MBATSADUE v. C.O.P (2022)

MBATSADUE v. C.O.P

(2022)LCN/17086(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 09, 2022

CA/ABJ/CR/85/2021

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

BARR. JEFF MBATSADUE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE CONDUCTING CIVIL MATTERS IN THE OPEN COURT

Even in civil matters which we do not view as serious as the criminal matters since civil matters do not attract jail term, the Supreme Court was still of the firm view that it must be conducted in open Court. The decision of the trial judge on his own to hear the matter in chambers occasioned a fundamental irregularity. The Supreme Court stated as follows:
“The hearing of this matrimonial case took place in judge’s chambers. Neither the counsel nor the parties requested for the hearing of the divorce proceedings in camera. A judge’s chambers is not a Court Hall to which the public will normally have any right to access. The petition and answers did not contain such matters, which by law, ought to be heard in camera in a Courtroom.”
Again in Edibo v. The State (2007) 13 NWLR (Pt. 1051) at 306, Tabai JSC, captured it succinctly, thus:
“The arraignment and taking of plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears in Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted, without the plea of the accused first and properly taken is a nullity. In the instant case, the proceedings of the 19th January, 1998 wherein the plea of the appellant and others were taken in the judge’s chambers was not only irregular, it was fundamentally defective and rendered the entire proceedings null and void.” PER NWOSU-IHEME, J.C.A.

FACTORS THAT MUST EXIST TO JUSTIFY AN ORDER OF RETRIAL

The apex Court in Edibo v. The State, cited earlier was of the view that in order to justify an order of retrial, an appellate Court must satisfy itself of the existence of a number of factors. Each case must however, be determined by its peculiar facts and circumstances.
Those factors as enumerated by the apex Court are as follows:
“a. That there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that the appellate Court is unable to say that there has been no miscarriage of justice.
b. That besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant.
c. That there are no special circumstances that would render it oppressive to put the appellant on trial a second time.

d. That the offence or offences with which the appellant is convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trial; and

e. That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.” PER NWOSU-IHEME, J.C.A.

THE IMPORTANCE OF ARRAIGNMENT AS A FOUNDATION OF A CRIMINAL TRIAL

Indeed, it is a constitutional requirement that trials must be held in the public, which is one of the attribute of fair hearing. In a criminal trial, arraignment is a very important and fundamental aspect. Once arraignment is defective, being a foundation, the trial must collapse. My Lord, MOHAMMED, J.C.A in AKIODE V. FRN (2022) LPELR-58266 (CA) held thusly;
“A criminal trial starts with the arraignment of an accused person before the trial Court. Arraignment is therefore the foundation of a criminal trial. The arraignment essentially consists of reading the charge or information to the accused person, or stating to him the substance of the charge or information and calling on him to plead thereto.”
The fundamental nature of arraignment has a jurisdictional consequence, if improperly done, it will divest the Court of jurisdiction, see the case of IBRAHIM V. STATE (2013) LPELR-21883 (SC) where the apex Court held as follows:
“The arraignment of an accused person touches on the jurisdiction of the Court and any improper arraignment of the accused is a breach of a fundamental requirement in criminal proceedings which is capable of rendering the totality of the proceedings null and void See Section 36(6)(a) of 1999 Constitution, also S.242 CPC. It was held in State v. Oladimeji (2003) FWLR (Pt175) 395 at 406 that: “Issue of arraignment is fundamental in a criminal trial because if not properly conducted it may vitiate the proceedings.” Per AKA’AHS, J.S.C. PER NIMPAR, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned and convicted of Criminal Force and Assault contrary to Section 267 of the Penal Code Law and sentenced to six months’ imprisonment with a fine of N 10,000 (Ten Thousand Naira), by a Senior Magistrate Court of the FCT, His Worship Hauwa Aliyu Shehu, on the 2nd of November, 2011.

At the trial before the Senior Magistrate, the Prosecution called three witnesses and tendered two exhibits and closed its case, while the appellant called two witnesses in his defence. At the close of the case, the learned trial Senior Magistrate found the appellant guilty as charged and sentenced him to six months in prison with a fine of N10,000.00.

Aggrieved by that decision, the appellant appealed against that decision to the High Court of FCT Appellate Division.

The appeal was heard and in a considered judgment delivered on the 28th of November, 2013, the FCT High Court affirmed the conviction of the appellant of the Offence of Criminal Force and Assault to deter a Public Servant from the performance of his duty contrary to Section 267 of the Penal Code Law. The FCT High Court however reduced the sentence from six months’ imprisonment with N10,000.00 fine to a fine of N20,000.00 (Twenty Thousand Naira).

Dissatisfied with the judgment of FCT High Court, Appellate Division, presided over by U.A. Ogakwu J., (as he then was and A.I. Kutigi, delivered on the 28th of November, 2013, the appellant has appealed to this Court on four grounds of appeal filed on the 21st of January, 2021.

Learned counsel for the appellant Tsafa Barnabas Esq., distilled four issues for determination as follows:
“1. Whether the trial Magistrate’s holding that the matter was not heard in Chambers but only the FIR was mentioned in chamber was not unconstitutional.
2. Whether the learned Justices of the High Court were right when they held that the prosecution has proved its case beyond reasonable doubt.
3. Whether the learned Justices of the High Court were right when they held that the extra-judicial statement of the appellant was not a confessional statement but refused to acquit and discharge the appellant when his conviction was based solely on the extra-judicial statement as it was held to be a confessional statement.

4. Whether the learned Justices were right in hiking the fine imposed by the trial Magistrate when there was no appeal on the fine.”

Learned counsel for the respondent Simon Lough, SAN, adopted the issues as distilled by learned for the appellant.

In his brief of argument, learned counsel for the appellant submitted in summary that since the judgment of the trial Court was a nullity for failure to comply with the mandatory constitutional requirement with regards to the taking of plea of the appellant, this Court is urged to discharge and acquit the appellant.

He argued that the prosecution failed to prove the offence under Section 267 of the Penal Code beyond reasonable doubt as required by law.

Counsel contended that the extra-judicial statement of the appellant which the trial Court declared to be a confessional statement and consequent upon which he was convicted but which the High Court declared not to be a confessional statement, stands to reason that the conviction of the appellant was not based on evidence.

Reacting to the foregoing, learned counsel for the respondent contended that the issue of taking the FIR (First Information Report) in chambers was not unconstitutional and that this issue never arose at the FCT High Court. That to raise the issue in this Court, the appellant ought to seek and obtain the Leave of this Court. He reproduced the provisions of Section 267 of the Penal Code upon which the appellant was charged and convicted and contended that the FCT High Court was well within the law to have held that the prosecution proved its case beyond reasonable doubt.

Referring to pages 155 to 173 of the Record of Appeal, counsel posited that the FCT High Court did not in their judgment hold that the extra-judicial statement of the appellant was not a confessional statement. That the FCT High Court stated that the said statement was not the sole basis for the conviction of the appellant at the trial Magistrate Court.

In the determination of this appeal, issue no. 1 appears most crucial in the sense that it bothers on the provisions of Sections 360(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The appellant in the course of his trial filed a Preliminary Objection challenging the jurisdiction of the trial Magistrate Court on the ground that the plea of the accused (now appellant) was taken in chambers rather than in an open Court as provided for under the said Constitution. The respondent has however, argued that what took place in chamber was only the First Information Report (FIR) and therefore, did not occasion any miscarriage of justice.
The said Section 36(1) and (3) of the 1999 Constitution provides:
36(1) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time established by law and constituted in such a manner as to secure its independence and impartiality”.
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 decision of the Court or Tribunal shall be held in public.”
(Underlining mine for emphasis).
The question then is; is First Information Report (FIR) part of proceedings? The trial Magistrate had argued that the matter was not heard in Chambers but only the First Information Report was mentioned in Chambers and therefore, there was no miscarriage of justice. Counsel for the appellant disagreed with the above view but rather looked at it in a different perspective.
In Nigeria – Arab Bank Ltd v. Barri Engineering Nig. Ltd (1995) 8 NWLR (Pt. 413) Pg. 257, the Supreme Court held that delivery of the judgment in Chambers occasioned an irregularity which touched on the legality of the whole proceedings. The Court held as follows:
“…It is my respectful view that sitting in Chambers to deliver judgment is not one of the facts before us, sitting in public or open Court is. A judge’s Chambers is not one of the regular Courtrooms nor is it a public place to which the public have the right to ingress and egress as of right except on invitation by or with permission of the judge… There is in this case a clear breach of the mandatory provisions of Section 33(3) and (13) of the 1979 Constitution and Order 36 Rule 1 of the High Court Rules of Lagos State… The delivery of judgment is in my respectful view part of the hearing of a case or matter. A breach of a mandatory constitutional provision is more than a mere technicality. It is fundamental. The breach vitiates the entire proceedings before him.”
Peter-Odili, JSC, captured the controversy as to whether conducting part of the Court’s proceedings in Chambers renders the entire proceedings null and void in the case of Misiri Alimi v. Asani Kosebinu (2016) All FWLR (Pt. 859) at pg. 944.
“…A part of the Court’s proceedings which ought to be public is and is conducted in the confines of the judge’s chambers is clearly one done in secrecy and detracts from the impartiality, independence, publicity and unqualified respect which enshrouds justice given openly without fear or favour. Its acceptance by the public at large and the confidence it demands depends on these qualities which must be strictly adhered to… what occurred in the trial High Court was a clear aberration, an irregular so profound as to be incurable…”
Even in civil matters which we do not view as serious as the criminal matters since civil matters do not attract jail term, the Supreme Court was still of the firm view that it must be conducted in open Court. The decision of the trial judge on his own to hear the matter in chambers occasioned a fundamental irregularity. The Supreme Court stated as follows:
“The hearing of this matrimonial case took place in judge’s chambers. Neither the counsel nor the parties requested for the hearing of the divorce proceedings in camera. A judge’s chambers is not a Court Hall to which the public will normally have any right to access. The petition and answers did not contain such matters, which by law, ought to be heard in camera in a Courtroom.”
Again in Edibo v. The State (2007) 13 NWLR (Pt. 1051) at 306, Tabai JSC, captured it succinctly, thus:
“The arraignment and taking of plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears in Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted, without the plea of the accused first and properly taken is a nullity. In the instant case, the proceedings of the 19th January, 1998 wherein the plea of the appellant and others were taken in the judge’s chambers was not only irregular, it was fundamentally defective and rendered the entire proceedings null and void.”
The above case decided by the apex Court in 2007 is in all fours with the present appeal. It is trite that the taking of the plea of an accused person not only kick-starts the criminal trial, it is the nucleus of the entire trial. It is one of the stages where the accused person must plead personally and not even through his counsel, therefore, compliance must be strictly, compulsorily and obligatorily adhered to. It does not give room for discretion or evasion.
In the instant case, the trial Magistrate admitted taking the First Information Report (FIR) which is the plea of the accused person in chambers. It is a constitutional requirement and Section 36(3) of the said 1999 Constitution gives no room for waiver. The act of conducting the (FIR) in chambers rather than in open Court, has resulted in fatal consequences. It is not a mere irregularity but quite fundamental which has rendered the taking of the plea (FIR) and indeed the entire proceedings a judicial waste of time, unconstitutional and a complete nullity. The whole trial and conviction of the appellant crumbled with this fundamental blunder.

As I pointed out earlier, issue one is the most crucial in the sense that a determination of that issue will establish the need or otherwise to go into the other issues. The apex Court in Edibo v. The State, cited earlier was of the view that in order to justify an order of retrial, an appellate Court must satisfy itself of the existence of a number of factors. Each case must however, be determined by its peculiar facts and circumstances.
Those factors as enumerated by the apex Court are as follows:
“a. That there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that the appellate Court is unable to say that there has been no miscarriage of justice.
b. That besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant.
c. That there are no special circumstances that would render it oppressive to put the appellant on trial a second time.

e. That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.”
Considering the circumstances of this case, particularly, the nature of the offence, the factors enumerated above are not applicable in this case. It is on record that the appellant is a legal practitioner, he was convicted and sentenced to six months imprisonment out of which he spent about one month before he was granted bail pending appeal.
Since the trial of the appellant has been adjudged to be unconstitutional, and a nullity, quite apart from the irregularity which clearly bothers on unconstitutionality, the evidence in my view did not disclose a substantial case against the appellant to justify a second trial.
In the premise, there is merit in this appeal and it is hereby allowed. Issue no. one is resolved against the respondent and in favour of the appellant. A determination of this first issue has rendered a consideration of the other issues unnecessary and academic. Consequently, the judgment, conviction and sentence of the lower Court i.e. FCT High Cout Appellate Division on the 28th of November, 2013, is hereby set aside.

The appellant is accordingly discharged and acquitted.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my Lord, CHIOMA EGONDU NWOSU-IHEME, (PHD), JCA and I am in total agreement with the reasoning and conclusion arrived at in the leading judgment.

Indeed, it is a constitutional requirement that trials must be held in the public, which is one of the attribute of fair hearing. In a criminal trial, arraignment is a very important and fundamental aspect. Once arraignment is defective, being a foundation, the trial must collapse. My Lord, MOHAMMED, J.C.A in AKIODE V. FRN (2022) LPELR-58266 (CA) held thusly;
“A criminal trial starts with the arraignment of an accused person before the trial Court. Arraignment is therefore the foundation of a criminal trial. The arraignment essentially consists of reading the charge or information to the accused person, or stating to him the substance of the charge or information and calling on him to plead thereto.”
The fundamental nature of arraignment has a jurisdictional consequence, if improperly done, it will divest the Court of jurisdiction, see the case of IBRAHIM V. STATE (2013) LPELR-21883 (SC) where the apex Court held as follows:
“The arraignment of an accused person touches on the jurisdiction of the Court and any improper arraignment of the accused is a breach of a fundamental requirement in criminal proceedings which is capable of rendering the totality of the proceedings null and void See Section 36(6)(a) of 1999 Constitution, also S.242 CPC. It was held in State v. Oladimeji (2003) FWLR (Pt175) 395 at 406 that: “Issue of arraignment is fundamental in a criminal trial because if not properly conducted it may vitiate the proceedings.” Per AKA’AHS, J.S.C

I therefore adopt the fuller reasoning in the leading judgment and also allow the appeal, set aside the judgment of the appellate Court below.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the advantage of reading, in draft, the leading judgment of my Noble Lord, CHIOMA EGONDU NWOSU-IHEME (Ph.D), JCA which has just been delivered.

The Constitution of the Federal Republic of Nigeria, 1999 (“CFRN”) provides in S. 36 (1) for the plenitude of the right to fair hearing in civil and criminal matters within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality. Sub-sections (3) and (4) CFRN specifically provide that:
“(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.
(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal:
Provided that –
(a) a Court or such a Tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice.
(b) if in any proceedings before a Court or such a Tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the Court or Tribunal that it would not be in the public interest for any matter to be publicly disclosed, the Court or Tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”
The conduct of legal proceedings “in public” is therefore a constitutional imperative that can only be ignored to the detriment of the proceedings, whether civil or criminal. “Public” means “for the use of everyone without discrimination; anything, gathering or audience which is not private is public”. Not a few cases have been nullified on the basis that Court proceedings conducted, or judgment delivered, in a Judge’s Chambers does not satisfy the requirement of “a fair hearing in public”, and breach of such a constitutional provision is fundamental and not a mere technicality.
Notable cases include EDIBO v STATE [2007] 13 NWLR (PT. 1051) 306 which involved a scenario in which the plea of an accused person was taken in Chambers (as in the instant case). MENAKAYA v MENAKAYA [2001] 16 NWLR (PT. 738) 203 and OVIASU v OVIASU (1973) 11 SC 315 where matrimonial proceedings for dissolution of marriage were heard in Chambers contrary to the dictates of S. 103 (1) and (2) of the Matrimonial Causes Act of 1970 which provide for hearing “in open Court”; as well as NIGERIA – ARAB BANK LTD v BARRI ENGINEERING NIG. LTD [1995] 8 NWLR (PT 413) 247 and ALIMI & ORS v KOSEBINU & ORS (2016) ALL FWLR (PT. 859) 944, (2016) LPELR-42557(SC) where hearing was conducted in open Court but judgment was delivered in Chambers. The rationale, as Ogbuagu JSC put it in EDIBO v STATE supra at 335, is that:
“Surely and certainly, a Judge’s Chambers is not and cannot be equated to a hall in a public building that is used for formal meetings. As a matter of fact, a Chambers can also be defined as or equated with a private bedroom or private room. Even in Black’s Law Dictionary, 7th Edition at page 224, a Judge’s Chambers as defined as the private room or office of a Judge.”
See also NIGERIA – ARAB BANK v BARRI ENGINEERING NIG. LTD supra at 273 – 274 where Ogundare JSC held that the Chambers of a Judge “is not one of the regular Courtrooms nor is it a place in which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge.”

There is no gainsaying in the case at hand that the arraignment of the Appellant and/or taking of his plea in the Chambers of the Learned Senior Magistrate on 2/11/11 constitutes an egregious violation of constitutional provisions that enjoin the conduct of legal proceedings in public. A criminal trial commences upon arraignment and ends with a sentence. Where the commencement (which is to the foundation) of the trial is fundamentally flawed, the subsequent proceedings and eventual sentence founded upon it can scarcely be sustained.

I accordingly join forces with my learned brother in setting aside the judgment of the Appellate Division of the High Court of the Federal Capital Territory delivered on 28/11/13 (embodying the affirmation of the Appellant’s conviction and sentence), and record a verdict of discharge and acquittal in its stead.