AWOLU v. STATE
(2020)LCN/14689(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Monday, October 19, 2020
CA/AK/55C/2015
RATIO
FAIR HEARING: RIGHT OF FAIR HEARING
Section 36(4) to (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide as follows:
“Section 36
(4.) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal:
…
…
(5.) Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such the burden of proving particular facts.
(6.) Every person who is charged with a criminal offence shall be entitled to – …
…
…
(d) examine, in person or by his legal practitioners the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same condition as those applying to the witnesses called by the prosecution; and
……
In the criminal prosecution under review, the trial Judge was expected to be an unbiased and impartial umpire/arbiter holding the scale of justice evenly between the prosecution and the Accused Person, Appellant herein, at every stage from the inception to the conclusion of trial. PER OMOLEYE, J.C.A.
DECISION: MEANING OF THE WORD “DECISION”
The word “decision” is wide enough to encompass the word “Ruling” or “Order”. PER OMOLEYE, J.C.A.
RIGHT: OBSERVANCE OF CONSTITUTIONAL AND PUBLIC RIGHTS
It is instructive that the observance of constitutional and public rights is sacrosanct. The observance is a matter of public duty and cannot be waived by the Court. See the case of: Awuse v. Odili (2006) NWLR (Pt. 952) p. 416 at p. 527.
Sequel to the above observations, the subsequent proceedings, no matter how well conducted and right the ultimate decision may be, are liable to and must be set aside. See the case of:Chief Bode Thomas v. Samuel Saliu Ali CA/AK/191/2016 delivered on 31/3/2017. In Ejezue v. Anuwa, (supra), a breach of fair hearing was held to have been occasioned by the flaw and a mistrial in the nature of not having heard a party. See also the case of: Chime v. Onyia (2009) 2 NWLR (Pt. 1124) p. 1 at p. 51. PER OMOLEYE, J.C.A.
PLEA: ESSENTIAL NATURE OF A FRESH PLEA IN THE TRIAL OF A NEW CHARGE
It is settled law that, a fresh plea is an essential, indeed, an indispensable element in the trial of a new charge, which is what an amendment, no matter how trifling or seemingly inconsequential in nature, does to an existing charge, before the amendment. Thus, non-compliance with the provisions of Section 164(1) of the Act renders proceedings conducted in such situations, null and void. In the case of: Adejobi & Anor. V. State (2011) LPELR – 97, the Supreme Court per Rhodes-Vivour, J.S.C., at page 40, paragraphs D – E restated the legal position that:
“Section 164 of the Criminal Procedure Act is mandatory in that once the charge is amended, the accused persons must be called upon to plead to the charge as amended. Failure to call on the accused persons to plead to the new charge renders the whole proceedings a nullity. See the case of: R. V. Eronini (1953) 14 WACA, Princent v. State (2002) 12 SC (Pt. 1) pg. 137.” PER OMOLEYE, J.C.A.
WRIT: WRIT OF CERTIORARI
In this matter, I hold that there has been an error in law and procedure including the breach of the right of fair hearing that have rendered the proceedings and judgment a nullity and occasioned a miscarriage of justice. From the facts and evidence, the proceedings of the trial Court were even liable to be quashed on an order of certiorari. See the case of: Monsurat Lawal & Ors. v. Senior Magistrate Grade II & Anor. (2013) 2-3 S.C. (Pt. IV) p. 108 at pgs. 131-132 where Sulaiman Galadima, JSC made the point clear thus:
“The prerogative writ of certiorari process is meant to provide supervisory process or measure to check the excesses, arbitrariness of inferior Courts or Tribunals. See Rex v. Northumblerland Compensation Appeal Tribunal – Exparte Shaw (1952) 1 KB 338 at 346 – 347. This decision of the English Court was considered and applied in Oduwole v. Fakinwa (1990) 4 NWLR (Pt. 143) 239 at 251. See further the cases of Queen v. District Officer and Anor. (1961) 1 All NLR 51; Agwuegbo v. Kagoma (2000) 12 NWLR (Pt. 687) 252 at 269.
The certiorari procedure is available under Section 272(1) and (2) of the 1999 Constitution and various State High Court Laws and Civil Procedure Rules.
This power of control of inferior Courts or Tribunals by the High Court is exercised by means of quashing any decision of an inferior Court which on the face of it is excessive, arbitrary or oppressive.… This is the proper case that can be brought for quashing the conviction and sentence of the Appellant because of the several errors on the face of the record of the trial Court…. “PER OMOLEYE, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
OLALEYE AWOLU APPELANT(S)
And
THE STATE RESPONDENT(S)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State sitting in Akure per Akeredolu, J. (as he then was, now C. J., hereinafter referred to as “the trial Court”) delivered on the 7th day of August, 2014, in Charge No. AK/133C/2013.
The Appellant was charged along with two other persons by the Respondent before the trial Court on a four-count charge as follows:
“COUNT I
STATEMENT OF OFFENCE
CONSPIRACY, contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLALEYE AWOLU, JELILI RAMONI and YUSUF IBRAHIM sometimes in October, 2012 at Ijapo Estate, Akure did rob one Adeoti Kazeem of his money and valuable goods.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLALEYE AWOLU, JELILI
1
RAMONI and YUSUF IBRAHIM sometimes in October, 2012 at Ijapo Estate, Akure did rob one Kazeem Adeoti of his money and valuable goods and as at the time of robbery you were armed with offensive weapon to wit: gun, knives, iron rod, pestle, etc.
COUNT III
STATEMENT OF OFFENCE
CONSPIRACY, contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLALEYE AWOLU, JELILI RAMONI and YUSUF IBRAHIM sometimes in October, 2012 at Ijapo Estate Akure did conspire to rob one Omojokun Opeyemi of her money.
COUNT IV
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
Olaleye Awolu, Yelili Ramoni, Yusuf Ibrahim and others at large on 12th October, 2012 at Ijapo Estate Akure in Akure Judicial Division did rob one Omojokun Opeyemi of the sum of N2,000.00 while armed with gun, knives, iron rod, pestle, etc.”
The brief background facts of this
2
matter as relevant to this appeal are that, on the 3rd of February, 2014, the Appellant with his two other co-accused persons were arraigned before the trial Court as the charges against them were read over to them. The Appellant pleaded not guilty to the two counts of the original charge. The Respondent proceeded to field its first witness. The Prosecuting Counsel then applied to be allowed to tender a copy of the extrajudicial statement of one Adeoti Kazeem, the Complainant in the case and have it certified by the Police Authorities at a later time, as he was unable to locate the original case file in the matter.
Without any formal application from the Prosecuting Counsel and response thereto by the Accused Persons’ Counsel, the trial Court noted that, the Prosecuting Counsel would require the original case file for the due prosecution of the case as he could not in law make use of certified copies of necessary documents. The trial Court therefore “suo motu” adjourned the case to the 24th of February, 2014 for hearing therein to “begin again” – See page 45 of the Record of Appeal.
As stated by the learned trial Judge
3
in his judgment under scrutiny, on the next hearing date, the prosecution applied for and was granted leave to use an additional proof of evidence and substitute the original charge of two counts with a new charge of four counts. However, in the opinion of the trial Judge since Counts 1 and 2 of the new charge were, in his words, “identical, word for word” to the two counts of the original charge, the taking of the plea of the accused persons, including the Appellant in respect thereof was not required. Hence, the plea was restricted to the two additional counts in the substituted charge. In other words, the Appellant therefore pleaded not guilty only to the additional two counts that is, counts 3 and 4 but his plea was not taken in respect of new counts 1 and 2: see the judgment of the trial Court contained in pages 78 to 99 of the Record of Appeal, particularly paragraph 2 of page 79. Despite the said irregular procedure, the prosecution proceeded with its second witness and trial was eventually concluded with the considered judgment of the trial Court delivered on the 7th of August, 2014 convicting the Appellant for the lesser offence of
4
conspiracy to commit robbery and robbery and the Appellant was sentenced to twenty-one years imprisonment.
The Appellant is unhappy with the posture and conduct of the trial Court which suddenly and “suo-motu” terminated the trial which was part-heard. It is the contention of the Appellant that he was not given a fair trial/hearing, because when hearing of the case commenced the second time, the 1st and 2nd counts of the substituted charge were not read over to him to enable him enter his pleas thereto afresh. To this end, the Appellant’s original Notice of Appeal dated 23rd of October, 2014 was filed on the same date. By the order of this Court made on the 13th of November, 2018, the Appellant was permitted to amend the original Notice of Appeal. Thus, the Amended Notice of Appeal dated the 16th of November, 2018 was duly filed on the 26th of November, 2018. For good grasp and ease of reference, the four grounds of appeal contained in the Amended Notice of Appeal are reproduced hereunder as follows:
“GROUND ONE
That the decision of the High Court is unreasonable and cannot be supported having regard the weight of evidence.
5
GROUND TWO
The learned trial judge erred in law when he “suo – motu” on 3rd February, 2014 terminated the part heard proceeding on the charge wherein the Appellant was being tried and adjourned again, “suo-motu” the terminated charge/proceedings to 24th February, 2014 to commence the already terminated charge de-novo.
PARTICULARS OF ERROR
i. The Appellant as 1st accused person was arraigned, pleaded not guilty and was being tried on Charge No. AK/133C/2013, when on 3rd of February, 2014 the trial Judge “suo – motu” terminated the proceedings and adjourned to 24th February, 2014 for hearing. ii. Even though the proceedings of 24th February, 2014 were a fresh or new trial as ordered by the trial Judge, the plea of the Appellant was not taken afresh or again when the new trial commenced on 24th February, 2014.
GROUND THREE
The learned trial erred in law when he held thus:
“It is unfortunate that Mr. Olorunfemi of counsel for the prosecution is not diligently prosecuting this case………. In the interest of Justice, I will adjourn this case for
6
hearing to begin again when prosecution comes up with the original case file.
Case adjourned to 24th February, 2014 for hearing”
PARTICULARS OF ERROR
i. The learned trial Judge came to the above decision/ruling
ii. “suo-motu” without inviting parties to be heard before arriving at the decision.
iii. There was no application for adjournment warranting the above decision.
iv. There was no submission upon which the above ruling/decision was predicated.
GROUND FOUR
The learned trial Judge erred in law when he held thus:
“I find the 1st accused Olaleye Awolu, guilty of offences of conspiracy to commit robbery and robbery and hereby convict and sentence him 21 years imprisonment.”
PARTICULARS OF ERROR
i. The plea of the Appellant was not taken afresh when his trial upon which his conviction was eventually based was started afresh.”
In line with the relevant provisions of the Rules of this Court, briefs of argument were settled for the parties by their respective Counsel.
The two issues formulated for determination in the Appellant’s Brief dated and
7
filed on the 13th of December, 2018 settled by Mr. Oso Adetunji, the Appellant’s Counsel, read thus:
“ISSUE ONE
Whether the entire proceedings leading to the conviction and sentencing of the Appellant was not a nullity in view of the failure to properly take the plea of the Appellant?
ISSUE TWO
Whether the act of the learned trial Judge “suo-motu”, terminating the trial/proceedings and “suo-motu” ordering a fresh trial on a particular date did not breach the Appellant’s right to fair hearing thereby occasioning a miscarriage of justice?”
In the Respondent’s Brief of Argument dated the 1st of April, 2019, filed on the 2nd of April, 2019 and deemed properly filed on the 21st July, 2020 settled by the Respondent’s Counsel, Mrs. G. A. Olowoporoku, Director of Public Prosecutions of Ondo State, the two issues donated for the determination of the appeal state as follows:
“i. Whether the direct evidence of PW1, PW2, the Appellant’s positive confessional statement and other pieces of circumstantial evidence were not sufficient to establish the ingredients of
8
conspiracy to commit robbery and robbery against the Appellant? (Ground 1 of the Notice of Appeal)
ii. Whether the Appellant was not properly arraigned before the trial Court, thereby occasioning lack of fair hearing and miscarriage of justice? (Grounds 2, 3 & 4 of the Notice of Appeal)”
On the 21st of July, 2020 when the appeal was heard by this Court, the learned Counsel for both parties adopted their briefs of argument in urging upon this Court in terms of their varied positions in the appeal.
The two issues crafted for determination by the Appellant are collapsible as they both underscore the validity of the entire proceedings of the trial Court culminating in its decision, having regard to the Appellant’s allegation of his denial of fair hearing in the case. Issue two contained in the Respondent’s brief is in direct response to the said two issues of the Appellant. I will thus adopt, consider and resolve the Appellant’s two issues together. The outcome of the said two issues of the Appellant could ultimately terminate the appeal thereby making the resolution of issue one contained in the Respondent’s
9
brief which is intended to challenge the correctitude of the judgment of the trial Court, redundant.
I will now proceed to the consideration of issues one and two contained in the Appellant’s brief and responded to under issue two contained in the Respondent’s brief.
“ISSUE ONE
Whether the entire proceedings leading to the conviction and sentencing of the Appellant was not a nullity in view of the failure to properly take the plea of the Appellant?
ISSUE TWO
Whether the act of the learned trial Judge “suo-motu”, terminating the trial/proceedings and “suo-motu” ordering a fresh trial on a particular date did not breach the Appellant’s right to fair hearing thereby occasioning a miscarriage of justice?”
THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s complainant relates to the failure of the Court to take the plea of the Appellant afresh, when the trial of the Appellant with his co-accused commenced again, afresh and on a new charge. Plea taking is the most vital part of arraignment of an accused person. Arraignment and taking the
10
plea of an accused person signifies the commencement of trial. It confers jurisdiction on the Court.
The Appellant was first arraigned with others on 3rd February, 2014. Section 215 of the Criminal Procedure Law governs arraignment of an accused person at first instant, while Sections 162, 163 and 164 of the same law govern plea taking upon alteration or framing of a new charge.
The procedure and the ritual of plea taking must be strictly followed. Non-compliance is fundamental and renders the trial a nullity. In the instant appeal, while the original arraignment of the Appellant on 3rd February, 2014, can be said to be valid, the plea of the Appellant ought to have been taken on 24th February, 2014, when the trial of the Appellant began afresh as ordered by the trial Court.
While the first plea taken on 3rd February was taken on two counts charge, reflected on the information filed on 3rd October, 2013, the information filed on 24th February, 2014 and on which the Appellant 2nd trial commenced has been reframed and altered to four counts charge.
Where a charge or information is altered or re-framed after plea has been taken, the
11
altered or the new charge as reframed must be read over and explained again for the accused to plead to again. That is the mandatory provisions of Sections 162, 163 and 164 of the Criminal Procedure Law. In the instant appeal, those provisions were not complied with and that was very fatal to the entire proceedings leading to the conviction and sentencing of the Appellant.
It was a breach of the constitutionally guaranteed right of the Appellant to be informed in specific terms his offence each time he is arraigned. This breach invalidated the Appellant’s arraignment of 24th February, 2014 and entire proceedings leading to the Appellant conviction and sentence. Strict compliance with the procedure for plea taking where the law requires is a sine qua non and precondition for a valid trial. Reference was made to the
cases of: (1) Aladu v. State (1998) 8 NWLR (Pt.563) p. 618, p. 633; (2) Idemudia v. State (1999) 7 NWLR (Pt. 610) p. 202; (3) Erekanure v. State (1993) 5 NWLR (Pt. 294) p. 385 and (4) Opara v. A.G., Federation (2017) 9 NWLR (Pt. 1569) p. 61 at p. 103.
The further complaint of the Appellant relates to the biased and
12
unfair trial the Appellant was subjected to when the learned trial Court took over the prosecution of the Appellant by “suo-motu” terminating the trial/proceedings of 3rd February, 2014 and ordered that a fresh trial be commenced at the next date of hearing without hearing from the Appellant.
The Records of Appeal bear testimony to the taking over of the prosecution by the learned trial Court to the detriment of the Appellant thereby denying the Appellant the constitutionally guaranteed right to fair trial and hearing. The scope of fair hearing, particularly in criminal trials is wider than in civil trial. The right of the accused to participate fully in the hearing of a case against him include the right to be heard and participate in any decision that is to be taken and that will affect him in any proceedings. Where such right is breached, the hearing and trial of the accused will be declared a nullity.
In the scenario and circumstances leading to the unilateral termination of the Appellant’s first arraignment and hearing of another trial for the same offence on a freshly filed and re-framed charge presented a clear case of
13
breach of the Appellant’s right to fair trial and hearing. On 3th February, 2014 at the middle of the trial of the Appellant, the Prosecutor applied to tender the statement of one Adeoti Kazeem, the complainant in the matter.
The Prosecutor applied to tender the statement that was not an original or certified copy, even though the Prosecutor himself believed it ought to be certified. He however undertook to certify it later with the Police. The Appellant and his counsel even though present in Court, were not accorded the opportunity to be heard on the application of the prosecutor to tender a document against the Appellant, before the learned trial Court took a decision “suo-motu”, terminated the trial and ordered a fresh trial. Apart from leaving the Prosecution’s application to tender a document hanging and unattended to, which in itself is a fundamental breach, ordering a fresh trial and a fresh arraignment of the Appellant on the same offence on 24th February, 2014 “suo-motu” without hearing the Appellant before making the order breached the Appellant’s right to fair hearing before subjecting him to a fresh
14
trial. Even in civil cases, where a Court “suo-motu”, raises an issue, parties to the proceedings must be heard on it before the Court can validly take a decision on it, otherwise, such decision will be a nullity.
The learned Counsel finally referred to the earlier decision of this Court in Appeal No. CA/AK/55CA/2015, delivered on 4th April, 2017. In the said appeal, a sister-appeal to the instant appeal, this Court declared the order of the learned trial Court terminating the trial of the Appellant on 3rd February, 2014 null and held that ordering a fresh trial on the same set of facts was oppressive. He urged upon this Court to set aside the entire proceedings of the trial Court, discharge and acquit the Appellant.
THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Appellant was properly arraigned and granted fair hearing before the trial Court and therefore no miscarriage of justice was occasioned. The doctrine of fair hearing essentially means that parties must be given equal opportunities to present their cases to the Court and no party should be given more opportunity or advantage in the presentation of his case.
15
Reliance was placed on the cases of: (1) Egbuchu v. C.M.B & Ors. (2016) 8 SCM, p. 14 at p. 25, paras. F-H and (2) Mpama v. First Bank of Nigeria (2013) 1 SCM, p. 102 at pgs. 116 – 117, paras. I, A-D. The factors vital in the determination of the question whether there has been fair hearing or not are:
(i) Has the person to be affected by the outcome of the case been present all through the proceedings to hear all the evidence against him?
(ii) Has he been given the right to cross-examine witnesses who gave evidence against him?
(iii) Has he been granted access to and opportunity to read all the documents tendered in evidence at the hearing of the case?
(iv) Has he been given the opportunity to know the case he has to meet at the hearing and to adequately prepare for his defence?
The Record of the trial Court reveals that all the above questions can be answered in the affirmative by any reasonable man who was present in Court throughout the proceedings at the trial Court.
Furthermore, the requirement for valid arraignments are:
(i) The accused must be placed unfettered before the
16
Court unless the Court otherwise sees cause not to;
(ii) The charge or information must be read over and explained to the accused to the satisfaction of the Court in the language he understands and
(iii) His plea must be taken.
On the legal principle, reference was made to the cases of: (1) Ibrahim v. The State (supra) and Omokuwajo v. FRN (2013) 6 SCM, p. 193 at pgs. 207 – 208, paras. C – I and A – C. See also Section 248 (2) of the Ondo State Administration of Criminal Justice Law, 2015.
All the requirements for valid arraignment state above were met in the course of the Appellant’s trial. After the first arraignment, another taking of a defendant’s plea is only required each time there is an amendment or alteration to the charge.
The proceeding of the 3rd day of February, 2014 which amended the Appellant’s trial the Appellant’s plea to be taken again arose when the prosecution added another two additional counts. The need to give the parties a hearing where the Court raises an issue “suo-motu” is not necessary where the issue relates to the Court’s own jurisdiction.
17
For, it is within the inherent jurisdiction of the trial Court to adjourn a case either for further hearing or re-hearing in the interest of justice. The trial Court only has to exercise such discretion judicially and judiciously. Hence, not calling on the parties to be heard in the given circumstances is not worth being made a ground of appeal, as there is nothing on record to show that the Appellant and the other party to the case were not satisfied with the adjournment.
Counsel relied in this wise on the case of:Okaroh v. The State (2008) 6 ACLR, p. 446 at p. 456 and urged upon this Court to dismiss the appeal for being lacking in merit.
RESOLUTION OF ISSUES ONE AND TWO
“ISSUE ONE
Whether the entire proceedings leading to the conviction and sentencing of the Appellant was not a nullity in view of the failure to properly take the plea of the Appellant?
ISSUE TWO
Whether the act of the learned trial Judge “suo-motu”, terminating the trial/proceedings and “suo-motu” ordering a fresh trial on a particular date did not breach the Appellant’s right to fair hearing thereby occasioning a miscarriage of justice?”
18
It is obvious that the Appellant was in the first instance arraigned and had pleaded “not guilty” to the charge against him along with other Accused Persons, for conspiracy to commit armed robbery and armed robbery.
A prosecution witness, the PW1 Mr. Saka Yinusa, a Police Officer of Ijapo Police Station, Akure had commenced his testimony. The Prosecuting Counsel Mr. Olorunfemi had sought to tender the copy of the statement of the Complainant, Mr. Adeoti Kazeem with the aim of getting it certified by the Police Authorities at a later date, while informing the Court that he had not been able to obtain the original case file.
At that stage, the Court interjected thus:
“It is unfortunate that Mr. Olorunfemi of Counsel for the prosecution is not diligently prosecuting this case. As Chief Legal officer of the State, he is expected to be conversant with prosecution that he needs not to be told that he would require the original case file for the prosecution and that in the absence of the original documents, copies cannot be certified. In the interest of justice, I will adjourn this case
19
for hearing to begin again when the prosecution comes up with the original case file. Case adjourned to 24th February, 2014 for hearing.”
Clearly, by the above posture, the trial Court was in breach of the Appellant’s right of fair hearing and fair trial. Section 36(4) to (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide as follows:
“Section 36
(4.) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal:
…
…
(5.) Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such the burden of proving particular facts.
(6.) Every person who is
20
charged with a criminal offence shall be entitled to – …
…
…
(d) examine, in person or by his legal practitioners the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same condition as those applying to the witnesses called by the prosecution; and
……
21
In the criminal prosecution under review, the trial Judge was expected to be an unbiased and impartial umpire/arbiter holding the scale of justice evenly between the prosecution and the Accused Person, Appellant herein, at every stage from the inception to the conclusion of trial. The Appellant in person or by his Counsel was entitled to respond to the prosecution’s application for the tendering of the said complainant’s statement in evidence even if it was a copy thereof as indicated. The trial Court had no prerogative to shut the Appellant out of this as constitutionally guaranteed by adjourning the case “suo-motu” and not upon the application of the Appellant or his Counsel for an adjournment to enable him cross examine or object to the said application to tender the copy of the statement not certified. Indeed, the prosecution of the Appellant had been hijacked and interfered with by the Judge descending into the arena.
Moreover, the “suo-motu” termination of the hearing midway the PW1’s evidence, amounted to a decision by the Court. See the case of:Garuba & Ors. v. Omokhodion & 13 Ors. Pt. 4 (2011) 6
22
– 7 SC p. 89 and Section 318(1) of the 1999 Constitution (Supra). The word “decision” is wide enough to encompass the word “Ruling” or “Order”. The trial Court had considered the facts and the law in respect of the use of/tendering of copies of documents in the case diary that was not an original and uncertified and arrived at an order to adjourn the case for that reason. The trial Court then ordered for the case to be started “de novo”. That order was based on a usurpative role of taking over the prosecution and truncating the continuation of hearing properly commenced and ongoing. The interference by the trial Judge in the manner it did clearly violated the fundamental right of the Appellant to a fair hearing and trial by a competent Court of law that was constitutionally enjoined to be impartial.
Secondly, the Appellant was denied the right of the cross-examination of the PW1 before the “suo-motu” order for adjournment as made. Those omissions and acts of the trial Court violated the Appellant’s fundamental right to fair hearing.
It is instructive that the observance
23
of constitutional and public rights is sacrosanct. The observance is a matter of public duty and cannot be waived by the Court. See the case of: Awuse v. Odili (2006) NWLR (Pt. 952) p. 416 at p. 527.
Sequel to the above observations, the subsequent proceedings, no matter how well conducted and right the ultimate decision may be, are liable to and must be set aside. See the case of:Chief Bode Thomas v. Samuel Saliu Ali CA/AK/191/2016 delivered on 31/3/2017. In Ejezue v. Anuwa, (supra), a breach of fair hearing was held to have been occasioned by the flaw and a mistrial in the nature of not having heard a party. See also the case of: Chime v. Onyia (2009) 2 NWLR (Pt. 1124) p. 1 at p. 51.
The subsequent proceedings leading to the conviction of the Appellant herein having been based on the null order of the trial Court therefore, was itself null proceedings. Its outcome is of no consequence in law.
As adverted to hereinbefore, at the beginning of the new trial, the plea of the Appellant was taken in respect of the additional counts but not on the 1st and 2nd counts in the newly substituted charge. The trial Court explained this very grave error
24
off, stating in its judgment that, the 1st and 2nd counts of the new charge are the same, “word for word” as the two counts of the original charge. Section 164(1) of the Criminal Procedure Act reads thus:
“If a new charge is framed or alteration made to the charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.”
The Record of Appeal in this matter clearly shows that the trial Court did not advert its mind to compliance with the provisions of the above stated law. Indeed, the provisions of Sections 164 and 165 of the Act are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163 of the Act. It is settled law that, a fresh plea is an essential, indeed, an indispensable element in the trial of a new charge, which is what an amendment, no matter how trifling or seemingly inconsequential in nature, does to an existing charge, before the amendment. Thus, non-compliance with the provisions of Section 164(1) of the Act
25
renders proceedings conducted in such situations, null and void. In the case of: Adejobi & Anor. V. State (2011) LPELR – 97, the Supreme Court per Rhodes-Vivour, J.S.C., at page 40, paragraphs D – E restated the legal position that:
“Section 164 of the Criminal Procedure Act is mandatory in that once the charge is amended, the accused persons must be called upon to plead to the charge as amended. Failure to call on the accused persons to plead to the new charge renders the whole proceedings a nullity. See the case of: R. V. Eronini (1953) 14 WACA, Princent v. State (2002) 12 SC (Pt. 1) pg. 137.”
The law is therefore on firm ground that, failure to read and explain any alteration or addition to a charge to an accused person and to take his plea thereto as in the instant case renders the trial a nullity as this indeed violates the principle of fair hearing. See also the cases of: (1) Okosun v. The State (1979) All NLR p. 26 and (2) Bude v. State (2016) LPELR – 40435 (SC). Tobi, JSC (of blessed memory) stated in the case of: Nigeria Air Force v. Shekete (2002) 18 NWLR (Pt. 788) 129 at p. 151 paras. F – G; that,
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“The litigation is for the parties and not the Court. Therefore, the Court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.”
It is also desirable to point out that the subsequent null proceedings based on the same charges on same facts was oppressive and intended to ensure a conviction at all cost, as the statement tendered through PW1 had not been shown to be any different from that earlier sought to be tendered but stalled by the trial Court.
The Appellant, in consequence of the continuation of the case against him on a purported re-arraignment has suffered a miscarriage of justice.
In this matter, I hold that there has been an error in law and procedure including the breach of the right of fair hearing that have rendered the proceedings and judgment a nullity and occasioned a miscarriage of justice. From the facts and evidence, the proceedings of the trial Court were even liable to be quashed on an order of certiorari. See the case of:
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Monsurat Lawal & Ors. v. Senior Magistrate Grade II & Anor. (2013) 2-3 S.C. (Pt. IV) p. 108 at pgs. 131-132 where Sulaiman Galadima, JSC made the point clear thus:
“The prerogative writ of certiorari process is meant to provide supervisory process or measure to check the excesses, arbitrariness of inferior Courts or Tribunals. See Rex v. Northumblerland Compensation Appeal Tribunal – Exparte Shaw (1952) 1 KB 338 at 346 – 347. This decision of the English Court was considered and applied in Oduwole v. Fakinwa (1990) 4 NWLR (Pt. 143) 239 at 251. See further the cases of Queen v. District Officer and Anor. (1961) 1 All NLR 51; Agwuegbo v. Kagoma (2000) 12 NWLR (Pt. 687) 252 at 269.
The certiorari procedure is available under Section 272(1) and (2) of the 1999 Constitution and various State High Court Laws and Civil Procedure Rules.
This power of control of inferior Courts or Tribunals by the High Court is exercised by means of quashing any decision of an inferior Court which on the face of it is excessive, arbitrary or oppressive.… This is the proper case that can be brought for quashing the conviction
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and sentence of the Appellant because of the several errors on the face of the record of the trial Court…. “
Having found the two proceedings conducted by the trial Court a nullity sequel to the fundamental irregularities in same, the entire proceedings which culminated in the conviction and sentencing of the Appellant are accordingly set aside and quashed.
Now, on the appropriate consequential order to make having set aside and quashed the trial Court’s proceedings leading to the conviction and sentencing of the Appellant for being a nullity, I have no difficulty in the choice of that of a retrial.
At this juncture, it is imperative for me to state that I am aware of the earlier decision of this Court in Appeal No. CA/AK/55CA/2015 delivered on the 19th of May, 2017. I am of the firm view and hold that the instant appeal is distinguishable from the said previous appeal on a very important point. Unlike in the previous appeal, the Appellant herein was allegedly caught in the act and arrested at the scene of crime. The Appellant was indeed shot by the Police during the face-off. He was subsequently whisked to the hospital
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where he received treatment for the injuries sustained by him and later charged to the trial Court at the conclusion of Police investigation of the case. Since the present discuss is the determination of the propitiousness of the procedure employed by the trial Court, I have been cautious to not enter into and thereby decide the merits of the case by reviewing the line of reasoning and conclusion reached therein by the trial Court in its judgment under scrutiny.
The circumstances that guide this Court in ordering a retrial are chronicled in the case of: Omosaye v. State (2014) 6 NWLR (Pt. 1404) at p. 511 at p. 512, per Fabiyi, JSC as follows:
1. That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was rendered a nullity and on the other hand, the Court is unable to say that there has been no miscarriage of justice.
2. That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant.
3. That there are no such special circumstances as would render it
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oppressive to put the Appellant on trial a second time.
4. That the offence or offences of which the Appellant was convicted, or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial.
5. That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.
The above set out circumstances are all prevailing in the instant case.
The principal count of the charge against the Appellant is armed robbery. From the proof of evidence filed along with the charge against the Appellant, a “prima facie” case for the offences charged has been made out against the Appellant, to which in law he must answer to. It is a capital offence as it carries the highest magnitude of punishment, death, in our criminal justice system. See the cases of: (1) Omosaye v. State (supra); (2) Yusuf v. State (2011) 18 NWLR (Pt. 1279) p. 853; (3) Ganiyu v. State (2013) 10 NWLR (Pt. 1361) p. 29 and (4) Lasisi v. State (2013) 12 NWLR (Pt. 1367) p. 133. What is more, by reason of the nature of the exhibits tendered and witnesses fielded, a well-informed
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prosecutor should be able to handle a fresh trial, after all, there is no statute of limitation for criminal prosecution.
In view of the outcome of the two issues donated for consideration by the Appellants and responded to under issue two of the Respondent, issue one of the Respondent has become spent and its consideration otiose.
In the light of the foregoing, I hold the firm view that an order of retrial will meet the ends of justice in this appeal.
Consequentially, I remit this case to the Chief Judge of the High Court of Ondo State for re-assignment to another Judge of that Court other than himself, for an expeditious fresh trial of the Appellant.
RIDWAN MAIWADA ABDULLAHI, J.C.A: The lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, J.C.A was made available to me which I read and in agreement with the reasoning and conclusion arrived at by my noble lord.
I abide by the consequential order contained in the lead judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, OYEBISI F. OMOLEYE, JCA just delivered.
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I completely agree with his reasoning and conclusion that this appeal has merit. His Lordship has comprehensively dealt with all the issues raised. However, for the purposes of emphasis I do however wish to contribute to the reasoning on the effect of a judgment that is declared a nullity. It is settled law that a judgment that is a nullity has no legal validity and cannot confer any right or impose any obligation on anybody. See AJIBOYE V ISHOLA (2006) 13 NWLR PT 998, 628. If a decision is declared a nullity it means it was never made or given. The effect of a null decision is that it will bestow no right on its beneficiary nor impose any obligation on its victim. NYESOM V PETERSIDE (2016) 7 NWLR, PT 1512, 452; BELLO V INEC (2010) 8 NWLR PT 1196 and UNAMKA V UGOCHUKWU (2019) LPELR-47032 (CA). In other words, where a criminal trial is declared to be a nullity, it is my opinion that the only option available is to order a retrial. There will be nothing from which to discharge or/and acquit an appellant.
The legal effect of an act being declared null and void as firmly settled by the apex Court in the case of LADOJA V INEC (2007) 12 NWLR, PT 1047, 115
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is that the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed. See also ADEFULU V OKULAJA (1996) 9 NWLR, PT 475, 668 AT 693. I therefore agree with his Lordship that having found that the trial before the lower Court was a nullity, he properly made an order for retrial. I wholly therefore endorse the conclusions in the lead judgment including the order quashing the conviction and sentence of the appellant in the trial Court and the order remitting the case to the Ondo State Chief Judge for retrial before another judge other than himself having been the trial judge.
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Appearances:
Adetunji Oso For Appellant(s)
A. Olowoporoku, Director of Public Prosecutions, Ministry of Justice, Ondo State, with him, O. T. Akinmuwagun, Senior Legal Officer. For Respondent(s)
