CHRISTOPHER EGOWA v. THE STATE
(2018)LCN/12387(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of March, 2018
CA/L/561C/2016
RATIO
COURT AND PROCEDURE: FAILURE TO PRONOUNCE SENTENCE
“Furthermore, failure to pronounce sentence after conviction has also been held to be a mere irregularity once the facts establish the ingredients of the offence, see AZABADA V. STATE (2014) LPELR- 23017 where the apex Court held as follows:
“In the case of Ejelikwu Vs. State (1993) 7 NWLR (pt. 307) 554 at 583 this Court held that: “The omission to pronounce the sentence after conviction per se which comes after the pronouncement of a valid verdict, cannot retrospectively affect the validity of a properly conducted proceedings. The verdict has been made so be it.”
Per ONNOGHEN, J.S.C (P. 22, paras A-C)” PER YARGATA BYENCHIT NIMPAR, J.C.A.
COURT AND PROCEDURE: WHERE THERE IS A DEFECT IN THE PRONOUNCEMENT OF GUILT
“Therefore, whichever way it is considered, a defect in the pronouncement of guilt and sentence cannot vitiate a trial which established ingredients of the offence. The single emphasis in this appeal is the fact that it was a joint trial. The proof of a joint commission of a crime was described by the apex Court in the following way: ‘It is trite, that where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere of fact the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See NWANKWOALA V. STATE (2006) 14 NWLR (PT. 1000) 663; IKEMSON v. STATE (1989) 3 NWLR (PT. 110) 455.’ PER YARGATA BYENCHIT NIMPAR, J.C.A.
FUNDAMENTAL RIGHT: PRINCIPLE OF FAIR HEARING
“Fair hearing within the con of Section 36(1) of the 1999 Constitution, has been said to be a trial which ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
INTERPRETATION: MEANING OF CROSS-EXAMINATION
“Cross-examination is to test the correctness of the testimony of the plaintiff and his witnesses, while re-examination is another chance to clarify facts but not an opportunity to restate the testimony given in evidence in chief all over again. If the basic requirement in attaining fair hearing is to create and give opportunity to parties as observed and a party fails to use that window, he cannot turn to complain, this was eloquently stated by the erudite jurist, TOBI, JSC (of blessed memory) in the case of INAKOJU supra.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
Before Their Lordships
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILLJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
CHRISTOPHER EGOWAAppellant(s)
AND
THE STATERespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Lagos State High Court delivered on the 1st April, 2014 by HON. JUSTICE I.O. KASALI wherein the Appellant and other accused persons were arraigned, tried and convicted for the offences of conspiracy and Armed Robbery. Dissatisfied with the decision, the Appellant filed an Amended Notice of Appeal dated 31st June, 2014 and filed on the 3rd February, 2017 setting out 5 grounds of appeal.
Brief facts leading to this appeal are that the Appellant and others were arraigned for the offences of conspiracy and robbery contrary to Sections 403 and 401(1) of the Criminal Code Law Cap. C17 Vol. 2 Laws of Lagos State, 2003, The allegation was that the Appellant was arrested at the scene of the crime and taken to Festac Police Station for robbing a motor cyclist of his motor cycle and his passenger by using a toy gun and dispossessing them of the sum of N500 and N1,500.00 respectively. Trial was conducted with the prosecution calling a sole witness, the Appellant testified for himself, addresses adopted and judgment delivered wherein they were all found guilty, convicted and sentenced to 21 years imprisonment.
The Appellant’s Brief settled by Osayaba Giwa-Osagie Esq., is dated 20/3/2017 filed on the 31/3/2017, deemed on the 7/2/18 and it distilled 2 issues for determination as follows:
i. Whether the trial Court’s failure to deliver a verdict in respect of each count of the alleged offences and separately for each of the Appellant and co-accused persons who stood trial alongside the Appellant was not a serious error of law invalidating the conviction of the Appellant.
ii. Whether the trial Court’s foreclosure of the Appellant’s right to cross-examine the PW1, the respondent’s only witness, was not in breach of the Appellant’s right to fair hearing, for which the Appellant’s conviction should be set aside.
The Respondent’s Brief settled by the T.K. Shitta-Bey Esq., the Director of Public Prosecutions Lagos State is dated 17/8/2017 and filed the same day. It was also deemed on the 7/2/18 and it did not formulate any issue but adopted the issues formulated by the Appellant. The Amended Notice of Appeal set out 5 grounds of appeal but only grounds 1 and 4 generated issues for determination. The law is that grounds from which no issue is distilled are abandoned. See DADA V. DOSUNMU (2006) 18 NWLR (PT. 1010) 134. It is clear that grounds 2, 3 and 5 are abandoned, they are hereby struck out.
The appeal shall be resolved on the issues distilled by the Appellant.
The Appellant stated basic principles that guide sentencing and submitted that the appellate Court rarely interferes with a sentence which is subject of appeal, relied on ADEYEYE & ANOR V. THE STATE (1968) NMLR 87, STATE V. HASSAN AUDU (1972) 1 ALL NLR (PT 2) 197. He however submitted that rather than delivering a verdict and pronouncing sentences in respect of each count or accused person, the trial Court erred in law by lumping the two counts on the information and convicting the three accused persons jointly on the charges, referred to ANOWELE V. THE STATE (1965) ALL NLR 100, AIGBE SAMSON & ANOR V. THE STATE (1976) NMLR 84, OYEDIRAN & ORS V. THE REPUBLIC (1967) NMLR 122 @ 125, YESUFU V. THE INSPECTOR GENERAL OF POLICE (1960) LLR 140, BANKOLE V. THE STATE (1980) 1 NCR 334 in support. On this score, he argued that failure to return separate verdicts and separate sentences for each of the accused persons occasioned a miscarriage of justice and urged that the conviction be set aside.
On issue 2, the Appellant argued that when the trial judge foreclosed the right of the Appellant and his co-defendants from cross examining the Respondent’s only witness on the exhibits he tendered, it had breached the Appellant’s right to fair hearing and it had occasioned a miscarriage of justice. He further argued that failure of the Appellant’s counsel to attend trial on a few occasions is not sufficient to foreclose their right considering the provisions of S. 36 (6) (c) (d) of the 1999 Constitution and S. 233 (1) of the Administration of Criminal Justice (Repeal and Re-enactment) Law, 2011. The Appellant referred to JOSIAH V. THE STATE (1985) 1 SC 406, OKON v. THE STATE (1995) 1 SCNJ 174, YAKUBU V. ADAMAWA STATE URBAN PLANNING & DEVELOPMENT AUTHORITY & ORS (2013) LPELR – 22077 (CA), TULA V. BAUCHI NATIVE AUTHORITY (1965) NMLR 343 in support.
Appellant further argued that there was no corroboration whatsoever of Exhibit P4 before the trial judge convicted the Appellant on it. Consequently, the Appellant argued that the effect of this breach is that the whole trial is vitiated and rendered null and void, cited the cases of BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (pt. 622) 290, OKAFOR V. AG ANAMBRA STATE (1991) 6 NWLR (PT 200) 656, MILITARY GOV IMO STATE V. NWAUWA (1997) 2 NWLR (PT 490) 675, FMBN LTD V. ADU (2000) 11 NWLR (pt. 678) 309 @ 318 – 319, TUKUR V. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517, KALU V. STATE (2011) 4 NWLR (pt. 1238) 429, KUUSU V. UDOM (1990) 1 NWLR (PT 127) 421 in support.
The Respondent argued that the meaning of the word ‘verdict’ is different from ‘sentence’ and further stated the position of the law as it relates to proving the offence of conspiracy, it referred to KAYODE V. THE STATE (2016) LPELR – 40028 (SC), OMOTOLA & ORS V. THE STATE (2009) 2-3 SC 7, OBIAKOR V. STATE (2002) 10 NWLR (PT. 774-776) 612 @ 625. The Respondent further argued that contrary to the submissions of the Appellant, the lower Court made a verdict on the count of conspiracy. In addition, the Respondent argued that the failure to pronounce separate sentences on the two convicted counts is not substantial and has not adversely affected the rights of the Appellant, referred to AZABADA V. THE STATE (2014) LPELR – 23017 (SC), EJELIKWU V. STATE (1993) 7 NWLR (pt. 307) 554 @ 583.
With respect to the 2nd issue, the Respondent argued that it was the Appellant’s counsel that requested for accelerated hearing consequent upon which the trial was fixed from day to day. The Respondent further referred this Court to the records of appeal to submit that Appellant counsel failed to cross-examine PW1 and dillydallied in opening its defence when he appeared in Court claiming medical challenges. The Respondent also argued that Appellant and counsel were absent from Court without any explanation on several occasions such that the Court was forced to foreclose his right to cross-examine PW1. Besides, they argued that the Appellant chose to continue with the defence rather than apply to recall the sole witness of the prosecution. Therefore submitted that there was no breach of fair hearing and referred to ADEBAYO V. AG OGUN STATE (2008) 7 NWLR (PT. 1085) 201 @ 205, NWOKOCHA V. AG IMO STATE (2016) LPELR – 40077 (SC). In any case, the Respondent argued that the guilt of the Appellant was established beyond reasonable doubt and the decision of the lower Court ought not to be tampered with. Referred to AKWUOBI v. THE STATE (2016) LPELR – 41389 (SC), OKASHETU V. THE STATE (2016) LPELR – 40611 (SC), ADEYEMI V. THE STATE (2014) LPELR – 23062, AYENI v. THE STATE (2016) LPELR – 40105 (SC).
RESOLUTION
The Appellant contends that the trial Court failed to pronounce on his conviction and sentence separately. The trial was a joint trial, the Appellant’s arraignment was dutifully done. The complaint is that the manner the trial judge pronounced the conviction and sentence fell short of the legal requirement which is to pronounce same separately on each of the defendants.
The legal requirement on how to pronounce a conviction and sentence is that a Court must make a finding of guilt first and foremost, before sentence can be imposed on a person found guilty. The trial Court in its conviction and sentence said thus:
“I hold that the three defendants are members of a gang who set out to rob with violence on the 22nd day of December 2006; they are therefore guilty of armed robbery. The Prosecution has in the circumstances of this case proved the guilty of the 3 defendants beyond reasonable doubt. Each of them is found guilty of each of the 2 counts as charged.”
SENTENCE:
The 3 defendants are accordingly, each sentence under Section 401(1) of the Criminal Code Law, Laws of Lagos State to a total of 21 imprisonment each with hard labour respectively.”
In this appeal, the Court made a finding of guilt on the two count charge and also pronounced a sentence on the three defendants. The facts of the case are not contested by the Appellant so they are admitted as correct. The facts would therefore support a charge of conspiracy and armed robbery. That being the case would the failure to recite the conviction and sentence as expected annul the conviction and sentence? What really is conviction and sentence?
“Normally, a conviction and sentence go hand in hand. A conviction is nothing more than a finding of guilt. See MOHAMMED v. OLAWUNMI (1990) NWLR (Pt. 133) Pg. 458. A sentence on the other hand is a formal pronouncement after conviction awarding a punishment.”
See KOLEOSHO V. FRN (2014) LPELR- 22929 (CA).
Furthermore, failure to pronounce sentence after conviction has also been held to be a mere irregularity once the facts establish the ingredients of the offence, see AZABADA V. STATE (2014) LPELR- 23017 where the apex Court held as follows:
“In the case of Ejelikwu Vs. State (1993) 7 NWLR (pt. 307) 554 at 583 this Court held that: “The omission to pronounce the sentence after conviction per se which comes after the pronouncement of a valid verdict, cannot retrospectively affect the validity of a properly conducted proceedings. The verdict has been made so be it.”
Per ONNOGHEN, J.S.C (P. 22, paras A-C)
See also EJELIKWU v. THE STATE (1993) LPELR- 1062 (SC) where the Supreme Court held:
“The locus classicus of Madukolu & Ors. V. Nkemdilim & Ors. (1962) 2 SCNLR 341; (1962) 1 All NLR 587 has remained unshaken for more than thirty years and remains good law. The omission to pronounce the sentence after conviction per se which comes after the pronouncement of a valid verdict cannot retrospectively affect the validity of a properly conducted proceedings. The verdict has been made. So be it. It may be asked what the position will be in cases of finding of guilt and verdict without accompanying sentence”
In this regard Sections 196, 197, 198, 269, 273, 381 and 382 of the Criminal Procedure Code are relevant.”
Per KARIBI-WHYTE, J.S.C (P. 47, paras. C-E).
The situation is not any different from when a Court fails to convict but proceeds to pronounce a sentence known to law, see the case of KOLEOSHO V. FRN (Supra) where the Court held:
“The award of punishment implies in my view, that there has been a conviction. It is my view therefore that the absence of a conviction before a sentence is more of irregularity.”
It is now settled that the wrong pronouncement of sentence cannot render an established charge null as contended by the Appellant, the Supreme Court in the case of ONYEJEKWE V. THE STATE (1992) NWLR (PT. 230) 444 made an emphatic statement in the following words:
“Once the evidence is clear and is supported by law the mere fact that sentence based on the conviction is not in line with the appropriate statutory wording should be regarded as a mere irregularity not vitiating the conviction.”
This is also in following the holding that the imposition of the wrong sentence will not ipso factor render the whole trial including conviction and sentence void.
Therefore, whichever way it is considered, a defect in the pronouncement of guilt and sentence cannot vitiate a trial which established ingredients of the offence. The single emphasis in this appeal is the fact that it was a joint trial. The proof of a joint commission of a crime was described by the apex Court in the following way:
“It is trite, that where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere of fact the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See NWANKWOALA V. STATE (2006) 14 NWLR (PT. 1000) 663; IKEMSON v. STATE (1989) 3 NWLR (PT. 110) 455.”
The complaint therefore is that no conviction and sentence was pronounced on each of the defendants to the charge. We have seen the two scenarios that can arise and in each the failure of the trial Court to make a pronouncement was considered by the apex Court to be an irregularity where facts established the crime alleged in the charge and the Court in the case of ONYEJEKWE V. THE STATE supra rectified the irregularity, the conviction and sentence was affirmed.
The question whether Courts are obligated to pronounce sentence as provided by law was settled by the Court in the case of AYODELE V. THE STATE (1984) LPELR – 157 (SC) where the Court said that every Court is obligated to pronounce the sentence as provided in the statute. However, the Appellant who claims the Court failed to comply with statute must show the miscarriage of justice occasioned him by that failure and the Appellant could not give the Court any tangible reason to tamper with the judgment of the lower Court in that case. Is there any statutory requirement backing the complaint on this issue? The Appellant did not cite any and also failed to show the miscarriage of justice occasioned him thereby. As can be gleaned from the quoted part of the judgment, even though the trial Court did not call individual names of the defendants, it referred to them in a manner that the Appellant cannot claim that he was misled by failure to specifically call his name.
The Court said the defendants accordingly, each are sentenced to 21 years. There the word ‘each’ therein shows reference to the Appellant. The section of the law under which the Appellant was convicted was clearly stated and assuming it was not mentioned, that on its own would also not make the conviction null and void. After all, the section was clearly specified in the charge and the Appellant was not misled in any way. Assuming the Court was wrong, the conviction and sentence can be saved on the authority of OBIDIOZO V. STATE (1987) 4 NWLR (PT. 67) 748, where it was held that an error in the imposition of the wrong sentence, would not ipso factor render the whole proceedings including conviction and sentence void. The Appellant contends that the wrong format voids the conviction and sentence but that is far from the position of law. See the decision of the apex Court in the case of AZABADA supra where ONNOGHEN, JSC (as he then was) held thus:
“It is settled law that it is not every error committed by a lower Court that would result in the decision being set aside by an appellate Court. For an error to qualify as one that will inevitably lead to the setting aside of the decision/judgment, it must be substantial in nature and must have resulted in a miscarriage of justice to the appellant. It must be remembered always that the purpose of appeals is to correct errors of a lower Court with the intention/desire of ensuring substantial justice to the parties and even the Court. Where the error complained of is substantial and is likely to lead to a miscarriage of justice or has resulted in injustice, an appellate Court will be eager to set aside the decision. However, where the error is not substantial or has in no way resulted in a miscarriage of justice to the appellant, as in the instant case, the Court will not set aside the decision because to do so will rather result in injustice to the respondent representing the society at large.”
See also Section 19 (1) of the Court of Appeal Act which provides that even though the point raised in the appeal might have been decided in favour of the Appellant, the Court of Appeal can still dismiss the appeal if no substantial miscarriage of justice had actually occurred.
The Appellant relied on some authorities particularly, the case of OYEDIRAN & ORS V. THE REPUBLIC (1967) NMLR 122 at 125 where the apex Court held thus:
“Where several persons are tried together, it is trite that separate verdicts must be returned in respect of each of the accused persons and whereas in the present case, there were several counts on the same information, separate verdicts must be delivered in respect of the several counts.”
Considering the facts in issue in that appeal, there were many persons accused in a host of over 13 counts and some of the counts did not apply to some of the accused persons but the Court at the end of trial convicted all the accused for all the counts which meant that some of the accused persons particularly, the 2nd accused was convicted for offences he was not charged with and there were no findings on the said counts that the 2nd accused was guilty of. That was also the reason the Court therein ordered a retrial for the counts against the 2nd accused person. In pronouncing conviction and sentence in such a case where the counts in the charge are not against all the person who are tried jointly, it is only advisable for the trial Court to take the accused persons one by one in the conviction and sentence against each person so as to avoid the error of a blanket conviction and sentence of persons not charged for the offences as the case was in OYEDIRAN supra.
There lies the difference, furthermore, a decision is an authority for what it decides, see UWUA UDO v. THE STATE (2016) LPELR-40721 (SC) which held thus:
“It is important to bear in mind that the decision of a Court must always be considered in the light of its own peculiar facts of circumstances. No case is identical to another, though they may be similar. Thus each case is an authority for what it decides, and nothing more. See also Skye Bank Plc & Anor v. Chief Moses Bolanle Akinpelu (2010) 9 NWLR (pt. 1198) 179.”
It is unconstitutional to convict a person for an offence he was not tried for, see ALI MOHAMMED MODU V. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40471 (CA) where I restated the legal principle that no person can be convicted for an offence he was never charged, arraigned nor tried and convicted for. That is also against the spirit of the Constitution of this great nation, particularly Section 36(6) (a) – (e) and the effect is that no person can be convicted for an offence for which he was not arraigned for. So the decision in OYEDIRAN supra can be distinguished from the facts herein and is therefore inapplicable. So it is with the other authorities cited which are not relevant. Issue one is resolved against the Appellant.
The second leg of the challenge by the Appellant is the contention that the Court foreclosed the Appellant’s right to cross examine PW1, the sole witness of the Respondent. That it is a breach of right to fair hearing and therefore the conviction cannot stand. The Appellant alleged that the PW1 was not cross-examined. Looking into the record of appeal, the Court at pages 181 had this to say:
“The Court gave enough opportunity to the defendant to cross – examine PW1 but PW1 was not cross-examined, the Court closed the right of the defendant to cross-examine PW1.”
Undeniably, one of the pillars of fair hearing is equal opportunity to the parties to present their cases, opportunity to cross-examine witnesses of the opponent is a fundamental aspect of the right to fair hearing. The importance of cross examination was stated in the case of SIMON V. STATE (2017) LPELR-41988(SC) thus:
1″When a witness (the adversary) testifies on a material fact in controversy in the case, the other party if he does not accept the witness testimony as true should cross-examine him on that fact or at least show that he does not accept the evidence as true. Where, as in this case he fails to do either, the Court can take his silence as an acceptance that the party does not dispute the fact. See Amadi v. Nwosu (1992) 5 NWLR (pt. 241) p. 275. It must be made abundantly clear that one of the main purpose of cross-examination is to test the veracity of a witness.”
I can undoubtedly say that it a constitutional right of a defendant to be allowed to cross examine a witness called by the prosecution. And any breach is a breach of the right of fair hearing and it can have a disastrous effect on the judgment. In the case of OKEREKE & ANOR V. IBE & ORS (2008) LPELR – 4714 (CA) the Court held thus:
“The right to cross-examine a witness is within the rubric of the right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing. See the case of Ogolo v. Fubara (2003) 11 NWLR (pt. 831) 231 at 262 B-C where the apex Court held thus: “Cross examination is a right available to parties in litigation and it cannot be taken away.”
See also EZE V. FRN (2017) LPELR- 42097 (SC)
It has also been said that:
“This right of cross-examination is considered to be of fundamental importance in the trial process and any attempt by the trial Court to deny or circumscribe the right of a party to cross-examine his adversary’s witness or witnesses, in any manner whatsoever, is frowned upon by the appellate Court and treated as a breach of fair hearing. See Iwuoha Vs. Okoroike supra, Tewogbade Vs. Agbabiaka (2001) 5 NWLR (pt. 705) 38, Psychiatric Hospital Management Board Vs. Edosa (2001) 5 NWLR (pt. 707) 612.” See FULANI V. RAFAWA & ORS (2013) LPELR – 20384 (CA).
It is fundamental that an opportunity is given for cross examination because it is the constitutional right of an accused person to be given the opportunity to cross-examine witness(es) called by the prosecution. However, where such an opportunity has been given and the party fails to cross-examine then, the Courts cannot be blamed. In AMADI vs. NWOSU (1992) 5 NWLR (PT. 241) 273, it was held that where a counsel fails to cross-examine on a point, the Court can take its silence as an acceptance that the party does not dispute that fact.
Fair hearing within the con of Section 36(1) of the 1999 Constitution, has been said to be a trial which ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing.
Circumstance where a party cannot be heard to complain of being denied the right to fair hearing were stated by the apex Court as follows:
“I said it in the past and I will say it here again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the court of denying him fair hearing. This is not fair to the Court, and counsel must not instigate his client to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do is to take it to the water, he cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from lack of water or hydrate.” Per TOBI, J.S.C in INAKOJU & ORS V. ADELEKE (2007) LPELR-1510 (SC).
Cross-examination is to test the correctness of the testimony of the plaintiff and his witnesses, while re-examination is another chance to clarify facts but not an opportunity to restate the testimony given in evidence in chief all over again. If the basic requirement in attaining fair hearing is to create and give opportunity to parties as observed and a party fails to use that window, he cannot turn to complain, this was eloquently stated by the erudite jurist, TOBI, JSC (of blessed memory) in the case of INAKOJU supra.
The only witness called by the prosecution testified on the 13th October, 2009 when upon an objection to the admissibility of 2nd defendant’s confessional statement, the matter went into trial within trial. The Court initially had to dispense with the defence counsel’s written address in the trial within trial due his continuous absence from Court and refusal to file a written address. He later applied and was allowed to file a written address out of time. Ruling was delivered admitting the statement in evidence and trial adjourned to the 31/10/12 when the prosecution closed its case and learned counsel for the Appellant applied for a date to cross-examine the witness. The trial was adjourned and on the next date, the 30/1/2013, counsel for the defendants was absent, see page 159 of the record of appeal. The trial Court had this on record:
“On the 10th of January, 2013 the defendants were in Court, the prosecutor counsel was in Court, but the Defendant counsel was absent …”
Today when the matter was called the state was represented, the Defendants are present but the defendant counsel is equally absent. The business of the Court today is for cross-examination of CW1 and for the defendant to open their defence. CW1 is present. I am however putting it on record that if the next adjourned date, the Defendant counsel is not ready to cross examine CW1, CW1 will be discharged and the Court will call on the state to file written address.
Case adjourned to 6/03/2013 for continuation of trial. CW1 to be cross-examined by Defendant Counsel, the Defendant to open their defence.”
On 6/3/13, the Court’s record reads thus:
“The Court has given more enough opportunity to the Defendant counsel to cross examine PW1, the only witness for his prosecution, yet the Defendant counsel did not make use of this opportunity. The application by the Assistant Chief State Counsel for the State to foreclose the right of cross examination by the defendant Counsel is meritoriding. I hereby close the right of the defendant to cross- examine PW1. PW1 is hereby discharged. This matter is adjourned to 30/04/2013 for defence.”
On 30/4/2013, the records reads:
“Aderemi-Amu: The matter is for defence and our office has just been briefed. On Mr. Foluso Fere waiter counsel on record for the defendants.
I have been trying here with him with view of getting his processes from him to continue with the trial.
In view of this, shall be asking for a short adjourned to enable us to defend this matter. We are before the Court on the 14th of May, 2013.
Court: this matter is adjourned to 14/05/2013 at 10am for defence.”
The next record on the matter was on the 11/6/2013 when defence opened and the Appellant testified. There was no subsequent application to recall PW1 who was discharged earlier.
It is obvious that adequate opportunity was given to the defence to cross examine CW1. It would have been a different thing if the Court did not bend backwards to a point of breaking just to give the Appellant an opportunity to cross-examine prosecution witness. The right is not open ended. Once an opportunity is not used, the Court must move on. The witness taken but awaiting cross examination cannot also be made to continuously appear in Court unending.
I do not agree with the Appellant that he was not given an opportunity. Failure to exercise the opportunity given cannot be the fault of the Court below. Consequently, the right to fair hearing of the Appellant was not breached and he cannot be heard to complain. Trials are not overstretched merely because a party is not ready to utilize an opportunity given for the party to take a step. Appellant was represented by counsel on all the dates the Court below took a step in the proceedings leading to the Appellant’s conviction and sentence.
Furthermore, the decision taken by counsel cannot be challenged nor questioned by the Court. Counsel had unfettered authority to handle the matter the way he deemed fit, see FESTUS L. ADEWUNMI v. PLASTEX NIGERIA LIMITED (1986) NWLR (PT. 32) 167 wherein the apex Court held thus:
“Counsel has authority, except he is expressly limited to withdraw the record, to call or refuse to call a witness (see Chambers v. Massen (1958) 5 CBNS 59, to determine the order, in civil proceedings, in which to call his witness (see Briscoe v Briscoe (1968) P 501), to decide to cross examine a witness or not, to decide what particular question to ask a witness unless his client insists on the line of questioning in which case counsel will have a discretion to accept such instruction or withdraw from the case.”
Coming nearer home is the holding of the Court in a criminal matter, in the case of BENJAMIN OYAKHERE v. THE STATE (2005) LPELR-11325 which said:
“It is well settled that a counsel retained to conduct a case has general authority to decide in his discretion how to conduct the case. The Appellant and indeed clients are bound by counsel conduct of their case. The remedy available to a dissatisfied client is to withdraw the brief. See Mosheshe General Merchants Ltd v. Nigeria Steel Products Ltd (1987) 2 NWLR (pt. 55) 110.”
It is clear that the initial counsel did not even have any regard nor respect for the Court. For all the times he was absent from the proceedings, there was no record that he wrote the Court to explain his absence. It is expected that counsel should show respect to the Court and always write to explain absence from Court. That is simply extending courtesy to the Court and is the ideal conduct and behavior of counsel before any Court.
The Appellant cannot find refuge under fair hearing. He is bound by what the second counsel also did, by not recalling the only witness for the prosecution. The Court cannot under any guise question that decision.
Flowing from above, the issues having resolved against the Appellant, the appeal lacks merit and is hereby dismissed. The judgment of the trial Court delivered on the 1st April, 2014 by HON. JUSTICE I.O. KASALI is hereby affirmed.
I make no order as to cost.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the lead judgment delivered by my learned brother YARGATA BYENCHIT NIMPAR JCA and I agree with the reasoning and conclusion contained in the judgment.
I also dismissed the appeal in terms of the lead judgment.
Appearances:
OSAYABA GINA-OSAGIE with him, JUSTICE OGUABA, EKERE NELSON, OLUWADARE ONAKOYA and FEHINTOLA OWOLARIIFor Appellant(s)
T. K. SHITTA-BAY, DPP LAGOS STATE with him, Y. A. SULE PSCFor Respondent(s)
