EZE v. STATE
(2020)LCN/14762(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/E/46C/2019
RATIO
CONSTITUTIONAL LAW: DUTY OF COURTS DECISION BE DELIVERED PUBLICLY
Sections 36(3) and 294(1) of the Constitution provide as follows:
36(3) The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the Court or tribunal) shall be held in public.
294. (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
By the above provisions, it is mandatory that decisions of Courts be pronounced or delivered publicly. PER KAYODE OYEWOLE, J.C.A.
COURT: HOW TO DETERMINE WHAT TRANSPIRED IN THE PROCEEDINGS OF COURTS
To determine what transpired in the proceedings of Courts, recourse is made to the certified true copies of the proceedings thereof which by law enjoy a presumption of regularity. The presumption that the record of appeal is correct and accurate is a rebuttable one as records could be challenged following extant procedure. See ADEGBUYI VS. APC & ORS (2014) LPELR-24214 (SC). Where however the record of appeal is unchallenged, the Court is bound to rely on it as an accurate and correct record of what transpired at the Court below. See STATE VS. JOHN (2013) LPELR-20590 (SC) at 25. PER KAYODE OYEWOLE, J.C.A.
TRIAL: EFFECT OF A TRIAL CONDUCTED WITHOUT AN ASCERTAINABLE CHARGE
The Courts and parties cannot be expected to speculate or fill in gaps with respect to these vital issues. The errors here go to the entire validity of the trial conducted. A trial conducted without an ascertainable charge or judgment is already a nullity waiting to be so pronounced. Where proceedings are fundamentally tainted as we have here, such proceedings are null and void. See AKE PROPERTIES LTD & ORS VS. GEORGE (supra), and ADESOKAN & ORS VS. ADEGOROLU & ORS (1997) LPELR-151 (SC). PER KAYODE OYEWOLE, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
ONYEBUCHI EZE APPELANT(S)
And
THE STATE RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State, Abakaliki Judicial Division.
The Appellant was arraigned alongside two others who were later discharged on no case submissions, on the 3rd day of June, 2009 for one count of murder contrary to Section 319 of the Criminal Code, Cap. 30, Vol. 11, Laws of Eastern Nigeria 1963, to which he and his then co-accused pleaded not guilty.
At trial, the prosecution called 4 witnesses comprising PW1 an eyewitness, PW2 the father of the deceased who reported the murder to the Police, PW3 the Investigating Police Officer and PW4 the medical pathologist who conducted an autopsy on the body of the deceased. The Appellant testified from the witness box as the sole witness for the defence. The case of the prosecution was that the Appellant stabbed the deceased to death in a fight deliberately provoked by the Appellant with the support of his discharged co-accused. The defence of the Appellant was that while trying to separate an ongoing fight between the deceased and one of his now discharged co-accused persons, the
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deceased hit him on the head with a chain belt upon which he passed out and later woke up the following day at the hospital. It was then that he heard that the deceased died. He denied making any confessional statement and denied killing the deceased.
After taking the final addresses of the respective counsel on the 17th December, 2013 the learned trial Judge reserved judgment till 20th February, 2014. On the 6th March, 2014 when judgment was said to have been delivered, the records of the Court only shows an entry that “the judgment is hereby annexed”. In the said annexed judgment dated and signed on the 7th March, 2014 the learned trial Judge found that the prosecution had proved the alleged offence beyond reasonable doubt. The Appellant was then convicted and sentenced.
Exercising his right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 30th April, 2019 pursuant to an order of this Court made on the 29th April, 2019 extending the time prescribed for the Appellant to have filed his appeal. The said Notice of Appeal was subsequently amended via the Notice of Appeal filed on
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the 17th June, 2019 but deemed properly filed and served on the 10th March, 2020.
At the hearing of the Appeal, Chief Osuigwe adopted his Appellant’s brief filed on the 17th June, 2019 as well as the Reply brief filed on the 17th March, 2020 as the arguments of the Appellant in this appeal. For the Respondent, Mr. Alobu the learned Director of Public Prosecutions, Ebonyi State adopted the Respondent’s brief filed on the 23rd October, 2019 but which was deemed properly filed and served on the 10th March, 2020 as the arguments of the Respondent in contesting the appeal.
The Appellant distilled 4 issues for determination without tying them to the grounds of appeal, thus:
1. Whether the judgment of the learned Chief Judge dated 7th March, 2014 and ordered to be annexed on 6th March, 2014 is a valid judgment of the High Court of Ebonyi State of Nigeria to have the force of law.
2. Whether the Appellant was denied fair hearing in the prosecution and determination of this matter and thus occasioning a miscarriage of justice.
3. Whether the trial of the Appellant was based on a charge/information in existence and the legal
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effect of a trial based on a non-existent charge/information duly filed.
4. Whether the conviction and sentence of the Appellant for murder is on the facts and circumstances of this case unreasonable, unjustified and unwarranted.
The Respondent on the other hand distilled 3 issues for determination thus:
1. Whether every slip or error or mistake on record and/or judgment of Court will lead to the reversal of the judgment.
2. Whether the Appellant was accorded fair hearing during the trial.
3. Whether the conviction and sentence of the Appellant was not reasonable, justifiable and not unwarranted.
Although both sides failed to relate the issues distilled by them with the grounds of appeal, a perusal of the 5 grounds of appeal indicates that the issues distilled by the Appellant do better in capturing the grievances of the Appellant as contained in the grounds of appeal. I shall therefore adopt the issues of the Appellant and juxtapose them with the relevant arguments of the Respondent. I shall take issues 1 and 3 together. The said issues are:
Whether the judgment of the learned Chief Judge dated 7th March, 2014 and ordered to be
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annexed on 6th March, 2014 is a valid judgment of the High Court of Ebonyi State of Nigeria to have the force of law.
And
Whether the trial of the Appellant was based on a charge/information in existence and the legal effect of a trial based on a non-existent charge/information duly filed.
Arguing the issues, Chief Osuigwe submitted that there was no indication in the record of appeal that the learned trial Judge delivered judgment in this case as envisaged by Sections 36(3) and 294 (1) of the Constitution of the Federal Republic of Nigeria, as amended. He pointed out that while the records show that on 17/12/2013 the case was adjourned till 20/2/2014 for judgment, there was no record of any such activity until 6/3/2017 where it was endorsed that ‘judgment is hereby annexed’. That the said annexed judgment however carries the date of 7/3/2014 without any indication that it was ever delivered in open Court. Learned counsel submitted that a judgment only takes effect as such when pronounced and delivered. He referred to OHUABUNWA VS DURU & ORS (2008) LPELR-4699 (CA).
It was further contended that pursuant to Section 245 of the Criminal Procedure Law of Ebonyi State,
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the learned trial Judge was mandatorily required to sign and date his judgment at the time it was pronounced and that as such the failure to date and sign the said judgment on the date it was purportedly annexed rendered it null and void. Learned counsel referred to LIEUTENANT YAHAYA YAKUBU VS CHIEF OF NAVAL STAFF (2004) NWLR (PT 853) 94 at 114-115 and AKE PROPERTIES LTD & ORS VS GEORGE (2014) LPELR-22428 (CA).
Chief Osuigwe also contended that while the information filed against the Appellant was in respect of Charge No. HKW/1C/2006, he was tried on Charge No. HAB/1C/2009 and convicted on HAB/6C/2009 without any formal amendment. He then submitted that the Appellant was arraigned, tried and convicted on a charge that was never filed thereby rendering the entire trial a nullity lacking any legal foundation. He referred to MACFOY VS UAC LTD (1962) AC 152 and SKEN CONSULT (NIG) LTD VS GODWIN SECONDY UKEY (1981) 1 SC 6 at 9.
The response of Mr. Alobu, the learned Director of Public Prosecutions, Ebonyi State, was that the judgment was delivered on the 6th March, 2014 and not 7th March erroneously carried on
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the first page of the said judgment on page 99 of the record of appeal.
He conceded that the learned trial Judge erroneously recorded the Charge No. as either HAB/1C/2009 or HAB/6C/2009 instead of HKW/1C/2006 contained in the information and proof of evidence filed by the Attorney General of Ebonyi State on 9/10/2006 initiating the trial. The learned Director of Public Prosecutions however argued that this error was a mere slip which should not lead to the reversal of the judgment of the Court as it did not occasion a miscarriage of justice. He referred to a plethora of authorities including GWONTO VS THE STATE (1983) 1 SC NLR 142 and ABAMIYI VS THE STATE (2001) 1 SC 47.
In the Reply brief, it was argued for the Appellant that parties are bound by the records of appeal which validates the contentions of the Appellant.
It was further submitted that the errors were fundamental to the justice of the case and could not be swept aside as mere clerical mistakes.
Sections 36(3) and 294(1) of the Constitution provide as follows:
36(3) The proceedings of a Court or the proceedings of any tribunal relating to the matters mentioned in
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subsection (1) of this section (including the announcement of the decisions of the Court or tribunal) shall be held in public.
294. (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
By the above provisions, it is mandatory that decisions of Courts be pronounced or delivered publicly. To determine what transpired in the proceedings of Courts, recourse is made to the certified true copies of the proceedings thereof which by law enjoy a presumption of regularity. The presumption that the record of appeal is correct and accurate is a rebuttable one as records could be challenged following extant procedure. See ADEGBUYI VS. APC & ORS (2014) LPELR-24214 (SC). Where however the record of appeal is unchallenged, the Court is bound to rely on it as an accurate and correct record of what transpired at the Court below. See STATE VS. JOHN (2013) LPELR-20590 (SC) at 25.
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The proceedings of 17th December, 2013 on page 97 of the record of appeal shows that Charge HAB/6c/09, State vs Onyebuchi Eze & 2 Ors came up and was adjourned to 20/2/2014 for judgment. The next page being 98 contains the proceedings in the same Charge HAB/6c/09, State vs Onyebuchi Eze & 2 Ors with the following details:
Accused person is present
I.I. Alobu Ag. D.P.P. with I.M Ajanwachukwu Mrs and P.C. Ede Snr State Counsel for the State.
C. A. Njoku for the 1st accused person.
The judgment is hereby annexed.
Signed. A.N. NWAKWO-CJ
Pages 99-130 contain a judgment in Charge No. HAB/1c/2009: THE STATE VS ONYEBUCHI EZE dated and signed on the 7th March, 2014. The charge number of this judgment fails to correlate with the charge number HAB/6c/2009 of the entire proceedings from the arraignment on 3rd June, 2009 contained on page 67 of the records until 6th March, 2014 when judgment was recorded to have been annexed. The record of appeal does not show the delivery or pronouncement of any judgment in line with the entire trial conducted. The judgment subsequently contained in the said record carries a different charge number and contains a date
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on which no proceedings was recorded to have taken place. To further deepen the confusion, both sides are in agreement that the information was filed under a different charge No: HKW/1c/2006.
The record of appeal does not contain any information containing Charge No: HAB/6c/2009 while Charge No: HKW/1c/2006 did not appear to have featured throughout the trial. No judgment was recorded to have been delivered or pronounced in open Court in either of the two charges as the only judgment contained in the record which was signed and dated on a date no proceedings was recorded to have taken place carries a totally strange Charge No HAB/1c/2009 unrelated to either the charge number on the information as contained on page 2 of the record of appeal or the charge number under which the trial was conducted.
The errors and gaffes here cannot be passed as mere typographical errors or mere slips. Fundamental doubts have arisen over the content of the charge in respect of which the Appellant was tried. More fundamental however is the failure to record that judgment was read, delivered or pronounced in open Court as required by the Constitution. There is even no
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judgment whether read or merely annexed corresponding with the details of the trial said to have been conducted.
The Courts and parties cannot be expected to speculate or fill in gaps with respect to these vital issues. The errors here go to the entire validity of the trial conducted. A trial conducted without an ascertainable charge or judgment is already a nullity waiting to be so pronounced. Where proceedings are fundamentally tainted as we have here, such proceedings are null and void. See AKE PROPERTIES LTD & ORS VS. GEORGE (supra), and ADESOKAN & ORS VS. ADEGOROLU & ORS (1997) LPELR-151 (SC).
In the circumstances therefore, I resolve these two issues in favour of the Appellant and to avoid prejudice to the substance of the case, I shall not proceed with the remaining two issues.
I therefore allow this appeal and consequently, the trial conducted by the trial Court is declared a nullity and it is hereby set aside.
This case is remitted back to the Chief Judge of Ebonyi State for trial to commence de novo.
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MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. I agree with his reasoning and conclusion that the appeal has merit and is hereby allowed. I abide by the consequential orders made therein.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. just delivered. I am in agreement with the decision reached and the reasoning behind the decision.
For the detailed reasons adumbrated in the lead judgment, I too, hold that the trial conducted by Court below amount to a nullity and same is hereby set aside. The case file is remitted to the Honourable Chief Judge of Ebonyi State for trial to commence de novo.
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Appearances:
Chief G. O. Osuigwe For Appellant(s)
Mr. I. I. Alobu, Director of Public Prosecutions, Ebonyi State, with him Mr. A. Am. Kikiowo (Legal Officer). For Respondent(s)
