ADAMU v. STATE (2020)

ADAMU v. STATE

(2020)LCN/14814(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/111/C/2019

RATIO

ADJOURNMENT: COMPETING INTEREST IN CONSIDERING AN APPLICATION FOR ADJOURNMENT

In considering an application for adjournment, the Court is faced with two competing interest namely;
(a) The interest to dispose of the case speedily and
(b) The interest of the applicant to be heard in the matter.
In determining these competing interests, the Court is guided by the need to do substantial justice. See State Vs Duke (2003) 5 NWLR pt 813 pg 394 Odogwu vs Odogwu (1992) 7 NWLR pt 253 pg 344, Ndu vs State pt 164 pg 550.
The grant of an application for an adjournment, is at the discretion of the Court which must not only be judicially exercised but must also be judiciously exercised taking into consideration the peculiar circumstances of each case. See State Vs Duke (supra), Odogwu vs Odogwu (supra).
It is trite that the refusal to grant an adjournment is discretionary and in order to succeed on appeal against such refusal, it must be shown that the Court exercised its discretion wrongly. See Queen Vs Onye (1961) 1 All NLR pg 642 State vs Duke (supra). PER NDUKWE-ANYANWU, J.C.A.
JUSTICE: ATTITUDE OF THE COURT TO SPEEDY ATTENTION TO CASES

The law does not encourage that justice must be murdered on the altar of speed. An accused person deserves that his case is attended to speedily whilst observing the rules of Court and the Law. PER NDUKWE-ANYANWU, J.C.A.
COUNSEL: IMPORTANCE OF ADDRESS OF COUNSEL IN AN OFFENCE CARRYING CAPITAL PUNISHMENT

This discretion exercised wrongly caused the address of counsel to be delivered in a wrong and strange sequence. See Ndu vs State (supra) Nnaemeka-Agu JSC (of blessed memory) held:
“The Constitution has given to a person charged with an offence carrying a capital punishment a right to counsel and a right to an adjournment during the proceeding when failure to adjourn will result in injustice against the accused person. And, as this Court has stated before, the addresses of counsel are an essential part of the trial. That can be the only possible inference from the fact that the Constitution itself used the conclusion of addresses as a very important determination of the time limit for delivery of judgments under Section 258 of the 1979 Constitution. See Obodo vs Olomu (1987) 3 NWLR pt 59 pg 111 Pam vs Mohammed (2008) LPELR 2895.
It is trite to say that the denial of a party the opportunity to address the Court in the right sequence is not a mere irregularity but a defect in the proceedings which to my mind smirks of denial of fair hearing and thereby rendering the proceedings a nullity. See Obodo vs Olomu (supra) Maidabo vs The State (2016) LPELR 40245.
In Usen vs The State (2015) LPELR 40247 Oyewole, JCA quoted Allagoa, JSC who stated clearly the position of the law thus:
“The need for counsel to sum up his case and address Court cannot be over-emphasized. For one, it is of immense value to the judge in his appreciation of facts and summing up of evidence before him. See Mogaji vs Odofin (1978) 4 SC pg 91 Oyewole, JCA went on to state “the Court can only properly evaluate evidence adduced when counsel in a matter have properly summed up.”
See Mpama vs First Bank of Nig Plc (2015) 53 NSCQR pg 190 Oyewole, JCA continued in a criminal trial albeit one involving a capital offence, everything must be done to ensure that the accused person or criminal defendant is availed every opportunity to defend himself and fight for his life. This duty enjoins the Court to appoint counsel for him where he does not have one. PER NDUKWE-ANYANWU, J.C.A.

CRIMINAL TRIAL: RIGHT TO COUNSEL OF AN ACCUSED

The right to counsel must be ensured at every stage of the trial which necessarily includes the final address stage, failure to do this detracts from the quality or fairness the trial should have and definitely vitiates it. Shutting out the Appellant was tantamount to punishing him for the inappropriate conduct of his counsel.

The right of fair hearing is an extreme Fundamental Right in the Constitution and the breach thereof has its implication on the proceedings. It is clear from the Constitution Section 33 (6)(b) and (c) thereof that every person charged with a criminal offence is entitled to be given adequate time and facilities for his defence. Thus, the right to be heard is a fundamental and indispensable requirement of any judicial decision. To this end, the Supreme Court observed in the case of the State vs Onagoruwa (1992) 2 NWLR pt 221 pg 33 among other things that fair hearing is in the procedure followed in the determination of the case, not necessarily in the correctness of the decision. See also Kim vs The State (1992) 4 NWLR pt 233 pg 17, Idris Rabiu vs the State (2004) LPELR 7382.
In summary, the fundamental right of fair hearing of the Appellant was breached in the procedure adopted by the trial Court in proceeding with the trial in the absence of the Appellant’s counsel. Also, the strange sequence of taking the addresses of counsel.
Where the procedure adopted by the trial Court is out of sync with the procedure set out in the Rules of Court and by the Constitution, the Court therefore breached the Fundamental Right of fair hearing of the Appellant. Where there is a breach of fair hearing in the course of hearing in the trial Court it is fundamental. Fair hearing in essence, means giving equal opportunity to the parties to be heard in the trial before the Court. In this appeal, the Appellant was not accorded fair hearing at the trial Court. The rules of natural justice was not observed to the detriment of the Appellant.
The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes a fair trial which consists of the whole hearing. Where the person alleging breach of fair hearing has established it, it follows that a breach of fair hearing in trials vitiates such proceedings rendering same null and void. Per Adekeye, JSC in Ovunwo vs Woko (2011) LPELR 2841. PER NDUKWE-ANYANWU, J.C.A.
RETRIAL ORDER: REQUIREMENTS BEFORE AN APPELLATE COURT WILL MAKE A RETRIAL ORDER IN A CRIMINAL CASE

Before making a retrial order in a criminal case, an appellate Court must be satisfied of the following, viz:
a. That there has been an error in law or an irregularity in procedure of such character that on one hand, the trial was not rendered a nullity and on the other hand the Appellant 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.
c. That there are no special circumstances as would render it oppressive to put the appellant on trial, a second time
d. That the offences that Appellant was convicted of or the consequences to the Appellant or any other person are not merely trivial.
e. That to refuse an order of a retrial would occasion a greater miscarriage of justice than to grant it.
Adeoye Vs State (1999) 6 NWLR PT. 605 PG 74, Okafor Vs The State (1976) LPELR 2408, Adisa Vs State (1964) LPELR 25197, Onwe Vs State (2017) LPELR 42589. PER NDUKWE-ANYANWU, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

MANU ADAMU APPELANT(S)

And

THE STATE RESPONDENT(S)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State delivered on 18th July, 2013 by Justice F. Umaru convicting the Appellant and sentencing him to death by hanging in respect of an offence of culpable homicide punishable with death.

The Appellant was naturally dissatisfied with the decision and thereafter filed a notice with five (5) grounds.

The brief facts of this case are that the accused Appellant was grazing his cows near the farm of Pw2. The Pw2 and the deceased told the Appellant to leave the area so that the cows will not destroy their farm. I believe there was an altercation of some sort. The Appellant was believed to have hit the deceased who fell down. He became unconscious. He was taken to the village clinic from there to a general hospital, probably with better facility to treat the deceased. Unfortunately, the deceased did not regain consciousness but died that same night from his injuries.
The police later arrested the Appellant from the place he escaped to after the incident.

The Appellant’s counsel filed its Appellant’s

brief on 16th June, 2020. In it three (3) issues were articulated for determination by the Court as follows;
1. Whether the entire trial was not a nullity as vital part of it as conducted without the Appellant being represented by counsel in a very serious matter of which death sentence upon conviction is involved? (Ground of Appeal No. 4 refers)
2. Whether the respondent proved an offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant? (Ground Appeal No. 1, 3 and 5 refers)
3. Whether the trial Court was right to reject the defence of self defence, put across by the Appellant?

The Respondent articulated 3 issues for determination as follows;
1. Whether the entire trial was not a nullity as vital part of it was conducted without the Appellant being represented by counsel in a very serious matter of which death sentence upon conviction is involved.
2. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in respect of offence of culpable homicide punishable with death under Section 221(b) of the Penal Code.
3. Whether the trial Court was right to reject the defence of self defence.

The issues articulated by the parties are basically the same; however, I will utilize the issues articulated by the Appellant, the owner of the appeal in the determination of this appeal.

The Appellant in his three issues articulated, donated the first issue on the jurisdiction of the Court. This issue would be treated first as to which way this appeal will proceed. For emphasise without being accused of being repetitive, the 1st issue recapped is:
Whether the entire trial was not a nullity as a vital point of it was conducted without the Appellant being represented by counsel in a very serious matter of which death sentence upon conviction is involved?

The learned counsel for the Appellant submitted that on 20th June, 2013, the learned trial Court held inter alia.
“Adjournment are usually granted by the Court on good grounds and not just for asking. The defence had been served with hearing notice due to their counsel’s absence. I see no good reason for adjourning the matter and the prosecution’s counsel was given leave to proceed, with his oral address.”

The respondent therefore proceeded to address the Court as ordered without the Appellant having the benefit of a counsel’s representation.
The learned trial Judge also captured it in his judgment thus:
“When the matter came up for address on the 18th day of June, 2013, the defence counsel was absent and no reason was advanced to the Court for his absence. The Court in the interest of justice adjourned the matter to the 20th June, 2013, the defence counsel was absent despite been served with a hearing notice. This Court in the absence of a good reason for further adjourning the case granted leave to the prosecution counsel to address the Court.”

The counsel referred the Court to the case of Udo vs the State (1988) NWLR pt 82 pg 316 where the Supreme Court held as follows;
“where an accused person is standing trial for capital offence involving capital punishment and in the course of such trial, counsel for the accused absents himself the trial Court may choose to adopt one of the following procedures:
1. Where the trial is being unnecessarily delayed by incessant application for adjournment on flimsy reasons by his counsel, to refuse the

counsel’s application and assign another counsel to the accused person, followed by a reasonable short adjournment to enable the new counsel prepare for the case.
2. Where the request for adjournment is for good reason to grant it: alternatively
3. To adjourn the case for the accused to procure another counsel of his own choice if he so requests.

Counsel argued that this stance is to make sure that an accused due to no fault of his is not denied the aid of his counsel during his trial. See Section 36(6), (b), (c) and (d) of the 1999 CONSTITUTION FEDERAL REPUBLIC OF NIGERIA Section 186 of Criminal Procedure Code. UDOFIA VS THE STATE (1988) 3 NWLR pt 84 pg 533 where the Court held
“it is fundamental to a fair trial of a serious criminal charge like murder that the accused person should not be left unrepresented at any stage of the trial as this is tantamount to depriving the accused person of his right which has to be defended by counsel.”
Omosaye Vs The State (2014) 6 NWLR PT 1404 PG 484.

Counsel continued that even though a letter was written which was acknowledged but discountenanced by the learned trial judge

and proceedings continued in spite of it. The trial judge refused to accept the letter and proceeded to hear the prosecution. This procedure deprived the Appellant his right of fair hearing, breaching the order of address by counsel. See Section 192 of the Criminal Procedure Code which provides as follows
“When the Court call upon the Accused to enter upon his defence, the accused or his counsel may open his case stating the facts or laws on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution and the accused may then give evidence on his own behalf, examine his witnesses if any conduct their cross examination and re-examination if any, the Accused or his counsel may sum upon his case.”

It is the procedure that where the accused elect to give evidence at the end of the prosecution’s case, the accused has the right of address first before the prosecution’s response and thereafter, the accused may rely on points of law raised by the prosecution.

The learned trial judge refused to adjourn this case and proceeded to hear the prosecution’s address. The Court on a

later date allowed the prosecution to reply to the defendant/Appellant’s counsel, thereby having a second bite at the cheery. The learned counsel stated that it was a grave miscarriage of justice meted out to the Appellant. See Obodo vs Olomu (1987) 3 NWLR pt 59 pg 111 where the Court held as follows;
“The order of address is regulated to enable the party on whom burden to establish his claim lies, to address last unless where the other party called on evidence for the proper administration of justice.”

In summary, the learned counsel to the Appellant summarized as follows:
1. Failure of the trial judge to adjourn to enable him to be represented by a counsel in a case that carries capital penalty vitiated the entire trial.
2. The purported address of defence counsel after recording the prosecution’s address when the Appellant led evidence and ought to start the address occasioned miscarriage of justice.
3. The respondent who has no right to make any reply on point of law, (which ought to be the right of the Appellant made such reply and this occasioned miscarriage).

Counsel therefore urged the Court

to allow this appeal on this issue and declare the trial a nullity. See Kajubo vs The State (1988) 1 NWLR pt 73 pg 721.

In Response, the Respondent stated that the trial judge gave all the parties equal opportunity to being heard. See Pan African Vs Shoreline (2010) 3 SCNJ pt 1 pg 179.

Counsel argued that fair hearing must be exercised within the law regulating the Criminal Procedure. See Ahmed Vs Registered Trustees of Archdiocese of Kaduna and IOR (2019) Vol. 1 pt 1 MJSC pg 1.

Counsel submitted that when a party refuses to utilize the opportunity offered to him to be heard he cannot turn around and complain of lack of fair hearing Ajibade Vs The State (2013) 8 NCC pg 221. Counsel re-iterated that “counsel’s address no matter how erudite, is not a substitute for hard evidence of facts established or admitted before the Court.” See Olagunju Vs Adesoye (2009) Vol 4 MJSC pg 76, Ahmed Vs the Registered Trustees of Archdiocese of Kaduna (supra).

Counsel argued that the counsel, address is a summation of the whole evidence placed before the Court and the Court can dispense with it and deal with the live issues before the Court.

See Mamman Vs Federal Republic of Nigeria (2013) Vol. 2-3 MJSC pt IV pg 69.

Counsel also argued that the Appellant’s counsel was allowed to or given an opportunity to address the Court. This he did and adopted the issues articulated by the Respondent. Also counsel stated that the trial judge had a discretion to grant an adjournment which discretion must be exercised judicially and judiciously. See Abah vs Monday (2015) Vol. 5 MJSC pt II pg 129.

Finally, counsel submitted that there is no mention of counsel’s address in Section 185-199 of the CPC Cap 42 1993 Laws of Borno State.

Counsel urged the Court to hold that judgment was based on evidence before the Court and not on the address of counsel.

RESOLUTION
The prosecution in this case in the lower Court charged the Appellant with an offence of culpable homicide punishable with death in that he caused the death of one Ali Gana by hitting him with a stick on the head, with knowledge that death would be the probable consequence of his act. Contrary to Section 221(b) of the Penal Code Law Cap 102 Laws of Borno State.
The prosecution called 3 witnesses and also tendered 1 exhibit MA1

and closed its case. The Appellant testified and called no other witness.
The Court thereafter adjourned for the Appellant to deliver his address before the Court. The counsel wrote a letter claiming that he was in the Court of Appeal Jos. The learned trial judge rejected that letter and ordered the prosecution to deliver its own address.
The Appellant’s counsel delivered its address on another date after which the prosecution/Respondent was again allowed to reply.
This procedure adopted by the trial judge is strange and absurd. Normally, the defendant in a civil case, or in a criminal case, the accused who is the defendant ought to deliver his written address first. After which the prosecution or plaintiff responds. Thereafter, the accused, defendant has a right to reply. The trial judge did the reverse when he rejected the letter of adjournment of the Appellant’s counsel and ordered the prosecution to deliver its address. The Appellant’s counsel was given an opportunity to deliver his own address on a later day. The prosecution still was allowed to reply.
This strange procedure was necessitated when the trial judge in

exercising his discretionary powers refused to grant the adjournment applied for by the Appellant’s counsel. I agree that sometimes these applications for adjournment can be vexatious but caution must be exercised.
In considering an application for adjournment, the Court is faced with two competing interest namely;
(a) The interest to dispose of the case speedily and
(b) The interest of the applicant to be heard in the matter.
In determining these competing interests, the Court is guided by the need to do substantial justice. See State Vs Duke (2003) 5 NWLR pt 813 pg 394 Odogwu vs Odogwu (1992) 7 NWLR pt 253 pg 344, Ndu vs State pt 164 pg 550.
The grant of an application for an adjournment, is at the discretion of the Court which must not only be judicially exercised but must also be judiciously exercised taking into consideration the peculiar circumstances of each case. See State Vs Duke (supra), Odogwu vs Odogwu (supra).
It is trite that the refusal to grant an adjournment is discretionary and in order to succeed on appeal against such refusal, it must be shown that the Court exercised its discretion wrongly. See Queen Vs Onye

(1961) 1 All NLR pg 642 State vs Duke (supra).
In the present appeal, the learned trial judge refused to grant the Appellant’s counsel an adjournment even though a letter stating that he was in the Appeal Court, Jos was tendered. The Appellant’s counsel had not been shown to have been absenting himself from Court. Moreover, this is a capital offence which deserves more patience on the part of the trial judge. The law does not encourage that justice must be murdered on the altar of speed. An accused person deserves that his case is attended to speedily whilst observing the rules of Court and the Law.
In the present case, the learned trial judge refused the grant of an adjournment to the Appellant, which in my own humble opinion, that discretion was not judicially and judiciously exercised. This is a capital offence and I believe the learned trial judge should have granted a further adjournment with a stern warning against absenteeism on the part of the counsel. This situation meant that the Appellant was denied the services of his counsel due to no fault of his.
This discretion exercised wrongly caused the address of counsel to be

delivered in a wrong and strange sequence. See Ndu vs State (supra) Nnaemeka-Agu JSC (of blessed memory) held:
“The Constitution has given to a person charged with an offence carrying a capital punishment a right to counsel and a right to an adjournment during the proceeding when failure to adjourn will result in injustice against the accused person. And, as this Court has stated before, the addresses of counsel are an essential part of the trial. That can be the only possible inference from the fact that the Constitution itself used the conclusion of addresses as a very important determination of the time limit for delivery of judgments under Section 258 of the 1979 Constitution. See Obodo vs Olomu (1987) 3 NWLR pt 59 pg 111 Pam vs Mohammed (2008) LPELR 2895.
It is trite to say that the denial of a party the opportunity to address the Court in the right sequence is not a mere irregularity but a defect in the proceedings which to my mind smirks of denial of fair hearing and thereby rendering the proceedings a nullity. See Obodo vs Olomu (supra) Maidabo vs The State (2016) LPELR 40245.
In Usen vs The State (2015) LPELR 40247 Oyewole, JCA

quoted Allagoa, JSC who stated clearly the position of the law thus:
“The need for counsel to sum up his case and address Court cannot be over-emphasized. For one, it is of immense value to the judge in his appreciation of facts and summing up of evidence before him. See Mogaji vs Odofin (1978) 4 SC pg 91 Oyewole, JCA went on to state “the Court can only properly evaluate evidence adduced when counsel in a matter have properly summed up.”
See Mpama vs First Bank of Nig Plc (2015) 53 NSCQR pg 190 Oyewole, JCA continued in a criminal trial albeit one involving a capital offence, everything must be done to ensure that the accused person or criminal defendant is availed every opportunity to defend himself and fight for his life. This duty enjoins the Court to appoint counsel for him where he does not have one. The right to counsel must be ensured at every stage of the trial which necessarily includes the final address stage, failure to do this detracts from the quality or fairness the trial should have and definitely vitiates it. Shutting out the Appellant was tantamount to punishing him for the inappropriate conduct of his counsel.

A step repeatedly frowned upon by the Courts. See Bello Akanbi vs Mamudy Alao (1989) 3 NWLR pt 108 pg 118, Ogundoyin vs Adeyemi (2001) 13 NWLR pt 730 pg 403. The proper course for the learned trial judge to have taken the moment it was certain that the defence counsel had taken the unprofessional step of absconding from the trial was to appoint a new counsel to continue from where he stopped.
In this appeal, the learned counsel for the Respondent had argued that the address of counsel was not important, stating that addresses cannot take place of hard facts given in evidence. How wrong this assertion is. In Ukwueze Vs Ani (2007) LPELR 8633 Ogebe, JCA (as he then was) stated succinctly:
“It is clear from Section 294 (1) of the 1999 Constitution. That final address by counsel is recognized by the Constitution as a crucial stage of a hearing of a matter before judgment is delivered. He referred to Obodo vs Olomu and quoted Obaseki, JSC who held:
“The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered.

See Section 258(1) of the 1999 Constitution. Its beneficial effect and impact on the mind of the judge is enormous but unquantifiable. The value is immense and its assistance to the judge in arriving at a just and proper decision, though dependent on the quality of address cannot be denied. The absence of an address can tilt the balance of the learned judge’s judgment just as much as the delivery of an address after conclusion of evidence can.”
It follows therefore that the submission of the Respondent’s counsel that the address of counsel is not important is misinformed. So also, is making a trifle of the sequence of taking counsel addresses is sine qua non to the tenets of fair hearing. The Courts have held that the denial of a party’s counsel of the opportunity of addressing the Court rightly and sequentially where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing. See Obodo Vs Olomu (supra), Salami vs Odogun (1991) 3 NWLR pt 173 pg 291, Oyekan vs Akinrinwa (1996) 7 NWLR. Pt 459 pg 128, First Bank of Nigeria Plc vs Ejikeme (1996) 7 NWLR pt 462 pg 597,

Duba vs Saleh (1997) 1 NWLR Pt 488 Pg 502, Eagle Construction Ltd vs Ombugadu (1998) 1 NWLR pt 533 pg 231, Kalu vs State (2011) 4 NWLR PT 1238 PG 429, Kubau vs Rilwanu (2014) 4 NWLR Pt 1397 pg 284, Sterling Bank vs Oyoyo (2016) LPELR 41609.
It would be recalled that when the prosecution delivered its address, the Appellant was not represented by his counsel. Non-representation by counsel on any day of the proceeding in such a serious offence is a gross denial of fair hearing. The trial Court declined to adjourn the case to enable the Appellant’s counsel represent him knowing the gravity of the offence against him and its punishment.
The right of fair hearing is an extreme Fundamental Right in the Constitution and the breach thereof has its implication on the proceedings. It is clear from the Constitution Section 33 (6)(b) and (c) thereof that every person charged with a criminal offence is entitled to be given adequate time and facilities for his defence. Thus, the right to be heard is a fundamental and indispensable requirement of any judicial decision. To this end, the Supreme Court observed in the case of the State vs Onagoruwa (1992) 2 NWLR pt 221 pg 33

among other things that fair hearing is in the procedure followed in the determination of the case, not necessarily in the correctness of the decision. See also Kim vs The State (1992) 4 NWLR pt 233 pg 17, Idris Rabiu vs the State (2004) LPELR 7382.
In summary, the fundamental right of fair hearing of the Appellant was breached in the procedure adopted by the trial Court in proceeding with the trial in the absence of the Appellant’s counsel. Also, the strange sequence of taking the addresses of counsel.
Where the procedure adopted by the trial Court is out of sync with the procedure set out in the Rules of Court and by the Constitution, the Court therefore breached the Fundamental Right of fair hearing of the Appellant. Where there is a breach of fair hearing in the course of hearing in the trial Court it is fundamental. Fair hearing in essence, means giving equal opportunity to the parties to be heard in the trial before the Court. In this appeal, the Appellant was not accorded fair hearing at the trial Court. The rules of natural justice was not observed to the detriment of the Appellant.
The right to fair hearing is a very essential

right for a person to secure justice. A fair hearing connotes a fair trial which consists of the whole hearing. Where the person alleging breach of fair hearing has established it, it follows that a breach of fair hearing in trials vitiates such proceedings rendering same null and void. Per Adekeye, JSC in Ovunwo vs Woko (2011) LPELR 2841.
The Appellant in this appeal was not accorded a fair hearing during his trial. This has vitiated his trial rendering it null and void and amenable to an order of retrial.

Appellant was convicted of or the consequences to the Appellant or any other person are not merely trivial.
e. That to refuse an order of a retrial would occasion a greater miscarriage of justice than to grant it.
Adeoye Vs State (1999) 6 NWLR PT. 605 PG 74, Okafor Vs The State (1976) LPELR 2408, Adisa Vs State (1964) LPELR 25197, Onwe Vs State (2017) LPELR 42589.

This appeal is meritorious, it is allowed. This case NO BOHC/MG/CR/19/2012 is hereby remitted to the Chief Judge Borno State for assignment to another judge for hearing de novo.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the judgment of my Lord Ndukwe-Anyanwu, J.C.A., and I agree.

Indeed, the addresses of Counsel form a part of a case. They are recognized by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as follows:
“Every Court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

Sections 192 and 194 of the Criminal Procedure Code also make provisions for the right of address. These provisions are a part of the guarantee of the right to fair hearing entrenched in Section 36(1) of the Constitution (supra).
In order to illustrate the relevance of the address of Counsel at the close of a case, the Supreme Court in Obodo V Olomu (1987) 3 NWLR (Pt. 59) 111, 121, per Belgore, JSC stated thus:
“Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases it is after the addresses that one finds the law on the issues fought in favour of the evidence adduced.”
Nnamani, JSC at page 124 of the Report added his voice as follows:
“In the normal course of things, the proceedings cannot be said to be complete until both parties have addressed the Court.”
Again, in AG Lagos State V CUS Ltd (2002) LPELR-12256(CA)18-20, A-D, per Chukwuma-Eneh, JCA (as he then was) stated thus:
“The crux of issue one is whether the Respondent had the right to the last word in

the circumstances of this matter… This Court has repeatedly asserted that the procedure of fair hearing has to be strictly complied with to avoid occasioning a miscarriage of justice. The Supreme Court in Obodo V Olomu (1987) 8 NWLR (Pt. 59) 111 observed in the same vein… The appellant was shut out.”
Also, in Sigbenu V Imafidon (2009) 13 NWLR (Pt. 1158) 231, it was held that the right of address is a fundamental requirement of a fair trial. See also Okpeh V State (2017) LPELR-42487(CA) 6 and 20.
In the instant case, it would appear that the trial Court rode rough-shod over the Appellant’s right of his Counsel to address the Court. This is because the Appellant cannot be said to have waived his right of final address, his Counsel having written beforehand to inform the lower Court that he was appearing before the Court of Appeal Jos.
This is a breach of the right of the Appellant under Section 294(1) of the Constitution (supra) which has also dovetailed into a breach of his right to fair hearing under Section 36(1) of the Constitution (supra). This is more so that the Appellant was standing trial for a capital offence under

Section 221 of the Penal Code, and was indeed convicted and sentenced to death. The learned trial Judge should have tread more circumspectly.

It is for this reason that I also allow the Appeal. I abide by the consequential Orders in the lead Judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. His Lordship’s finding that the Appellant’s right to fair hearing was breached cannot be faulted. The right of a person charged with a capital offence to be represented by counsel throughout the trial cannot be taken away on any ground at all. The trial Judge was therefore not only wrong in refusing the Appellant an adjournment but also allowing the prosecution the right of reply after the trial Judge’s error in calling on the prosecution (Respondent) to address the Court before the defence (Appellant). Also to be frowned at is the trial Judge’s view of treating the Appellant’s right to address the Court as triviality.
The law is long settled that once there is a denial of fair hearing, the only order that can be made by an appeal Court is one of retrial

or rehearing. See Danladi vs. Dangiri Ors (2014) LPELR-24020 (SC), at page 58 paras C – E.
It is apparent from the proceedings of the trial Court that the trial Judge’s refusal to adjourn the matter at the instance of the Appellant for address, and to assign him another Counsel breached the Appellant’s Right to fair hearing. This was not remedied by the subsequent address of his counsel after the Respondent’s address, moreso when the trial Judge further indulged the Respondent the right of reply after the Appellant’s address. These issues were considered in great detail by my Lord in his lead Judgment. I subscribe to all the reasoning and conclusion reached, in allowing the appeal, and ordering a retrial of this case by another Judge.

Appearances:

Idris, Esq., with him, M. Galadima Esq.For Appellant(s)

Y. Gana, Esq. For Respondent(s)

Appearances:

Idris, Esq., with him, M. Galadima Esq. For Appellant(s)

Y. Gana, Esq. For Respondent(s)