defendant to answer or respond to; or
2. That the Defendant admits the facts of the case as stated by the Plaintiff; or
3. That he has a complete defence in answer to the plaintiffs case….
10
and that in the circumstances of the above meanings, whether the Appellant can be forced to take a fresh plea and give evidence. That it will be unconstitutional to amend or frame a new charge after the Appellants have rested their case and addressed the Court and Judgment reserved.
That amounted to breach of the right of fair hearing. That this issue be resolved in favour of the Appellant.
On the 5th issue, whether there was any justification for not giving Judgment in this case within three (3) months as required by law, the Learned counsel refers to Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria that enjoins that Judgment be delivered within 90 days after the conclusion of evidence and final address. He refers to Section 294 (5) that says the decision shall be valid even if given after three months, provided there is no miscarriage of Justice.
The Learned Counsel contended that since the lower (High Court) Court Judge deprecated the delay as being an act of gross negligence of duty and unfortunate abandonment of responsibility on the part of the trial Magistrate, that amounted to a Miscarriage of Justice.
The Learned Counsel also relies on SAVANNAH BANK OF NIGERIA V. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 175 LRCN 154 to contend that failure to deliver decision or Ruling within 3 months renders the decision a nullity.
It was therefore urged that the entirety of the Ruling delivered amending the charge after 3 months of reservation of Judgment was a nullity; and that the appeal should be allowed.
In Reply, the respondent argued and upon his sole Issue thus, whether the lower Court was right in upholding the ruling of the trial Magistrate allowing the prosecution to amend its charge. that the Magistrate Courts decision was rightly upheld; Learned Counsel argued that the Evidence Act 2011, by Section 122 (2) (a) and (b) allows the Courts to take Judicial Notice of Laws, Public Acts passed by the National Assembly and all subsidiary legislations made under them or Laws enacted by the State House of Assembly.
That the Court rightly took Judicial Notice of the Administration of Criminal justice law of Ondo State 2015 which applied to the state and in the case. That was the applicable law for the amendment sought as the commencement date was 30th December, 2015
He relies on OWATA V. ANYIGOR (1993) 2 NWLR (Pt. 276) 380 @ 391 G, 392 E and 395 D E to the effect that the procedural law governing the trial of an action is the adjectival law in force at the time of the trial of an action, unless there is a provision to the contrary.
It was also argued that the Court was right in holding that in the absence of the indication of a Rule or Law under which an application is brought or even if a wrong law is relied upon, the Court would still proceed on the merit, so long as a remedy is provided under the common law or equity. That it is not fatal and the applications will be proceeded on its merit as done in the aforesaid case which relied on Falobi V. Falobi (1976) 9 10 Sc 1; Majekodunmi V WAPCO LTD (1992) 1 NWLR (Pt. 219) 566.
It was also argued that the relief granted by the amendment was an equitable relief based on discretion of the Court. That equity follows the law and looks at intent rather than the form. That it should be upheld.
Finally, it was argued that findings of facts was made concurrently by the two Courts and such are rarely upset unless exceptional circumstances are shown such as:
- The findings cannot be supported by evidence
or are perverse or
2. There was a miscarriage of justice; or
3. The lower Courts over looked some principles of law or procedure. Relies on Sokwo V. Kpongbo (2008) ALL FWLR (Pt. 410) 680 @ Page 695 696 Paragraphs H A Page 697 A B.
That the Appellant had not shown any Miscarriage of Justice or violation of any principle of law or procedure to show any exceptional circumstances upon which this Court can interfere in the concurrent findings of the lower Courts in the instant case.
That the appeal be dismissed as incompetent, frivolous for want of grantable reliefs and that the suit is aimed at harassing and frustrating the proceedings as after all the main relief can be conveniently argued in the final decision to be arrived at the end of the trial.
I have perused the record of Appeal alongside the Briefs of Argument as filed and adopted, I think that the Sole issue formulated by the Respondent will sufficiently and effectively determine this appeal as it encompasses all the Appellants two 2 Issues.
I have no difficulty in agreeing with the Respondents Learned Counsel that the provisions of S.122 (2) (a) and (b) of the Evidence Act amply allows the Courts to take Judicial Notice of laws enacted by the National Assembly and States House of Assembly.
In that respect, therefore, the invocation of the Administration of Criminal Justice Act of 2015 and the equivalent law at the State Level being that of Ondo State and the Criminal Code of Ondo State could be resorted to Suo Motu by the Court.
It is not an Issue of Law newly raised warranting calling Counsel to address on same. The Appellants contention that it was a vitiating reason to nullify the decision appealed for endorsing it is without merit. The lower Court, was in any case not wrong to have held and/or endorsed the view that the Administration of Criminal Justice Law of 2015, Ondo State was applicable even though it was applied Suo Motu. That is to say the law could be invoked where appropriate and even Suo Motu.
Issue one of the appellant is resolved against the Appellants.
On the second Issue, it is instructive that the Appellants had elected to rely on the plaintiffs case. That is to say, they had opened and closed their Defence by adopting the facts as presented by the Plaintiff.
It was therefore obligatory of the trial Chief Magistrate to proceed to deliver his Judgment on the facts disclosed by the evidence as laid before her and on the date fixed for Judgment or on any other date fixed upon good reason for adjournment as was probably done when the case was first adjourned.
To superimpose an application for amendment because an amendment could be made at any time before Judgment was wrong in the circumstances of this case; Amendment could be made at any stage before Judgment where the trial has not been concluded by the closure of the cases of the parties or where an application is made for the re-opening of a closed case by the Defendant and is granted. In that scenario, the proceedings is ongoing and no date has been fixed for Judgment upon the closure of hearing of evidence yet.
Here, the trial magistrates duty was limited to the delivery of Judgment and no more.
The application for amendment of the charge or framing of a new charge as made was in breach of the right of fair trial, in my view. It was in breach of the procedure of trial and prejudicial to the Appellant. Indeed, it smarked of compelling an Accused person to resile from his no case submission which he is entitled to make in any trial.
Without prejudice to the right of a prosecutor to file subsequent charges in a separate and distinct trial upon which the Appellant may be arraigned for a fresh plea, where in an ongoing trial may necessitate amendments, his right to have a determination of the merit of the prosecution subject of this appeal cannot lawfully be truncated other than by withdrawal or Nolle prosequi entered.
A hotchpot cannot be created of that prosecution by juxtaposing fresh charges or counts or amendment of the particulars in any manner as sought and granted.
The endorsement of that exercise was wrong.
The Respondent had sought to argue that the amendment was an exercise in equitable jurisdiction and discretion; it cannot be. As rightly conceded, by the Learned Counsel to the Respondent, equity follows the law, and therefore it is obvious that no discretion exists to operate against the law of fairness as enshrined in the Constitution, 1999, Section 6 (6) thereof and the trite procedural laws on the procedure of rendering a Judgment after the closure of the cases of both sides.
It was also sought to be argued by the Respondents Counsel that there existed concurrent findings of facts of the two lower Courts that should not be interfered with except on exceptional circumstances shown.
There is no exceptional circumstance shown in this case. Indeed, there were no facts upon which findings were concurrently found upon other than the fact that Judgment was the next inevitable thing to do, case having closed and date fixed for that matter and purpose.
To do otherwise will be oppressive and amount to miscarriage of Justice. Miscarriage of Justice means Justice misapplied to the detriment of one of the parties, particularly a defendant as in this case who is entitled to have the decision given in one way or the other and who is entitled to have the Criminal charge against him determined expeditiously and within reasonable time.
Was the interpolation of amendment not intended to hang their fate in the balance for as long as possible as a punishment, with all inconveniences and possible pre-conviction remands that could be beyond the punishment even if convicted or add up to such punishment in the event of proof
In this wise, there is both a Miscarriage of justice and the overlooking of principles of law and procedure that guides when Judgment must be given or amendments to charges may be made.
It is for the above and the additional reason that the decision of the Chief Magistrate Court was not one that was rendered within 90 days from the conclusion of evidence and address as made.
It was a decision that violated S. 294 (1) the 1999 Constitution. I do agree with the Appellants that, that decision was not only wrong but a nullity as Miscarriage of Justice had been occasioned to the appellants, as their constitutional right to have their right and obligations determined within 90 days pursuant to law had been breached. See Section 294 (1) of the Constitution, 1999, FRN.
The null Ruling ought to have been set aside, whatever the subject of same was.
Accordingly, the Appellants Issue 2 is resolved in their favour and against the Respondent.
Ultimately, the Respondents lone issue is resolved against it and in favour of the Appellants.
The consequence of the above resolution is that the appeal is pregnant with merit and succeeds.
Accordingly, the Judgment of the High Court of Justice Ondo State sitting at Owo, in Suit No. HOW/SCRA/2016 delivered on 9th January, 2017 is set aside, and the trial Chief Magistrate Owo in Suit MOW/106C/2014 shall no longer proceed with the trial of the Appellants herein upon the amendment granted.
2. The learned trial Chief Magistrate shall, however proceed with the case proceeding from the point of fact of closure of the Defendants case and address as made or otherwise discharge them accordingly, as the trial Court may see fit in accordance to law and the facts led in evidence.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in advance, the leading judgment delivered by my learned brother: Mohammed A. Danjuma, JCA. I endorse in toto, the reasoning and conclusion in it. I too allow the appeal in the manner decreed in the judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read in draft the lead Judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA just delivered. My Lord had painstakingly considered and meticulously dealt with all the issues raised in the appeal. I entirely agree with his Lordships lucid analysis leading to the conclusion reached therein that this appeal is meritorious and ought to be allowed. I adopt same as mine and I also allow the appeal. I shall abide by the consequential orders made in the lead judgment including the order on costs.
Appearances:
Tokunbo Aderinboye, Esq.For Appellant(s)
Wale Bamishile, Esq. (Principal Legal Officer, Ondo State Ministry of Justice, Akure)For Respondent(s)
Appearances
Tokunbo Aderinboye, Esq.For Appellant
AND
Wale Bamishile, Esq. (Principal Legal Officer, Ondo State Ministry of Justice, Akure)For Respondent
