EKE v. A.G. FEDERATION (2020)

EKE v. A.G. FEDERATION

(2020)LCN/14603(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, September 28, 2020

CA/B/33C/2016

RATIO

PLEADINGS: THE USE OF EVIDENCE ADDUCED PREVIOUSLY IN A CASE OR TRIAL BEFORE A RETRIAL OR REHEARING OF THE CASE DE NOVO IS NOT PERMISSIBLE.

It is trite law that, save to contradict a witness, the use of evidence adduced previously in a case or trial before a retrial or rehearing of the case de novo is not permissible. See Uguru v. State (2002) FWLR (Pt. 103) 330 at 347, per Uwaifo, JSC and Oguntayo v. Adelaja (2009) All FWLR (Pt. 459) 1626.
From the clear provisions of Section 39 of the Evidence Act, reproduced above, none of the conditions specified therein applies to this.
The record of appeal shows that the learned counsel for the appellant, without more, merely stated on page 41 of the record of appeal as follows:
“I just want to say my lord that, since they have called 4 witnesses, they can adopt those statements by virtue of the Evidence Act so that they can call the I.P.O. and close their case.”
In response to the appellant’s above request, learned counsel for the respondent stated as follow:
“We have fielded 4 witnesses and we intend to crave the indulgence of the Court to adopt the proceedings in this Court and on the next adjourned date, we will call our last witness, that is the I.P.O in the matter.”
The trial Court then proceeded to rule as follows:
“The testimony of the 4 witnesses who had already testified in these proceedings before the judge, which was previously conducted in this case are adopted as forming part of this proceedings after the fresh plea has been taken, pursuant of Section 46 of the Evidence Act. So, the next witness the prosecution shall call is P.W.5.”
As can be seen from the record of appeal, none of the conditions or requirements specified or stipulated in the clear and unambiguous provisions of Section 39 of the Evidence Act, 2011 was satisfied in this case. There was nothing to show that these four witnesses (PW1, PW2, PW3, PW4) were dead, could not be found, were incapable of giving evidence, or that their attendance could only be procured with undue and unreasonable delay or expense.
With further reference to Section 46(1) of the Evidence Act, 2011 there was also nothing to show that the respondent’s said four witnesses were kept out of the way or were prevented from attending Court to testify by the appellant.
The learned trial Judge without due regard to the clear provisions of Sections 46(1) and 39 of the Evidence Act 2011 decided to adopt the oral evidence of witnesses who had earlier testified before his learned brother. His lordship apparently acted on the consent of the parties before him. With respect, consent of parties is not one of the conditions stipulated in Sections 46 and 39 of the Evidence Act, 2011. Like jurisdiction of a Court, the Court cannot, by the acquiescence, agreement or consent of the parties, waive compliance with the provisions of Section 46(1) of the Evidence Act, 2011 because the provisions are mandatory. See A. O. Eghobamien v. Federal Mortgage Bank of Nigeria (2002) 17 NWLR (Pt. 797) 488 at 500 – 501, per Uthman Mohammed, JSC where the Supreme Court held as follows:
“The provisions of Section 34(1) of the Evidence Act are mandatory and cannot be waived. If consent is given to admit evidence which is contrary to the provisions of a statute (e.g. S.34(1) of the Evidence Act) the Courts most ignore it because it is a case of giving consent to an illegality.”
See also Kale v. Coker (1982) 12 SC 252.
A trial Judge, like any other learned jurist presiding over a cause or matter, is dominus litis and should not unnecessarily allow or permit the parties to dictate the course or pace of the proceedings in court. The law seems to be that where a statute has prescribed a particular method or way of doing a thing, it is not permissible to employ any method or way outside the one prescribed by the statute. See Nwankwo V. Yar’Adua (2010) 12 NWLR (Pt.1209) 518; A. O. Eghobamien v. Federal Mortgage Bank of Nigeria (2002) 17 NWLR (Pt. 797) 488 and Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203. While I am aware of the very important legal aphorism: “Justice delayed, is justice denied”. I think that it is also important to remember, as admonished by Lord Hope (in 2005, Accra, Ghana) that, in some cases, “Justice rushed, is justice crushed”. There was no legal or factual basis for the trial Court to have rushed justice, in this case, the way it did. To fortify this view, the record of appeal shows that Honourable Justice Adamu Hubon, who started the trial, returned to Benin to continue with the trial on the 13th day of November 2013 but the learned counsel for the respondent made the following incoherent or incongruous oral application:
“The case is for continuation of hearing and we have commenced proceedings before Justice Liman and adopted previous proceedings and further heard the last witness in the circumstances we ask the matter be struck out from the Court list so that we can continue with the case before conclusion by Justice Liman.” Learned counsel for the appellant did not oppose the said application and Adamu Hubon, J. ruled that:
“With this development, the prosecution application is granted and the case remains with Justice Liman for continuation” It is settled law that a trial Court has the primary responsibility of considering, evaluating and assessing the evidence of witnesses who testify before it. A trial Court must properly review the evidence and make proper findings. See Sagay v. Sajere (2000) 6 NWLR (Pt. 661) 360.
Where the findings are based on the credibility of witnesses, it is the duty of the learned trial Judge, who had the rare opportunity or privilege of hearing, seeing and observing the witnesses give evidence or testify, to make important, valid and specific findings of fact and ascribe probative valid to the evidence. See Chief Gafaru Arowolo v. Chief Sunday Edun Olowookere & Ors. (2011) 18 NWLR (Pt. 1278) 280 at 307, per Adekeye, JSC. See also Ebba v. Ogodo (1984) 1 SCNLR; Odofin v. Ayoola (1984) 11 SC 72; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21; Wilson v. Oshin (2000) 9 NWLR (Pt.673) 442 and Sanni v. Ademiluyi (2003) 3 NWLR (Pt.807) 381.
Honourable Justice Adamu Hubon, who saw, heard and observed PW1, PW2, PW3 and PW4 testify against the appellant, was in a better position to assess and evaluate the evidence of these witnesses and make important and specific findings based on the credibility and/or reliability of the witnesses. Hon Justice A. M. Liman had no such advantage and any attempt to assess witnesses, based on their credibility, could result in a miscarriage of justice. Per MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

PATIENCE EKE APPELANT(S)

And

ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): In Charge No. FHC/B/28C/2011, the appellant was charged with the following offences:
“COUNT 1
That you, Patience Eke Blessing, (f) 53 years of No.7, 2nd Omozogie Street, Off Sakponba Road, Benin City, Edo State, sometime in 2004 at Benin City within the jurisdiction of the Federal High Court procured Benedicta Igbinoba (F) 28 years of No. 46 Adolor Street off Sakponba Road, Benin City for prostitution in Spain contrary to and punishable under Section 15(a) of Trafficking In Persons (Prohibition) Law Enforcement and Administration Act 2003 (as amended).
COUNT 2
That you, Patience Eke Blessing (f) 53 years of No.7, 2nd Omozogie Street, off Sakponba Road, Benin City, Edo State sometime in 2004 at Benin City within the jurisdiction of the Federal High Court organized foreign travel which promotes prostitution for Benedicta Igbinoba (F) 26 years of No. 46 Adolor Street off Sakponba Road, Benin City contrary to and punishable under Section 16 of Trafficking In Persons (Prohibition) Law Enforcement and Administration Act 2003 (as amended).

COUNT 3
That you, Patience Eke Blessing, (f) 53 years of No.7, 2nd Omozogie Street, Off Sakponba Road, Benin City, Edo State sometime in 2004 at Benin City within the jurisdiction of the Federal High Court, by deceitful means induced Benedicta Igbinoba (F) 28 years of No. 46 Adolor Street off Sakponba Road, Benin City to go from No. 46 Adolor Street off Sakponba Road, Benin City to Spain contrary to and punishable under Section 19(1)(b) of Trafficking In Persons (Prohibition) Law Enforcement and Administration Act 2003 (as amended).”

The appellant was arraigned before the Federal High Court, holden at Benin City, presided over by Honourable Justice Adamu Hubon.

Upon the appellant’s plea of not guilty, the case proceeded on trial and the prosecution called four witness – PW1, PW2, PW3 and PW4, before Honourable Adamu Hubon was transferred from Benin Division of the Federal High Court.

On the 13th day of February, 2013, Honourable Justice A.M. Liman presided over the case and the appellant’s plea was retaken and she pleaded not guilty. The case then proceeded until the prosecution closed its case with PW5 on the 8th day of

May, 2013.

At the close of the prosecution’s case, learned counsel for the appellant, (then accused) made a no case submission and it was overruled by the trial Court, per Liman, J. This appeal is against the said decision.

In his brief, filed on 16/06/2020, Elder/Chief N. P. Osifo, learned counsel for the appellant raised the following issue for determination:
“Whether the learned trial Judge was not in error when he overruled the no case submission of the defendant (accused person).”

The respondent’s brief was settled by Philip Adetona, Esq. and in it the following issue was distilled for determination:
“Whether the learned trial judge was right in his conclusion when he overruled the no case submission of the Appellant (accused person).”

The summary of the appellant’s arguments is that the evidence of PW1 – PW4 ought not have been relied upon, as the conditions specified in Section 46 of the Evidence Act were not complied with and if their evidence is removed, “the evidence of PW5 cannot make out a case.”

Learned counsel contended that the hearing and

evaluation of evidence is the primary duty of a trial Court. To buttress this argument, the Court was referred to the cases of Ebba v. Ogodo (1984) 1 SCNLR 372; Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142 and Lawal v. UBN (1995) 29 LRCN 97, (1995) NWLR (Pt. 378) 407.

On the other side, learned counsel for the respondent referred to the proceedings of the 13th day of February, 2013 and argued that the provisions of Section 46 (1) of the Evidence Act, 2011 “were met coupled with the appellant’s counsel consent that the evidence of PW1 – PW4 be adopted, particularly that the attendance of PW1 – PW4 will amount to delay of the matter.”

Learned counsel for the respondent submitted that in case Section 46(1) of the Evidence Act, 2011 is inapplicable, “Section 251 of the Evidence Act is a vehicle to remedy the expected errors committed by Courts, which have not resulted in the miscarriage of justice.” On the meaning of miscarriage of justice, learned counsel referred to the case of Ayorinde & Ors. V. Sogunro & Ors. (2012) 5-7 MJSC (Pt. II) 1 at 28. And on the essence of Section 251 of the Evidence Act,

learned counsel referred the Court to the case of A.C.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560.

Relying on the cases of Nwosu v. I.S.E.S.A. (1990) 2 NWLR (Pt. 135) 688 and Egbaran v. Akpotor (1997) 7 NWLR (Pt. 514) 559, learned counsel submitted that the wrongful admission of evidence, per se, is not sufficient to vitiate the judgment of a trial Court.

Learned counsel for the respondent, finally urged the Court to resolve the lone issue in favour of the respondent and against the appellant because “there is nothing to show ……that the adoption of the evidence of PW1 – PW4 at the lower Court” occasioned or would occasion a miscarriage of justice.

As stated earlier, the case was part-heard by Honourable Justice Adamu Hubon before he was transferred out of Benin Division of the Federal High Court and the case started de novo, so to say, before Honourable Justice A.M. Liman.

The first question to be answered, in my opinion, is whether or not the evidence of PW1, PW2, PW3 and PW4 was rightly adopted by Honourable Justice Liman.

The respondent relied on Section 46(1) of the Evidence Act, 2011 to say that

the evidence of these four witnesses was properly adopted. Section 46(1) of the Evidence Act provides as follows:
“(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of providing in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party.
Provided that –
a) the proceeding was between the same parties or their representatives in interest;
b) the adverse party in the first proceeding had the right and opportunity to cross-examine; and;
c) the question in issue were substantially the same in the first as in the second proceeding.”
Section 39 of the Evidence Act referred to in the above section provides as follows:
“Statements, whether written or oral of facts in issue or relevant facts made by a person –
a) who is dead;
b) who cannot be found;
c) who has become incapable of giving evidence; or

d) whose attendance cannot be procured without an amount of delay or expense which under the circumstance of the case appears to the Court unreasonable, are admissible under Section 40 to 50.”
The law is quite settled that in the interpretation of statutory provisions, where the words used are plain and unambiguous, the words are to be given their ordinary grammatical meanings. See Ahmed v. Kassim (1958) 3 FSC 51, (1958) SCNLR 28; Yerokun v. Adeleke (1960) 5 FSC 126, (1960) SCNLR 267; Nafiu Rabiu v. The State (No.2) (1981) 2 NCLR 293; Egbe v. Yusuf (1992) 6 NWLR (Pt. 245)1 and The State v. Sunday Ughanwa & Ors. (2020) 3 NWLR (Pt.1710) 22.
Therefore, the provisions of Sections 46 and 39 of the Evidence Act, 2011 should be interpreted by attaching to the words used therein their natural, plain and ordinary grammatical meanings.
Thus, in Onu v. Idu (2006) All FWLR (Pt. 328) 691 at 708, the Supreme Court, while considering the provisions of Section 34(1) of the repealed Evidence Act, the same as those of Section 46(1) of the Evidence Act, 2011, held unequivocally that “The language of Section 34(1) of the Evidence Act…is plain and simple to understand”.

The law appears to be that for a Court to apply the provisions of Section 46(1) of the Evidence Act, 2011 the conditions stipulated therein must be fulfilled. See S. T. Hon’s Law of Evidence in Nigeria, 2nd Edition, page 1096 and the cases of Ikpuku v. Ikpuku (1991) 5 NWLR (Pt. 193) 571 and El-khalil v. Oredein (1985) 3 NWLR (Pt. 12) 371.
It is trite law that, save to contradict a witness, the use of evidence adduced previously in a case or trial before a retrial or rehearing of the case de novo is not permissible. See Uguru v. State (2002) FWLR (Pt. 103) 330 at 347, per Uwaifo, JSC and Oguntayo v. Adelaja (2009) All FWLR (Pt. 459) 1626.
From the clear provisions of Section 39 of the Evidence Act, reproduced above, none of the conditions specified therein applies to this.
The record of appeal shows that the learned counsel for the appellant, without more, merely stated on page 41 of the record of appeal as follows:
“I just want to say my lord that, since they have called 4 witnesses, they can adopt those statements by virtue of the Evidence Act so that they can call the

I.P.O. and close their case.”
In response to the appellant’s above request, learned counsel for the respondent stated as follow:
“We have fielded 4 witnesses and we intend to crave the indulgence of the Court to adopt the proceedings in this Court and on the next adjourned date, we will call our last witness, that is the I.P.O in the matter.”
The trial Court then proceeded to rule as follows:
“The testimony of the 4 witnesses who had already testified in these proceedings before the judge, which was previously conducted in this case are adopted as forming part of this proceedings after the fresh plea has been taken, pursuant of Section 46 of the Evidence Act. So, the next witness the prosecution shall call is P.W.5.”
As can be seen from the record of appeal, none of the conditions or requirements specified or stipulated in the clear and unambiguous provisions of Section 39 of the Evidence Act, 2011 was satisfied in this case. There was nothing to show that these four witnesses (PW1, PW2, PW3, PW4) were dead, could not be found, were incapable of giving evidence, or that their attendance could only

be procured with undue and unreasonable delay or expense.
With further reference to Section 46(1) of the Evidence Act, 2011 there was also nothing to show that the respondent’s said four witnesses were kept out of the way or were prevented from attending Court to testify by the appellant.
The learned trial Judge without due regard to the clear provisions of Sections 46(1) and 39 of the Evidence Act 2011 decided to adopt the oral evidence of witnesses who had earlier testified before his learned brother. His lordship apparently acted on the consent of the parties before him. With respect, consent of parties is not one of the conditions stipulated in Sections 46 and 39 of the Evidence Act, 2011. Like jurisdiction of a Court, the Court cannot, by the acquiescence, agreement or consent of the parties, waive compliance with the provisions of Section 46(1) of the Evidence Act, 2011 because the provisions are mandatory. See A. O. Eghobamien v. Federal Mortgage Bank of Nigeria (2002) 17 NWLR (Pt. 797) 488 at 500 – 501, per Uthman Mohammed, JSC where the Supreme Court held as follows:
“The provisions of Section 34(1) of the Evidence Act

are mandatory and cannot be waived. If consent is given to admit evidence which is contrary to the provisions of a statute (e.g. S.34(1) of the Evidence Act) the Courts most ignore it because it is a case of giving consent to an illegality.”
See also Kale v. Coker (1982) 12 SC 252.
A trial Judge, like any other learned jurist presiding over a cause or matter, is dominus litis and should not unnecessarily allow or permit the parties to dictate the course or pace of the proceedings in court.

The law seems to be that where a statute has prescribed a particular method or way of doing a thing, it is not permissible to employ any method or way outside the one prescribed by the statute. See Nwankwo V. Yar’Adua (2010) 12 NWLR (Pt.1209) 518; A. O. Eghobamien v. Federal Mortgage Bank of Nigeria (2002) 17 NWLR (Pt. 797) 488 and Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203.

While I am aware of the very important legal aphorism: “Justice delayed, is justice denied”. I think that it is also important to remember, as admonished by Lord Hope (in 2005, Accra, Ghana) that, in some cases, “Justice rushed, is justice crushed”.

There was no legal or factual basis for the trial Court to have rushed justice, in this case, the way it did. To fortify this view, the record of appeal shows that Honourable Justice Adamu Hubon, who started the trial, returned to Benin to continue with the trial on the 13th day of November 2013 but the learned counsel for the respondent made the following incoherent or incongruous oral application:
“The case is for continuation of hearing and we have commenced proceedings before Justice Liman and adopted previous proceedings and further heard the last witness in the circumstances we ask the matter be struck out from the Court list so that we can continue with the case before conclusion by Justice Liman.”

Learned counsel for the appellant did not oppose the said application and Adamu Hubon, J. ruled that:
“With this development, the prosecution application is granted and the case remains with Justice Liman for continuation”.

It is settled law that a trial Court has the primary responsibility of considering, evaluating and assessing the evidence of witnesses who testify before it. A trial Court

must properly review the evidence and make proper findings. See Sagay v. Sajere (2000) 6 NWLR (Pt. 661) 360.
Where the findings are based on the credibility of witnesses, it is the duty of the learned trial Judge, who had the rare opportunity or privilege of hearing, seeing and observing the witnesses give evidence or testify, to make important, valid and specific findings of fact and ascribe probative valid to the evidence. See Chief Gafaru Arowolo v. Chief Sunday Edun Olowookere & Ors. (2011) 18 NWLR (Pt. 1278) 280 at 307, per Adekeye, JSC. See also Ebba v. Ogodo (1984) 1 SCNLR; Odofin v. Ayoola (1984) 11 SC 72; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21; Wilson v. Oshin (2000) 9 NWLR (Pt.673) 442 and Sanni v. Ademiluyi (2003) 3 NWLR (Pt.807) 381.
Honourable Justice Adamu Hubon, who saw, heard and observed PW1, PW2, PW3 and PW4 testify against the appellant, was in a better position to assess and evaluate the evidence of these witnesses and make important and specific findings based on the credibility and/or reliability of the witnesses. Hon Justice A. M. Liman had no such advantage and any attempt to assess witnesses, based on their credibility,

could result in a miscarriage of justice.
To be clear, I hold that the trial Court wrongly adopted the evidence of PW1, PW2, PW3 and PW4.

Now, without the evidence adduced by the PW1 – PW4, did the prosecution make out a case against the appellant? Learned counsel for the respondent was silent on the answer to this question.

To be brief, I agree with the submission of the learned counsel for the appellant that based on the evidence of PW5 (the IPO) alone, no case was made out against the appellant to warrant an answer or explanation from her.
In criminal trials, the burden of proof lies on the prosecution to prove every accusation beyond reasonable doubt, See Igabele v. State (2006) 6 NWLR (Pt. 975) 100; Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170, Galadima v. State (2013) 8 NWLR (Pt.1355) 153 and The State v. Abdu Musa (2002) 2 NWLR (Pt. 1709) 499.
A defendant, such as the appellant, has no burden to prove his innocence, when no case of the commission of a crime has been made out against him.
The lone issue in this appeal is hereby resolved in favour of the appellant and against the respondent.
This appeal

succeeds and it is hereby allowed.

The ruling of the trial Court, delivered on the 3rd day of November, 2015, whereby the appellant’s no case submission was overruled, is hereby set aside. In its place an order is hereby made upholding the appellant’s no case submission.
Accordingly, the appellant is hereby discharged and acquitted of the offences in Charge No. FHC/B/28C/2011.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read before now in draft, the lead Judgment of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA, just delivered and I agree entirely with his reasoning and the conclusion. He has resolved thoroughly the issues raised in this appeal and I have nothing useful to add.
This appeal is meritorious. It is hereby allowed.
Accordingly, the appellant is hereby discharged and acquitted of the offences in charge NO. FHC/B/28C/2011.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree

Appearances:

Elder (Chief) N. P. Osifo for the appellant, with him is I. T. Kayode-Iyasere, Esq. For Appellant(s)

Philip Adetona, Esq. for the respondent.
For Respondent(s)