MOSES ADEBAYO OMUYA OCHU V. FEDERAL REPUBLIC OF NIGERIA (2010)

MOSES ADEBAYO OMUYA OCHU V. FEDERAL REPUBLIC OF NIGERIA

(2010)LCN/3672(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of March, 2010

CA/I/143/04

RATIO

CRIMINAL LAW: CIRCUMSTANCES WHERE AN ACCUSED WHERE AN ACCUSED PERSON MAY NOT BE PRESENT IN COURT

FAIR HEARING: PRINCIPLE OF FAIR HEARING

The Constitution of any country is an embodiment of what the people desire to be their guiding light in governance, their Supreme law. The purport of Section 33 subsection 1 of the 1979 Constitution is to ensure fair hearing to all parties in determination of anybody’s civil rights and obligations. The principle of fair hearing is all about fairness which is the determining factor for the application of natural justice. See NEWSWATCH COMMUNICATIONS LTD VS ATTA (2006) 12 N.W.L.R part 993 at 144, DEDUWA VS. OKORODUDU (1976) 9-10 SC at 329 and OYEWOLE VS. AKANDE (2009) 15 N.W.L.R. part 119 at 148 paragraphs F-G.

In the instant appeal, Appellant was not present at the trial, he was not represented by Counsel. In fact, he was not aware of any proceedings going on. The decision of the proceeding which was carried out in his absence affected him. I am of the view that a party who will be affected by the result of a decision must be given an opportunity of being heard. The essence of fair hearing under Section 33 subsection 1 of the 1979 Constitution is a hearing which will be fair to both parties to the suit. It does not contemplate a standard of justice which is biased in favour of one party and the prejudice of the other. The hearing must be fair and in accordance with the twin pillars of justice namely: audi alteram partem and nemo judex in causa sua.

“The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across his case.”

EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF IN CRIMINAL TRIALS

In criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the Police admitted committing the offence, the prosecution is not relieved of the burden. See the Case of AIGBAGBON VS. STATE (2000) 7 N.W.L.R Part 666 at 704 Paragraph B, NWOSU VS. THE STATE (1998) 8 N.W.L.R. Part 562 Page 433 at 444 Paragraph B. See also section 138 subsection 1 of the Evidence Act. MODUPE FASANMI, J.C.A.

JUSTICES

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

MOSES ADEBAYO OMUYA OCHU Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of the Failed Banks (Recovery of Debts & Financial Malpractices in Banks) Tribunal, Ibadan Zone Oyo State in charge no. FBT/IB/CR/2/98 delivered on the 27th of May, 1999. Appellant was charged and convicted in absentia on four counts including the one of stealing contrary to Section 390 of the Criminal Code and punishable under subsection 7 of the said Criminal Code.
The facts are that the Appellant was the Managing Director of Majestic Securities Limited. He was alleged to have committed a number of offences which led to his prosecution before the Failed Banks Tribunal on the following charges:

COUNT 1
“That you MOSES ADEBAYO OMUYA OCHU (M) (now at large and outside Nigeria) between January, 1992 and 30th December, 1996 at Lagos while being the Managing Director/Chief Executive Officer of Majestic Securities limited failed to comply with the conditions of licence granted by the Central Bank of Nigeria on 2nd June 1993, to Majestic Securities Limited doing acts to wit: Lending sums of money over and above 50% of the Shareholders funds unimpaired by losses, failing to meet obligations of customers/investors; closing office without the knowledge and authority of the Central Bank of Nigeria, non disclosure of personal interest in a credit facility provided by the Finance Company, investing short term funds in long term projects, and operating Majestic Securities Limited after revocation of the licence granted to the said majestic Securities Limited; and that you thereby committed an offence contrary to Section 58(1) of the Banks and other Financial Institutions Decree No. 25 of 1991, (as amended) and punishable under Section 58(3) of the said Decree.

COUNT 2
That you MOSES ADEBAYO OMUYA OCHU (M) (now at large and outside Nigeria) between 1st July 1993, and 30th December, 1995 at Lagos, while being the Managing Director/Chief Executive Officer of Majestic Securities Limited persistently failed to comply with the directives of the Central Bank of Nigeria contained in its Revised Guidelines/Prudential Requirements for Finance Companies of 1st July, 1993 and in contravention of same, you thereby committed an offence contrary to Section 58(2) (a) of the Banks and Other Financial Institutions Decree No. 25 of 1991, (as amended) and punishable under Section 58(3) of the said Decree.

COUNT 3
That you MOSES ADEBAYO OMUYA OCHU (M) (now at large and outside Nigeria) between June 1993 and 30th December 1995, at Lagos while being the Managing Director/Chief Executive Officer of Majestic Securities Limited, failed to render the Central Bank of Nigeria quarterly returns of Majestic Securities Limited and you thereby committed an offence contrary to Section 58(2) (b) of the Banks and other Financial Institutions Decree No. 25 of 1991, (as amended) and punishable under Section 58(3) of the said Decree.

COUNT 4
That you MOSES ADEBAYO OMUYA OCHU (M) (now at large and outside Nigeria) between January 1992 and 30th December 1996 at Lagos while being the Managing Director/Chief Executive Officer of Majestic Securities Limited committed an offence of stealing the sum of N82,497,328.39 (Eighty two million, four hundred and ninety seven thousand, three hundred and twenty eight Naira, thirty nine kobo) being customers/depositors’ funds lodged with the said Majestic Securities Limited by doing an act to wit: using various sums of money paid by customers/depositors to the said Majestic Securities Limited without its consent and the consent of the customers/depositors and by diverting same you thereby committed an offence punishable under Section 390(7) of the Criminal Code.
The Tribunal proceeded in its judgment to sentence the Appellant to 3 years imprisonment on each of the first 3 counts and 7 years for the aforementioned offence of stealing all to run concurrently. He was in addition ordered to refund the sum of N82,497,324.39 or forfeit for auction (as they were indeed auctioned) his following properties:
(i) A plot of land measuring 34.10 hectares, of Savannah ure, situate about 14 Kilometres along Keffi/Abuja road, known as and called “New Karu”
(ii) 400 plots of land situate in Maraba Local Government Area of Plateau State.

The Appellant being dissatisfied appealed against the said judgment having obtained an order of extension of time to do so from this Court on 24th of November, 2005. Appellant’s notice of appeal contained five grounds of appeal. Appellant filed two additional grounds of appeal on 20/4/06 but was deemed filed on 23/11/06.
In accordance with the rules of this Court, parties filed and exchanged briefs. Appellant’s brief was filed on 20/4/06 but was deemed properly filed and served on 23rd November, 2006. Respondent’s brief was filed on 4th May, 2007 but deemed properly filed and served on 23rd May,07, while Appellant’s reply brief was filed on 23rd of May, 2007.
Appellant distilled five issues for determination as follows:
(i) Was it not wrong of the Tribunal to commence trial of the Appellant in absentia without first deciding the threshold issue of his being triable as such i.e that he had absconded from Nigeria?
(ii) Was it not speculative of the Tribunal to conclude that the Appellant was outside Nigeria at the time of his trial (and thus triable in absentia) when the only evidence on the point were testimonies disclaiming knowledge of his whereabouts and of a futile search in a house from which he had been ejected and in his hometown?
(iii) Was it not wrong of the Tribunal to convict the Appellant on counts 1, 2, & 3 when the conditions of the licence of Majestic Securities Ltd and the Revised Guidelines and Prudential Requirements for Finance Companies breach of which were the bases of the convictions – were not in evidence (which evidence at any rate was not of sufficient particularity), nor shown to have come to the Appellant’s prior knowledge?.
(iv) Given that the “Criminal Code” under which the Appellant was charged and convicted for stealing is unknown to law, was the Tribunal therefore not divest of jurisdiction to try him on that count?.
(v) Is the Appellant’s conviction for stealing depositors funds in the sum of N82,497,328.39 not liable to be set aside when no fraud was established and the evidence also does not have the depositor’s consent in reinvesting the funds?
Learned Counsel for the Respondent distilled three issues for determination as follows:
(i) Whether the Tribunal met requirement of Section 27(1) of Decree 18 of 1994 in the trial of the Appellant in absentia.
(ii) Whether the evidence adduced on each count of the charge can support the conviction of the Appellant.
(iii) Whether the Criminal Code under which the Appellant was charged and convicted in count 4 of the charge by the Tribunal is a known law.

The issues formulated by the Respondent cover issues 1/2/4 & 5 of the issues distilled by the Appellant for determination but are differently couched. The court will determine the appeal on the issues formulated by the Appellant for determination as they are more comprehensive. Learned Counsel for the Appellant argued issues 1 & 2 together as they are interwoven. He submitted that the issues deal essentially with whether the Tribunal met the requirements of Section 27(1) of Decree 18 1994 in conducting the trial and conviction of the Appellant in his absence. The section provides as follows:
“The absence from Nigeria of a debtor of a person who has committed an offence under this Decree shall not prevent his case being heard and being tried and convicted under this Decree.” He submitted that the plain words of the section show that the proper trial of those to be or who could be tried have to be known before commencement of trial. He submitted that in going straight into trial of the Appellant without first determining if he was indeed outside Nigeria, the Tribunal clearly made a finding of fact and a critical one thereby suspending the Appellant’s fundamental right to fair hearing in advance of any evidence. He submitted that the procedure is erroneous and constitutes a clear prejudgment of the case against the Appellant and the judgment obtained thereby cannot stand. He referred to the case of OKEKE VS. STATE (1991) 2 N.W.L.R Part 590 at 246. He submitted that there was no evidence that the Appellant was outside Nigeria at the time of his trial. He argued that what could be made of the evidence on record is that the Appellant’s whereabouts at the material time was unknown. No immigration or/and Interpol officer testified that the Appellant was known to have crossed Nigerian borders or that he had been sighted in another country at the material time.

The pieces of evidence put together on record at best could only be mere speculation. A court cannot act on speculation and that suspicion no matter how strong can never take the place of legal proof. Learned Counsel for the Appellant referred the Court to the case of NWANKWO VS. THE STATE (1990) 2 N.W.L.R. Part 134 at 627. He urged the Court to resolve the issues in favour of the Appellant.
Learned Counsel for the Respondent in reply submitted that the prosecutor informed the court on the 12th November, 1998 when the case first came to Court that the Appellant ‘has left the country’. He later told the Court again that “The Police have confirmed that the accused person is outside the country.” It was after this that the prosecutor by an application under Section 27 subsection (1)&(2) of Decree 18 1994 amended the charge for the trial to commence in absentia. Learned Counsel submitted that the tribunal is enabled to act on this type of evidence by virtue of Section 3(4) of Decree No. 18 of 1994 as amended by Section 2 of Decree no 18 of 1995. He submitted that the procedure adopted cannot invalidate either the proceedings or the judgment in view of Section 24 subsection 8 of Decree no. 18 of 1994 as amended by Section 6 of Decree no. 18 of 1995. He submitted that the purport of Section 27(i) of Decree No. 18, 1994 is to ensure that the trial of the offender under the Decree is not frustrated by being at large even if he has absconded from the country. Learned Counsel for the Respondent submitted that once there are facts before the Tribunal to satisfy it that the accused is outside the country, it can proceed with the trial of such accused and this was what happened in this case. Learned Counsel urged the Court to resolve the issues in favour of the Respondent.

It is a cardinal principle of our criminal justice system that an accused person must be present in Court throughout his trial except in some special circumstances e.g where the Court is investigating the question of the accused’s insanity and it is of the view that in the interest of the accused or of public decency, the accused’s presence may be dispensed with. However Section 27 of the Failed Banks (Recovery of Debts and Financial Malpractice in Banks Decree No. 18 of 1994 makes provision for trial in absentia but only in circumstances where the accused person is outside the country. Section 27 of Decree no. 18 of 1994 states as follows:
“The absence from Nigeria of a debtor or of a person who has committed an offence under this Decree shall not prevent his case from being heard and determined or has been tried and convicted under this Decree”
In essence, the Tribunal can try an accused person in absentia but he must be outside Nigeria and there must be evidence to that effect. The mere fact that an accused person is said to be at large or his where about is unknown does not mean that he will be tried in absentia. He must be outside Nigeria to be so tried for an offence under Decree No. 18 of 1994.
What is the evidence on record to show that the Appellant was outside Nigeria when he was tried in absentia? At page 4 of the record of proceedings lines 5 – 21. Mr. A. A. Odetunde Esquire told the Court this:
“I have been informed by the I.P.O that the accused person cannot be traced. That at the beginning of investigations, the accused was requested to produce the Board interest of the company but he rather absconded. He has left the country. The Police have made publications in the national Newspapers and Magazine including TELL issue no. 14 of March, 2nd 1998 at page 27 thereof. See also the Daily Champion of Friday October 16th 1998 page 21″.
The Police have confirmed that the accused person is outside the country. Under the circumstances, I hereby apply under Section 27(1) of Decree No. 18 1994 for leave to amend the charge to enable the trial to be conducted in absentia by inserting immediately after his name the following in bracket:
‘Now at large and outside Nigeria’ This will apply to all the counts in the charge. Urges the Court to grant the prayer.”
The Court at page 4 lines 21-25 held this:
“Court – Application granted as prayed. It is hereby ordered that the application be and is hereby amended by inserting, immediately after the name of the accused person, the following words. ‘Now at large and outside Nigeria’ in each of the five counts of the charge.”
The name of the I.P.O was not stated. Even the publications referred to were not exhibited or tendered at the time the application was made. Even though the application was made from the Bar, this alone without more is not sufficient for granting application to try the Appellant in absentia. Besides, the application touches on the fundamental human rights of the Appellant by virtue of Section 33 subsection 1 of the 1979 Constitution of the Federal Republic of Nigeria which was in force and applicable when the decision of the trial Court now an appeal was given on the 27th of May, 1999. The section provides thus:
“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 a fair hearing 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”

The Supreme Court has stated that fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether or not from his observation, justice has been done in the case. See MOHAMMED VS. KANO N.A. (1968) 1 All N.L.R at 411 and PAM Vs. MOHAMMED (2008) 16 N.W.L.R. Part 1112 Page 1 at 48 per Oguntade J.S.C. His Lordship at Page 49 Paragraphs B-C had this to say:
“The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a Court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across his case.”

A proceeding where Appellant did not cross-examine or contradict the witness called by the Respondent and consent or object to the exhibits tendered and admitted as exhibits cannot be said to be fair, to say the least.
The learned Respondent’s Counsel submission that the procedure adopted cannot invalidate either the proceedings or the judgment in view of Section 24 subsection 8 of Decree no. 18 of 1994 as amended by section 6 of Decree no. 18 of 1995 is a misconception of the law.
Section 24 subsection 8 of Decree no. 18 of 1994 as I amended by section 6 of Decree no. 18 of 1995 provides:
“No breach of or non-compliance with any rule of procedure shall invalidate the judgment or other proceedings of the Tribunal unless a substantial miscarriage of Justice can be shown to have arisen there from.”
The procedure adopted does not give the Appellant the opportunity of being heard and this has occasioned a substantial miscarriage of Justice. The section is therefore inapplicable to the situation at hand.

In the instant appeal, the available evidence on the record stated by the Respondent or which the Court relied upon in granting the application to try the Appellant in absentia has not proved beyond reasonable doubt that the Appellant has traveled outside Nigeria.
Again, Section 27 of the Decree No 18 of 1994 which the trial Court relied upon in absentia offends against the Provision of Section 33 sub-section 1 of the 1979 Constitution and therefore makes the trial, the conviction and sentence a nullity to the extent of its inconsistency.

This is by virtue of Section 1 (1) and (3) of the 1979 Constitution of the Federal Republic of Nigeria, the Supremacy of the Constitution is established as it provides that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria and that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. See the cases of A.G. ABIA STATE VS. A.G. FEDERATION (2006) 16 N.W.L.R. Part 1005 at 265 and FASAKIN FOODS (NIG) LTD VS. SHOSANYA (2006) 10 N.N.L.R. Part 987 at 126.

Again, the principle of fair hearing is so fundamental that a breach of it would declare a proceeding a nullity and it does not matter whether the decision reached in the proceedings would have been the same if the principle had been observed. See the cases of ADIGUN VS, A.G. OYO STATE (1987) 1 N.N.L.R . PART 53 at 678, AKINFE VS. STATE (1988) 3 N.W.L.R. Part 85 at 729 and GUINNESS NIG, PLC. VS. UFOT (2008) 2 N.W.L.R. Part 1070 Page 51 at 82-83 Paragraphs H-A.

In the circumstance, the trial, conviction and sentence of the Appellant i.e the whole proceedings in absentia is a nullity for lack of fair hearing and because of the inconsistency of the provision of Section 27 of the Failed Banks (Recovery Debts and Financial Malpractice in Banks) Decree No 18 of 1994 with the provision of Section 1 subsections 1 and 3 of the 1979 Constitution and I so hold.
Where the decision of a Court is regarded as a nullity the party affected by it is entitled to have it set aside. See NWOSU VS. UDEAJA (1990) 1 N.W.L.R. Part 125 at 180 and ALADEGBAMI VS. FASANMADE (1988) 3 N.W.L.R Part 81 at 129.
Having declared the whole proceeding a nullity, the judgment of the Lower Court is hereby set aside for being a nullity. Issue one and two are hereby resolved in favour of the Appellant.
Since Issue one and two are resolved in favour of the Appellant, the consideration of other issues would only amount to an academic exercise. The appeal succeeds in part and I so hold.
I must however, state that, the Appellant is not discharged and acquitted because there was no proper trial. This is a criminal matter where time does not run against any party. The evidence on the record discloses a prima facie case against the Appellant. It would not be in the interest of justice to acquit and discharge the Appellant on such a serious charge without a proper trial. See the case of SAMUEL EREKANURE VS. THE STATE (1993) 5 N.W.L.R Part 294 page 385 at 395 para G where Olatawura J.S.C of blessed memory observed as follows:
“My decision that the trial of this case was a nullity is that. In view of the nature of the gravity of the offence, I will order a fresh trial of the Appellant.”
See also the case of YAHAYA VS. THE STATE (2002) 9 N.S.C.Q.R at 36 .
It is hereby ordered that there shall be a fresh trial of the Appellant before another Judge at the instance of the Director of Public Prosecutions of the Federal Ministry of Justice any time the Appellant is apprehended or his whereabout is known.

KUDIRAT MOTONMORI OlATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Modupe Fasanmi, JCA just delivered. I agree entirely with the reasoning and conclusion therein which I adopt as mine. I abide by the consequential orders contained in the lead judgment.

SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, M. Fasanmi, JCA, just delivered. I entirely agree with the reasoning and conclusion. For the reasons ably advanced therein, I also ordered that a fresh trial of the Appellant should be assigned to another Judge.

Appearances

F.C.A OkoliFor Appellant

AND

Adeniyi Ogunkola;
J.A. AdewunmiFor Respondent