ALHASSAN SULEIMAN v. COMMISSIONER OF POLICE NASARAWA STATE
(2012)LCN/5162(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of February, 2012
CA/J/201C/2009
RATIO
THE POSITION OF THE LAW ON FAILURE OF THE COURT TO HEAR THE ADDRESS OF A PARTY
This is a fundamental procedural safeguard and a Constitutional imperative under S. 294(1). The section provides:- “Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter with duly authenticated copies of the decision within seven days of the delivery thereof.” In the case of ESHENAKE V. GBINIJE (2006) 1 NWLR (pt. 961) 228 it was held that a right it address was a Constitutional right which would not be taken away from a party by any Court and where one of the parties made his final address, the other party must be given an opportunity to reply before the Pronouncement of judgment. A denial to one party of his right to final address, whilst the other party was allowed his was an infraction of the rule of natural justice of audi alteram partem. Failure to hear the address of one party, however over whelming the evidence is on one side vitiates the trial. PER. ALI ABUBAKAR BABANDI GUMEL, J.C.A
THE POSITION OF THE LAW ON APPLICATION FOR ADJOURNMENT
Once it is shown that the application for adjournment is for a good cause and cogent reason, the court should grant it in the interest of justice. Thus, the court should not punish a party merely because he or his counsel has sought for an adjournment and even if the court is irritated or annoyed by the request its refusal to grant same may in certain given circumstances be unjustifiable or indefensible. It is clear from the principles on the grant of adjournment vis-a-vis the concept of fair hearing that its benefit is not only to be enjoyed by the applicant alone, as submit ted by learned counsel to the Appellant, but by all the parties involved in the proceedings including the court whose interest is to ensure the attainment of justice in the proceedings. Though it is within the discretion of the learned trial judge to grant or refuse the application for adjournment, its refusal in the circumstance of this appeal was most unreasonable and this court is entitled to look into the circumstance with a view to redress the miscarriage of justice that was occasioned by the unreasonable refusal of the application. See AJISEFINI V. DPP (2002) FWLR (Pt. 122) 88. PER. ALI ABUBAKAR BABANDI GUMEL, J.C.A
THE POSITION ON THE LAW ON THE TRIAL OF AN ACCUSED PERSON ON A DEFECTIVE CHARGE
The trial of an accused Person on a defective charge lacks proper foundation and remained irregular. See ABACHA V. THE STATE (2002) FWLR (Pt. 118) 1224.On the quality of evidence adduced in proof of the charge, I wish to point out that I am unable to see any significant fact that tends to show the existence of any fraudulent intent on the part of the Appellant in the course of this transaction. It was a botched or failed land transaction simpliciter. PER. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
ALHASSAN SULEIMAN Appellant(s)
AND
COMMISSIONER OF POLICE NASARAWA STATE Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the Lafia Judicial Division of the Federal High Court, holden of Lafia, Nassarawa State with one other person who was described as being at large on a 2 count charge of conspiracy to obtain money by false pretences contrary to S. 8(a) and punishable under S. 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006. Upon the charge being read to him he pleaded not guilty to each of the count of charge. To prove the guilt of the Appellant, the Respondent called and relied on the evidence of 4 witnesses, while the Appellant gave oral evidence in defence and called no witnesses. At the end of the evidence of the Appellant, learned counsel for the prosecution Mr. Ezeala addressed the Court and the Court adjourned the matter to later in the day for judgment. In a judgment delivered on 18/06/09, the learned trial judge found the Appellant guilty on each count of charge and proceeded to sentence him to 7 years imprisonment on each count with an order for the sentences to run con-concurrently with effect from the date of the judgment. The learned trial judge went further to order the Appellant to make restitution in favour of the complainant (victim and PW1) in the sum of N1, 300,000 (One Million Three Hundred thousand Naira) pursuant to section 11(1) of the Advanced Fee Fraud and other Fraud Related Offences Act, 2006.
The Appellant was dissatisfied with the judgment and appealed to this court in a notice of appeal dated and filed on 26th July, 2009. This notice of appeal was withdrawn and struck out. Upon being granted extension of time to appeal a notice of appeal was filed on behalf of the Appellant on 14th April, 2010. It is predicated on 9 grounds. They are as follows:-
GROUND ONE: the learned trial judge erred in law when after refusing the application for adjournment made to it by the Appellant’s Counsel failed to afford the Appellant time to retain another Counsel to defend himself.
PARTICULARS OF ERROR
i. The Appellant stood trial in a Federal High Court where cases are conducted on behalf of parties by a trained lawyer.
ii. The Appellant retained a counsel to defend him from the beginning of the trial till prosecution closed his cases on 16th June, 2009.
iii. On the next day 17th June, 2009 when the Appellant defence was to commence, the Appellant Counsel formally wrote for adjournment.
iv. The trial judge in his wisdom refused the application for adjournment and never afforded the Appellant time to retain another Counsel to present his defence.
GROUND TWO: – The learned trial judge erred in law and visited the sin of Counsel on the innocent litigant “the Appellant” when in refusing the adjournment letter wrote by the Appellant’s Counsel he held as follows: “I say no Counsel ought to treat the Court with disdain and yet expect the Court to exercise its discretion in his favour. The word “Imposed” date on Counsel is uncharitable … I call on the Accused to enter his defence” and this occasioned a serious miscarriage of justice.
PARTICULARS OF ERROR
(i) The Appellant no doubt depend on the decision of his Counsel in most cases.
(ii) The decision to write an application of adjournment by Appellant’s Counsel on 17/6/09 is one the Appellant cannot control.
(iii) The reason given on the letter of adjournment is entirely that of Counsel.
(iv) The utterances of Counsel as the Honorable judge of the lower Court observed was entirely that of Counsel and not traceable to the Appellant.
(v) The trial Court did not afford the Appellant time to digest the rejection of his Counsel’s letter before the lower Court ordered him to present his defence.
GROUND THREE: The trial Court erred in law and completely refused to afford Appellant time to prepare for his defence when after closing the prosecution case on 16th June, 2009, ordered the Appellant to commence his defence on the next day being 17th, June, 2009.
PARTICULARS OF ERROR
(i) The prosecution on Tuesday 16th day of June, 2009 presented his last two witnesses.
(ii) There is evidence on record that the Court admitted documents in evidence on that date.
(iii) The presentation of criminal trial at the Federal High Court does not show that prosecution served on the Appellant prosecution proof of evidence and list of exhibits that he will rely on.
(iv) The trial Court after receiving all this evidence on 16th June, 2009, did not afford the Appellant time to study same but ordered that he should present his defence on the next day 17th June, 2009 and went on without allowing Appellant retain a new Counsel.
GROUND FOUR: The trial Court erred in law and misdirected itself when after observing that the charge before it was incurably bad, proceeded upon it against the Appellant and even convicted him on it.
PARTICULARS OF ERROR AND MISDIRECTION
(i) The trial judge clearly saw and observed that charge No. FHC/LF/CR/8c/2009 brought against the Appellant was incurably bad.
(ii) The trial judge clearly observed in his judgment that the charge was not brought under proper sections.
(iii) The trial judge convicted and sentenced the Appellant on the incompetent charge.
GROUND FIVE: The trial judge erred in law and completely failed to give the Appellant fair hearing when he failed to give the Appellant opportunity to address the Court and reply to the prosecution Counsel address at the close of the case.
PARTICULARS OF ERROR:
(i) At the end of the Appellant evidence on 17th June, 2009, the trial Court took 18th June, 2009 for address.
(ii) On this date learned prosecution Counsel alone addressed the Court.
(iii) There was nothing on the record of the lower Court showing that opportunity to address the Court was afforded to Appellant.
(iv) He was not given opportunity to reply to the prosecution Counsel Address.
(v) The trial Court proceeded to deliver its judgment immediately after receiving the prosecution Counsel Address.
GROUND SIX: The learned trial judge did not exercise his discretion judiciously and judiciary when he considered the application for adjournment brought by the Appellants Counsel and this occasioned serious miscarriage of justice.
PARTICULARS OF ERROR
(i) The trial judge was confronted with an application for adjournment on 17th day of June, 2009 from the Appellant’s Counsel.
(ii) The Counsel among other comments in his letter gave reason for his absent.
(iii) The trial Court failed to consider the reason but rather was precluded by his observation on what Counsel said outside the Court on the last date.
(iv) The trial Court did not consider judicially and judiciously the implication of refusal of this application on the Appellant.
GROUND SEVEN: the trial judge erred in law and misdirected itself when he held and ordered as follows:
“In addition, the Accused shall pay the sum of N1.3 million to the victim Alhaji Muazu Ismaila (PW1) in restitution pursuant to section 11(1) of the Advanced Fee Fraud and other Fraud related Offences Act 2006”.
PARTICULARS OF ERROR/MISDIRECTION
(i) There was nothing in the trial to show that the Appellant induced the complainant to advance N1.3 million to him.
(ii) The evidence was that the accused brought a holder of certificate of occupancy to him (Police informant) who offered to sale(sic) same and give him photocopy to conduct search to ascertain the validity as required.
(iii) The complainant failed completely to pay a visit at the land registry to conduct a physical search.
(iv) There was no application to order for restitution made by the prosecution in this case at the lower Court.
GROUND EIGHT: The Court erred in law when he convicted the Appellant in allegation involving criminal conspiracy when he stood trial all alone before the lower Court.
PARTICULARS OF ERROR
(i) The Appellant stood trial alone all through trial,
(ii) There was no element of conspiracy proved by the prosecution of the lower Court.
GROUND NINE: the entire judgment is against the weight of evidence.
To argue the appeal, learned Counsel Mr. Ucheaguwa filed a brief of argument dated 27/05/2012 which was deemed properly filed and served on 01/06/2010. Mr. Ucheoguwa of counsel formulated 6 issues for the determination of this appeal.
They are:-
3.02 ISSUE ONE: (Distilled from ground 1)
Whether the court below was right when he called upon the Accused/Appellant to enter his defence after refusing his Counsel’s Application for adjournment.
3.03 ISSUE TWO: (Distilled from grounds 2 and 6) Whether it was right for the Court below to allow comments he alleged that the Accused/ Appellant’s Counsel made outside the Court to weigh heavily on his mind in his consideration of adjournment made in favour of Appellant.
3.04 ISSUES THREE: (Distilled from grounds 3 and 5) Was the Appellant given fair hearing when the Court below adjourned this case to 17/6/09 and 18/0/09(sic) for defence, Address and judgment after the close of prosecution case on 16/6/09.
3.05 ISSUE FOUR: (Distilled from ground 4) Whether the Court below was right in law when he convicted the Appellant after finding as a fact that the charge was defective.
3.06 ISSUE FIVE (Distilled from ground 7) Was the Court below right when he awarded restitution of the whole N1.3M that was not asked for against the Appellant that stood trial for conspiracy, with one other person.
3.07 ISSUE SIX (Distilled from grounds 8 and 9) Whether from the totality of the evidence adduced on both sides the prosecution proved his case against the Appellant beyond all reasonable doubt to warrant conviction.
For the Respondent, learned Counsel filed a brief of argument dated 13/10/2010 but which was deemed properly filed and served on 23/05/2011. He formulated the following 4 issues for the determination of this appeal. They are:-
(i) Whether the Appellant’s right of fair hearing was compromised during the trial (Distilled from Grounds 1, 2, 3, 5 and 6 of appeal)
(ii) Whether the Appellant can raise defect to a charge on appeal. (Distilled from Ground 4 Appeal)
(iii) Whether the grant of restitution by the trial Court pursuant to the Advance Fee Fraud and other Related Offences Act 2006 was erroneous (Distilled from Ground 7 of Appeal)
(iv) Whether the Respondent has proved it case beyond reasonable doubt to warrant the conviction made by the trial lower Court. (Distilled from Grounds 8 and 9 of Appeal)
The 6 issues formulated on behalf of the Appellant appear to me to be comprehensive enough as to sufficiently address his complaint against the judgment of the lower Court. I will therefore adopt them for the determination of this appeal.
Issues 1, 2 and 3 formulated in aggregate from grounds 1, 2, 6, 3 and 5 of the grounds of appeal appear to me to have arisen out of what transpired in Court from the end of the proceedings of 16/06/2009 at page 15 of the record of appeal and the proceedings of 17/06/2009 and up to 18/06/2009 when the Appellant was convicted and sentenced. Issue one formulated on behalf of the Respondent out of grounds 1, 2, 3, 5 and 6 also appear to me to be a direct response to the complaint of the Appellant. I would therefore, for convenience, take the first 3 issues formulated by the Appellant together.
Before considering the arguments and submissions of respective learned Counsel on these issues, it is important, in my view to under score and put in proper con and perspective certain background non-contentious facts.
During the proceedings of the court on 16/06/09, the respondent through Counsel led PW 4 in evidence after which he closed his case and thereafter the learned trial judge adjourned the matter to 17/06/2009 for defence with an order for the bail of the Appellant to continue. The record of proceedings at page 15 does not have anything more. However, when this matter was called on 17/06/2009, things took a dramatic turn. For a proper understanding of this drama and its effect on the instant appeal, I wish to reproduce some of the relevant parts of the Proceedings of 17/06/09.
ON WEDNESDAY THE 17TH DAY OF JUNE 2009
Accused in Court.
Speaks English.
Mr. D. E. Ezeala for the Prosecution.
Mr. K. B. Yaunat, holding a watching brief for the Complainant.
Ezeala: the matter is for defence. I was served with a letter for adjournment by Counsel to the Accused. We are ready to proceed with the defence. The Counsel insinuated yesterday that he would not be here today. I am opposing the application for adjournment.
Court: I read the letter for adjournment dated today 17/6/09. The last paragraph was most uncharitable to the Court that:
“My Lord recollect that I was trying to reconcile my diary with learned Counsel for the Prosecution before today’s date was imposed on us, the defence, which date is not convenient due to the above reasons.”
Counsel then proceeded to suggest dates, the 29/6/09, 1st, 2nd and 3rd or 6th of July, 2009.
I must say that I noted yesterday when the matter was adjourned, learned Counsel Mr. O. A. Adigun stood up on his way out of the court and said he would not come to Court today. That much the Court can recollect.
The Court exercised a lot of restraint to the comment and/or Statement of Counsel by today’s letter and the last Paragraph learned Counsel has made good his “threat” if I may use the term “threat” loosely so to say.
I have considered the reasons given by learned Counsel and the antecedent of this case where 2 adjournments were forced at the instance of Counsel and his Client. It is very easy to accuse the Court of delay in the administration of justice, whilst most of the delay comes from Counsel and the litigants.
In this division, there are only 2 criminal cases for this quarter. There is no reason on earth why this Court should not be able to finish 2 criminal matters in a quarter. In these days of continuous assessment for judges, no judge worth his salt would report to the NJC of the end of the quarter that he had 2 criminal cases and yet he could not conclude them.
I am not unmindful of the accused Constitutional right to their hearing and the right to be defended by Counsel of his choice.
However, in this case, I think, learned Counsel has taken this Court for a ride bearing in mind his comments in open Court yesterday and the last paragraph of the letter for adjournment.
I say no counsel ought to treat the Court with disdain and yet expect the Court to exercise its discretion in his favour. The word “imposed” date on Counsel is “uncharitable”. The practice is that the convenience of the Court should be paramount and not that of Counsel. In the circumstances, I would not be a party to delay or laziness in the administration of justice. Certainly, as judge, who cannot finish 2 criminal cases in a quarter in a brand new judicial division of the instance of Counsel must have allowed Counsel to take over the business of the case management of his Court. No Counsel can take over this Court. Accordingly, the adjournment sought is refused. The objection for adjournment is sustained.
(sng)
JUDGE.
Court: I call on the Accused to enter his defence.
Accused: Entered the Witness Box and affirms to testify as DW 1 and a Muslim.
It was against this scenario that the Appellant testified in Court and was cross-examined by learned Counsel Mr. Ezeala for the prosecution. Towards the end of the proceedings it was thus recorded:-
DW 1: I was denied to sign Exhibit P4. The duty of an agent is, if someone has land to sell he would give photocopy and the agent would seek for an interested buyer. Some agents take 10% depending on the agreement. I collected N40, 000.00 from Muazu. I did not give or issue any paper for the N40, 000.00 that I received.
Accused: I do not have another witness. This is my defence.
Court: this case is further adjourned to 18/6/09 for address, Bail of the Accused to continue.
(sgd)
JUD6E
17 / 6/09
For further effect, I wish to reproduce some of the proceedings for 18/06/2009.
ON THURSDAY THE 18TH DAY OF JUNE 2009
Accused in Court.
Speaks English
Mr. D. E. Ezeala for the Prosecution. Mr. K. B. Yakunat holding watching brief on behalf of the Complainant.
Accused: My counsel is not in Court.
Ezeala: I am ready with the address.
With the stage fully set Mr. Ezeala, of Counsel fully addressed the Court at pages 23 to 26. At the conclusion of this address, the learned judge recorded thus:-
“Court: – Judgment in this case is stood down to later in the day, say of 12 noon.”
Later it went thus:-
ON THURSDAY, THE 18TH DAY OF JUNE 2009
Case recalled at 12.00 noon.
Speaks English.
Mr. D. E. Ezeala for the Prosecution.
Mr. K. B. Yakunat holding watching brief for the complainant.
Judgment read and delivered in open court. 1st Accused convicted on both Counts.
Convict: I am pleading with the Court. I am student of 200 level of University of Abuja. I have a family, 2 wives and 11 children. I have aged parents. I am the one taking care of them. I have neither committed a crime in my life, but I plead with Court to temper justice with mercy; a lot of people would suffer.
Ezeala: No previous record of conviction.
In his argument learned Counsel to the Appellant pointed out that during the whole trial of the matter and up to the end of the proceedings of 16/06/09, the Appellant had been represented by Counsel and therefore the order of the lower Court for the Appellant to leave the dock and move to witness box to instantly give his evidence in defence, after the refusal of the Court to order for an adjournment, would have occasioned a serious miscarriage of justice in the circumstance. To support his other arguments, learned Counsel explained that it is part of the exercise of Power of discretion for a Court to grant or refuse an adjournment. He added however, that where a party to a proceeding would be put in a distressful situation of being marooned or left midstream without the services of Counsel on adjournment ought not to be refused. He supported this explanation with the decision in AGBOGU V. ADICHE (2003) 2 NWLR (Pt. 805) 5 where this Court referred to and applied the Supreme Court decision in ANISUBU V. ENOCH (1975) 2 SC 530, that an order for adjournment ought not be unreasonably withheld or refused.
According to learned Counsel, the proceedings of 17-06-2009 were very vital and crucial and by ordering the Appellant to proceed with his defence in the absence of his Counsel of choice, the learned trial Judge had done what would amount to the denial of the Constitutionally guaranteed right of the Appellant to fair hearing. He then maintained that the learned trial Judge failed to exercise his discretion judicially and judiciously. He referred to NTUKUDEM v. OKO (1986) 5 NWLR (Pt. 45) 909 and JOB V. GTB PLC (2004) 3 WRN 60 and urged this court to interfere with this injudicious exercise of discretion and set aside same for being unreasonable and unwarranted in the circumstance.
On the 2nd issue for determination, learned Counsel maintained that the extraneous belief of the learned trial Judge that the letter seeking for an adjournment amounted to Counsel taking the Court for a ride or for granted did not allow him to have a temperament free attitude towards the application in the letter. He added that the learned trial Judge failed to consider that the sins or mistake of Counsel ought not to be visited on his client.
While referring to the case of SALEH V. MONGUNO (2003) 1 NWLR (Pt. 221) 233, learned Counsel high lighted the attributes of fair hearing in a trial to include that regard must be had to all the circumstances of a matter and in every material decision therefore justice must not only be done but must manifestly and undoubtedly be seen to have been done. Against this background, learned Counsel submitted that upon an overview of the proceedings of the lower Court would clearly show a denial of fair hearing. He illustrated this submission by giving an example that following the plea of the Appellant on 31/03/2009; the Respondent took an adjournment to 22/04/2009 to prepare for its case while at the close of the Prosecution, the Appellant was not afforded more than barely one day to put up his defence. It was of this juncture that learned Counsel referred to and S. 36(6) (b) of the Constitution wherein it was provided that every person who is charged with a criminal Offence shall be entitled to be given adequate time and facilities for the preparation of his defence.
In addition to the above, learned counsel underscored the cardinal position of address by counsel in the trial process and the effect of its omission or willful denial. On the issue of denial of fair hearing, learned Counsel to the Respondent explained that the constitutional and natural justice principle of fair hearing is for both parties to a matter a proceeding and not just for one of the parties. He referred to the case of OSAYEMI v. STATE (2006) ALL FWLR (Pt.342) 1577 at 1597 D-E where it was emphasized that the requirement of fair hearing in any criminal proceeding under S. 36(4) of the Constitution is not only for the benefit of the accused, but it is also for the benefit of the State and the society of large. While also referring to S. 36(6) (c) of the Constitution, learned counsel pointed out that the Appellant also not denied the opportunity of legal representation but his Counsel of choice wasted the opportunity afforded to him by toying with the smooth running of the Proceedings before the court. Against this background, learned counsel argued that in granting or refusing an application for adjournment, the convenience of the Court is always paramount.
While referring to the facts and circumstances of this appeal, learned Counsel observed that the application for adjournment was vehemently opposed by the prosecuting Counsel and the learned judge took the antecedent of the matter and the attitude of learned Counsel to the Appellant into consideration before refusing to grant the application.
According to learned Counsel the learned trial judge fully exercised his discretion judicially and judiciously.
In a further effort, learned Counsel pointed out that after the refusal of the application for adjournment the Appellant voluntarily took to the witness box and testified in his defence and did not indicate that he had other witnesses to call. In the opinion of learned Counsel, the Appellant was not compelled to give evidence. He supported his opinion with the decision of this Court in IDRIS V. AUDU (2008) ALL FWLR (Pt. 422) 1129 at 1156 A-B where it was held that in a situation where a party to a suit has been granted a reasonable opportunity of being heard but he deliberately refused to avail himself of that opportunity through his own, or his Counsels neglect or tardiness, he cannot turn around to complain of a breach of fair hearing. In a holistic and blanket exercise learned Counsel referred to the decided cases referred to by learned Counsel to the Appellant on the question of denial or otherwise of fair hearing and strongly maintains that the decisions are irrelevant and totally inapplicable to the facts and circumstances of this appeal. Upon all the foregoing, learned Counsel urged this Court to hold that the Appellant was not denied fair hearing by the lower Court and to proceed to resolve this issue against the Appellant.
I have carefully considered all the foregoing arguments and submissions of respective learned Counsel. I also took the step of reproducing in full the most relevant parts of the proceedings of the lower Court which in my view would be a guiding light in the determination of this issue. I wish to quickly observe and place on record of the onset that it is correct as pointed out by learned counsel to the Appellant that the learned trial judge, upon refusing the application for adjournment, without more, ordered the Appellant or rather called him to enter his defence whereupon the record showed that he seemingly left the dock and entered the witness box and proceeded to testify in his own defence after an affirmation.
It must also be underscored and put under full perspective that after the Appellant was cross-examined and had indicated that he had no witnesses to call; the matter was adjourned to the next day for address. On the next day the Appellant told the Court that his Counsel was not in Court. No decision was made by the lower Court on what to do next, except that learned Counsel Mr. Ezeala for the prosecution went on to address the Court in the course of which he referred to a decided case and the statutory provisions under which the Appellant was charged. At the end of the address, without much ado or any reference to the Appellant if he wanted to respond personally or through Counsel, the matter was stood down for judgment of 12.00 noon. When the Court resumed, the learned trial Judge read his 20 Page judgment (Page 70 to 90 of the record of appeal) wherein he referred to 9 decided cases and a full reproduction of the provisions of the law under which the Appellant was charged. He also made copious references to the oral and documentary evidence on record. Even if the Court commenced its sitting at 9. 00 am on 18/6/2009, as it would normally do, and having considered the time learned Counsel Mr. Ezeala took to address the Court and the time the learned trial Judge took to write his judgment and deliver same at 12. 00 noon or any time subsequent to that on that day would in my view leave the entire exercise to be abnormal.
It is correct as pointed out by learned Counsel to the Appellant that the learned trial judge was carried away by extraneous issues when he refused the application for adjournment. The statement, the learned trial Judge attributed to learned Counsel in the following remark thus:-
“I must say that I noted yesterday learned Counsel Mr. O. A. Adigan stood up on his way out of the Court and said he would not come to Court today, that much the Court can recollect…”
(Lines 16-18 Page 16 record of appeal)
There is a seeming disconnect here, as there is nowhere in the record of the proceedings of the previous day where learned Counsel Mr. Adigan was recorded as having said as he was said to have done by the learned trial judge. The copious reference to this incident, as ugly and unfortunate as it may have been if it indeed happened as reported, by the learned judge and learned Counsel to the Respondent at page 9 of his brief in this Court, was totally extraneous. It ought not to be allowed to weigh on the mind of the learned judge while considering on application for adjournment in the circumstance of this appeal. If the learned judge had seen the need to take a very serious view of the conduct of Counsel, he should have put it on record at the time it occurred and perhaps proceed to even contemplate further measures as the circumstances may reasonably and lawfully justify. And he was fully entitled to take a serious view of such an infamous remark by counsel.
With respect to the right of the Appellant to address the court, I wish to point out that since he had testified in his own defence, he ought to have been the first to address the court after which learned counsel Mr. Ezeala would take his turn with a reserved and fully vested right for the Appellant to reply in points of law counsel Mr. Ezeala would take his turn with a reserved and fully vested right for the Appellant to reply on points of law if the circumstance warrants. This is a fundamental procedural safeguard and a Constitutional imperative under S. 294(1). The section provides:-
“Every court established under this constitution shall deliver its deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter with duly authenticated copies of the decision within seven days of the delivery thereof.”
In the case of ESHENAKE V. GBINIJE (2006) 1 NWLR (pt. 961) 228 it was held that a right it address was a Constitutional right which would not be taken away from a party by any Court and where one of the parties made his final address, the other party must be given an opportunity to reply before the Pronouncement of judgment.
A denial to one party of his right to final address, whilst the other party was allowed his was an infraction of the rule of natural justice of audi alteram partem. Failure to hear the address of one party, however over whelming the evidence is on one side vitiates the trial. Also, in the circumstance of this appeal, it was shown that there was an application for adjournment. The date earlier appointed by the Court was not convenient for Counsel. Learned Counsel went further to suggest other dates such as 29/06/3009, 1st, 2nd, 3rd or 6th July, 2009. From the 17/06/2009, the suggested date of 29/06/2009 or indeed the other dates do not appear to be unreasonable at all.
Once it is shown that the application for adjournment is for a good cause and cogent reason, the court should grant it in the interest of justice. Thus, the court should not punish a party merely because he or his counsel has sought for an adjournment and even if the court is irritated or annoyed by the request its refusal to grant same may in certain given circumstances be unjustifiable or indefensible. It is clear from the principles on the grant of adjournment vis-a-vis the concept of fair hearing that its benefit is not only to be enjoyed by the applicant alone, as submit ted by learned counsel to the Appellant, but by all the parties involved in the proceedings including the court whose interest is to ensure the attainment of justice in the proceedings.
Though it is within the discretion of the learned trial judge to grant or refuse the application for adjournment, its refusal in the circumstance of this appeal was most unreasonable and this court is entitled to look into the circumstance with a view to redress the miscarriage of justice that was occasioned by the unreasonable refusal of the application. See AJISEFINI V. DPP (2002) FWLR (Pt. 122) 88. Against this background, issues 1, 2 and 3 must be resolved against the Respondent.
The next issue that ought to be determined in this appeal is in my view, the 6th issue formulated by learned Counsel to the Appellant and the 4th issue in the Respondent’s issue, learned Counsel to the Appellant, began with an explanation that the main complain in the grounds and appeal out of which this issue was formulated (grounds 8 and 9) is that the prosecution did not prove its case against the Appellant and his defence to the 2 count charge was not duly considered. He added that for the prosecution to prove its case all the elements of the Offences must not only be established but each had to relate to the Appellant in such a manner that no reasonable doubt will exist as to his guilt. According to learned Counsel the Court was under a duty to evaluate any evidence that could afford the Appellant a defence to the charges against him. He ref erred to the case of UWAEKWENYE V. THE STATE (2005) 21 NSCQR 571 where it was held that it is the duty of the court to consider all the defences raised by the evidence whether the Person charged specifically put up such defence or not and no matter how weak a defence raised by an accused may appear, it must be properly and adequately considered.
In an attempt to underscore the salient features of the case presented at the lower Court, learned Counsel pointed out that both PW1 and PW 2 accepted the fact that the Appellant was a land agent who introduced PW1 to the prospective vendor. Learned Counsel also emphasized the fact that the Appellant fully supported and encouraged PW1 to conduct an investigation into the title of the vendor before he parted with any money and it was in the pursuit of this that PW1 told the Court in his evidence that he verified the authenticity of the R and O before he gave out the balance of the purchase money. Learned Counsel added further that upon the arrest of the Appellant by the Police, the vendor was contacted on telephone and he accepted all responsibility when he acknowledged the purchase price and promised to pay back same.
While explaining one of the essential ingredients of the Offence under review, learned Counsel pointed out that fraudulent intent is of the heart of the matter. He argued and submitted that PW 1 was given ample time to verify the authenticity of the Right of Occupancy (R of O) and in fact had 3 days to do so, clearly showed that there was no Fraudulent intent in the transaction upon this submission he concluded that the Respondent failed to lead credible evidence that there was any agreement between the Appellant and the vendor to obtain money by false pretences from PW1 or had any fraudulent intent in the failed land transaction. Against this background learned Counsel urged this Court to resolve this issue against the Respondent and also allow this appeal because the Court below erred when it ordered the Appellant to proceed with his defence in the absence of his counsel thereby visiting the consequences of the sins of Counsel on him. Also, learned Counsel maintained and urged on this Court to allow this appeal because the Appellant was hurried into defending the charges against him in the absence of Counsel and denied the right to address the Court thereby denied his constitutionally guaranteed rights. He added further that the conviction of the Appellant was unwarranted after the lower Court itself had made a finding that the principal count of charge in the matter was defective. He urged the Court to hold that there was no proof beyond reasonable doubt and the Appellant ought to have been discharged and acquitted.
In his response, learned Counsel agreed that the guilt of the Appellant must be proved beyond reasonable doubt under S. 138 of the Evidence Act, but added further that the lower Court did a very thorough analysis of the facts and evidence and arrived of the correct verdict in convicting the Appellant. He pointed out that the learned trial judge was fully conscious of his responsibility to consider whatever defence that was open to the Appellant when he said of page 63 of the record of appeals that:
“The law is that the defence of the accused no matter how feeble must be considered.”
In the opinion of learned Counsel the defence of the Appellant collapsed against the weight of evidence that was adduced to support his conviction. He urged this Court to so hold and resolve this issue against the Appellant and to dismiss this appeal and affirm the judgment of the lower Court.
In the course of its judgment the lower Court, after setting out the 2 count charge in full, observed of Page 82 thus: –
“It is clear that count 2 is framed on the punishment section 1(3) instead of section 1(1) and (2) when the charge was read and explained. (sic). The Accused did not object. I believe the Accused is not misled. The proper thing is not to charge on the punishment section, but on the section creating the offence.”
This in my view was a positive finding by the lower Court.
It was direct on a point of law. Right from the time when the plea of the Appellant was taken it was on a defective charge. This was a fundamental vice. It affected the entire foundation of the trial. The Appellant could have objected to being tried on a defective charge but where he failed to do so, the learned trial judge, as a matter of law could have also struck out the charge in the judgment more particularly because the Appellant did not have the opportunity to address the Court before Judgment. The trial of an accused Person on a defective charge lacks proper foundation and remained irregular. See ABACHA V. THE STATE (2002) FWLR (Pt. 118) 1224.On the quality of evidence adduced in proof of the charge, I wish to point out that I am unable to see any significant fact that tends to show the existence of any fraudulent intent on the part of the Appellant in the course of this transaction. It was a botched or failed land transaction simpliciter. The Appellant merely acted as on agent. He collected a commission of N40, 000. In his evidence, PW1 told the Court, that the vendor promised to refund the purchase price when he was contacted and told that the transaction had gone burst. The seller even advised that the Appellant should not be arrested. The 2 Statements made to the police by the Appellant were in evidence before the Court. The learned trial judge failed to properly evaluate them, more particularly that aspect where the Appellant said be sought for monetary assistance from the vendor of the land and was told to help in the selling of the land to enable him to obtain the monetary assistance he desperately needed. In my view the trial of the Appellant lacked proper foundation and all the evidence adduced failed to meet the requirement of intention to defraud. The conviction of the Appellant in the circumstances of this appeal remained unsound and ought not to be allowed to stand. This issue along with issue 4 is hereby resolved against the Respondent in favour of the Appellant I do not see any need to go into issues 5 as formulated by the Appellant. This appeal is hereby allowed. The judgment of the lower Court delivered on 18/06/2009 is hereby set aside. The conviction of the Appellant is quashed and the sentence imposed on him and the order to make restitution is also set aside. I enter a verdict of discharge and acquittal. The Appellant is ordered to be released from prison forthwith.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have had the privilege of reading the judgment just delivered by my learned brother JUSTICE A.A.B. GUMEL JCA. I am in total agreement with his reasoning and conclusion, I have nothing to add.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read in advance the lead judgment of my learned brother, A.A.B. Gumel, JCA. I agree with the reasons he gave for allowing the appeal. His opinions on the issues raised and canvassed in this appeal agree with mine, and for those same reasons so ably set out in the judgment I too will allow and do hereby allow the appeal. The conviction, sentence and Order for restitution are set aside. I also enter a verdict of discharge and acquittal and order the release of the Appellant from prison.
Appearances
Mr. O. C. UcheaguwaFor Appellant
AND
Mr. D. C. Rikko, State Counsel Ministry of Justice, Lafia, Nasarawa StateFor Respondent
