ABUTU EMMANUEL v. NIGERIA CUSTOMS SERVICE BOARD
(2018)LCN/12362(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of February, 2018
CA/L/224C/2017
RATIO
COURT AND PROCEDURE: SUMMARY TRIAL
“With regards to the necessity to serve proof of evidence on an accused person, I carefully read the decision in UWAZURUIKE & ORS vs. A.G. FEDERATION (2013) LPELR – 20392 (SC), where the Supreme Court of Nigeria held that summary trials are short and fast, and cases tried summarily are disposed-off in a prompt and simple manner and only entail scanty summary of the evidence the prosecution would rely on. The Court further held that where there is request by the Appellant to be served proof of evidence the proof may be provided. My Lord RHODES – VIVOR JSC said as follows and I quote: ‘Section 277 of the Criminal Procedure Act, provides for summary trials. Summary trials are short and fast. Cases tried summarily are disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of the evidence prosecution would rely on. Put in another way. It is not all the evidence relied on by the prosecution that is made available to the accused person before trial…Where the accused person is not satisfied with the information attached to the charge in a summary trial he is expected to apply to the Court. To order the prosecution to provide more facts to the accused person is entirely in the Courts discretion, see: GAJI vs. STATE (1974-75) 9 NSCC pg. 294’.” PER TIJJANI ABUBAKAR, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“The right to fair hearing/trial is undoubtedly a fundamental right guaranteed by the Constitution of the Federal Republic of Nigeria 1999, (as amended) by the provisions of Section 36 thereof. Commenting on the importance of a similar provision (Section 33) under the extinct 1979 Constitution, the Supreme Court of Nigeria held inSIKIRU ADEWUNMI BAKARE VS. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR – 711 (SC), as follows: ‘Section 33 is an entrenchment in the Constitution of the common law principle of the right to fair hearing which is an inherent and necessary element in the determination of every dispute. The provisions of Sub-section (1) of the Section ensures that the rights and obligations of every citizen is finally and conclusively determined, after hearing the person whose rights and obligations are involved and would be affected by the decision. It is therefore a fundamental and constitutional right of the person whose rights and obligations would be affected by any determination to be heard before such rights and obligation is conclusively determined… Hence the person whose rights and obligations are in issue must be given an opportunity to be heard in defense of such rights by the Court or Tribunal established for the purpose.’…Once there is denial of fair hearing, the proceedings so conducted in breach of fair hearing must be declared a nullity.”PER TIJJANI ABUBAKAR, J.C.A.
Before Their Lordships
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
ABUTU EMMANUELAppellant(s)
AND
NIGERIA CUSTOMS SERVICE BOARDRespondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Federal High Court, sitting in the Lagos Judicial Division delivered on the 29th day of June, 2016 by KURYA J., in charge No: FHC/L/323C/2013.
In the charge filed at the lower Court on the 10th day of September, 2013 and contained at pages 1-3 of the Records of appeal, the Appellant and five others were charged by the Respondent on a five count charge of counterfeiting customs documents and seals contrary to Sections 162 (a) and (d) and 166 of the Customs and Excise Management Act. At the conclusion of trial, the lower Court delivered its judgment found at pages 297A – 297AJ of the Records of Appeal and found the Appellant and the other Accused persons guilty as charged and sentenced him to two (2) years’ imprisonment on each of the five counts and ordered that sentence shall run consecutively meaning that the Appellant was sentenced to ten years, imprisonment.
The Appellant became aggrieved and therefore filed a Notice of Appeal containing six (6) grounds of appeal on the 16th day of October, 2017. The Appellant’s Brief of Argument was filed on the 19th day of October, 2017. The Appellant’s brief of argument was filed by learned counsel Olawale O. Oreyomi. The Respondent’s Brief was filed on the 30th day of October, 2017 by learned counsel Salamatu Yakubu.
The Appellant formulated the following four (4) issues for determination:
1. Whether the trial Judge decision on proof of evidence is not an abuse of discretion. (Distilled from ground 1).
2. Whether there was no miscarriage of justice mended on the Appellant resulting to breach of fair hearing (Distilled from ground 1, 4, 5.).
3. Whether the Appeal Court have inherent power to evaluate the documentary evidence (Exhibit 7) whether it spelt out the element of conspiracy and assembly has held by the trial Judge (distilled from ground (2, 3 & 6).
4. Whether the evidence adduced by the prosecution witnesses are conclusive, corroborated, reliable as held by the trial Judge or hearsay that automatically discharge the Appellant of all the five count charges (distilled from ground 2, 3 & 6).
The Respondent on the other hand formulated sole issue for determination and adopted the Appellant’s issue No. 2 as its second issue for determination. The Respondent’s sole and Appellants second issue adopted by the Respondent are therefore reproduced as follows:
1. Whether the trial Judges decision on proof of evidence, giving Judgment without written address of the Appellant did in anyway affect the standard of proof in the case, and hence led to miscarriage of justice.
2. Whether the evidence adduced by the prosecution witnesses is conclusive collaborative and reliable as held by the trial Judge.
SUBMISSIONS OF COUNSEL
Submitting on issue number One, learned Counsel for the Appellant said the decision reached by the learned trial Judge that the Appellant was not entitled to be served proof of evidence was made in error, and the decision occasioned miscarriage of Justice thereby denying the Appellant fair hearing. Learned counsel relied on the case ofFRN vs. SENATOR ADOLPHUS N. WABARA & 2 ORS (2013) 3 NWLR (pt. 1347) 331 S.C on the need to serve proof of evidence on an accused person. Counsel therefore submitted that the decision of the lower Court that Appellant was not entitled to proof of service was made in error and amounted to an abuse of discretion.
On issue number two, learned counsel for the Appellant said, the decision of the lower Court resulted in serious injustice to the Appellant, learned Counsel said the learned trial Judge relied on the Respondents written address submitting that the written address did not bear the seal and stamp of learned counsel, and dispensed with the written address from the Appellant, Counsel said the decision of the lower Court did not provide common pedestal for the parties before it, therefore leading to substantial miscarriage of justice. Learned counsel for the Appellant said the learned trial Judge displayed some bias against counsel for the Appellant and the Appellant, and that the impression of the Court occasioned failure of justice.
On issue number three, learned counsel for the Appellant argued that there was improper evaluation of the evidence led at the trial. Counsel referred to several instances of improper evaluation and cited the case ofGUARDIAN NEWSPAPERS LTD Vs. REV PASTOR C.J. AJEH (2011) (without further details), to submit that the findings of the lower Court leading to the conviction and sentence of the Appellant were perverse because they were not supported by evidence generated at the trial, and the findings based on wrong evaluation of the evidence led to miscarriage of justice. Counsel for the Appellant also referred to the case of OGWUCHE vs. QUEEN (1959) SCNLR 154 to submit that the Appellant in the instant appeal did not confess to the commission of the offence as shown in Exhibit 7.
On issue number four, learned Counsel said the evidence led by the prosecution at the trial was tainted, biased and incoherent and relied on the case of ISMAIL VS. STATE (2008) 15 NWLR (pt. 1111) 593 and AIGUOREGHIAN vs. STATE (2004) 3 NWLR (pt. 860) 367 S.C to submit that the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt and that in the instant case, the prosecution failed to discharge the burden of proof, and if the learned trial Judge had carefully considered the evidence and the submissions of counsel, the Appellant would have been entitled to be discharged. Learned Counsel for the Appellant also relied on the decision in FRN vs. USMAN (2012) 8 NWLR (pt. 1310) 141 S.C, to submit that the lower Court relied on hearsay evidence to convict the Appellant and urged that the conviction and sentence be set aside.
As I stated earlier the learned Counsel for the Respondent set out two issues for determination. Learned Counsel said the failure to serve proof of evidence on the Appellant did not occasion any miscarriage of justice, learned counsel further submitted that there was no violation of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999(as amended).
Learned Counsel for the Respondent relied on the decision in OKORO VS. STATE (2012) All FWLR (pt. 621), to submit that the refusal to give the Appellant proof of evidence did not occasion any miscarriage of justice and therefore did not constitute abuse of discretion by the Court. Learned counsel urged this Court to so hold.
Counsel for the Respondent also addressed on sentence and said the trial Court was not bound to consider option of fine. Addressing on the confessional statement offered by the Appellant which formed the basis of conviction by the lower Court, counsel referred to the case ofOLABODE vs. STATE (2009) ALL FWLR (pt. 500) Pg. 607 at 621 to submit that the law is well settled that a confessional statement made by an accused person and properly admitted in law is the best guide to trust of the role played by him and upon which alone Court can convict. Counsel urged this Court to hold that exhibit 7 was a voluntary confession sufficient to justify conviction and sentence.
Learned counsel for the Respondent urged this Court to dismiss Appellants appeal, affirm conviction and sentence.
RESOLUTION
The Appellant nominated and argued four issues for determination while the Respondent crafted one and adopted one. I need to state at the onset that in the determination of an appeal, this Court is not expected to allow itself to be tied to the apron strings of fancy submissions by Counsel in their briefs, formulating endless issues for determination for the Court to consider and resolve. This Court has no regimental obligation to follow the issues for determination crafted by parties if the issues are not such that will clearly address the real issues in contention between the parties. This Court may reframe or adopt issues for determination formulated by either of the parties. I have decided to collapse appellant’s issues into just one issue which I am sure will address and determine the real issues in this appeal. The issue identified by me is “Whether the Appellant in the instant appeal suffered violation of right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended)”.
On the issue of fair hearing, the grievance of the Appellant was that he was not served proof of evidence before the commencement of trial, and on the date fixed for trial he made a request for the proof of evidence and the lower Court turned down the request and went ahead with the trial, Appellant felt so doing violated his right to fair hearing. The Respondent contended that there was no violation of the right of the Appellant to fair hearing, that the Appellant was given sufficient time to prepare for his defense.
The right to fair hearing/trial is undoubtedly a fundamental right guaranteed by the Constitution of the Federal Republic of Nigeria 1999, (as amended) by the provisions of Section 36 thereof. Commenting on the importance of a similar provision (Section 33) under the extinct 1979 Constitution, the Supreme Court of Nigeria held inSIKIRU ADEWUNMI BAKARE VS. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR – 711 (SC), as follows:
“Section 33 is an entrenchment in the Constitution of the common law principle of the right to fair hearing which is an inherent and necessary element in the determination of every dispute.
The provisions of Sub-section (1) of the Section ensures that the rights and obligations of every citizen is finally and conclusively determined, after hearing the person whose rights and obligations are involved and would be affected by the decision. It is therefore a fundamental and constitutional right of the person whose rights and obligations would be affected by any determination to be heard before such rights and obligation is conclusively determined… Hence the person whose rights and obligations are in issue must be given an opportunity to be heard in defense of such rights by the Court or Tribunal established for the purpose.”
See also: DINGYADI vs. INEC (2010) 18 NWLR (pt. 1224) 154 SC; and in DUKE Vs. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) LPELR – 19887 (SC), the Court also held as follows:
“By the term “fair hearing”, within the con of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all the parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given the opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if all the parties are given opportunity to state their case even in writing.”
I read the case of GEORGE IKPEKHIA vs. FRN (2014) LPELR-24145 (CA) where the issue dealing with summary trial before the Federal High Court was dealt with meticulously and comprehensively by my learned Brother OSEJI JCA, where he said as follows:
“It is not in doubt that criminal trials are by law conducted summarily in the Federal High Court. In this regard, Section 33(1) and (2) of the Federal High Court Act provides that “33(1). Subject to the provisions of this Section, criminal proceedings before the Court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act shall, with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of all matters falling within the jurisdiction of the Court. (2) Notwithstanding the generality of Subsection (1) of this Section, all criminal causes or matters before the Court shall be tried summarily.”
With regards to the necessity to serve proof of evidence on an accused person, I carefully read the decision in UWAZURUIKE & ORS vs. A.G. FEDERATION (2013) LPELR – 20392 (SC), where the Supreme Court of Nigeria held that summary trials are short and fast, and cases tried summarily are disposed-off in a prompt and simple manner and only entail scanty summary of the evidence the prosecution would rely on. The Court further held that where there is request by the Appellant to be served proof of evidence the proof may be provided. My Lord RHODES – VIVOR JSC said as follows and I quote:
“Section 277 of the Criminal Procedure Act, provides for summary trials. Summary trials are short and fast. Cases tried summarily are disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of the evidence prosecution would rely on. Put in another way. It is not all the evidence relied on by the prosecution that is made available to the accused person before trial…Where the accused person is not satisfied with the information attached to the charge in a summary trial he is expected to apply to the Court. To order the prosecution to provide more facts to the accused person is entirely in the Courts discretion, see: GAJI vs. STATE (1974-75) 9 NSCC pg. 294″.
On the 28th day of January 2014, when trial commenced at the Federal High Court, learned counsel for the 1st to 6th accused persons objected to the commencement of trial on the ground that the accused persons were not served the proof of evidence, the trial Court at pages 118-121 of the records of appeal listened to the objection by learned Court for the accused persons and instantly discountenanced the objection relying on the provisions of Section 33 (2) of the Federal High Court Act Laws of the Federation 2004, the proceedings are reproduced as follows:
All Accused present:
Appearances: J. I. Ajakaiye Esq. Prosecutor.
O. I. Barrah Esq. with A. Ehiemera (Mrs) for 1st, 2nd, 5th and 6th Accused.
M. A. Onah (Esq) for the 4th Accused.
Mark Anthony Anchara for the 3rd Accused.
Ozioma Ahaama for surety to 3rd Accused.
Prosecutor: The matter is for trial. We are ready to proceed
Plaintiff witness 1: Christian, speaks English, sworn by the Holy Bible.
Counsel to 1st, 2nd, 5th and 6th Accused.
Plaintiff witness 1: we are not served with the proof of evidence.
So we cannot proceed with the case today.
Counsel to 4th Accused: Yes I associate myself with the submissions by the learned Counsel to 1st, 2nd, 3rd, 5th and 6th Respondents. We were not served with precise of evidence. All we were served with is the charge sheet.
Counsel to 3rd Accused: I align myself with the Learned Counsel submission. I need the proof of evidence.
Prosecutor: I never promised that I will provide any proof of evidence with the provisions of the Federal High Court Act Section 33(2) Cap F12 LFN 2004. The Jurisdiction of this Court in criminal cases is summary jurisdiction. The requirement of filing proof of evidence is not there; one need not file any proof of evidence. Whatever will be tendered will be made available to the Defense.
Court: When this case was mentioned for hearing, the Learned Counsel to the Accused objected orally to the Court taking plaintiff witness 1 on the grounds that they were not served with the proof of evidence which they cited in the 1999 Federal Constitution which provides that a person charged with a criminal offence still be provided with adequate time and facilities to defend himself.
In his reply, the learned prosecutor argued that the law established the Federal High Court made it a Court of summary jurisdiction citing Section 33 (2) of Cap F12 LFN 2004 which he submits does not provides any proof of evidence.
I agreed with the learned prosecutor that the Federal High Court, been a Court of summary jurisdiction, does not make it mandatory for the Accused to be served with any proof of evidence. It is not even made a requirement.
The Plaintiffs in other words is to say that all the cases we have tried in the Federal High Court without proof of evidence is not and (sic) valid.
In any case this is a Court of Justice. Whether by rule of Court or by establishing the Court of (sic) injustice will be method (sic) either party to the suit, the Court is to do substantial Justice.
I do not see proof of evidence being a requirement in the prosecution of cases before the Federal High Court. Neither do I see any injustice method (sic) the Accused by not serving them with the proof of evidence. I find the preliminary objection fails (sic). The Prosecutor is to proceed with the plaintiff witness 1 just sworn to give evidence.”
The above extract from the proceedings of the lower Court show very clearly that the Appellant in the instant appeal (4th Accused person at the trial Court) was not served proof of evidence, and learned counsel for the Appellant at the proceedings of 28th day of January 2014 requested to be served the proof of evidence, the learned Counsel for the Respondent while addressing the Court in response to the request said in summary trials, the prosecution had no duty to serve proof of evidence, relying on the provisions of Section 33(2) of the Federal High Court act 2004, and the learned trial Judge instantly agreed and discountenanced the objection to the continuation of trial by the Appellant, and ordered that trial should proceed without serving the Appellant with the proof of evidence. A Judge as the acknowledged repository of the law has the duty at all times in the discharge of his judicial duties to parties to ensure that justice is not only done to the parties but is seen to be transparently done. The Court must accord parties basic opportunity to be heard in a matter that is devoid of appearance of unfairness in a trial.
The law is fully settled that even in summary trials before the Federal High Court an accused person must be aware of what he is coming to meet in Court, this is perhaps the main basis for the decision inUWAZURUIKE vs. AG FEDERATION(supra), that scanty summary of the evidence to be relied on by the Prosecution shall be served on the Accused, and where the accused seeks for further details the Court may in its discretion consider making an order that the materials sought by the accused be made available. The situation in the instant appeal is that apart from the bare charge against the Appellant nothing else was served on him, and when he made efforts to obtain the evidence, the Court did not make the opportunity available, a hearing can only be seen to be fair when all the parties are granted equal opportunity. In a trial where one of the parties is refused access to material documents, or bare and scanty information on what he is coming to meet in Court, certainly the trial will be faulty and therefore defeat the principles of natural Justice, see: JOSEPH AGBAHOMOVO & ANOR vs. APATA EDUYEGBE & ORS (1999) LPELR-224 (SC).
I think one of the attributes of fair hearing is fairness and impartially in the way proceedings are conducted. I must say at once that, the Appellant in the instant appeal exercised all reasonable diligence but the lower Court saw no reason in the application by the Appellant. To hold that the Appellant is not entitled to any scanty evidence of what he is coming to meet in Court is a misconception of the provisions of Section 33(2) of the Federal High Court Act, and I must hold that an accused person is entitled to know what he is coming to confront in Court, a criminal trial must not be shrouded in mysteries, an accused person must not be left to embark on logical deduction or guess-work on what is coming to meet in Court, where an accused person says nothing was served on him beyond the paper containing the charge against him, the trial Court has a duty to ensure that such an accused person obtains basic information on what he is coming to meet in Court. I think the lower Court engaged in over-drive when the learned trial judge refused Appellant’s request.
In view of all I said therefore, the Appellant in the instant appeal was denied fair hearing by the lower Court, and on this ground alone, this appeal must be allowed.
Once there is denial of fair hearing, the proceedings so conducted in breach of fair hearing must be declared a nullity. The proceedings before KURYA J, of the Federal High Court in FHC/323c/2013 leading to the conviction and sentence of the Appellant on the 29th day of June 2015 Constitute a nullity, and are hereby accordingly set aside, and the charge is accordingly struck out and the Appellant is accordingly discharged.
Having declared the trial nullity and discharged the Appellant, I do not think it is proper to proceed to deal with other issues in this appeal, the necessity for so doing has become obviated.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: By the provisions of Section 36 (6) (b) of the 1999 Constitution, a defendant in a criminal trial is entitled to be given adequate time and facilities for the preparation of his defence. Even though Section 33 (2) of the Federal High Court Act stipulates that the Federal High Court is a Court of summary jurisdiction in criminal trials, the said provision is subjugated to the constitutional provisions.
The Appellant having applied to be given the proof of evidence, the lower Court ought to have exercised discretion in favour of the proof of evidence being made available to the Appellant in order to guarantee that the Appellant had a fair trial. The application not having been granted, the Appellant was deprived his constitutional right of adequate facilities for preparation of his trial, which occasioned an infringement of his right to a fair hearing.
Where the right to fair hearing is breached, the proceedings in the course of which the breach occurred and the decision arrived at by the Court are a nullity: AKINFE vs. THE STATE (1988) 3 NWLR (PT. 85) 729 at 753.
It is for the foregoing reason and the more detailed reasoning and conclusion in the leading judgment of my learned brother, Tijjani Abubakar, JCA, which I was privileged to read in draft that I also allow this appeal. I endorse the consequential orders made in the leading judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the lead judgment of my learned brother, TIJJANI ABUBAKAR, JCA before now and I find that he has covered the field and brought out the salient issues at stake. I therefore agree with the reasoning and conclusion reached therein.
Indeed from the facts of this case, the fundamental human right of the Appellant as provided by Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been breached and it therefore attracts a nullity of the entire proceedings of the lower Court. See the cases of KOLEOSHO v. FRN (2014) LPELR – 22929 (CA), per UWA, JCA at pages 17 – 20, paras F – A; JOSEPH v. THE STATE (2013) LPELR – 22604 (CA) where it was held that compliance with this provision of the Constitution is mandatory and failure to so do will render the whole trial a nullity.
Also in the case of OKOYE & ORS v. COP & ORS (2015) LPELR – 24675 (SC), the Supreme Court of Nigeria on the right of an accused person held thus:
“…the evidence against the accused, including statements of witnesses for the Prosecution, would be necessary for the preparation of his defence. So they are ‘facilities’ within the meaning of the said Section 36 (6)(b)… It is in accord with the intention of the legislature to provide a person charged with a criminal offence with sufficient opportunity to prepare his defence and to prevent surprises being sprung on him at trial. This is fundamental, as the accused person could be facing the loss of his life or personal liberty…”
See also the case of AKABOGU v. THE STATE (2016) LPELR – 40929 (CA) where the court held that:
“…I am humbly of the strong opinion that any person charged whether summarily or by information to face criminal charges at the High Court is entitled as provided by the Constitution to details of the offence including the proofs of evidence by the police in order to facilitate his defence to the charge.
See OLABODE v. THE STATE (2009) 11 NWLR (PT 1152) 254 at 258, ADENIYI v. THE STATE (2001) 25 WRN 117 at 120.”
In view of this, I too allow the appeal. The trial, conviction and sentence of the Appellant in suit No: FHC/323C/2013 is hereby declared a nullity and is accordingly set aside. The charge is also struck out and the Appellant discharged. I abide by the consequential orders made in the lead judgment.
Appearances:
Oyeyomi OlawaleFor Appellant(s)
Salamatu YakubuFor Respondent(s)
