INAH v. IGP
(2022)LCN/16859(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, March 18, 2022
CA/OW/282C/2020
Before Our Lordships:
James Gambo Abundaga Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
KALU INAH APPELANT(S)
And
INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
WHETHER OR NOT THE PRESENCE OF AN ACCUSED PERSON IS NECESSARY AT EVERY STATE OF HIS TRIAL
Was the adoption of the Written Addresses in the absence of the Defendant/Appellant or the proceeding an infraction of the Appellant’s right to fair hearing? This the Court refers to the case of Uzodiagu V. State (2016) LPELR–41535 (CA) where it was held
“By virtue of Section 210 of the Criminal Procedure Act, every accused person shall subject to the provision of Section 100 and Section 223 (1) and (2) of the Act be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable… The presence of the accused at every stage of the trial is necessary to avoid a breach of his constitutional right of fair hearing guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Per Bolaji-Yusuf JCA.” PER BOLA, J.C.A.
WHETHER OR NOT PARTIES CAN WAVE COMPLIANCE WITH A MANDATORY REQUIREMENT OF LAW
It is settled that parties cannot by consent or agreement waive compliance with a mandatory requirement of law. The presence of an accused person throughout his trial is a statutory and constitutional requirement which cannot be waived under the law that is under Section 352(4) of ACJA. and under the Constitution.
However, the attendance may be dispensed with if any of the situation in Section 266 of ACJA arises. Section 266 of ACJA states.
266. A Defendant shall, subject to the provisions of Section 135 of the Act be present in Court during the whole trial unless:
(a) He misconducts himself in such a manner as to render his continuing presence impracticable or undesirable.
(b) At the hearing of interlocutory application or
(c) Where he authorizes his legal practitioner in writing to represent him in his absence or dispense with his physical presence.
It is patently clear that none of the above situations arose in the case at the lower Court to warrant the physical presence of the Appellant being dispensed with at the trial and in particular at the adoption of the Written Addresses. PER BOLA, J.C.A.
THE POSITION OF LAW ON EVALUATION OF EVIDENCE
What does evaluation of evidence entails? Augie, JCA (as he then was) in the case of Ilori V. Tella (2006) 18 NWLR (Pt. 1011) 272 at 291 had this to say on what evaluation of evidence entails:
“Evaluation of evidence entails the assessment of evidence as to give value or quality; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other.. There must be on record how the Court arrived at its conclusion of preferring one price of evidence to the other”.
See Oputa, JSC of blessed Memory held in Onwuka V. Ediala (1980) 1 NWLR (Pt. 96)187, 208-209 as follows:
“To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for it …” Evaluation of evidence thus entails the assessment of that evidence so as to give value or quality to it. Evaluation demands fact the evidence adduced by both parties is assessed and weighed to as to give probative values or quality to it. It entails reasoned belief of one party to the other.”
See Onwuakpa V. Onyeama & Ors (2018) LPELR 45091 (CA) RHODES–Vivor, JSC held in Lafia Local Government V. Executive Government of Nasarawa State & 20 Ors (2012) LPELR–20602 (SC) that –
“Evaluation of evidence entails the trial Judges examining all evidence before him before making his findings. This is done by putting all the evidence on imaginary scale to see which side appears to outweigh the other. See Mogaji V. Odofin (1974) 4 SC 91.” PER BOLA, J.C.A.
THE CONSEQUENCE OF WHEN A TRIAL COURT FAILS TO APPRAISE THE EVIDENCE PLACED BEFORE IT BY PARTIES
It is trite law that both in civil and criminal proceedings that where there is a failure by a trial Court to properly appraise the evidence placed before it, the result is that whatever findings and conclusions arrived at by the trial Court would be perverse. See Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182 at 208–209; Stephen V. State (1986) 5 NWLR (Pt. 46) 978 at 1005. PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of the Federal High Court sitting in the Umuahia Judicial Division presided over by Hon. Justice D.E. Osiagor delivered on 13th day of July, 2020 which Court convicted the Appellant on a Four Count charge of intent to obtain money by false pretences. Consequently, the Appellant was sentenced to three years imprisonment without an option of fine in all the Counts. The imprisonments to run concurrently.
In addition to the terms of imprisonment, the trial Court also made an Order of Restitution in the sum of N24.9 Million in favour of the trading Company. It is the contention of the Appellant that the application and the order of restitution were made after the trial Court had delivered its judgment and had sentenced the Appellant. In other words, that the order was made after the trial Court had become functus officio of the case.
Dissatisfied with the above, the Appellant appealed against the judgment. The original Notice of Appeal was filed on 5/8/2020. The Amended Notice of Appeal consisting of fourteen grounds was filed on 30/6/2021 but deemed properly filed and served on 25/01/2022. The Amended Appellant’s Brief of Argument was filed on 30/6/2021 but deemed amended, filed and served on 20/01/2022. The Respondent’s Brief of Argument was filed on 11/11/2020. The Reply Brief was filed on 26/11/2020.
BACKGROUND FACTS
This is a case in which the Appellant was tried in the lower Court on a four Counts charge which consist of the offences of intent to obtain by false pretences and issued two Cheques and thereby committed an offence punishable under Section 6 of the Advanced Fee Fraud and other Fraud Related Offences Act 2006. The Appellant was charged on the offence of obtaining by false pretense contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act. He was also charged with related offences under Counts 3 and 4 of the charge. To prove its case, the prosecution called three witnesses. Three witnesses equally testified for the Appellant. Judgment was delivered. The Appellant was sentenced to 3 years imprisonment in respect of Counts 1-3 and 2 years imprisonment in respect of Count 2. The sentences were to run concurrently.
ISSUES FOR DETERMINATION: APPELLANT’S BRIEF
In his Brief of Argument, the Appellant donated Seven (7) issues for determination in this Appeal. The issues are:
1. Whether the trial and judgment is (SIC) not a nullity for the breach of the Appellant’s Constitutional rights to fair hearing when-
(a) The trial was conducted in the absence of the Appellant
(b) The trial Court relied on hearsay evidence in convicting the Appellant (Grounds 11, 12 and 13).
2. Whether following the fundamental irreconcilable conflict between the charge and the evidence adduced and the trial Court, the conviction of the Appellant ought not be quashed for lack of nexus between the offence charged and the conviction (Ground 2).
3. Whether the judgment is not perverse and a nullity on the basis that trial Court relied on perverse findings of fact to convict the Appellant (Grounds 3, 4,5 and 6).
4. Whether the trial Court properly evaluated the evidence of the parties before making its findings of fact (Ground 8, 9 and 15).
5. Whether the trial Court did not err in law when it found that there existed a doubt on material fact being the identity and role played by Christian Akanga, but failed to resolve the doubt in favour of the Appellant (Ground 7).
6. Whether the trial Court was right in holding that the prosecution established all the elements of obtaining by false pretence as contained in Counts 1–4 against the Appellant as to warrant his conviction (Ground 10).
7. Whether the trial Court was right to have made an order of restitution against the Defendant/Appellant after conclusion of Judgment (Ground 14).
On issue one, whether the trial and judgment did not constitute a breach of the Appellant’s constitutional right to fair hearing when the trial was conducted in the absence of the Appellant and the trial Court relied on hearsay evidence in convicting the Appellant.
It was submitted by the Appellant’s Counsel that one of the several instances of a breach of fair hearing is when a trial is conducted in the absence of the Defendant. That it is an essential principle of any criminal law that the trial for an indictable offence has to be conducted in the presence of the accused and for this purpose trial means the whole of the proceedings including sentence. Submitted that on trials for felony the rule is inviolable unless possibly the violent conduct of the accused himself and intended to make trial impossible renders it lawful to continue in his absence. The result is that the sentence passed for felony in the absence of the accused is invalid.
Counsel submitted that in the instant appeal, the trial Court conducted its proceedings of 22/6/2020 in the absence of the Appellant. He was absent in the proceedings of 22nd June 2020 when the adoption of the final Written Addresses was conducted. That the position of the law is that the Defendant is entitled to be present at every stage of his trial and any proceeding conducted in his absence amounts to a breach of his constitutional right to fair hearing. It was argued that once an accused person shows that there is an infringement of the principles of natural Justice against him, in that proceedings in Court continued in his absence, there had been an infringement of the principle and the trial should be declared a nullity. He referred to the cases of Mohammed V. State (2016) All FWLR (Pt. 826); Asakitikpi V. State (1993) 5 NWLR (Pt. 296) 641 Counsel refer to the decision of Rhodes – Vivour, JSC in Hassan V. State (2016) LPELR–42554 (SC); (2017) ALL FWLR (Pt. 890) 738 at 761 where it was held that where the presence of the accused at any stage of his trial is not borne out of the record of the Court, it is not a mere irregularity; rather it touches on the breach of the constitution and renders the trial and consequent judgment a nullity.
It was argued that Section 352 (4) of the Administration of Criminal Justice Act relied on by the trial Court could not limit the Constitutional Provision. Counsel also referred to Section 266 of the ACJA.
It was submitted that when the Defendant is absent in Court especially when the original date fixed for hearing was interrupted, the Defendant must be served a fresh hearing notice. That the Appellant in this case was in Court on 19th March, 2020 when the case was adjourned to 9th April 2020 for adoption of Written Addresses. That it was not shown that the Court sat on 9/4/2020. There was nothing to show that the Appellant was served with the hearing notice of the day’s proceeding. On this note, Counsel referred to the decision of this Court in Nweke V. FRN (2016) LPELR – 41525 (CA) where it was held:
“When an interruption or disruption occurs in the dates fixed for hearing or where a case is adjourned or moved to a date before or beyond a date that the parties have notice of, service of hearing notice is a condition precedent for the continuation or resumption of proceedings on the new adjourned date”
See A.G. Rivers State V. Ude (2006) 17 NWLR (Pt. 1008) 436. Failure to notify the Appellant or his Counsel of the new date fixed for ruling after the disruption amount to an infraction of his right to fair hearing more so in Criminal proceedings such as are an appeal where the presence of the accused throughout his trial is statutory and mandatory …….in my view the proceedings of the 11th November, 2011 including the ruling read in the absence of the Appellant without service of hearing notice on him or his Counsel is a nullity” Per Bolaji Yusuf JCA.
Counsel also referred to the case of Uzodiagu V. State (2016) LPELR–41535 (CA) which he submitted was in all fours with the present appeal.
It was submitted that before the Court could proceed to conduct trial in the absence of the Defendant under Section 352 ACJA two conditions must be satisfied.
1. The Defendant must have failed to attend Court without reasonable explanation; and
2. The proceedings will continue after two adjournments.
That the reason for the Appellant’s absence from the proceedings of 22nd June 2020 was sufficiently explained to be as a result of the Covid 19 lockdown by the Federal Government thereby making Section 352 (4) inapplicable to this case. That there was nothing on records to suggest that there had been two adjournments as a result of the absence of the Appellant.
It was further contended by the Appellant’s Counsel that the trial Court violated the Appellant’s right to fair hearing when it admitted and relied on hearsay evidence in finding the Appellant guilty of obtaining by false pretences.
It was submitted that in order to establish that a false pretence was made, the person to whom the false pretence was made, a person to whom the pretence was made must be called as a witness, except the Defendant admitted to have committed the offence. That the purported representation was made to Ibeh Udensi who was not called as a witness in this case and without any explanation. That the said Ibeh Udensi did not make any statement to the police.
Submitted that it was only Ibeh Udensi to whom the representation, an indispensable element of the offence, was made that could give evidence regarding the terms of the representation and what made him to part with the money. Referred to the cases Odiawa V. FRN (2008) ALL FWLR (Pt. 439) 436, Alake V. State (1991) 7 NWLR (Pt.205) 567 and Onwudiwe V. F.R.N (2006) ALL FWLR (Pt. 319) 774.
Counsel urged the Court to resolve the issue in favour of the Appellant.
The second issue is whether upon the fundamental irreconcilable conflict between the charge and the evidence adduced at the trial Court, the conviction of the Appellant ought not to be quashed for lack of nexus between the offence charged and the conviction.
It was the submission of the Appellant’s Counsel that the elements and features in the charges are that the offences were committed between January and February 2018 at Abiriba Ohahia. That it was clear on the face of the charge that Onyeani Udensi was the victim of the Crime. However, the evidence before the Court was that the transaction was done on 18th January, 2017 at Lugbe Abuja against Ube Udensi. It was contended that the essential acts of the Appellant which consist of the material elements of the offences charged were not disclosed on the face of the charge. It was submitted that the trial Court was therefore wrong in convicting the Appellant on the basis of the evidence which was at variance with the charge upon which the Appellant was prosecuted. This is moreso when from the face of the charge the constituent acts resulting to the elements of the offences not disclosed. See Raymond Nwokedi V. Commission of Police (1977) ALL NLR 11; Ikpa V. State (2018) 4 NWLR (Pt. 1609) 175 at 236.
It was argued that the charge failed to disclose the nature of the pretence made, to whom it was made and how it was made.
That the prosecution failed to disclose the material facts of whom the account numbers were given which is fatal to the charge but also to the totality of the case.
Under Count 4 it was not alleged or established that the document was forged. How then does it constitute an offence to send a document which is not established or clearly alleged to have been forged. Counsel refers to Section 20 of the Advanced Fee Fraud and other Related offence Act on the definition of “false pretence”.
Arising from the above, was submitted that a charge for obtaining by false pretence must in the face of the charge contain the nature or form of the representation made that amounted to pretense, that is indicating whether it was by words, writing or by conduct so that the Defendant will fully know the case against him. He referred to the case Ikpa V. State (2018) 4 NWLR (Pt. 1069) 175 at 236; Idoko V. State (2018) 6 NWLR (Pt. 1614) 117 at 144.
It was held that a charge should contain particulars reasonably sufficient to give the accused notice of the matter with which he is charged.
That the particulars should not come from the evidence of the prosecution witnesses. Refer to the case Sani V. State (2015) 15 NWLR (Pt. 1483) 522 where the trial Judge used the evidence of the prosecuting witnesses to fill the gap as to the time of the commission of the alleged offence which was not stated in the charge, the Supreme Court frowned at this and held at page 550 thus:
“An accused person is entitled to be furnished with the time, date, and place of the offence he is charged with. In the instant case, neither the charge nor the proof of evidence made reference to the time of the commission of the alleged offence by the Appellant… it was therefore a serious error for the Court of Appeal to rely on times in the evidence of the Appellant to fill the gap in the charge which failed to alleged the time the offence was committed on 28/5/2008”.
It was submitted that it amounts to denial of fair hearing for the Appellant to have been convicted on a charge for which he was not given detailed and vital information of the case against him and which resulted to his being misled.
It was also the submission of the Appellant’s Counsel that the evidence upon which the trial Court convicted the Appellant was grossly divergent, contradictory, and antithetical to the charge upon which the Appellant was tried.
For example, it was stated on the charge that the offence was committed in January to February 2018 at Abiriba, Ohafia in Umuahia Judicial Division. However, the evidence of all the witnesses was that the transaction which led to the charge took place in January 2017 at Lugbe Abuja. He referred to the evidence of the PW1, PW2 and PW3.
Secondly, the charge stated that the pretense was made to Onyeani Udensi who was induced by the Defendant whereas, the evidence of the witnesses was that the transaction that resulted to the charge was between the Appellant and Ibe Udensi who returned from China, visited Abuja and met the Appellant.
It was argued that the charge clearly portrayed that Onyeani Udensi was the person purportedly defrauded by the Defendants. The evidence however showed that the money belonged to Ibe Udensi or remotely to the Ibe trading Ltd.
It was submitted that for the prosecution to secure a conviction against an accused he must prove all the essential elements of the offence as in the charge as held in Aruna V. State (1990) 6 NWLR (Pt. 155) 125.
Issues No. 3 is whether the judgment of the lower Court was not perverse and a nullity on the basis that the trial Court relied on perverse findings of facts to convict the Appellant.
It is the submission of Appellant’s Counsel that the trial Court enumerated the essential element of the offences which the prosecution must prove to secure the conviction of the Defendant. However, the trial Court failed to align that position of the law with undisputed facts of the case.
It was argued that for representation to form the basis of convicting an accused under the charges against the Appellant, such representation must be false and the person who made the representation must have known same to be false. Referred to Uzoka V. F.R.N (2010)2 NWLR (Pt. 1177) 118, Onwudiwe V. F.R.N (2006) ALL FWLR (Pt. 319) 774.
It was Appellant Counsel’s submission that the findings of the lower Court upon which the judgment was rooted were based on speculation action outside the transaction that gave rise to the charge and essentially muddled up. The lower Court wrongly relied on a perverse findings which led to miscarriage of justice.
On issue No.4, it was submitted that the trial Court failed to properly examine and evaluate the evidence adduced by the witnesses before making his findings of fact. That he also failed to evaluate the evidence of the Appellant.
That where there is failure by the trial Court to properly appraise the evidence placed before it, the result is that whatever findings and conclusion arrived at by the trial Court would be perverse. That the trial Court failed to evaluate the weighty oral and documentary evidence on the course of its judgment. Counsel urged the Court to set aside the judgment of the Court on the basis that the trial Court failed to evaluate the evidence of the Appellant.
Issue No. 5, is whether there existed a doubt on a material fact being the identity and the role of Christian Akanga but failed to resolve the doubt in favour of the Appellant.
Counsel argued that the pervasive evidence, both oral and documentary, before the trial Court was that the Appellant made it clear that it was Christian Akanga of FCMB whom he introduced to and indeed handled the transaction. That it was a common ground that the money was transferred to Marestas services which belongs to Christian Akanga. That the Appellant wrote several petitions against Akanga. That Akanga on page 94 of the records made an undertaking admitting to refund the money through Exhibit F. Counsel referred to petition written against Akanga to the law enforcement agencies Exhibit J, K and L respectively. That the law enforcement agencies failed to verify these petitions but rather decided to prosecute the Appellant. Counsel urged the Court to resolve the doubt in favour of the Appellant.
Issue No. 6 is whether the trial Court was right in holding that the prosecution established all the elements of obtaining by false pretense as contained in Counts 1 to 4 against the Appellant to warrant his conviction.
It was argued that the trial Court failed to relate the evidence on record with the law even though the Court stated the elements of the offences at pages 149–150 of the record.
That it was not stated anywhere that on the charge that the Appellant made any pretence through any document whatsoever to the victim of the crime.
Counsel referred to the case Apugo V. F.R.N (2017) 8 NWLR (Pt. 1568) 416 on the elements of the offence of obtaining by false pretence. See also F.R.N V. Amah (2017) 3 NWLR (Pt. 1551) 139.
It was argued that the prosecution failed to prove beyond reasonable doubt all the ingredients of the offence of obtaining by false pretense leveled against the Appellant and the conviction ought to be set aside.
Issue No. 7 is whether the trial Judge was right to have made an order of Restitution against the Defendant/Appellant after the conclusion of judgment.
The Appellant’s Counsel stated that after the delivery of the judgment by the Learned trial Judge the prosecution made an application relying on Section 321 of the Administration of Criminal Justice Act, 2015 for restitution and the Appellant’s Counsel raised an objection on the ground that the Court lacked the power to entertain the said application after the judgment and sentence of an accused. That the Judge overruled the Appellant’s Counsel and went ahead to grant the application for restitution notwithstanding the fact that the prosecution never made issue of restitution in the matter, nor even in his final address. He submitted that when a Court delivers its ruling or judgment, the Court becomes functus officio and has no power to review, set aside or revisit any issue dealing with that matter. Counsel referred to the case Nwude V. F.R.N (2005) ACLR 6460 where it was held that a Court is said to be functus officio in respect of a matter of the Court has fulfilled or accomplished its function in respect of the matter and it lacks potency to review, reopen or revisit the matter on the merits. See also Anyaegbunam V. A.G. Anambra (2001) 6 NWLR (Pt. 710) 532.
Counsel referred to Section 321 (1) (b) of ACJA regarding an order made by the trial Court after sentencing and pronouncing judgment. It was Counsel’s contention that the trial Court was in error when he granted the order of restitution as prayed by the prosecution.
RESPONDENT’S ISSUES FOR DETERMINATION
In its Brief of Argument, the Respondent raised three issues for determination which are:
1. Whether the Court was funtus officio when it made the order of restitution.
2. Whether the judgment of the trial Court was perverse in the face of Exhibit F.
3. Whether the decision/judgment of the Court would have been different had Ibe Udensi given evidence as PW1 and not Onyeani Udensi.
In respect of issue No. 1, it was submitted that by Section 14 of the Advanced Fee Fraud and other Related Offences Act, 2006, that the Federal High Court, State High Court and the Federal Capital Territory High Court have the powers to try Advanced Fee Fraud cases. It was also submitted that Section 17 of the Advance Fee Fraud empowers the High Court, that is, the trial Court to make forfeiture of advanced property. He referred to the case Lawal V. EFCC (2020)14 NWLR (Pt. 1744) 193 at 203 on the competence of the trial Court to order restitution of the property involved in the case.
The Respondent’s Counsel submitted that the Appellant did not disagree with or appeal against the following:
1. That the PW1, PW2 and Ibe Udensi are the proprietors of Ibe Trading Company.
2. That the N24.9 Million was paid into the Bank the Appellant supplied to the Ibes.
3. The decision of the Court that there existed a fake money transfer certificate or teller from the said Christian Akanga and sent same to the Ibes.
4. He did not appeal against the decision of the Court that he knew Christian Akanga.
5. He did not appeal against the decision of the trial Court that he (Appellant) procured Exhibit F the Cheque of N25,800,000:00 (Twenty-Five Million, Eight Hundred Thousand Naira only). From the said Christian Akanga.
6. The Appellant did not appeal against the restitution but against the time of the order of the restitution.
It was argued that the order of restitution was made immediately after the passing of the sentence and upon the application of the prosecuting Counsel, which application was brought pursuant to Section 321 (1) (b) of ACJA which flow from Section 17 of the Advanced Fee Fraud Act. Counsel also refer to Section 11 of the Advanced Fee Fraud Act. That the condition for the making of the said order were based on the findings of the Court which was not appealed against. He referred to the cases Nnamuchi V. State (2015) LPELR (25744) 1; Brilla Energy Ltd V. FRN (2018) 16 NWLR (Pt. 164) 05.
Counsel referred to Section 321 (1) (b) of ACJA which provides that the order can be made “in addition to any other judgment that the Court may have given which presupposes that the order of forfeiture or Restitution had to be after or in addition to the judgment of the Court”. Therefore, the trial Court could not be said to have been functus officio before making the order.
On the 2nd issue on whether the judgment of the trial Court was perverse in the face of Exhibit F. it was submitted that the Court was right in attaching little or no value to Exhibit F. Exhibit F being the Cheque in respect of the sum of N25,800,000.00 said to have been issued in the name of Ibe Trading Company by one Christian Akanga.
That the trial Court received the whole evidence during the trial and evaluated the evidence that there was nothing in respect of Exhibit F for the lower Court to evaluate. It was argued that the Appellant failed to show or demonstrate how the non-consideration of Exhibit F affected the decision of the Court. That the Appellant has not shown any miscarriage of justice.
In his Reply Brief on the issue of order of restitution, the Appellant’s Counsel submitted that the order made constituted double punishment and a double jeopardy on the Appellant.
The above is the sum total of the submission of Counsel for the Appellant and Respondent in respect of this appeal. Having considered the seven issues distilled for consideration by the Appellant and the three issues formulated by the Respondent’s Counsel, the aforesaid issues shall be subsumed by this Court under four issues for consideration and determination as follows:
1. Whether the trial of the matter at the lower Court constitute an infraction of the Appellant’s Constitutional right to fair hearing.
2. Whether the trial Court properly evaluated the evidence of the parties before arriving at its findings of facts.
3. Whether the lower Court was right when it held that the prosecution did establish all the elements of obtaining by false pretense as contained in all the Counts in the charge against the Appellant to warrant his conviction.
4. Whether the trial Court made an order of Restitution against the Appellant after delivery of judgment. If the answer is in the affirmative whether such an order after delivery of judgment is valid.
RESOLUTION OF ISSUES
The 1ST ISSUE: The Appellant Counsel argued in respect of the 1st issue that the trial and judgment delivered by the lower Court constituted an infraction for fair hearing when the trial was conducted in the absence of the Appellant and the trial Court relied on hearsay evidence in convicting the Appellant.
It was argued that one of the several instances of a breach of fair hearing was when a trial is conducted in the absence of fair hearing.
The question arising for consideration is whether the trial of the Appellant at the lower Court was conducted behind him. That is, whether it was conducted in his absence. It was submitted that the proceedings of 22/6/2020 was conducted in the absence of the Appellant. He was absent at the proceedings of 22/6/2020 when final Written Addresses were adopted by Counsel. Was the Appellant absent at the proceeding of 22/6/2020 when the Written Addresses in respect of the matter against him were adopted by Counsel? Does the adoption of Written Addresses in his absence in a Criminal matter constitute an infringement of the Accused/Appellant’s right to fair hearing?
The Record of this Court at page 135 reveals that the Defendant/Appellant was present at the proceedings of 19th day of March, 2020. On the aforesaid date, the matter was adjourned to 9th April 2020 for adoption of Written Addresses. See page 138 of Records.
The Court Records at page 139 show that the Court did not sit until 22nd April 2020. The Defendant was not in Court. His Counsel informed the Court that the Defendant/Appellant could not attend Court due to the lockdown which kept him away. The prosecuting Counsel applied that the Court grant leave to adopt the Written Addresses. The Appellant’s Counsel never objected but consented to the grant of the application and the adoption of the Written Addresses in the absence of the Defendant/Applicant. The application was granted and the Written Addresses adopted in the absence of the Defendant/Appellant as clearly shown on page 140 of the records.
It is therefore settled that the Defendant/Appellant was not in Court at the proceeding of 22/6/2020 when the Written Addresses were adopted by the Counsel to both the prosecution and the defence.
Was the adoption of the Written Addresses in the absence of the Defendant/Appellant or the proceeding an infraction of the Appellant’s right to fair hearing? This the Court refers to the case of Uzodiagu V. State (2016) LPELR–41535 (CA) where it was held
“By virtue of Section 210 of the Criminal Procedure Act, every accused person shall subject to the provision of Section 100 and Section 223 (1) and (2) of the Act be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable… The presence of the accused at every stage of the trial is necessary to avoid a breach of his constitutional right of fair hearing guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Per Bolaji-Yusuf JCA.”
The Appellate Court went further to hold that “the absence of the co-accused in Court on 8th March 2012, and adoption of addresses in his absence was a breach of Section 215 of the CPA and fair hearing guaranteed by the Constitution. That is settled by a plethora of decided cases that address of Counsel is an integral part of the hearing of a case.”
It is unfortunate that in the case in our hand it was the prosecuting Counsel who applied to the Court for leave to adopt the Written Addresses in the absence of the Appellant. This was consented to by the Appellant’s Counsel in the lower Court.
It is settled that parties cannot by consent or agreement waive compliance with a mandatory requirement of law. The presence of an accused person throughout his trial is a statutory and constitutional requirement which cannot be waived under the law that is under Section 352(4) of ACJA. and under the Constitution.
However, the attendance may be dispensed with if any of the situation in Section 266 of ACJA arises. Section 266 of ACJA states.
266. A Defendant shall, subject to the provisions of Section 135 of the Act be present in Court during the whole trial unless:
(a) He misconducts himself in such a manner as to render his continuing presence impracticable or undesirable.
(b) At the hearing of interlocutory application or
(c) Where he authorizes his legal practitioner in writing to represent him in his absence or dispense with his physical presence.
It is patently clear that none of the above situations arose in the case at the lower Court to warrant the physical presence of the Appellant being dispensed with at the trial and in particular at the adoption of the Written Addresses.
Ogundare, JSC in Adeoye V. State (1999)6 NWLR (Pt. 605) 74 at 86-87 held “that it is not part of our Criminal jurisprudence to try a Defendant in absentia. Our law requires a Defendant to be present throughout his trial “Likewise in the same case, Achike, JSC on page 94 held.” That a trial, whether objected to or not, on the absence of the accused person is a sham. Such procedural blunder is a negation of fair trial and renders the purported trial a nullity”. The only known exception of trials of an accused person in absential are first where the Appellant misconducted himself or the trial. Second, under Section 100 of the CPA where the penalty to be imposed by the magistrate does not exceed N100 or where the accused is of unsound mind.
Without much ado, I agree with the contention of the Appellant’s Counsel that the proceeding of the lower Court of 22nd April, 2020 in the absence of the Appellant on which date the Written Addresses were adopted constitutes an abridgement of the fundamental right of the Appellant under Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended) 1999. It therefore renders the whole trial a nullity.
The second leg of issue No. 1 is the contention that the trial Court relied on hearsay evidence in convicting the Appellant. On this, Counsel referred to the evidence of the PW1 – Onyeani Udensi a relation of the complainant. He testified that his younger brother travelled to Abuja to meet him and had discussion with him. The PW2 Mrs. Juliet Ibe Udensi testified that her husband was at Abuja. Her husband assured her that one of his brothers, he saw at the Diamond Bank Abuja. That he was within working with Diamond Bank. The brother who happens to be the Defendant assured him that he would transfer the money. The PW3 Kalu Oko Osondu testified that the Defendant proposed a business transaction to Mr. Ibe Udensi. That he (Defendant) could actually help to transfer the dollars to Ibeh’s customer in China. Both of them were talking and he (PW3) was listening.
It is evident from the above that the PW1 and PW2 were not eye witnesses to the discussion between the Defendant and Ibe Udensi and their evidence could amount to hearsay that cannot be said of the PW3 who testified he was present when the transaction between the Defendant was being made and he listened to what was said by the two including the representation made by the Defendant to Ibe Udensi. Therefore, the evidence of the PW3 was not hearsay evidence. Howbeit the evidence of the said Ibeh Udensi is very essential being the person whom the representation was made to aid a victim of alleged false pretense. The failure of Ibeh Udensi to testify before the lower Court in respect of the alleged false pretenses without doubt, is inimical and fatal to the case before the trial Court.
All in all, issue No.1 is resolved in favour of the Appellant and against the Respondent in this appeal.
The second issue formulated by this Court is whether the trial Court properly evaluated the evidence of the parties before arriving at its findings of facts. It was the submission of the Appellant Counsel that the Court failed to evaluate the evidence of the Appellant and the DW2. That no reference was made to the said evidence in form or in content in the judgment. That the trial Court only recapped the facts of the case, summed up the address of Counsel and went ahead to resolve the issues. In doing so, the trial Court recaptured the offences and their elements and delved into repetitive findings of facts. That the trial Court failed to evaluate the oral and documentary evidence in the course of its judgment.
Were the evidence placed before the lower Court both oral and documentary evaluated by the Court prior to its making of findings of facts?
What does evaluation of evidence entails? Augie, JCA (as he then was) in the case of Ilori V. Tella (2006) 18 NWLR (Pt. 1011) 272 at 291 had this to say on what evaluation of evidence entails:
“Evaluation of evidence entails the assessment of evidence as to give value or quality; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other.. There must be on record how the Court arrived at its conclusion of preferring one price of evidence to the other”.
See Oputa, JSC of blessed Memory held in Onwuka V. Ediala (1980) 1 NWLR (Pt. 96)187, 208-209 as follows:
“To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for it …” Evaluation of evidence thus entails the assessment of that evidence so as to give value or quality to it. Evaluation demands fact the evidence adduced by both parties is assessed and weighed to as to give probative values or quality to it. It entails reasoned belief of one party to the other.”
See Onwuakpa V. Onyeama & Ors (2018) LPELR 45091 (CA) RHODES–Vivor, JSC held in Lafia Local Government V. Executive Government of Nasarawa State & 20 Ors (2012) LPELR–20602 (SC) that –
“Evaluation of evidence entails the trial Judges examining all evidence before him before making his findings. This is done by putting all the evidence on imaginary scale to see which side appears to outweigh the other. See Mogaji V. Odofin (1974) 4 SC 91.”
Therefore, the procedure for evaluation of evidence is for the Court to place the totality of the testimonies led by both parties on an imaginary scale. One side of the scale will harbor the evidence of the prosecution and the other side will contain the evidence of the Defendant. The Court must then weigh them together to see which is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led in its totality is (a) relevant (b) admissible (c) credible (d) conclusive and (e) more probable than that adduced by the other party. Once the above consideration fall into line, the Court will then apply the relevant laws to the facts of the evidence adduced, in order to reach a decision. See Umar V. Abdullahi (2018) LPELR–46591 (CA) Per Bdliya JCA.
The question following is whether the trial Judge did adhere to the principles enunciated in the above decision regarding evaluation of evidence before making his findings of fact?
The judgment of the lower Court consist of the charge against the Defendant, the review of the evidence of the prosecution and the Defendant both oral and documentary and the submissions of Counsel. The Court then proceeded to resolve the issue it formulated. It went on to make findings and examined the elements of the offence of obtaining by false pretense.
In its judgment, the lower Court failed to place evidence of the prosecution and the Defendant on the imaginary scale to determine which evidence weighed heavier in terms of quality. It did not determine the credibility of the evidence adduced and its conclusiveness. The evidence of the witnesses were not assessed as to give it value, it did not follow a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. The learned Judge did not examine the documentary evidence placed before the Court by the parties, which are Exhibits A, B, C1, C2, D1, D2, D3, E1 and E2, F, J, H, J, K and all.
The above does not accord with the accepted standard of evaluation of evidence. It falls short of the acceptable standard. It did not consider the totality of the evidence adduced on an issue to determine whether it supported a finding of fact.
It is trite law that both in civil and criminal proceedings that where there is a failure by a trial Court to properly appraise the evidence placed before it, the result is that whatever findings and conclusions arrived at by the trial Court would be perverse. See Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182 at 208–209; Stephen V. State (1986) 5 NWLR (Pt. 46) 978 at 1005. In the case in our hand, the trial Court failed to evaluate the evidence of the parties. The conclusion arrived by the lower Court is considered perverse. Invariably the decision arrived at by the lower Court cannot stand in the circumstance having failed to ascribe probative values to the oral and documentary evidence placed before it by the parties. The lower Court failed to discharge its primary responsibility in this regard.
The second issue formulated by this Court is therefore resolved against the Respondent and in favour of the Appellant.
I now consider the 3rd issue. Whether the lower Court was right when it held that the prosecution did establish all the elements of obtaining by false pretense as contained in all the Counts in the charge against the Appellant to warrant his conviction.
The Appellant’s Counsel submitted that the trial Court was in error when it held in its judgment at page 158 of the record that it had no hesitation in finding the Appellant guilty as charged in Counts 1–4. That the trial Court at pages 149 to 150 of the record stated the elements of the offence but failed to relate the evidence on record with the law. That Counts 1–4 require that the false pretense must be made or contained in a document. He referred to the case Onyia Ifeanyi V. FRN (2018) 12 NWLR (Pt. 1632) 164 at 188. That the prosecution must prove the existence of a false pretense and must have been received by the intended victim. That the backbone of the prosecution evidence was the hearsay evidence of the PW2 and DW4. That there was document tendered by the prosecution showing that the Appellant made any false pretense in a document to the victim of the crime. Therefore, the Court was urged to hold that the elements of Counts 1 and 4 were not proved.
The lower Court’s first issue was whether the prosecution had proved the case of obtaining money by the pretense against the Defendant beyond reasonable doubt. The lower Court referred to the submission of the Defendant (Appellant) as to the elements that need to be proved in the offence of obtaining by false pretense to succeed.
The trial Court also referred to its second issue. Whether the prosecution had proved a case of forgery beyond reasonable doubt. The lower Court referred to the case of Adeolu V. State (2003) 3 ALLR 117 at 118 cited by the Defendant.
The trial Court also referred to the case of State V. Ajie (2000) LPELR–3211 (SC) as to whom the burden of proof lies in criminal matters. It went on to consider the ingredient of the offence of obtaining by false pretence. Thereafter the lower Court disjointedly referred to the evidence of the Defendant and came to the conclusion of making some findings. After raising some questions. The lower Court resolved as follows:
“All the questions point to only one person the Defendant. The Supreme Court as far back in 1950 in Joseph Lori and Anor. V. The State (1980) LPELR–1794 (SC) held (Nnamani). It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which by undersigned coincidence is capable of making a proposition with the accuracy of mathematics. It is no derogation of evidence to say that Court is circumstance. The circumstances of this case are compelling and pointing irresistibly and unequivocal to the guilt of the Defendant.” See Ogege V. State (2014) LPELR 22615 (CA). (See pages 156–157 of Record).
The lower Court never evaluated the evidence of the prosecution and the Defendant’s witnesses to arrive at its findings. The parchment of the evidence of the Defendant was referred to raise some questions which questions were resolved against the Defendant.
The elements of the offence of obtaining by false pretences were not considered Viz–a-Viz the evidence of both the prosecution witnesses and that of the Defendant. The lower Court failed to relate the evidence adduced with the law, that is the elements of obtaining by false pretence. The lower Court is required to consider each element and apply them to the evidence on ground upon evaluation and findings of facts. In other words, it must be proved that the elements of the offence of obtaining by false pretence are constituted in the evidence placed before the Court. The lower Court failed in this regard.
Apart from the failure of the trial Court to relate the evidence on ground to the principles of the crime of obtaining false pretences, it is equally evidentially clear that Ibeh Udensi whom the representation was made to and parted with his money was not called as a witness and by extension never gave evidence of any representation made to him. The evidence of the prosecution is to the effect that the said Ibeh Udensi was the complainant in the case. The PW1 testified that his younger brother (Ibeh Udensi) travelled to Abuja wherein he discoursed with the Defendant. Then the Defendant sent two different account numbers bearing his name” The PW2 Juliet Ibe Udensi testified. “That sometime in 2019, that the husband Ibe Udensi called her for he wanted to send money to China. That she relunctant because he had not been in Nigeria for the past 14 years. That she told him that the transfer of money at that period was having problem. That my husband told me that he saw one of the brothers who works with Diamond Bank, who happened to be the Defendant and he assured him that he would transfer the 20,000 dollars which was then N25 Million.”
Without doubt, the evidence of the said Ibeh Udensi is essential in this regard being the victim of the offence.
In all, it is resolved that the vital ingredients of the offence of obtaining by false pretense necessary to prove the Counts were not established by the prosecution. No evidence of forgery was placed before the Court by the prosecution. Against this backdrop, it is resolved the lower Court erred when it decided that the prosecution established the ingredients of the offence of obtaining by false pretense and other offences contained in the charge to warrant the conviction of the Defendant. The third issue is consequently, resolved against the Respondent.
The 4th issue for consideration raises the question whether the trial Court made an order of restitution against the Appellant after delivery of judgment. If the answer is in the affirmative whether such an order after delivery of judgment is valid.
The judgment of the lower Court is on pages 142-158 of the Record of Appeal. It ended with the signature and name of the trial Judge and the date of delivery. I.E. OSIAGOR J. signed and it was dated 13/7/2020. Immediately after the sentencing and before the signature the trial Court wrote “This is the judgment of the Honourable Court.”
After the signing off, the Court proceeded to record as follows:
“APPEARANCE
Defendant present
S.E. Onyemauche – Prosecutor
N.B. Louis for the Defendant”
Onyemauche: I apply under Section 321 (1) (b) for the Hon. Court to make an order of restitution of the sum of N24.9 Million to victims of Ibeh Trading Company Ltd.
Miss Louis: I object to the application. It lacks jurisdiction to entertain.
Court: In addition to the sentencing, I hereby order the Defendant to immediately restitute the sum of N24.9 Million to the normal Company, Ibe Trading Company Ltd.
This is the Judgment of the Honourable Court.
Sgd
D.E. OSIAGOR
JUDGE
13/7/2020
“APPEARANCE
Defendant present
S.E. Onyemauche – Prosecutor
N.B. Louis for the Defendant”
The Appellant’s Counsel submitted that when a Court delivers its ruling or judgment, the Court becomes functus officio and has no powers to review, set aside or revisit any issue dealing with that matter. He referred to the case of Remawa V. NACB LTD (2007) 2 NWLR (Pt. 1017) 155 where the Court held that where the trial Court had given its judgment in a case on merit, it becomes functus officio in relation to the case once judgment is pronounced. Counsel argued that no Court has no power review, set aside or revisit its case in which judgment has been delivered. Referred to the case Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224)1.
In making the application for an order of restitution, the prosecution relied on Section 321(1)(b) of the Administration of Criminal Justice Act 2015 which provides
321. A Court after conviction may adjourn proceeding to consider and determine sentence appropriate for each convict.
(b) Order for the restitution or compensation for the loss or destruction of the victim’s property and in so doing the Court may direct the convict.
(i) To return the property to the owner or to a person designated to be the owner.
Undoubtedly, the Court under the above provisions is empowered to order for restitution or compensation for the loss or destruction of the victim’s property, however, this can only be done after the conviction of the Defendant and before sentence is imposed on the convict.
In the case under appeal, the Appellant had been convicted and sentence determined and imposed and judgment signed and dated after which the application for an order of restitution was made and granted by the trial Court. Clearly, the order was made after sentence of the Appellant and judgment fully delivered and pronounced.
There is no doubt, the Appellant was convicted when the Court pronounced as follows:
“I have no hesitation in finding the Defendant guilty as charged in Count I, Count II, Count III and Count IV”
Consequentially, the Court imposed the sentences on the Defendant (Appellant) as follows:
“Count I: I sentence the Defendant to 3 years imprisonment.
Count II: I sentence the Defendant to 3 years imprisonment.
Count III: I sentence the Defendant to 3 years imprisonment
Count IV: I sentence the Defendant to 2 years imprisonment.
The sentences are to run concurrently with the Defendant spending a maximum of 3 years imprisonment.
This is the judgment of the Court.
Sgd
D.E. OSIAGOR
JUDGE
13/7/2020.
(See page 158 of the Record).
Following the provision of Section 321, the order can only be made after conviction and before imposing sentence on the Defendant.
Page 159 of the Record clearly shows that the application was made and granted after conviction, sentence and the signature of the trial Judge marking the full pronouncement of the judgment. This is not in tandem with and contrary to the provision of Section 321 of the ACJA. It is a clear breach of this statutory provision.
It is settled law that where a statute provides clearly for a particular way, failure to perform the act as provided will not only be interpreted as deliquent conduct but will be interpreted as not complying with the statutory provision. See Corporate Ideal Insurance Ltd. V. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165 at 193.
In Ahmed V. Abu & Anor (2016) LPELR – 40261 (CA). It was held that where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the details. The non-observance in the process of reaching any decision renders the decision itself a nullity.
The corollary of the decision of the lower Court in not following the provision of Section 321 of the ACJA and the authorities cited above is to the effect that the trial Court failed to comply with the statutory provision. The consequential effect of this is that the decision reached or order made thereby, that is the order of restitution in respect of the sum of N24.9 Million in favour of Ibe Trading Company is a nullity and subject to being set aside.
Further, it is conclusive that the lower Court became functus officio of the action having delivered and pronounced its judgment. In Buhari V. INEC & Ors (2008) 19 NWLR (Pt. 120) 246 at 375–376 the Supreme Court Coram Tobi, JSC said;
“Functus officio ordinarily means a task performed; having fulfilled function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. See Black’s Law Dictionary, 6th Edition page 673…
In our context, a Judge who has decided a question brought before him is functus officio and cannot review its decision.”
Applying the above to the case in hand, the trial Judge could no longer make an order pursuant to Section 321(1) (b) of ACJA having sentenced the Appellant. He became functus officio having convicted, imposed the punishment of sentencing to terms of imprisonment and signed off marking the delivery of the judgment. He could no longer proceed to make the order of restitution under Section 321(1) (b) of ACJA which order he should have made after conviction of the Defendant/Appellant and before sentencing. In the light of this, the order is rendered null and void by this Court.
In conclusion, all the issues raised in this appeal particularly the issues donated for consideration and determination by this Court are hereby resolved against the Respondent and in favour of the Appellant. In other words, this appeal has merit, and it is allowed.
The judgment of the lower Court sentencing the Appellant to terms of imprisonment is hereby set aside. Also set aside is the order of restitution for the sum of N24.9 Million made against the Appellant by the lower Court. The Appellant is hereby acquitted and discharged.
JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA. I agree with him in the reasoning and conclusion reached therein on the issues canvassed. For me too, the appeal is meritorious and is accordingly allowed.
I endorse all the consequential orders made in the lead judgment.
IBRAHIM WAKILI JAURO, J.C.A.: I read before now, the draft of the judgment just delivered by my Learned brother Samuel Ademola Bola, JCA. I agree with the reasoning and conclusions of my Learned brother that the appeal has merit and is also allowed by me. In consequence, I order that the Appellant be and is hereby discharged and acquitted.
Appearances:
D. O. ODIBA For Appellant(s)
…For Respondent(s)
