GANI ASHIRU v . THE STATE
(2016)LCN/8089(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of January, 2016
CA/AK/197C/2014
RATIO
DEFINITION OF WORDS: MISCARRIAGE OF JUSTICE; THE DEFINITION OF ‘MISCARRIAGE OF JUSTICE’ AND THE EFFECT OF THE MISCARRIAGE OF JUSTICE
“Miscarriage of Justice has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.
See, Emmanuel Olamide Larmie Vs. Data Processing Maintenance & Services (2005) 12 S.C.N.J 297 at 317.
It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the Court, after examination of the entire case, including the evidence is of the opinion that it is reasonably probable that a result more favourable to the Appellant would have been reached in the absence of the error. A miscarriage of justice therefore means a departure from the rules which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all.
See, The State Vs Ajie (2000) 7 SCNJ 1 at 11; Olowolagba & Ors Vs. Bakara & Ors (1998) N.W.L.R (Pt.543) 528 at 534; Ukpai Vs. Okoro (1983) 2 S.C.N.L.R 380. per. MOJEED ADEKUNLE OWOADE, J.C.A.
PRACTICE AND PROCEDURE: A PRIMA FACIE CASE; WHEN IS A PRIMA FACIE CASE SAID TO EXIST
A prima facie case is said to exist when there is evidence sufficient enough to support the allegation made against the accused person. It means that a presumption of guilt is made out against the accused. And, as soon as a prima facie case is made out against the accused, he should rebut same on facts within his knowledge. See, Igabele Vs. State (2004) 15 NWLR (Pt.896) 314; Igho Vs. State (1978) 3 SC 87. In Daboh Vs. State (1977) 5 SC 122 at 129, the Supreme Court held that however slight the evidence linking the accused person with the commission of the offence charged might be, the case ought to be allowed to go to trial. It held further that where the submission is based on discredited evidence, discredit must apparent on the face of the record. If such is not the case, then the submission is bound to fail. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
GANI ASHIRU Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Ondo State sitting at Akure delivered on 10/07/2014 by O. O Akeredolu J.
The Appellant, a legal Practitioner, was arraigned before the Ondo State High Court on a two count charge of unlawfully holding himself out as the holder of a Chieftaincy title contrary to Section 18 (1) (a) and (b), (2) (a) . and (b) and punishable under Section 18 (6) of the Chiefs Law Cap 27 Vol. 1 Laws of Ondo State of Nigeria 2006 and for conduct likely to cause the breach of peace contrary to and punishable under Section 249 (d) of the Criminal Code Cap. 37, Vol. 1 Laws of Ondo State of Nigeria, 2006. The Appellant, pleaded not guilty to the charge and to prove its case, the prosecution called four (4) witnesses and tendered Exhibits.
At the close of the case for the prosecution, the Appellant made a No Case submission.
The Learned Trial Judge overruled the No Case submission in respect of Count 1 but upheld the no case submission in respect of Count 2.
Dissatisfied with the said Ruling, the Appellant at
first filed a Notice of Appeal containing nine (9) grounds of appeal in this Court on 10/9/2014 and by an Amended Notice of Appeal of 17/10/2014 filed two additional grounds of appeal, making a total of 11 grounds of appeal.
Appellant’s brief of argument dated 16/10/2014 was filed on 17/10/2014.
Respondent’s brief of argument dated 15/6/2015 and filed on 7/10/2015 was deemed filed on 4/11/2015.
Appellant nominated four (4) issues for determination. They are:
“1. Whether the Appellant was given fair hearing. Grounds 1, 10 and 11,
2. Whether the Learned Trial Judge was right in calling on the Appellant to enter into his defence in respect of the offence for which he was not charged having come into conclusion that the evidence before him does not support the charge under that law at that stage. Grounds 10 and 11.
3. Whether Learned Trial Judge in ordinate lengthy ruling is right and has not led to miscarriage of justice,
4. Whether the learned Trial Judge was right to have overruled the No Case submission on count 1.
Ground s 3, 4, 5, 6, 7, 8, 9 and 10.”
Learned Counsel for the Respondent formulated a sole issue for
determination, that is.
“Whether the prosecution had made a prima facie case against the Appellant as regards Count 1 in charge No.AK/161C/2013.”
Appellant argued issues One and Two together and submitted that the cardinal principle of law is that when it is found that there is no fair hearing in a case by the trial Court, whatever judgment obtained thereof will be of no moment as the Appellate Court will have no hesitation in setting aside the judgment.
He submitted that the Appellant before the commencement of hearing raised an objection through a motion dated and filed on 04/02/2014. The Court did not hear the motion which was in its file but proceeded with the hearing. This, Appellant said is wrong in law. He referred to the cases of Amoo Vs. Alabi (2003) 46 WRN 106 at 115 and Eke Vs. Ogbende (2007) 6 W.R.N 1 at 22 and submitted that No matter how stupid an application is before the Court, especially when it touches on the competency of the Court, it must be taken first if the trial Court is not ready to take it there must be reason given.
?
Appellant submitted further that the Learned Trial Judge was also wrong in his ruling equally of
10/7/2014 whereby he relied on the decision of Uwais JSC in the case of Adeyemi Vs. State (1991) 6 NWLR (Pt.195) at P. 29 to hold that “But where the trial Judge, on a submission of no case to answer, finds that although the prosecution have prima facie not proved the offence charged but the lesser offence, then he is obliged to rule that there is a case for the accused to answer and to proceed with the trial by asking the accused to enter his defence,”
Appellant submitted further that neither in the information filed or the evidence did the prosecution mention Section 18 (4) of the Chief’s Law of Ondo State not even in the address by the Learned DPP of Ondo State. That it is superfluous for the trial Court to have resorted to Sections 17(1) and (2) and 18 (a) of the Chief Law (supra) in holding that a prima facie case is made out on Count 1.
Learned Counsel for the Respondent did not furnish any specific reply on Appellant’s Issue One and Two.
?
All the same, on Appellant’s Issue One, the mere existence of a motion on Notice pending in the Court’s file before the Court proceeded to hearing evidence on the charge could not on its own without more
amount to breach of the constitutional provision relating to fair hearing. This is because a party alleging such breach of fair hearing should show how the existence of a pending motion per se has led to a miscarriage of justice.
To the contrary, the facts on record in the instant case revealed that the Appellant’s Motion on Notice that the charge discloses no offence against the person named therein (including other relief sought) though dated 4/2/2014 did not show any indication of when exactly it was filed.
Assuming, the motion was filed by the Appellant on that day (4/2/2014), it preceded the taking of the Appellant’s plea on a fresh charge on 5/3/2014 as recorded on page 59 of the record as follows:
Between:
Gani Ashiru ——— Plaintiff
AND
The State————– Respondent
Accused present.
Mrs. A. O. Adeyemi Tuki D.P.P appears for the state (with her Mrs. Bunmi Niyi-Anjuwa D.D.P.P. Mrs. Bola Joel Ogundadegbe A.C.L.O and B. V. Falodun S.L.O)
Accused appears in person.
Adeyemi-Tuki:- We have a fresh charge dated 26th February 2014 and filed on the same date. I wish to substitute it for the earlier
charge.
Accused:- I have no objection.
Court:- Order as prayed.
Plea:-
Count 1 read over in English Language and satisfactorily explained to the accused in English language.
Accused pleads not guilty.
Count 2 read over in English language and satisfactorily explained to the accused in English language.
Pleads not guilty to count 2.
The implication of the above records is that the Appellant at no time directed the attention of the Court to the existence of his motion if any of 4/2/2014 at the time that he said he had no objection to taking the plea on the charges before the Court.
In effect there is neither breach of fair hearing nor miscarriage of justice which should enable the interference of this Court by the failure of the Learned Trial Judge to hear a motion on which Appellant did not direct the attention of the Learned Trial Judge in any form on record.
“Miscarriage of Justice has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of
reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.
See, Emmanuel Olamide Larmie Vs. Data Processing Maintenance & Services (2005) 12 S.C.N.J 297 at 317.
It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the Court, after examination of the entire case, including the evidence is of the opinion that it is reasonably probable that a result more favourable to the Appellant would have been reached in the absence of the error. A miscarriage of justice therefore means a departure from the rules which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all.
See, The State Vs Ajie (2000) 7 SCNJ 1 at 11; Olowolagba & Ors Vs. Bakara & Ors (1998) N.W.L.R (Pt.543) 528 at 534; Ukpai Vs. Okoro (1983) 2 S.C.N.L.R 380.
In the instant case, there was never a breach of fair hearing or a miscarriage of justice.
Issue 1 is resolved against the Appellant.
Appellant’s Issue 2 is based on grounds 10 and 11 of the Notice of Appeal.
In the instant case, the Appellant did not state or claim that his appeal his based on the Two Rulings delivered by the Learned Trial Judge on 10/07/2014. Indeed both the initial Notice of Appeal and the Amended Notice of Appeal of the Appellant specifically state that “I, Gani Ashiru, having been ordered to enter into my defence of the offence of illegal installation by the ruling delivered on 10/07/2014.?
There is no indication whatsoever that the Appellant appealed against the Ruling earlier on delivered on the same 10/07/2014 whereby the Learned Trial Judge adopted the decision of Uwais JSC in the case of Adeyemi Vs. State (Supra) Neither was there any indication that the Appellant appealed against two separate Rulings of the Learned Trial Judge.
In the circumstance, Appellant’s grounds 10 and 11 are not based on any Notice of Appeal and are accordingly struck out.
Consequentially, Appellant’s Issue 2 based on grounds 10 and 11 of the Amended Notice of Appeal is also struck out. It is the law that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to
any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court.
See, Ibator V. Barakuro (2007) 9 NWLR (Pt.1040) 475; Amadi Vs. NNPC (2000) 6 S.C (Pt.1) 66 at 72; Shitta-Bey Vs, A-G, Federation (1998) 10 NWLR (Pt, 570) 392i Momodu Vs. Momoh (1991) 1 NWLR (Pt. 169) 608.
Issue 2 is accordingly struck out.
Appellant’s complaint in Issue 3 is that the Ruling of the Learned Trial Judge was too lengthy. He referred to the cases of Ubanatu Vs. Commissioner of Police (2000) 1 S.C.N.Q.R 89 at 117 and Emedo Vs. The State 3 SCM 61 at 64 – 65 where the Courts have been admonished to desist from remarks and/or observations and inordinately lengthy Ruling in a “No Case submission.”
He added that for instance, the Learned Trial Judge made findings to the effect that certain evidences were not challenged which was not the case and thereby came to a wrong conclusion which occasioned a miscarriage of justice.
He submitted that the fact that Zaki of Arigidi is a prescribed authority was not only challenged by cross-examination both from facts and
the law, it was shown that Zaki of Arigidi was/is not the prescribed authority either before or at the time the offence is related to. Again, that the Learned Trial Judge swayed into error when he embarked on speculation as to the authorships and publishers of Exhibits P1 and P4. Yet, according to Appellant, the Court should not under any circumstance speculate.
He referred to the cases of Garuba Vs. Kwara Invest. (2005) 4 FWLR (Pt.281) 375 at 388; Obiakor Vs State (2002) 10 SCM 117; Ahmed Vs State (2002) 1 SCM 33; Archibong Vs. State (2007) 12 W.R.N 1 at 19.
He further submitted that there is nothing on records to show that the attention of the Appellant was ever drawn to Exhibits P1 and P4 at the investigative stage and none of the documents was made available to the Appellant as they were produced in Court only at the point of tendering them.
?
Learned Counsel for the Respondent in reaction to Appellant’s Issue 3 submitted that it is trite law that the Ruling on a No Case submission should be brief and direct to the issue so as not to fetter the discretion of the Trial Court. However, the mere fact that a Ruling is lengthy does not in itself
invalidate or vitiate the Ruling or amount to a miscarriage of justice or denial of fair hearing.
He referred to the cases of Odofin Bello Vs. State (1967) NLR 1 and Atano Vs A.G. Bendel State (1988) 2 NWLR (Pt.75) 201.
He submitted that in the instant case, the No Case submission made by the Appellant was hinged on the ground that the prosecution failed to prove the essential ingredients of the charge brought against him. He submitted that the Ruling is limited to answering the question whether the ingredients of the offences had been proved by the evidence of the prosecution witnesses, That the Learned Trial Judge did not in any way evaluate or give weight to the evidence led or make any conclusions that would fetter the discretion of the Court.
On Issue 3, I do agree with the Learned Counsel for the Respondent that the mere fact that a trial judge delivers a lengthy Ruling on a No Case submission does not necessarily vitiate such a Ruling. In the instant case, the Appellant could not show any miscarriage of justice consequent on the Ruling of the Court.
Issue No. 3 is resolved against the Appellant.
On issue 4, Appellant submitted
that the essential ingredients of the offences created under Section 18 (1) (a) and (b) and 18 (2) (a) and (b) of the Chiefs Law for which the Appellant was charged are as follows:
“(a) That there is a Chieftaincy title known as Obaja of Ijaja, Arigidi-Akoko,
(b) That Obaja of Ijaja is a minor Chief.
(c) That there is a prescribed authority for Obaja of Ijaja or over minor chieftaincy in Arigidi-Akoko.
(d) That the PW1 is the prescribed authority.
(e) That the accused person was installed as Obaja of Ijaja without the consent of PW1 as the prescribed authority on 26/02/2014.
(f) That the Appellant wore the regalia of Obaja of Ijaja.
(g) That the accused person paraded himself as Obaja of ljaja.”
He submitted that under Section 18 (4) supra, all the above are equally ingredients of the offence created therein except that for the third and fourth therein, the prosecution has to establish that the Executive Council has made an order in respect of Arigidi-Akoko.
Appellant referred to the case of Ubanatu Vs. Commissioner of Police (2000) 1 SCNQR 89 and submitted that before it can be said that there is a prima facie case
against the Appellant requiring him to enter into his defence, the evidence must be such that if nothing comes from his side against the one led by the prosecution, it will be sufficient enough to warrant his conviction.
He submitted that all the prosecution witnesses said that there is no chieftaincy title called Obaja of Ijaja in Arigidi-Akoko and none of the prosecution witnesses said they were present at the time the Appellant was installed as Obaja of Ijaja on 26/2/2008 as alleged in the information.
He argued that the word “appointed’ used in Exhibit P11 his extra-judicial statement is different from the word “installation” which was required to be proved by the prosecution.
Also, that Exhibits P1?and P4 relied on by the Learned Trial judge on the issue of parading himself as such are not admissible in law.
He referred to the cases of Etim Vs. Ekpe (1983) 1 SCNLR 120; Alao Vs. Akano (2005) 20 WRN 157 at 173; Obun Vs. Ebu (2007) 6 WRN 105 at 148 – 149.
Appellant concluded that the essential ingredients of the offence in Count one have not been established and urged that the issue be resolved in favour of the Appellant.
Learned Counsel for the Respondent on the other hand referred to the cases of Emedo Vs. State (2000) FWLR (Pt. 130) 1654; Igabele Vs. State (2004) 15 NWLR (Pt. 894) 314; Edakarabor Vs. State (2008) All FWLR (Pt.428) 331 Sam Vs. C.O.P (2009) All FWLR (Pt.450) 760 and submitted that for an accused person to succeed on a No Case submission, he must establish any of the following three (3) requirements.
a. That the prosecution has failed to prove the ingredients or some of the ingredients of the offence charged;
b. That the evidence adduced by the prosecution has been thoroughly discredited by cross-examination;
or
c. That the evidence adduced by the prosecution is so manifestly unreliable that no reasonable Court or Tribunal could convict on it.
He submitted that the essence of no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on them by law has failed to establish a prima facie case of the offence or establish the ingredient of the offence against the Appellant to make it imperative for the Court to call upon the Appellant to defend himself. Also, that
before a No Case submission is upheld, the accused person must show that he is not in any way linked to the commission of the offence from the evidence adduced by the prosecution.
He referred to the cases of Ikomi Vs. State (1986) 3 NWLR (Pt.28) 340 at 366; Onagoruwa Vs. State (1993) 7 NWLR (Pt. 303) 49 at 80 and Mohammed Vs State (2007) All FWLR (Pt.366) 668.
Respondent’s Counsel referred to the Provision of Section 18 (1) and 18 (2) of the Chiefs Law under which the Appellant was charged and submitted that for the prosecution to succeed under Section 18 (1) of the Chiefs Law of Ondo State, 2006, the following ingredients must be proved by evidence.
a. That there was a vacancy in a minor chieftaincy in an area in respect of which there is a prescribed
authority.
b. That the accused person, without the approval of the prescribed authority, must have installed another person as such chieftaincy or permitted himself to be installed as such chief.
And, that under Section 18 (2) of the said Law, the following ingredients are required.
a. That the prescribed authority or the Executive Council has approved the appointment of a
person to a chieftaincy.
b. That the accused person holds himself out as such chief or wears any of the regalia of such chief; or
c. That the accused person challenges or impugns the validity of the appointment of a minor chief.
d. That the act of the accused persson caused or is likely to promote feelings of hostility or enmity between different classes or fear and alarm to the public or disturb the public peace.
Respondent’s Counsel submitted, that the evidence of PW1, PW2 and PW3, that the Appellant has been parading himself as the Obaja of ljaja without the prior consent and approval of the prescribed authority or Ondo State Executive Council coupled with Exhibit P11 and the fact that PW1 had already appointed PW2 as the Obaja of Etikeji show that the Appellant has overtly or covertly challenged the validity of the appointment of PW2 in a manner likely to promote feelings of hostility or enmity between different classes or Sections of the public or fear and alarm to the public or disturb the public peace.
?
He concluded that there is ample oral and documentary evidence linking the Appellant to the offence under Count I of the charge
against him requiring some explanation by the Appellant. That the trial Court was therefore right to have overruled the No Case submission on Count 1 of the charge.
In deciding Appellant’s Issue 4, I must quickly point out that the Appellant not only formulated and described what he perceived to be the ingredients of the offences charged under Sections 18 (1) and (2) of the Chiefs Law of Ondo State, 2006 but also delved into matters that could only be relevant in the consideration of the charge against him and not at the stage of a No Case submission. For example, the question whether Exhibits P1 and P4 were rightly admitted or the enquiry into whether PW1 the Zaki of Arigidi-Akoko is a de Jure or de Facto prescribed authority are all to be raised and/or considered at the tail end of the proceedings in the case.
A prima facie case is said to exist when there is evidence sufficient enough to support the allegation made against the accused person. It means that a presumption of guilt is made out against the accused. And, as soon as a prima facie case is made out against the accused, he should rebut same on facts within his knowledge.
See, Igabele
Vs. State (2004) 15 NWLR (Pt.896) 314; Igho Vs. State (1978) 3 SC 87.
In Daboh Vs. State (1977) 5 SC 122 at 129, the Supreme Court held that however slight the evidence linking the accused person with the commission of the offence charged might be, the case ought to be allowed to go to trial. It held further that where the submission is based on discredited evidence, discredit must apparent on the face of the record. If such is not the case, then the submission is bound to fail.
Section 18 (1) of the Chiefs Law of Ondo State 2006 provides thus:
?18 (1) where there is a vacancy in a minor chieftaincy in an area in respect of which a prescribed authority is appointed, any person who:-
a. Installs or purports to install a person in that chieftaincy, not being a person whose appointment has been approved by the prescribed authority; or
b. Not being a person whose appointment has been approved by the prescribed authority’ permits himself to be installed in that chieftaincy.”
Commits an offence.
Section 18 (2) of the same Law provides that:
?(2) Where the appointment of a person to a minor chieftaincy has been
approved by the prescribed authority or by the Executive Council, any other person who:-
a. Holds himself out as the holder of such chieftaincy or wears the regalia of such chieftaincy; or
b. Illegally challenges or impugns the validity of the appointment of such chief in a manner likely to promote feelings of hostility or enmity between different classes or Sections of the public or in a manner likely to cause fear and alarm to the public or likely to disturb the public peace.
Commits an offence.”
In the instant case, I have carefully reviewed the evidence of the prosecution witnesses especially PW1, PW2 and PW3 together with the Exhibits tendered and admitted in evidence, particularly Exhibit P11 and conclude that by the evidence, a prima facie case is made against the Appellant to put up a defence to Count I of the charges against him under Sections 18 (1) and (2) of the Chiefs Law, Ondo State 2006.
The Learned Trial Judge was therefore right to have overruled the Appellant’s No Case submission on Count I of the charge.
Issue 4 is resolved against the Appellant.
In this appeal, grounds 10 and 11 of the Appellant’s grounds
of appeal on which Issue 2 was based have been struck out. Issues No. 1, 3 and 4 are resolved against the Appellant.
Consequently this appeal lacks in merit and it is accordingly dismissed.
?
The Ruling of O. O. Akeredolu J. of 10/07/2015 which called on the Appellant to put up a defence on Count I in Charge No.AK/161C/2013 is upheld.
MOHAMMED AMBI-USI?DANJUMA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances
F. Omotosho with him, K. O. Ijatuyi and A. O. AfolabiFor Appellant
AND
H. M. Falowo (Principal Legal Officer Ondo State) with him, K. O Adewole, Senior Legal OfficerFor Respondent
