COL. MOHAMMED SAMBO DASUKI (RTD) v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12392(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of March, 2018
CA/A/523C/2017
RATIO
COURT AND PROCEDURE: JUDICIAL DISCRETION
“Also in the recent case of Zakirai vs. Muhammad (2017) 17 NWLR (pt. 1594) 181 @ 227 – 228, the Supreme Court per Augie JSC stated: ‘Judicial discretion is described as a sacred power that inheres to a judge, and which he should employ judicially and judiciously. Since no two cases can be the same, the Supreme Court does not lay down rules to fetter the exercise of its discretion or that of the lower Courts. Thus a Court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be putting an end to discretion.'” PER HAMMA AKAWU BARKA, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“It is trite that the right to fair hearing must be exercised within the legal framework provided by law for the hearing of the matter in contention, and in this case, the criminal matter filed against the appellant. See Ardo vs. INEC (2017) 13 NWLR (pt. 1583) 450 @ 495. The complaint of the appellant to my understanding is that where the protective measures being sought for the witnesses are considered and granted, that would be the end of fair and or open trial.” PER HAMMA AKAWU BARKA, J.C.A.
INTERPRETATION: THE TERM ‘FUNCTUS OFFICIO’
“Now referring to the term functus officio, defined as connoting or meaning that the task has been performed with regards to that office; See Alor vs. Ngene (2007) 2 SC 1; that scenario where the judge has no duty or function left to perform in that regard, and therefore no legal competence or authority to revisit the matter, is inapplicable to the instant case, on the premise that the instant case no doubt is a criminal case. The exercise of discretion as contended must have in mind the interest of the victim, the state and the defendant, therefore the refusal of the exercise of the discretion in favour of the respondents by Ademola J, did not preclude or tie the hands of Mohammed J., in the latter application. See Akinyemi vs. Odua Investment Co. Ltd (2012) 17 NWLR (pt. 1329) 209 per Ikyegh JCA. I hold therefore that the principle of functus officio as contended by the appellant is inapplicable.” PER HAMMA AKAWU BARKA, J.C.A.
JURISDICTION: WHETHER JURISDICTION IS FUNDAMENTAL
“Indeed it has been said again and again that jurisdiction is very fundamental being the nerve centre of the Court’s adjudication. It is said to be the pillar upon which the case stands, and once it is shown that the Court lacks the jurisdiction to try the case, all that was done by that Court in the absence of jurisdiction crumbles. See Ngere vs. Okuruket ‘XIV’ (2017) 5 NWLR (pt. 1559) 440 @ 466 per Ariwoola JSC. See also Okolo vs. UBN Ltd (2004) 3 NWLR (pt. 859) 87, AG of the Federation vs. Sode (1990) 1 NWLR (pt. 128) 500, and Kotoye vs. Saraki (1994) 7 NWLR (pt. 357) 414.” PER HAMMA AKAWU BARKA, J.C.A.
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGOJustice of The Court of Appeal of Nigeria
Between
COL. MOHAMMED SAMBO DASUKI (RTD)Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The appeal is against the ruling of A.R. Muhammed J. of the Federal High Court Abuja Division in charge No FHC/ABJ/CR/319/2015 delivered on the 15th of June, 2017, wherein the application by the prosecution to allow prosecution witnesses give evidence behind the screen was granted.
The respondent by way of a motion brought on notice dated the 3rd of June, 2016 and filed on the 23rd of June, 2016 sought for the following orders:
1. An order of this Honourable Court granting leave to the prosecution witnesses to start enjoying witness protection by giving evidence behind screen to be provided by the court.
2. An order of this Honourable Court directing that the identities of all prosecution witnesses be not disclosed in any record or report of proceedings which are accessible to the public.
3. An order of this Honourable Court permitting all prosecution witnesses to be addressed with pseudonyms in the course of proceedings.
4. And for such other orders or orders as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which the application was founded were stated as follows:-
1. The defendant was the immediate past National Security Adviser (NSA), a retired Senior Military Officer and a Crown Prince of Sokoto Caliphate who undoubtedly commands large followership throughout the length and breadth of Nigeria and who may be aggrieved by this trial.
2. Most of the witnesses in this case are security personnel who are involved in other operations across the country while others are resident within the area of dominance of the defendant and have expressed fears of being identified by members of the public who are sympathetic to the defendant.
3. The defendant while serving as the National Security Adviser (NSA) imported into the country a large cache of highly sophisticated arms and ammunitions most of which have not been accounted for.
4. That upon the search of the defendant’s residence, some of these arms and ammunitions were recovered while the whereabouts of others is not known till date.
5. That a huge volume of these highly sophisticated arms and ammunitions is feared to be in the possession of persons who are sympathetic to the defendant.
6. That the prosecution witnesses whose tour of duty involve carrying out covert operations for the security of the country will have their cover blown if made to testify publicly without any protection hence endangering public security of the country.
7. That exposing the prosecution witnesses to the public will make them easy target of highly possible attacks from those sympathetic to the defendant who are feared to be in possession of some of the highly sophisticated arms and ammunitions imported by the defendant during his tenure as the National Security Adviser (NSA).
8. That the fears of highly probable attack on them expressed above, has completely eroded the confidence of the prosecution witnesses to testify in this case.
9. That the grounds mentioned above constitute special circumstances hence this application.
10. That this Court has the power to grant this application.
By paragraphs 4 (a) -(o) of the applicant’s affidavit in support of the motion, deposed to by Emmanuel Ikpebe, a counsel in the law firm of Dipo Okpeseyi and Co., the lead prosecutor in this case; it was averred therein that:
a. The defendant was the immediate past National Security Adviser (NSA), a retired Senior Military Officer, a former Aide de Camp (ADC) to a Military President and a Crown Prince of Sokoto Caliphate who undoubtedly commands large followership throughout the length and breadth of Nigeria and who may be aggrieved by this trial.
b. That the defendant served in the intelligence unit of the Nigeria Army before his retirement and subsequent appointment as the National Security Adviser (NSA) and he exerts tremendous influence in the security circle.
c. That most of the witnesses in this case are security personnel who are involved in other operations across the country while others are resident within the area over which the defendant exerts substantial influence and have expressed fears of being identified by members of the public who are sympathetic to the defendant and target them for harm.
d. That the defendant while serving as the National Security Adviser (NSA) imported into the country a large cache? of highly sophisticated arms and ammunitions most of which have not been accounted for.
e. That is a notorious fact that the various security agencies in Nigeria did not get most of the imported arms and ammunitions and this resulted in the embarrassing thrashing that the Nigeria Army received in the hands of the Boko Haram insurgents in the larger part of the defendant’s tenure as the National Security Adviser (NSA).
f. That upon the search of the defendant’s residence, some of these arms and ammunitions were recovered while the whereabouts of others is not known till date.
g. That a huge volume of these highly sophisticated arms and ammunitions is feared to be in the possession of persons who are sympathetic to the defendant.
h. That the prosecution witnesses whose tour of duty involves carrying out covert operations for the security of the country will have their cover blown if made to testify publicly without any protection hence endangering public security of the country.
i. That exposing the prosecution witnesses to the public will make them easy target of highly possible attacks from those sympathetic to the defendant who are feared to be in possession of some of the highly sophisticated arms and ammunitions imported by the defendant during his tenure as the National Security Adviser (NSA).
j. That the fears of highly probable attack on them expressed above, has completely eroded the confidence of the prosecution witnesses to testify in this case.
k. That in addition to the arms and ammunitions recovered, huge sums of money in foreign currency (US dollar) were recovered from the defendant during the course of the search on his residence.
l. That the defendant could not explain the course of the money or how and why he had such large sums of money with him.
m. That the defendant is charged before this Court for possession of firearms without licence and for acts of money laundering.
n. That the grounds mentioned above constitute special circumstances hence this application.
o. That this Court has the power to grant this application.
Applicant also filed a written address dated the 3rd of June, 2016, but filed on the 23rd of June, 2017.
In opposition to the applicant’s application, the respondent (now appellant) filed a counter affidavit contained in twenty (20) paragraphs, deposed to by Dolapo Kehinde a legal practitioner in the firm of Messrs Ahmed Raji & Co., the learned Counsel to the Respondent. It was averred therein that:
5. Further to the above, I was informed by Messrs Ahmed Raji, (SAN) in our office as afore described on 5th June, 2016 at about 4pm of the following information which I verily believe that:
(i) The Complainant earlier filed a similar Application like the instant one on 12th October, 2015. Attached is a copy of the said Motion on Notice marked as Exhibit PROSECUTION 1.
(ii) The reliefs sought in the said Application are the same as with the present one.
(iii) That the 1st Defendant opposed the application and filed a counter affidavit and written address in support thereof. These documents are annexed herewith and marked as ‘PROSECUTION 2’.
(iv) This Honourable Court by its Ruling of 19th April, 2016 dismissed the said Application as lacking in merit. The Ruling is attached as Exhibit ‘PROSECUTION 3’.
(v) That the Complainant did not appeal against the said Ruling neither did it apply to set it aside.
(vi) That the issues which this Application seeks to resolve are res judicata or at the very least issue estoppel and cannot be re-litigated.
(vii) That this Honourable Court lacks jurisdiction to entertain this Application and it is functus officio of it as it cannot sit on appeal over its Ruling.
(viii) That in the result, the instant application is an abuse of Court and judicial process.
6. That Paragraph 4(c) is denied. Apart from the fact that the Defendant is no longer in service either as the National Security Adviser or a military officer, he has been in custody of the DSS since 29th December, 2016, and does not wield any kind of influence as alleged by the Complainant.
7. Paragraph 4(d) (e) (f) (g) of the Complainant’s Affidavit is untrue. The Defendant as a former NSA did not occupy the office in a private capacity such that he would import weapons/ammunition for private use. No such ammunition was found in the Defendant’s house and it is totally untrue that he denied the military troops access to weapons, in combating Boko Haram.
8. That these allegations are bare face lies and Government propaganda as even the uninformed know that the requisition and purchase of arms and armament was in the domain of the service chiefs of the Army, Navy and Air Force.
9. Further to the above, it is on record as contained in the Charge that the Complainant caused series of searches to be made in the Defendant?s houses and the allegations contained in Paragraph 4(d) (e) (f) (g) do not form part of the counts of the offence in the Charge Sheet.
10. That the spurious allegations made in many paragraphs of the supporting affidavit do not support any of the allegations in the charges and it appears as if the Prosecution is striving to justify its disobedience of the lawful orders of this Honourable Court which it is in breach of.
11. In further response to Paragraph 4(d) (e) (f) (g), the damaging allegations supplied in the said paragraphs are spurious, malicious, and not supported with evidential proofs.
12. I know as a fact that the Complainant has equally charged the Defendant in the High Court of the Federal Capital Territory, Courts 4 & 24 Abuja for not purchasing weapons to combat the Boko Haram terrorists.
13. Contrary to paragraph 4(h)(i)(j), the unsubstantiated allegations therein have nothing to do with national security. It is simply an attempt to perpetually keep the Defendant in custody, having charged him in two other Courts which had already admitted him to bail. The said Charges and Orders admitting him to bail are hereby attached as Exhibit PROSECUTION 4 & 5.
14. Further to the above, in the event that this Honourable Court holds that it is not functus officio and that the present application is not an abuse of the process of Court, the identities and names of the Prosecution witnesses had already been disclosed on the Charge Sheet. The Charge Sheet is already in the public domain, and there is nothing to further conceal from the public.
15. I know that on 18th day May, 2016, one Mr. Samuel Ogbu testified for the Prosecution and was cross-examined by the Defendant’s Counsel.
16. I am aware that the said witness testified without the aid of a hood or screen and he has not complained that he has been threatened or harassed by the public. The Defendant relies on the record of this Honourable Court, particularly the proceedings of 18th & 19th May, 2016.
17. I know as a fact that this Application was not filed in good faith, particularly because the Applicant has been detained in the Complainant’s custody since 29th December, 2016, despite the three Orders admitting him to bail.
18. There is no merit in this Application as it is time wasting and ought to be dismissed.
19. That it is in the interest of justice to refute this application with exemplary cost.
There is a written address in opposition to the application. The applicant thereafter filed a response on points of law.
Arguments were taken on the said application, and the lower Court on the 15th of June, 2017 ruled in the following manner:
“Furthermore, Section 232 (4) (c) of the ACJ Act, 2015 permits the use of a screen if the offence relates to economic and financial crime. It is not in dispute that one of the counts in the Amended charge is on money laundering, therefore the prayer to use screen by prosecution witnesses is quite in order, especially when it has not been shown to be prejudicial to the defence in any way.
In consequence of the above, the sole prayer on the complainant’s motion dated and filed on 3/6/16 is granted. I make the following orders:
1. An order is made granting leave to the prosecution witnesses to give evidence behind screen to be provided by the Court.
2. The prosecution witnesses shall however not be shielded to the defendant and all legal representatives in this case, including the Court.”
Highly disappointed and dissatisfied with the ruling of the lower Court, granting the application for witness protection, appellant promptly filed a Notice of Appeal dated the 21st June, 2017 and filed on the 22nd June, 2017 predicated upon five grounds. The records having been duly filed and regularized, parties filed in their briefs of argument. The Appellant’s brief dated and filed on the 15th of September, 2017, was deemed filed on the 23rd of January, 2018. Appellant also filed a reply brief of argument, and one additional authority relating to the arguments on his issue two.
The learned counsel for the Respondent also filed a respondent?s brief incorporating a preliminary objection on the 28th of November, 2017, but deemed filed on the 23rd of January, 2018. When the appeal eventually came up for hearing on the 23rd of January, 2018, J. B. Daudu SAN, with Ahmad Raji SAN, leading other counsel, identified the processes filed by him, as well as the additional authority filed, adopted and relied on same in urging the Court to dismiss the preliminary objection filed and to allow the appeal.
Oladipo Okpeseyi SAN, leading other counsel, and before the hearing of the appeal, drew the Court?s attention to his preliminary objection embedded in the respondent’s brief, filed on the 28th of November, 2017 and deemed filed on the 23rd of January, 2018. He adopted and relied on the process filed, in urging the Court to dismiss the appeal. Learned senior Counsel on the reply brief filed by the Appellant and the additional authority filed, submitted that the authority in question is based on common law, and the case of R vs. Davis referred to, admits of certain exceptions. He argued that Section 232 of the ACJA, is not in conflict with Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999, and also relied on pages 30 – 31 of the case cited to support his case.
Mr. Daudu (SAN), on the other hand referred to page 21 of the same case, and commended it to the Court in support of his argument.
The learned counsel for the Appellant nominated three issues for the determination of this appeal. They are as follows:-
1. Since by a motion on notice filed on 3rd June, 2016, the respondent revamped its application of witness protection which had earlier been dismissed by the Federal High Court, whether it was right for the Court to hold that the said motion was competent, in apparent disregard of the patent abuse of its process, including the very fact that it had become functus officio of the decision thereto.
2. Considering the fact that the motion filed by the respondent for witness protection on 3rd June, 2016 was predicated on the original charge which had been withdrawn and struck out, whether it was appropriate for the Court to grant same, without recourse to a harmonious consideration of Section 232 (3) & (4) of the Administration of Criminal Justice Act 2015.
3. Did the learned trial Judge judicially and judiciously exercise his discretion in favour of the motion for witness protection, bearing in mind that he consciously failed to resolve the Appellant’s submission on the constitutionality or otherwise of Section 232 (3) (b) of the Administration of Criminal Justice Act, 2015 vis a vis Section 36 (4) of the 1999 Constitution.
The respondent on his part is of the view that the Notice of Appeal filed was incompetent, in that Appellant did not obtain the required leave to appeal, thus breaching the provisions of Section 241 (1) (a) of the CFRN 1999. That apart, two issues were identified for the determination of the appeal as follows:-
1. Whether having regards to the facts and circumstances of the case, the Court below was right to have exercised its discretion in granting the motion on notice dated June 3, 2017.
2. Considering the special nature and circumstances of the case, whether the granting of the reliefs on the said motion on notice dated June 3, 2017 by the lower Court, occasioned miscarriage of justice or prejudice to the Appellant.
The Preliminary Objection.
The respondent’s Preliminary Objection is contained and argued from pages 4 to 6 of the brief. Therein, the learned senior counsel contended that the plank of the objection is based on the fact that appellant failed to obtain the leave of this Court as required in filing the Notice of Appeal, and thereby in violation of Section 241 (1) (a) of the CFRN 1999 as amended. It is his contention that the notice of appeal falls outside the categories of appeals that lie as of right to this Court, from the grounds and the particulars, though wrongly tagged as referring to error of law. He relied on the decision of the Apex Court in the case of The State vs. Omoyele (2017) 1 NWLR (pt. 1547) 368 per Sanusi JSC, to posit that in determining whether a ground of appeal include questions of law alone or facts or mixed law and facts, it is the grounds of appeal including the particulars that needs to be examined.
He maintained that where the grounds of the appellant’s notice of appeal are examined, the Court will arrive at the conclusion that they are at best grounds of mixed law and facts, for which the leave of Court is required as stipulated in Section 242 (1) of the Constitution. It is the prayer of the learned senior counsel that this Court hold that the grounds of appeal are incompetent, as well as the issues distilled therefrom, and the Court to uphold the Preliminary Objection and to declare the appeal incompetent.
The response of the learned senior counsel for the appellant on the issue can be seen from pages 2 and 3 of the appellant’s reply brief as filed. Therein it was argued for the appellant that in sync with paragraph four of the appellant’s brief of argument, that the learned trial judge had no jurisdiction to entertain the respondent’s motion of the 3rd of June, 2016. Alluding to the said paragraph, counsel argued that the issue of jurisdiction admits of no discretion, and emphasized the point that the grounds of appeal are purely issues of law and jurisdiction, and therefore has no connection with a challenge to the exercise of discretion. He maintains that the grounds of appeal revolve round questions of law, within the cognisance of Section 241 (1) (a) of the Constitution, and relying upon the decision of Calabar Central Cooperative Thrift & Credit Society & 2 Ors vs. Bassey Ebong Ekpo (2008) ALL FWLR (pt. 418) 198 @ 235 – 236, urged the Court to dismiss the preliminary objection.
I see the issue for resolution in the light as to whether the grounds of appeal and their particulars can be said to be grounds of law or that of mixed law and fact, or simply that of facts. In essence the resolution would certainly touch on the understanding of Sections 241(1)(b), and 242(1) of the CFRN 1999.
For clarity, the two sections provide:-
241. An Appeal shall lie…
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
242 (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court, High Court or the Court of Appeal.
The learned silk for the Respondent urged upon the Court in line with the decision of State vs. Omoyele (supra), to examine the grounds of appeal and its particulars in discerning whether the grounds are of law alone, or of facts or mixed law and facts.
It has been contended and rightly too that a decision on the point whether a ground of appeal raises a ground of law, or fact or mixed law and facts does not depend on the label given to it by the applicant or objector as the case may be, but the decision as rightly posited involves the examination of the grounds of appeal raised and their particulars. See S. U. Ojemen vs. His Highness William O. Momodu II & Ors (1983) 3 SC 173, Nwadike & Ors vs. Ibekwe (1987) 2 NSCC 1219. In that con, I understand a ground of mixed law and fact as that situation where a ground of appeal raise the question of law as applied to disputed facts or where a ground of appeal raises a question of partly law and partly fact. On the other hand when a ground of appeal raises a complaint which will not involve the appellate Court in the appraisal of evidence or evaluation of facts that is a ground of law alone.
I have in that con dispassionately and with a high sense of duty examined the grounds of appeal raised and its particulars, and my humble but firm view is that the grounds of appeal are purely issues of law and jurisdiction as contended by the appellant and do agree with the learned counsel for the appellant, that the objector’s preliminary objection is misconceived and by virtue of Section 241 (1) (b) of the Constitution, lies as of right to this Court. I find no merit in the objection as argued, and same is hereby dismissed.
Having dispensed with the preliminary objection, I now proceed to consider the merit or otherwise of the appeal, and in doing so, I have taken a solemn but dispassionate consideration of the issues thrown up by the two senior counsellors. It seems to me that what is up for resolution principally relates to the appellant’s complaint, on whether the ruling of the lower Court can be justified in the circumstance in which it was made. I therefore intend to look at the complaints of the appellant from the view point of the issues identified by him, and in doing so consider appellant’s issues one and two at the same time.
ISSUE ONE.
Since by a motion on notice filed on 3rd June, 2016, the respondent revamped its application of witness protection which had earlier been dismissed by the Federal High Court, whether it was right for the Court to hold that the said motion was competent, in apparent disregard of the patent abuse of its process, including the very fact that it had become functus officio of the decision thereto.
The learned senior counsel for the appellant noted that an abuse in a judicial proceedings can be spotted, when a party thereto improperly files processes to the annoyance and irritation of the opponent. In that regard, the case of Ojo vs. A. G. Oyo State (2008) 15 NWLR (pt. 1110) 577 @ 323 was cited. He submits that the subject matter in the case is the motion filed by the respondents on the 3rd of June, 2016, and argued that for determination is whether the said motion was an abuse of the judicial processes. He drew the Court’s attention to the motions of the 15th October, 2015, and that of the 3rd June, 2016 seeking for the same thing i.e. witness protection and also drew the Courts attention to pages 86, 87 and 88 of the records, contending that the trial Court had agreed with the appellant that the said motion be refused. It is the argument of the learned silk that the vital finding and decision of the Court not having been appealed against, such a finding remained valid and intact, and the appellate Court duty bound to act on it. In support of the proposition, learned counsel relied on the case of Chitra Knitting & Weaving Manufacturing Co. Ltd vs. Akingbade (2016) LPELR 40437 (SC) 1 at 20.
He placed further reliance to the case of Ladoja vs. Ajimobi (2016) 10 NWLR (pt. 1519) 87 @ 144 per Ogunbiyi JSC, on the inviolability of the un-appealed finding of the Federal High Court, insisting that in the absence of an appeal against the ruling dismissing the application for witness protection, the respondent remains bound by it, and any attempt to re-enact such an application with the same parties, issue of estoppel would arise. The cases of Udo vs. Obot (1989) NWLR (pt. 95) 59, William Ladega & Ors vs. Shittu Durosimi & Ors (1978) ALL NLR 80 were cited in support.
He submitted that they were surprised and perplexed when a revamped application for witness protection was refiled by the respondents on the 3rd of June, 2016 claiming three reliefs, and argued that the trial Court was as at that stage functus officio on the subject matter of witness protection, for where a Court gives an order, he is not in a position nor competent to give another decision on the same matter. He cited the cases of Onyemobi vs. President O.C.C. (1995) 3 NWLR (pt. 381) 50 @ 58, UBN Plc vs. CFAO (NIG) Ltd (1997) 11 NWLR (pt. 527) 118 @ 127 amongst others on the point. He disagreed with the lower Court and the respondent’s assertion that the two motions were distinguishable, contending that both prayers were brought pursuant to Section 232 (3) of the Administration of Criminal Justice Act 2015, and alluding to the provisions of the Act under reference, views the respondent?s attempt to draw a distinction between the two motions as amounting to an exercise meant to split the air, the reason according to learned counsel is the overall effect of Section 232 (3) of ACJA, which is for the grant of witness protection, and the several modes to be adopted being a matter of convenience, and a calm consideration of the two set of reliefs, would reveal that the respondent seeks the same consequence.
He also referred to the three set of motions filed on the same subject matter, and the case of Mbas Motel Ltd vs. Wema Bank Plc. (2013) LPELR 20736 CA, on what constitutes an abuse of Court process, opining that from all the surrounding circumstances of this case, the respondent’s conduct invariably amounted to a gross violation of Court process by way of multiplicity of processes all to the irritation and annoyance of the appellant. The case of Dingyadi vs. INEC (No. 1) (2010) 18 NWLR (pt. 1224) 74 – 75 was further cited. He concluded by urging the Court to protect the sanctity and integrity of the Court from ridicule and manipulation, and not to allow any body take undue advantage of the judicial process to vex or irritate the opposite party.
Submitting on his issue two, i.e.
Considering the fact that the motion filed by the respondent for witness protection on 3rd June, 2016 was predicated on the original charge which had been withdrawn and struck out, whether it was appropriate for the Court to grant same, without recourse to a harmonious consideration of Section 232 (3) & (4) of the Administration of Criminal Justice Act. 2015.
This issue was argued from pages 12 to 15 of the brief, with the learned senior counsel adopting his arguments advanced in support of the first issue as part of his submissions with respect to the instant issue. He drew the Court’s attention to page 1 of the records, with respect to the initial one count charge against the appellant, pointing out that after the dismissal of the first motion, the second motion for witness protection was filed on the 3rd of June, 2016, and having predicated the application of the 3rd of June, 2016 on the charge of the 24th of August, 2015, which was withdrawn on the 6th of April, 2017, queried whether the motion of the 3rd of June, 2016 for witness protection predicated on the withdrawn charge can still be maintained. He relied on the age old case of Macfoy vs. UAC (1961) 3 WLR 1405 to posit that:
“One cannot put something on nothing and expect it to stand. It certainly collapses like a pack of cards,”
and in line with the decision of Ogudo vs. The State (2011) 18 NWLR (pt. 1278) 1, posited that by the withdrawal of the former charge, all pending applications, including the proceedings predicated on the said charge automatically ought to have abated.
Flowing from the above, learned counsel argued, that the trite position of the law, is to the effect that the trial ought to have commenced de novo upon the amendment and or alteration of the charge, therefore there was nothing orderly or proper about the application of the 3rd June, 2016, having been overtaken by events.
Further still, learned counsel submits that the trial Court had a duty to admit itself to the checks provided by Section 232 (4), which includes offences under Section 231 of the Act, offences under the terrorism (prevention) Amendment Act, offences relating to Economic and Financial Crimes; trafficking in persons and related offences, and any other offence in respect of which an Act of the National Assembly permits the use of such protective measures or as the Judge may consider appropriate in the circumstances, before Section 232 (3) can be granted. He enumerated the areas under the section, and argued that the trial Court ought to have examined the amended information filed to see if the conditions are met therein, contending that had the Court averted its attention to the area under reference, he would not have granted the application. He urged the Court based on his submissions to resolve the two issues in favour of the appellant.
Responding to the submissions made on the appellant’s two issues simultaneously, the learned counsel for the Respondent referred to the ruling of the lower Court at page 545 of the records and opined that the order therein was made after a thorough consideration of the incontrovertible facts in the supporting affidavit with regards to the fears expressed by the witnesses.
Relying on the decision of Ngwuta JSC in Onovo & Ors vs. Mba & Ors (2014) LPELR 23035 (SC), and UBN Plc vs. Astra Builders (WA) Ltd (2010) 5 NWLR (pt. 1186) 1 @ 28 to the effect that discretion means equitable decision of what is just and proper under the circumstances or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principle of law.
Learned Senior Counsel contended that the appellant misconceived his issue one on the manner of the exercise of discretion by the two judges, and submits that the exercise of discretion is not constrained by any pattern or structure, as no two judges are bound to exercise their respective discretion in the same way. On this position of the law, counsel referred to the cases of Celtel Nig BV vs. Econet Wireless Ltd and Ors (2014) LPELR 22430 (CA), Akinyemi vs. Odu’a Investment Co Ltd (2012) 17 NWLR (pt. 1329) 209 @ 240, Dokubo Asari vs. FRN (2007) 12 NWLR (pt. 1048) 320 @ 350. He tried to distinguish the two prayers made before the two lower Courts, and further referred to the marginal notes to Section 232 of the ACJA, 2015 meant to provide useful guides to the understanding of the intent of the section.
He contended that by the provision of the section, the Court has unfettered discretion to choose any of the options in Section 232 (3), with the aim of achieving the just trial of the case. He contended at length on the import of the word ‘or’ used in the provision of Section 232 (3) (b) of the ACJA, in line with the Interpretation Act Cap. 123, LFN 2004, and numerous other cases including FRN vs. Ikedinwa & Anor (2013) LPELR 21120 (CA) and Aregbesola vs. Oyinlola (2010) LPELR 3805 (CA), to posit that the words of Section 232 (3) (b) of the ACJA 2015 are to be considered disjunctively.
He then submitted that the prayers in the two motions were different and distinct, and also heard and determined under different circumstances. It was further contended that throughout the prosecution of the application, appellant did not show that he suffered any miscarriage of justice, having fully participated in the proceedings. In further response to the appellant’s issue two, the learned silk submitted that the effect or purpose of the application dated the 3rd of June, 2016 was not affected by the withdrawal of the substituted charge so long as the critical factors for consideration for the granting of such application were met. He submits that whenever a charge is amended or substituted by the Court, it relates back to the original date of the document.
Learned counsel cited the cases of FRN vs. Adewunmi (2007) LPELR 1273 (SC), Attah vs. The State (1993) 7 NWLR (pt. 305) 257 amongst others to buttress the point. He therefore faulted the submission of the learned counsel for the appellant to the effect that the application dated 3/6/16 having been predicated upon a withdrawn charge, by the combined reading of Sections 217 (2) and 218 (1) of the ACJA, 2015 is of no moment. It is his contention that Section 232 of the ACJA confers immense discretionary powers on the Court to manage the trial of offences within Section 232 (4) of the ACJA, and argued that the section allows the Court based on the facts and circumstances before it to conduct trial in camera, and a holistic reading of the entire section as can be seen is to engender a functional administration of criminal justice devoid of needless contrived delays. It is his submission that the intention of the drafters of the section is to insure that witnesses testify on cases bordering on economic crimes without fear, and alluding to the decision of the lower Court at pages 545 of the record, learned senior counsel is of the strong view that the lower Court was right in exercising his discretion in favour of granting the application dated the 3rd of June, 2016 for witness protection.
Learned counsel argued further still that the earlier ruling of Ademola J., and that of Mohammed J., pertained to different exercise of discretion based on the assessment of material facts and extant circumstances before the different judges. He argued also that the findings of Ademola J., did not dispose of the rights/responsibilities in the charge nor extinguish the substantive charge itself as to come with in the latter Court being functus officio. He submits that the Court has the power to manage its proceedings and the Court’s exercise of that discretion on matters of procedure did not debar the respondent from seeking similar discretion before another or the same judge.
He alluded to the provisions of Section 1 (1) (2) of the ACJA Act meant to ensure efficient and timely disposal of criminal trials, and further referred to the case of Metuh vs. FRN & Ors (2017) NWLR (pt. 1575) 181 with regards to fast tracking criminal matters specifically listed, and submits that since Ademola J. by his ruling did not finally determine the substantive charge, did not jeopardise the respondent’s right to seek the other alternative. He submitted that the lower Court at page 544 of the records, distinguished the two applications, and the Court in the exercise of its discretion is not bound to act in any particular way.
In further reply to the issues raised by the respondent in their brief of argument, it was argued by the appellant that the appeal does not pertain to the exercise of the lower Court’s exercise of discretion, but that the trial judge had no jurisdiction to entertain the respondent’s motion of the 3rd of June, 2016. He argued that the issue of jurisdiction raised and argued, points to the fact that where a Court lacks jurisdiction to hear a suit or determine an application, same cannot be conferred, therefore the issue of discretion cannot apply, but be kept at abeyance. On whether there existed differences between the reliefs sought before Justice Ademola and Justice Mohammed, the learned silk submitted that a thorough evaluation of both instances would reveal that there were no alterations or changes in the circumstances to warrant the grant of the witness protection via the repeat motion of the 3rd of June, 2016.
He referred to the facts deposed at pages 31 and 32 of the records, and also at pages 86 to 88 of the same records; and further referred to paragraphs 14 – 16 at page 104 to 107 of the records, opining that the grant of the application will make a caricature of the trial process. He submits that after all the names of the witnesses have been advertised to the public as borne at page 213 of the amended application, contending that the grant of the application will not serve any utilitarian purpose as there is nothing to protect. He also relied on the case of Umeh vs. Iwu (2008) 8 NWLR (pt. 1089) 225 on the different variants of abuse of Court process, and submits that the motion of the 3/6/16 filed pursuant to the Court’s order to amend the initial charge abated by the operation of the law, and an amended charge is not the same as the original charge.
I have therefore taken time to appreciate the arguments of the two legal giants with respect to the issues canvassed. I have equally given due attention and consideration to the case law cited. My understanding of the area of contention relates to whether the application of the 3rd of June, 2016, heard and determined by A. R. Mohammed J., was proper in view of the determination of Ademola J, in an application which for all purposes is said to be geared towards achieving the same conclusion, i.e. the protection of witnesses or witness protection. The learned counsel for the appellant are of the view that the latter Court acted without jurisdiction, on the respondent’s motion of the 3rd of June, 2016 as same was an abuse of Court’s process, the same reliefs having been determined before then. Counsel also holds the view that the lower Court failed to construe paragraphs (3) and (4) of section 232 of the Administration of Justice Act 2015, wrongly relying on Subsection (3) in isolation. There is the further complaint by the appellant that the lower Court was functus officio, since the parties, and the subject matter are the same with the motion filed on the 15th of October, 2015 and therefore estopped by operation of the law.
Indeed it has been said again and again that jurisdiction is very fundamental being the nerve centre of the Court’s adjudication. It is said to be the pillar upon which the case stands, and once it is shown that the Court lacks the jurisdiction to try the case, all that was done by that Court in the absence of jurisdiction crumbles. See Ngere vs. Okuruket ‘XIV’ (2017) 5 NWLR (pt. 1559) 440 @ 466 per Ariwoola JSC. See also Okolo vs. UBN Ltd (2004) 3 NWLR (pt. 859) 87, AG of the Federation vs. Sode (1990) 1 NWLR (pt. 128) 500, and Kotoye vs. Saraki (1994) 7 NWLR (pt. 357) 414.
Indeed the plank upon which appellant now wish to challenge the lower Court’s jurisdiction, is premised on the motion of the 3rd June, 2016 filed before the lower Court, contending that the said motion was an abuse of Court process, and therefore the Court lacked the jurisdiction to revisit the issue contended therein, being an issue that was earlier determined, other than on appeal, and thereby constituting an abuse of the Court process.
Karibi Whyte JSC, in the case of Saraki vs. Kotoye (supra), outlined what constitutes abuse of the Court’s process to mean, an improper use of judicial process by a party in litigation.
In the recent case of Bukoye vs. Magaji (2017) ALL FWLR (pt. 889) 529 @ 550 – 551, the Supreme Court enumerated instances and circumstances that can give rise to the abuse of Court process, amongst which is the multiplicity and manner of the exercise of the right than the exercise of the right per se. see also Adesoji vs. FUTA (2017) 9 NWLR (pt. 1570) 208 @ 226.
The lower Court at pages 544 to 545 appreciated the arguments of the learned senior counsel on the issue, opining that abuse of Court process occurs where a party institutes multiple actions between the same parties and on the same subject matter, but reasoned that the prayers in the motion before him were quite different to the reliefs earlier considered and rejected.
There is no dispute to the fact that the principle of estoppel applies to both civil and criminal matters as contended by the appellant’s counsel, per Aniagolu JSC, in the case of Aro vs. Fabolude (1983) LPELR SC 106/1981, while agreeing with Lord Diplock in Mills and Cooper (1967) 2 ALL ER 100 @ 105, re-emphasized the fact that the general rule of estoppel indeed applies to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation, for in criminal proceedings, it takes the form of the rule against double jeopardy of which the simplest application is to be found in the plea of autrefois convict and autrefois acquit. It is worthy to note that, the application of the principle even in civil proceedings must be applied where the subject matter in contention is the same, the issue and the parties the same, and where any of the three matters is missing then a plea of res judicata also fails.
I think it is pertinent at this stage to revisit the two applications in contention, vis a vis the prayers contained therein, since the jurisdiction of the Court in the determination of the application before it is restricted to the prayers contained in the application and the evidence in support by way of affidavit evidence. See Ogunsakin & Anor vs. Samuel Ajidara (2007) LPELR 4733 (CA), and Dapianlong vs. Dariye (2007) 8 NWLR (pt. 1036) 239 @ 290.
In the application filed before Ademola J, filed on the 15th of October, 2015 the prosecution sought for the following reliefs:
1. An order of this honourable Court directing that the names and addresses of all prosecution witnesses are not disclosed in any record or report of proceedings which are accessible to the public.
2. An order of this honourable Court permitting all prosecution witnesses to be addressed with pseudo names in the course of proceedings.
3. An order of this honourable Court granting all prosecution witnesses access to a non-public route to and from the Court premises and Court room as well as use of private witness room.
4. An order of this honourable Court excluding persons other than parties and their legal representatives with the exception of accredited members of the press from the Court when prosecution witnesses are testifying.
5. An order of the honourable Court protecting the identities of the prosecution witnesses by the aid of facial masks while giving evidence in the course of proceedings
6. And for such other orders as this Court may deem fit to make in the circumstance.
In the latter motion filed on the 3rd of June, 2016, sought for the following reliefs:
1. An order of this Court granting leave to the prosecution witnesses to start enjoying witness protection by giving evidence behind screen to be provided by the Court.
2. An order of the Court directing that the identities of all prosecution witnesses be not disclosed in any record or report of proceedings which are accessible to the public
3. An order of this Court permitting all prosecution witnesses to be addressed with pseudonyms in the course of proceedings.
It is noteworthy that prayers 2 and 3 were withdrawn at the hearing of the application.
It is apparent as held by the lower Court that the prayers earlier sought for and rejected are not the same with the sole prayer sought by the respondents in the latter application. It has been contended by the learned senior counsel for the respondent that the rulings delivered are acts of the exercise of discretion by the two judges. That the exercise of discretion by Ademola J, does not bind Mohammed J. I agree that, that is the position of the law for as held in the case of Unilag vs. Aigoro (1985) 1 NWLR (pt. 1) 143, no Court can be bound by a previous decision to exercise its discretion in a particular way, for to permit that would have the effect of putting an end to the exercise of the discretion. See on this the case ofBulama vs. UBA (supra). The apex Court reiterated this position of the law, having asserted in the case of Dokubo Asari vs. FRN (2007) 12 NWLR (pt. 1048) 320 @ 350 thus:-
“where the question is one of the exercise of discretion, authorities are not of much value. This is because no two cases are exactly similar, and even if they are, Courts cannot be bound by the previous discretion to exercise its discretion because that would be putting an end to discretion. Thus no discretion in one case can be precedent to another.”
Also in the recent case of Zakirai vs. Muhammad (2017) 17 NWLR (pt. 1594) 181 @ 227 – 228, the Supreme Court per Augie JSC stated:
“Judicial discretion is described as a sacred power that inheres to a judge, and which he should employ judicially and judiciously. Since no two cases can be the same, the Supreme Court does not lay down rules to fetter the exercise of its discretion or that of the lower Courts. Thus a Court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be putting an end to discretion.”
Appellant argued that what is in contention is not the issue of the Court’s discretion, but that the lower Court having been divested of jurisdiction, discretion is kept at bay. I am not entirely enthused by the argument. This is because the issue of whether the lower Court lacked jurisdiction in determining the application of 3/6/16, must be examined from what the lower Court did, in arriving at whether it had the requisite jurisdiction in the circumstance in which it was exercised or not. I therefore agree with the respondent that the merit and the expediency of the application which was meant to ensure that the witnesses are able to give evidence without the fear of reprisal, is an exercise of discretion meant to facilitate the real question in dispute, i.e. the guilt or otherwise of the appellant. In the course of writing the instant judgment, I had cause to remember a book titled, perspectives on Sections 306 and 396 of the Administration of Criminal Justice Act 2015, edited by Prof. Yemi Akinseye – George and Prof. Bolaji Owasanoye, specifically the report by Joseph Jibueze, which lamented the frustration of the Courts and the fight against corruption, it was stated therein that:
“With time, witnesses become disillusioned, scared, uncooperative or unavailable. The prosecution gets fatigued or becomes distracted by new cases. Public and media apathy follow as the case goes into hibernation. The trial judge may retire or be transferred to another division or elevated to a higher Court deliberately or coincidentally and the accused persons will be re-arraigned before another judge.”
I agree that these are some of the vices the ACJA 2015, is out to remedy, and in determining whether issue of estoppel arises in the present circumstances, a Court faced with that decision must properly look at the issues that call for determination in the case, and the issue that was resolved in the previous decision. The party relying on issue of estoppel, and in our case the appellant must show that the issues raised and determined in the previous decision were the same as those in the present suit. See Oshoboja vs. Amida (2009) 18 NWLR (pt. 1172) 188, Ikeni vs. Efamo (1996) 5 NWLR (pt. 446) 64, OSPM Ltd vs. Nibel Co. Nig. Ltd (2017) 3 NWLR (pt. 1552) 207 @ 234 per Tsammani JCA.
It is evident to me that the prayers sought in the two applications were different and determined under different circumstances. This is more so, when the latter application was taken during the pendency of the amended charge, with the appellant’s plea retaken before a different judge. Further to that is the added offences relating to economic and financial crimes. I conclude therefore that the principle of issue estoppel cannot arise in the instant case, since the reliefs sought are not the same.
Now referring to the term functus officio, defined as connoting or meaning that the task has been performed with regards to that office; See Alor vs. Ngene (2007) 2 SC 1; that scenario where the judge has no duty or function left to perform in that regard, and therefore no legal competence or authority to revisit the matter, is inapplicable to the instant case, on the premise that the instant case no doubt is a criminal case. The exercise of discretion as contended must have in mind the interest of the victim, the state and the defendant, therefore the refusal of the exercise of the discretion in favour of the respondents by Ademola J, did not preclude or tie the hands of Mohammed J., in the latter application. See Akinyemi vs. Odua Investment Co. Ltd (2012) 17 NWLR (pt. 1329) 209 per Ikyegh JCA. I hold therefore that the principle of functus officio as contended by the appellant is inapplicable.
On whether the application filed on the 3rd of June, 2016 is dependent on the old charge amended, I must refer to Ogunwumiju JCA in the case of Igbinedion vs. FRN (2014) LPELR-22766 (CA) wherein it was held that upon the amendment of a charge, the new charge is deemed as the original charge before the Court. See also the cases of Attah vs. The State (1993) 7 NWLR (pt. 305) 257, NAF vs. James (2002) 18 NWLR (pt. 798) 295, and FRN vs. Adewunmi (2007) LPELR-1273 (SC).
Further to this are the provisions of Sections 217 (2) and 218 (1) of the ACJA, which provided;
217 (1) where a new charge is framed or alteration made to a charge under the provisions of Section 216 of this Act, the Court shall call on the defendant to plead to the new or altered charge as if he has been arraigned for the first time.
(2) the Court shall proceed with the trial as if the new or altered charge had been the original charge.
218 (1) where the charge as revised under Section 216 and 217 of this act is such that proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the defendant in his defence or the prosecutor as the case may be in the conduct of the case, the Court may in its discretion forthwith proceed with the trial as if the charge so revised had been the original charge.
The contention of the appellant therefore that the potency of the application of the 3/6/16 was diminished by the withdrawal of the original charge is without foundation nor support in law, and must accordingly be refused. I therefore see no merit in the arguments of the appellant with regards to his issue one and two and must and do resolve same against him.
ISSUE THREE
Did the learned trial Judge judicially and judiciously exercise his discretion in favour of the motion for witness protection, bearing in mind that he consciously failed to resolve the Appellant’s submission on the constitutionality or otherwise of Section 232 (3) (b) of the Administration of Criminal Justice Act, 2015 vis- a – vis Section 36 (4) of the 1999 Constitution (as amended).
It is contended by the learned silk for the appellant, that the concept of anonym sing a witness whose evidence is or will be adverse and prejudicial to the defendant’s interest can only be conducted, where very serious national issues are concerned. He made reference to the provisions of Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended), and the original or amended charge to posit that there is no basis for a secret trial, now referred to as witness protection application being thrust on the Court. Placing emphasis on the case of Buba Marwa vs. Nyako (2012) 6 NWLR (pt. 1296) 199, the learned silk argued that his weighty arguments which formed the thrust of his submission on the issue was ignored by the trial Court, against the enunciated legal principle that a Court has the duty to pronounce on every issue placed before it, and where it fails to do so, a miscarriage of justice is occasioned thereby.
The cases of Oged Ovunwo & Anor vs. Iheanyichukwu Woko & Ors (2011) LPELR 2841 18 & 19, and Honeywell Flour Mills Plc vs. Ecobank Nigeria Ltd (2016) LPELR 40221 (CA) 33 & 34 were relied upon. He referred to the South African case of Ackerman J.S vs. Leepile (1 – 3) 1986 (20 SA 333 where it was held that there was no statutory authority upon which to grant the application. He also referred to the contribution of Lord Carswell in the case of R vs. Davies (supra), to the effect that allowing these protective measures as sought by the respondent will amount to the end of fair and open trials in Nigeria, as the fears of the applicants are largely unjustified. His conclusion is that the need for protective measures as in the instant case is purely academic, since the names and addresses of the prospective witnesses has already been disclosed, and appellant already in custody of their details, further contending that witness protection as it is being sought operates as a threat to open and fair trial, urged the Court to resolve all issues in the appellant’s favour, allow the appeal and set aside the decision of the lower Court.
The learned counsel for the respondent contended that the appellant’s submission on the issue arose from a misconception of the import and tenet of the ACJA 2015, designed to ensure efficient and effective administration of criminal justice. He alluded to the ruling of the lower Court to the effect that the use of screen does not mean secret trial, nor that the defendant would not sight them while giving evidence, and therefore not in conflict with the provisions of Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria. Rather the constitutional provision is meant to see to it that appellant is entitled to a fair hearing in public within a reasonable time. He further contended that Section 232 (3) (b) merely amplified the provisions of Section 34(4) of the 1999 Constitution. He made reference to the decision of Saulawa JCA, in the case of FRN vs. Daniel (2011) LPELR-4152 (CA), where the Court reached the decision that Section 41 of NDLEA is not in conflict with the provisions of Section 37 of the 1999 Constitution.
Learned silk also referred to the proviso to Section 36 (4) of the Constitution, contending that the use of the word may, indicates that the Court has discretion to consider the peculiarity of the of the case before it, and submits that the safety of lives of the parties, the witnesses who served under the appellant, an ex-National Security Adviser, retired senior military officer, a prince of the Sokoto Caliphate and a heir apparent to the throne of the sultanate. He maintains that the application was not for a secret trial as wrongly portrayed by the appellant but rather a security device in favour of the witnesses. He urged the Court to construe the provision of Section 232 (2) of the ACJA positively and beneficially in the interest of the public will, benefit and justice that the witnesses testify without fear of threat to their lives or any impairment of the mind. He commended the cases of Onyuike vs. The People of Lagos State & Ors (2013) LPELR 24809 (CA), and to hold that the ACJA 2015, was not in conflict with Section 36 (4) of the Constitution. Placing reliance on the case of Chevron Nig. Ltd vs. High Chief Masamibare Lowaz & Ors (2017) LPELR?42813(CA), where it was held that:
However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never, be raised in bad faith as done by the Appellant in this appeal or merely intended as a red herring to raise a storm in tea cup without any factual basis see Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp 641-642 where Ngwuta JSC held has pronounced emphatically
As for the related complaint of denial of right to fair hearing, my Lord Chukwumah Eneh JSC has this to say There can be no doubt from the foregoing that fair hearing has become the whipping principles for Counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of Counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised seriously and not rightly.
Lastly counsel drew the Court’s attention to the holding of the Supreme Court in the case of Omojola Akinlolu vs. The State (2017) LPELR 42670 SC, and urged that the appeal be dismissed.
I understand the complaint of the appellant herein as contending that his fundamental right to fair hearing stipulated in Section 36(4) of the Constitution would be breached by the statutory provisions of Section 232 of the ACJA 2015. This Court earlier than now observed that:
“The Constitution of Nigeria 1999 made fundamental provisions for the right of any accused person charged with criminal offence under any act or law to enjoy fair hearing during the trial. These fundamental basic provisions are contained in Sections 36 (4) and (6) of the said Constitution relied upon by the appellant in his brief of argument. It is not in doubt that the provision in Section 36(4) is mandatory in all criminal trials and that the accused shall be entitled to, unless the charge is withdrawn, a fair hearing in public, within a reasonable time by a Court or Tribunal. The phrase fair hearing is further expounded in the same Section 36 (6) (b) and (d) in that an accused person must be given adequate time and facilities for the preparation of his defence. Paragraph 6 (d) of Section 36 is saying that the accused person is entitled to examine in person or by his counsel, 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 conditions as those applying to the witnesses called by the prosecution. See Emeka Offor & Anor vs. Comm. Of Police, Rivers State Police Command. (2013) LPELR-21170 (CA) per Tsamiya JCA.
I agree with the learned senior counsel for the appellant, that a Court of law properly so called, has the bounden duty of determining and pronouncing on all issues properly placed before him for determination. See Honeywell Flour Mills Plc vs. Ecobank Nigeria Ltd (2016) LPELR-40221 (CA) per Oseji JCA. I equally agree that the lower Court failed and or omitted to pronounce on the contention of the appellant on whether Section 232 (3) (b) of the ACJA is unconstitutional or not in view of the provisions of Section 36 (4) of the Constitution. The pertinent question would be whether the omission to pronounce on the issue canvassed occasioned any miscarriage of justice. I have not in the circumstance been convinced that the omission or failure to pronounce on the issue led to any miscarriage of justice in the circumstance of the case. In any event, let me examine whether indeed and in fact, the provisions of the ACJA 2015 contravened the constitutional provisions of Section 36 (4) of the CFRN 1999.
For ease of reference, Section 232 of the Administration of Criminal Justice Act, 2015, provides:
232. (1) A trial for the offences referred to in Subsection (4) of this section may not, where the Court so determines, be held in an open Court.
(2) The names, addresses, telephone numbers and identity of the victims of such offences or witnesses shall not be disclosed in any record or report of the proceedings and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets.
(3) Where in any proceedings the Court deems it necessary to protect the identity of the victim or a witness the Court may take any or all of the following measures:
(a) receive evidence by video link;
(b) permit the witness to be screened or masked;
(c) receive written deposition of expert evidence; and
(d) any other measure that the Court considers appropriate in the circumstance.
(4) The provision of this section shall to:
(a) offences under Section 231 of this Act;
(b) offences under the Terrorism (Prevention) Amendment Act;
(c) offences relating to Economic and Financial Crimes;
(d) trafficking in Persons and related offences; and
(e) any other offence in respect of which an Act of the National Assembly permits the use of such protective measures or as the Judge may consider appropriate in the circumstances.
(5) Any contravention of the provisions of Subsection (2) of this section shall be an offence and liable on conviction to a minimum term of one year imprisonment.
Section 36 (4) on the other hand stipulates that:
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:
Provided that-
a) a Court or such a Tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice;
b) if in any proceedings before a Court or such a Tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the Court or Tribunal that it would not be in the public interest for any matter to be publicly disclosed, the Court or Tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.
It is trite that the right to fair hearing must be exercised within the legal framework provided by law for the hearing of the matter in contention, and in this case, the criminal matter filed against the appellant. See Ardo vs. INEC (2017) 13 NWLR (pt. 1583) 450 @ 495. The complaint of the appellant to my understanding is that where the protective measures being sought for the witnesses are considered and granted, that would be the end of fair and or open trial.
To that end, the case of Ackerman J. S vs. Leepile (1-3) 1986 (2) SA 333, which primarily dealt with secret trial, and the contribution of Lord Carswell in the English case of R vs. Davies (supra) where it held amongst others, that:
“An important consideration is the relative importance of the witness testimony in the prosecution’s case. If it constitutes the sole or decisive evidence against the defendant, anonymizing, which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly.”
To contend that the provisions of the Act, were unconstitutional. I have religiously studied the two cases cited against the trite position of the law. The two decisions are of persuasive nature and therefore relevant. In the latter case, Justice Rodger brought to the fore the history of shielding witnesses where he stated:
“The intimidation of witnesses is an age old and world-wide problem. When cicero was intent on prosecuting verres for his reign of terror in sicily, highly placed henchmen of verres threatened the fearful and oppressed Sicilian witnesses with dire consequences if they gave evidence against him.”
Although the Court recognised the right of the Court to inherently possess the jurisdiction of controlling its proceedings, concluded that where the protective measures imposed by the Court hampers the conduct of the defence in a manner and to an extent which was unlawful and rendering the trial unfair, an appeal on such a trial would be allowed. The Court however admitted of departures to the general rule in favour of open justice and confrontation of a defendant by his accuser, to include where necessity is made out, and where the witnesses reluctance to give evidence in the ordinary manner is genuine and the extent of his fear justifies a degree of anonymity.
Coming to the instant case, and by Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reproduced above, the sacrosanct and immutable stipulation as to fair hearing are spelt therein. To be considered is whether the Act, by its very wording or intent conflicted with the Constitution, and particularly whether the ruling of the lower Court breached appellant’s right to fair hearing. The learned counsel to the respondent submitted that the lower Court by its ruling to wit; “The prosecution witnesses shall however not be shielded to the defendant and all legal representatives in this case, including the Court.”
Meant that the lower Court considered the issues raised before it to the conclusion that his ruling premised on the provisions of the ACJA do not conflict with Section 36 (4) of the Constitution. He further argued that the appellant having not complained about sufficient time and opportunity to prepare for his defence, or that his legal representatives and the Court will not be able to see or to hear the witnesses give evidence and to cross examine them, but that the public are restrained or shielded from the public, Section 36 (4) of the Constitution cannot be said to have been breached. I agree with the learned senior counsel for the respondent. Indeed as posited by the lower Court and the respondent, what is contemplated here is not a secret trial as the appellant would want the Court to believe, but one recognised by the very same provisions of Section 36 (4) of the Constitution.
It is my humble but firm view that the provisions of the ACJA, 2015 and in particular Section 232 is meant to further amplify the provision of Section 36 (4) (b) with respect to certain enumerated crimes therein, and does not in any way seek to annoy nor prevent the protective stipulations covered by Subsections (5) and (6) of the Constitution, and do not conflict at all. I agree that the decision of Williams JCA in the case of Chevron Nig. Ltd vs. High Chief Masamibare Lowaz & Ors (supra) is apt in the instant case. Whereas the English case of R vs. Davis (supra) and the South African case of Ackerman vs. Leepile (supra) cited and relied on by the appellant relates to secret trials, which delimited the identification and cross examination of witnesses, the lower Court frowned at such a trial, thus only granting the prosecution, the right to shield the witnesses from the public for reasons agreeable to him. Not only are the cases distinguishable from the instant case, and therefore unavailable to the appellant, it lays down exceptions which were unfavourable to the appellant.
I am in agreement with the respondent that the contention to the effect that the section of the act under consideration contravened the Constitution was totally misconceived and the issue therefore determined against the appellant. In conclusion, let me re-echo the observation of Ogundare JSC in the case of Omojola Akinlolu vs. The State (2017) LPELR 42670 SC:
“There is clearly observable, the distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affect the justice of the trial in the latter case it will not affect the trial.”
The ACJA 2015 is a special Act, sui generis and the proceedings therefrom are not to be treated like ordinary civil proceedings where certain lapses and irregularities may be cured by invoking civil rules. The fountain of criminal justice proceedings in Nigeria is rooted in Section 36 (5) of the 1999 Constitution which the Appellant is at liberty to invoke, but must first allow the trial to be commenced and concluded. We respectfully refer to the observation of this Court in the Onyuikes case (supra); “It is my humble and considered opinion that sufficient safety values have been built in our judicial system to eliminate unnecessary destructive objections to the prosecution of cases. The trial Court should be allowed to hear matters to their logical conclusions and let the lawyers fish out the errors and take them to the appellate Courts. That way, matters will be concluded timeously and parties can move on rather than spend ten years going back and forth on preliminary issues.
The bourgeoning culture of arresting proceedings, prosecutions, investigations etc., is becoming quite worrisome. We must stop this impunity of obstruction of legal processes from progressing.”
Hence having determined all the issues against the appellant, the end result is that the appeal is devoid of any merit, and it is hereby dismissed by me.
APPEAL DISMISSED.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading before now the Judgment delivered by my learned brother, HAMMA AKAWU BARKA JCA
First, I agree with the lead judgment that the preliminary Objection raised by the Respondent to the Appellant’s Appeal is not well founded and rightly dismissed by my learned brother. Second, my learned brother has carefully dealt with the Two Issues for determination in this Appeal. I agree with his reasoning, analysis and conclusion. I also agree that the Appeal is devoid of merit. I also dismiss the Appeal.
BOLOUKUROMO MOSES UGO, J.C.A.: I agree.
Appearances:
J. B. Daudu (SAN) with him Ahmad Raji (SAN) leading,
Adeola Adedipe, C. E. Ogbozor and Dolapo KehindeFor Appellant(s)
Oladipo Okpeseyi (SAN) with him Ismaila Abasa, Chris Nevo, Abimbola Akintola (miss), and Christiana OkohFor Respondent(s)
