MR. EMMANUEL OGBU v. COMMISSIONER OF POLICE
(2019)LCN/12782(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/B/247C/2012
RATIO
COURT AND PROCEDURE: RE-TRIAL OF AN ACCUSED PERSON
“The issue of a retrial of an accused person where the case has been declared a nullity was the subject of discourse in the case of ABODUNDU VS THE QUEEN (1959) SCNLR 162. Five principles were laid down in the said case by the Federal Supreme Court. To wit:-
a. Whether there has been an error of law in the earlier trial;
b. Or an irregularity in the procedure that rendered the trial a nullity.
c. That besides the error, the evidence discloses a substantial case against the accused person;
d. There was no special circumstance that should render a retrial oppressive.
e. That to refuse a retrial would occasion a greater miscarriage of justice.
Their Lordships of the Apex Court also held that all the factors must co-exist, so that a case may be sent for a retrial. See also ABU ANKWA VS THE STATE (1969) 1 ALL NLR 133.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
MR. EMMANUEL OGBU Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State, Kwale Judicial Division delivered on the 17th day of May, 2012 wherein the said Court sitting in its appellate jurisdiction affirmed the judgment of the Chief Magistrate Court Ashaka, Delta State in charge No MSH/75C/2004 which had in the said judgment delivered on 3/8/2011 found the Appellant guilty and convicted him for the offence of stealing armoured cables while he was discharged and acquitted for the offence of conspiracy.
The Appellant herein as the 1st accused was charged with five other persons on a two count charge of conspiracy to commit felony, to wit stealing and stealing, punishable under Section 516 and 390 (b) of the Criminal Code Laws & CAP C21 Laws of Bendel State, applicable to Delta State.
Upon arraignment, the charge was read to all the accused persons and their pleas duly taken.
Subsequently, the two count charge was substituted with a new one which is herein below reproduced:-
‘That you Emmanuel Ogbu ‘M’, Joe Elosum ‘M’, Richard Izendu ‘M’, Abanum Macauley ‘M’, Ufeli Francis ‘M’ and Frank Ikogure ‘M’ and others now at large on the 19th day of February, 2004 at Agip Company Okpai Aboh in Ashaka Magisterial district conspired among yourselves to commit felony to wit: stealing and thereby committed an offence punishable under Section 516A of the Criminal Code Cap. 77 vol. V of 1990 Laws of the Federation of Nigeria.
COUNT 11: That you Emmanuel Ogbu ‘M’, Joe Elosum ‘M’, Richard Izendu ‘M’, Abanum Macauley ‘M’ Ufeli Francis ‘M’ and Frank Ikogure ‘M’ and others now at large on the 19th day of February, 2004, at Agip Company Okpai ? Aboh in the Ashaka magisterial district while on cleaning up exercise within the company premises stole two sealed drums Nos. 114 and 164 Armoured cable valued not estimated and thereby committed an offence punishable under Section 390(6) (9) of the Criminal Code Cap. 77 Vol. V of 1990 laws of the federation of Nigeria.”
Upon commencement of trial, the prosecution called four witnesses and upon closing its case, the 1st, 2nd and 6th accused persons were discharged upon the success of a no case submission. The 1st, 3rd, 4th and 5th accused persons were then ordered to enter their defence. They all gave evidence in their defence but called no witnesses.
At the conclusion of the defence, counsel for both parties addressed the Court and in a judgment delivered on 3/8/2011, the other accused persons were discharge and acquitted while the Appellant (as the 1st accused) was acquitted for the offence of conspiracy but convicted for the offence of stealing and sentenced to three years imprisonment with an option to pay a fine of N50, 000.00. He opted to pay the said fine in lieu of imprisonment.
He was however not satisfied with the outcome of the judgment of the Chief Magistrate Court and consequently appealed to the High Court of Justice, Kwale (lower Court) which dismissed the appeal and affirmed the judgment of the trial Chief Magistrate Court.
The Appellant has now appealed to this Court via a Notice of Appeal filed on 6/6/2012 and it contains two grounds of appeal.
Pursuant to the relevant Rules of this Court, the parties filed and served their briefs of argument which they both adopted and relied on at the hearing of the Appeal on 22/1/2019.
In the Appellant’s brief of argument filed on 3/10/2012 and settled by J.O. Oweibo Esq., the following two issues were formulated for determination.
1. Whether the learned High Court Judge was right in upholding the conviction and sentence of the Appellant by the learned trial Magistrate when there had been no evidence that the Appellant directed the removal of any sealed armoured cable drum especially when the evidence of PW1 and PW3 as to evacuation of sealed drums were not corroborated, and when the theft of any such drums had not been proved beyond reasonable doubt.
2. Whether the learned High Court Judge was right in confirming the conviction of and sentence of the Appellant by the learned trial Magistrate when the Appellant was tried under a Federal enactment for an offence alleged to have been committed in Delta State and convicted under the laws of Delta State, or whether the learned High Court Judge was right in not declaring the trial a nullity, for failure to elicit fresh elections and pleas from the accused persons upon the substitution of the original charges and upon the learned trial Judge Suo motu amending the charge in the course of his judgment.”
The Respondent’s brief of argument was filed on 24/9/2013 but deemed properly filed on 18/11/2013. Therein two issues were also distilled for determination as follows:-
1. Whether the lower Court was wrong in affirming the judgment of the trial Magistrate Court that the prosecution proved the offence of stealing beyond reasonable doubt?
2. Whether the Appellate High Court Judge erred in law when he refused to declare the trial a nullity?
However, on the 3rd day of March, 2014 when this appeal originally came up for hearing, this Court suo motu raised a constitutional issue to wit: whether the Appellant ought to have obtained the leave of Court before he could appeal. This being an appeal against the decision of the High Court of Delta State sitting in its appellate jurisdiction.
In response thereof, the parties filed their written submissions which they eventually adopted and relied on at the subsequent hearing of the appeal on 22/1/2019.
The Appellant’s submission was filed on 4/3/2014 and the issue raised therein is:-
Whether the appeal against the Appellate decision of the Delta State High Court Kwale Judicial Division is as of right or ought to have been with the leave of Court
Arguing on the said issue, learned counsel for the Appellant submitted that the Appellant?s appeal is as of right having regard to the grounds of appeal which are only of law alone. He referred to Section 241 1 (b) of the 1999 Constitution as amended to contend that the phrase ‘decisions in any criminal or civil proceedings’ within the con of the aforestated section clearly include double decker appeals in either criminal or civil proceedings provided the grounds of appeal are on law alone. He relied on the case of NAFIU RABIU VS THE STATE (1980) 8 ? 11 SC 85 where the Supreme Court interpreted Section 220 1 (b) of the 1979 Constitution which is in pari materia with Section 241 1 (b) of the 1999 constitution and the case of TARHULE VS IKYOMKE (1998) 13 NWLR (PT 581) 293.
It was further submitted that Section 241 (1)(a) of the 1999 Constitution is clearly limited to final decisions given by the High Courts at first instance in criminal and civil proceedings. But Section 241 (1)(b) makes no distinction as to finality or non finality but covers any appeal against any decision provided it is based on grounds of law alone. He added that the omission of the requirements of finality of the decision and whether it is appellate or first instance in Subsection (b) is intended to create a new right of appeal based on the grounds of appeal alone which must be of law.
The Respondent’s own submission on the issue was filed on 21/3/14. Arguing on the sole issue whether the Appellant needs leave of the High Court or the Court of Appeal before he can commence this appeal, learned counsel submitted that Sections 241, 242 and 243 are the constitutional provisions governing the rights of appeal, and by Section 241 (1) (a) a party has a right to appeal from the final decision of a High Court sitting at first instance and Section 241 (1) (b) allows appeal as of right if it is on grounds of law alone but does not apply to appeals challenging the decision of a High Court sitting in its Appellate jurisdiction.
He further contended that the grounds of appeal filed by the Appellant are grounds of facts and mixed law and facts notwithstanding that the Appellant branded the two grounds as that of law.
Learned counsel further submitted that Section 241 of the 1999 Constitution did not make provision for appeals from the High Court sitting in its Appellate jurisdiction to the Court of Appeal as this is covered by Section 242 (1). He cited the case of HARRIMAN VS HARRIMAN (1987) 2 NSCC (VOL 18) 930 and NAFIU RABIU VS THE STATE (1980) 8 ? 11 SC 130 at 156 ? 157. It was therefore argued that since this appeal is from the decision of the High Court sitting in its Appellate jurisdiction, the leave of the High Court or this Court must be sought and obtained. He relied on the case ofTHE STATE VS ZANNAH (2001) FWLR (PT 78) 1110 and urged the Court to strike out the appeal for being incompetent, having failed to obtain leave as required by the law.
Now, Section 241 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 as amended provided thus:-
241 (1) ?An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the grounds of appeal involves questions of law alone decisions in any civil or criminal proceedings.
The above set out provisions of the 1999 Constitution is not in any way ambiguous. By virtue of Subsection (1)(a), any person who is aggrieved with the final decision of the Federal High Court or a High Court can appeal as of right to the Court of Appeal without much ado, provided he appeals within the statutory period allowed. Such appeal does not require scrutiny to discover whether the grounds of appeal are grounds of law or fact, or mixed law and fact, so long as the complaint is against the final decision of the aforestated Courts an automatic right of appeal in any civil or criminal proceedings, without any fuss about leave enures in favour of the aggrieved party courtesy of Section 241 (1) (a) of the 1999 Constitution as amended.
The only caveat is that such decision must be that of the relevant Court sitting at first instance and not in its appellate jurisdiction.
But under Subsection 241 (1) (b), a party can only appeal as of right if the ground of appeal involves question of law alone. This provision covers interlocutory appeals and appeals from any of the High Court sitting in its appellate jurisdiction and not as a Court of first instance.
In the case of AQUA LIMITED VS ONDO STATE SPORT COUNCIL (1988) 10 ? 11 SC 31, the Supreme Court while interpreting Section 220 (1) (a) and (b) of the 1979 constitution which is in pari materia with Section 241 (1) (a) (b) of the 1999 Constitution held thus:-
Section 220 (1) (b) of the 1979 Constitution has been provided to cater for appeals against:-
I. The decision of High Court in non-final decisions involving questions of law alone; and
II. Decisions given by a High Court when not sitting as a Court of first instance, that is, an appeal coming before it from subordinate Courts, otherwise coined as double appeals. In other words, it caters for appeal in interlocutory decisions and decision in double appeals involving pure questions of law alone.”
Section 220 (1) (a) and (b) of the 1979 Constitution cater for two different situations. They are disjunctive.”
See also STATE VS METSEAGHARUN (2017) LPELR (43554) CA where this Court held inter alia at page 10 ? 12 that:
‘
A calm appraisal of the above set out Sections discloses that while Section 241 (1) (a) allows for an absolute right of appeal against the final decisions of the Federal High Court or a High Court, Section 241 (1) (b) allows an Appellant to appeal as of right on grounds of law on any decision of the lower Court (civil or criminal). But where the decision appealed against under the provision is interlocutory, the ground of appeal must be one of law before the Appellant can appeal as of right, otherwise leave of the lower Court or the Court of Appeal must be sought and obtained under Section 242 (1).”
To put it in clear terms, Section 241 (1) (b) of the 1999 Constitution applies to Appellate or interlocutory decisions of the Federal High Court or a High Court in which case appeal is also as of right if the ground of appeal involves question of law alone.
Therefore Section 241 (1) (a) and (b) are not intended to cover the same grounds. The former applies to final decisions of the High Court sitting at first instance, the latter applies to non-final decisions of the High Court whether sitting at first instance or not, in the exercise of its appellate jurisdiction. See AQUA LIMITED VS ONDO STATE SPORTS COUNCIL (supra) and GLOBAL WEST VESSEL SPECIALISTS (NIG) LTD VS NIGERIAN LIQUIFIED NATURAL GAS LTD (2017) LPELR 41987 (SC).
In the instant case, and as rightly submitted by learned counsel for the Appellant, the appeal is against the decision of the High Court of Delta State sitting in Kwale in its appellate jurisdiction. In this regard, the appeal can only be as of right if the grounds involve question of law alone.
The learned counsel for the Respondent had argued that Section 241 did not make provision for appeals from the High Court sitting in its appellate jurisdiction to the Court of Appeal, in which case the only applicable provision is Section 242. However, in the light of the decision of the Supreme Court in AQUA LIMITED (supra) and that of this Court in STATE VS METSEAGHARUN supra, the issue is settled that Section 241 (1) (b) deals with appeals from interlocutory decisions and decision of High Courts sitting in their appellate jurisdiction provided the grounds of appeal involve questions of law alone. The case of STATE VS ZANNAH (supra) cited by the Respondent?s counsel does not seem to be of any good assistance to his argument. See also NAFIU RABIU VS THE STATE (supra).
The Respondent’s counsel had also argued that the two grounds of appeal filed by the Appellant involves questions of fact and mixed law and fact, therefore leave to appeal is necessary. For the Appellant?s counsel, it was contended that the two grounds involve questions of law alone, hence there is no need to seek leave to appeal.
The two grounds of appeal are herein below set out:-
GROUND 1
The learned High Court Judge erred in law in confirming the conviction and sentence of the Appellant by the Magistrate Court Ashaka, Delta State of Nigeria.
PARTICULARS OF ERRORS OF LAW
I. The learned High Court Judge wrongly confirmed the erroneous decision of the Magistrate Court Ashaka, Delta State, that the Appellant directed the PW1 and PW3 to load two sealed drums of Armoured Cables on the waiting tipper lorry when there is infact no such evidence on record.
II. The learned High Court Judge wrongly confirmed the erroneous decision of the Magistrate Court Ashaka, Delta State, that there are corroborative evidence to support the evidence of PW1 and PW3 as to the theft of the two sealed armoured drums of cables and as to who directed the evacuation of same when there are in law no evidence of corroboration as to these two points on the printed records. And there being no evidence in corroboration, the confirmation of the conviction and sentence by the High Court was erroneous in law.
III. The learned High Court Judge wrongly confirmed the erroneous decision of the Magistrate Court Ashaka Delta State, that there are legal and cogent evidence on record that two sealed armoured cable drums were infact evacuated when in law no legally admissible evidence exists to warrant such conclusion.
GROUND 2
The learned High Court Judge erred in law in holding that the proceedings before the Magistrate Court Ashaka were not nullities.
PARTICULARS OF ERRORS OF LAW
I. The Appellant was tried under a federal enactment for an offence alleged to have been committed in Delta State with its own Criminal Code Law but convicted and sentenced under the Criminal Code Law of Delta State.
II. The learned High Court Judge wrongly confirmed the procedure adopted by the Magistrate Court Ashaka after it suo motu amended the charge during the pronouncement of judgment on the 3rd day of August 2011 without:
a. Calling for addresses on the matter from the prosecutor and the defence counsel.
b. Complying with the provisions of Section 164, 165 and 215 of the Delta State Criminal Procedure Law Cap C21 Laws of Delta State.
From the above set out grounds of appeal read together with their particulars, it is quite clear that ground 1 cannot be termed a ground of law alone but mixed law and fact.
On the other hand, ground 2 which complains about the trial at the Magistrate being a nullity because two different laws (Federal and State) were applied by the trial Magistrate and upheld by the lower Court is a ground of law alone. A road map into making a proper distinction between a ground of law or fact/mixed law and facts was clearly drawn by the Supreme Court in the case of CHIEF OF AIR STAFF VS IYEN (2005) 6 NWLR (PT 922) 496 at 541 wherein it was succinctly put as follows:-
A ground of appeal is a ground of law if the ground of appeal deals exclusively with the interpretation or construction of the law without resort to the facts. In this respect, the Court is involved in the interpretation or construction of either the Constitution or a statute with no reference to any factual situation.
A ground of appeal which alleges a misapplication of the law to the facts of the case is a ground of law.
On the other hand, a ground of appeal is one of mixed law and fact when the ground deals with both law and fact. It is a mixed grill, mixed grill of law and facts so to say.
A ground of appeal is one of fact where the grounds deal exclusively with the facts of the case and the facts only.
In the determination of the grounds of appeal, the Court in most cases refer to the particulars if there are particulars.
This will enable the Court to have a full view of the ground of appeal and come to a conclusion whether it is a ground of law, or one of mixed law and facts or facts simpliciter.
This is because the tag name of the ground of law by the Appellant does not necessarily make it so.”
In the instant case, though the Appellant had tagged the two grounds of appeal as grounds of law, a careful perusal of same with the particulars show that it is not so.
While ground 1 is clearly a ground of mixed law and fact, ground 2 is no doubt a ground of law alone.
Given that this appeal falls under Section 241 1 (b) of the 1999 Constitution, it follows that leave ought to have been sought and obtained before the appeal is filed and having not so done, ground 1 of the Notice of Appeal is hereby struck out for being incompetent, together with the issue formulated therefrom.
It is however trite that one ground of appeal alone can sustain the life of an appeal. Consequently, this appeal survives on the basis of ground 2 and the issue formulated therefrom.
SUBSTANTIVE APPEAL
The surviving issue for determination in this appeal as per the Appellant?s brief of argument is:-
‘Whether the learned High Court Judge was right in confirming the conviction and sentence of the Appellant by the learned trial Magistrate when the Appellant was tried under a Federal enactment for an offence alleged to have been committed in Delta State and convicted under the Laws of Delta State; or whether the learned trial Judge was right in not declaring the trial a nullity. For failure to elicit fresh elections and pleas from the accused upon the substitution of the Original Charges and upon the learned trial (sic)(judge) suo motu amending the charge in the course of his judgment.”
Arguing on the said issue, learned counsel for the Appellant submitted that the learned Appellate Judge was in error in declining to declare the trial a nullity. It noted that the original Charge No. was MSH/41C/2004 under which the Appellant and five others were arraigned before the Magistrates Court, Ashaka on 13/5/2004 and the charge was read and explained to all the accused persons who said they understood same and pleaded not guilty after electing Summary trial. But at the next adjourned date, the prosecution sought and obtained leave of Court to substitute the Charge No MSH/41C/2004 with a new Charge No. MSH/75C/2004 wherein the original charge was struck out. He added that the new charge was read and explained to the accused persons in a language that they understood, but they were not given the option to elect the nature of the trial they prefer, neither was their plea taken on the new charge upon which their trial was based.
However upon conclusion, the trial Magistrate in the course of delivering the judgment amended the charge again and no election was allowed or plea taken from the Appellant and other accused persons.
It was then submitted that the requirement to take a fresh plea when a charge is substituted or amended is statutory and mandatory and it does not lie with the trial Magistrate to waive it. Also citing the case of OHWOVORIOLE VS FRN (2001) 13 NWLR (PT 730) 428 at 449. It was submitted that failure to take a fresh plea is a fundamental vice and the provisions of Section 168 of the Criminal Procedure Law of Delta State cannot save the situation or the proceeding from being declared a nullity. He further cited the following cases in support: FOX VS POLICE (1947) 12 WACA 215; R VS ERONINI (1953) 14 WACA 360; ADISA VS A.G. WESTERN NIGERIA (1965) 1 ALL NLR 412; JOSEPH OKOSUN VS THE STATE (1978) LRN 314.
Dwelling further on the issue of election, reference was made to Section 304 (3) of the Criminal Procedure Law of Delta State and Section 20 (1) (c) of the Magistrates Courts Law of Delta State to submit that failure of the trial Magistrate to elicit the consent of the Appellant to be tried Summarily after the substitution of the Charge renders the entire proceedings a nullity. On this, he relied on the case of EDUN VS INSPECTOR GENERAL OF POLICE (1966) ALL NLR 18; JOHNSON VS LUFADEJU (2002) 8 NWLR (PT 768) 192 at 214, and C.O.P VS OLAPADE & ORS (1959) WNLR 41.
It was urged on this Court to resolve the issue in favour of the Appellant and allow the appeal with an order of acquittal and not a retrial.
In their reply on this issue, learned counsel for the Respondent submitted that the facts relied on by the Appellant did not arise from the proceedings at the lower Court because the learned Appellate Judge raised the issue suo motu and counsel for the parties addressed Court on it before he reached the decision that there was a proper plea by the Appellant, therefore the trial was not a nullity.
It was also submitted that the Appellant ought to have obtained leave of Court to argue the issue having been raised for the first time in this court vide EHOT VS STATE (1993) 4 NWLR (PT. 290) 670.<br< p=””
This Court was then urged to dismiss the appeal and affirm the decision of the lower Court.
The Appellant filed a reply brief of argument on 22/1/2014. Therein it was submitted that reference to Charge No MSH/75C/2004 in the Appellant?s brief is not a new issue but borne out of ground 2 of the grounds of appeal and in line with the argument founded on the invalidity of Charge No MSH/75C/2004 and as such not a new issue before this Court but founded on the judgment of the lower Court.
Now, the issue in contention is whether upon the substitution of Charge No MSH/41C/2004 with Charge No MSH/75C/2004 an election was elicited from the Appellant and the new Charge was read and explained to the Appellant before being invited to enter his plea.
For the Appellant, it was argued that upon the substitution of Charge No MSH/75C/2004 fresh election was not elicited and no plea was taken from the Appellant after the Charge was read out and this renders the whole trial a nullity. The Respondent on the other hand is of the strong stance that the findings of the Appellate High Court that the Appellant and the others charged with him took their plea after the charge was amended by the prosecution was based on the record before the lower Court and the Appellant’s counsel also conceded to this fact in his final address.
I have had a careful perusal of the proceedings of the trial Magistrates Court as contained in Record of Appeal and the following facts are manifest:
1. At the proceedings of the said trial Magistrates Court Ashaka on 13/5/2004, the Appellant and five others were arraigned before the Court and it was recorded as follows:-
All accused persons are present in Court.
Sgt: Umoji for prosecution
C. Iwegbue Esq. For all accused persons.
Charge read and explained to the accuse person in a language they perfectly understood and to the satisfaction of the Court. The 1st, 2nd, 3rd, 4th , 5th and 6th accused persons each elects summary trial and each pleads not guilty to counts 1 and 11 respectively. Defence counsel applies for bail of the accused persons.
CT: Bail is hereby granted to each of the accused persons in the sum of N20,000.00 with one surety each in like sum. Sureties must be responsible persons of fixed means of livelihood and must be resident within the jurisdiction of the Court. The police to verify addressed of Sureties, sureties to attach two recent passport photographs.
Case adjourned to 10/6/04 for hearing.”
Signed
H.A. ENAKPOYA, ESQ.
From the above set out proceedings of the trial Magistrate Court, it is glaring and as rightly agreed by the parties, that the correct and statutorily approved procedure was followed by the Court in terms of the charge being read to the understanding of the persons who also elected Summary trial before taking their pleas in charge No MSH/41C/2004 before the matter was adjourned to 10/6/04 for hearing.
Subsequently, at a date not shown in the Record, the proceedings of the trial Magistrate Court went as follows at page 6 of the Record of Appeal:-
Accused persons are present in Court.
Sgt. Omoji Usang for the prosecution.
C.C. Asurah holds watching brief for Complainant.
Prosecutor applies for a stand down to enable him substitute the charge.
Prosecutor withdraws his application for a stand down that the new charge is ready and his application is that this charge be substituted with the new charge.
CT: Application granted as prayed. This charge is hereby substituted with a new charge No MSH/75C/2004. Accordingly, the former is hereby struck out.
Signed
H.A. ENAKPOYA
SNR. MAGISTRATE GD 1
Upon Charge No MSH/41C/2004 being struck out and a new charge substituted, for it, the proceedings of the Court went as follows as per pages 7 and 8 of the Record:
Accused persons are present in Court.
Sgt. Omoji Usang for prosecution.
C.C. Asurah Esq. Holds watching brief for complainant.
Charge read and explained to the accused persons in a language they perfectly understood and to the satisfaction of the Court.
At this stage, E.E. Omokudu appears for the accused persons.
Defence counsel applies that the accused persons be allowed to remain on their former bail. Prosecutor objects to the prayers defence counsel that the statement of value of the items stolen in the former charge and this charge are far apart. That in the first charge, the value was not stated. That in this charge, the value of the items is over Fifty Two Million Naira. That a bail condition of N20, 000.00 is too meagre and cannot secure the attendance of the accused persons to their trial.
CT: I have considered the application of defence counsel and the objection raised by the prosecution. A bail condition of N20,000.00 cannot be said to be reasonable in the circumstance of the over Fifty two Million Naira worth of the property allegedly stolen. Therefore to secure attendance of the accused persons to the trial, I am moved to review the terms of the former bail which I would allow the accused persons to enjoy. The former bail is reviewed from N20,000.00 to N100,000.00 for each of the accused persons. In addition, the former sureties are to depose to affidavit of means of landed property situate in the jurisdiction of this Court or Kwale. Considering the fact that the sureties are not here in Court, the perfection of the reviewed former bail is hereby put on the next adjourned date of this case. The accused persons are to enjoy the former terms of bail until the next adjourned date.
Case adjourned to the 7th day of October, 2004 for definite hearing.”
As can be gleaned from the above set out proceedings, the relevant and most fundamental portion is when the new charge was read to the Accused persons. For clarity purposes, it is herein below reproduced again:-
“Charge read and explained to the accused persons in a language they perfectly understand and to the satisfaction of the Court.”
There is nothing more recorded to show that the Appellant elected to be tried either Summarily in the Magistrate Court or in the High Court in compliance with Sections 304 of the Criminal Procedure Law or Section 20 (c) of the Magistrate Courts Law of Delta State.
Furthermore and sadly too, it is nowhere recorded that the Appellant took his plea as per the new charge apart from the fact that it was read and explained to him. For the learned counsel for the Appellant, this omission is in clear breach of Section 164 (1) of the Criminal Procedure Law, Cap C21 Laws of Delta State and Section 20 (1) (c) of the Magistrates Courts Law of Delta State.
The Respondents however see nothing wrong with the whole process and rather asserts that the trial Magistrate complied with the statutory requirements by recording the election and plea of the Appellant.
Incidentally, the record of proceedings of the trial Magistrate Court as earlier set out speaks for itself to the effect that upon the substitution and reading of the new charge No MSH/75C/2004 to the Appellant and other accused persons, it was only shown that the said charge was read and explained to the Appellant but no record of any plea being taken from him, neither was he given the option to elect that he should be tried summarily in the Magistrate Court or on indictment in the High Court having been charged with a felony.
Section 164 (1) of the Criminal Procedure Law provides that:-
164 (1) “If a new charge is framed or alteration to a charge under the provisions of Section 162 or Section 163, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.”
The requirements as contained in the above set out provision has been held to be mandatory and shall be strictly complied with. Therefore failure to call on an accused person to plead to the charge as amended (and in the instant case a total substitution of a charge with a new one) renders the whole proceedings null and void. See ADISA VS A.G. WESTERN NIGERIA (1966) NMLR 144.
In this case under consideration, the trial Magistrate, after recording that the charge had been read and explained to the Appellant and without taking his plea to the charge against him as borne out of the Record, proceeded to the hearing of the prosecution witnesses. This omission to comply with the mandatory requirements of Section 164 (1) of the Criminal Procedure Law is indeed a fundamental vice that cannot be taken for granted. In OGUNYE VS STATE (1999) 5 NWLR (PT. 604) 548 at 565, the Supreme Court per Iguh (JSC) enunciated the requirements of a valid arraignment as follows:-
For there to be a valid arraignment of an accused person, the following three essential requirements must be satisfied, to wit:
a. The accused must be placed before the Court unfettered unless the Court sees cause otherwise to order;
b. The charge or information must be read and explained to the accused person to the satisfaction of the Court by the Registrar or other officer of the Court;
c. The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has infact not been clearly served therewith.”
The above stated requirements of the law are mandatory and not directory and must therefore be strictly complied with in all criminal trials. Since these requirements have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such trial, failure to satisfy any of them will render the whole trial incurably defective and null and void.” See also KAJUBO VS STATE (1988) 1 NWLR (PT 173) 721; EREKANURE VS STATE (1993) NWLR (PT 294) 385; KALU VS STATE (1998) 13 NWLR (PT 583) 531; OKORO VS STATE (1998) 14 NWLR (PT 584) 186; PAGHER VS STATE (2013) LPELR 20769 (CA).
As earlier stated in the judgment, the proceedings of the trial Magistrate Court did not disclose or show the Appellant’s plea and mere mention of same in the judgment by the trial Magistrate is definitely not enough. It must be clearly recorded by the Court whether the accused person pleaded ‘guilty’ or ‘not guilty’.
The failure of the trial Magistrate to record the Appellant?s plea renders the procedure inconsistent, not only with Section 164 (1) of the Criminal Procedure Law but also of Section 36 (6) (a) of the 1999 Constitution. In IDEMUDIA VS STATE (1999) 7 NWLR (PT. 619) 202, the Supreme Court, per Karibi-Whyte JSC at page 221 observed thus:-
“An arraignment consist of charging the accused or reading over the charge to him and taking his plea therein. A valid arraignment therefore presupposes compliance with the enabling constitutional and procedural provisions and a strict compliance therewith is demanded by the Court.”
This is also settled that once information or a charge is amended, altered or substituted, the plea of the accused person must be taken again. See UGURU VS THE STATE (2002) 9 NWLR (PT. 771) 90.
“It needs being emphasized again that the plea of an accused person to the charge wherewith he stands trial is a sine qua non to a valid trial. It is a very fundamental aspect of any criminal proceedings and that underscores the strict and mandatory compliance in matters relating thereto. Thus criminal trials no matter how well conducted, without plea of the accused person first and properly taken is a nullity. See PAGHER VS STATE (supra) at page 32.
In the instant case therefore, the absence of the plea of the Appellant being taken to the said Charge No MSH/75C/2004 brought against him, vitiates the entire trial, renders same a nullity and I so hold.
Another nail on the head of the said proceedings at the trial Magistrate Court is the omission or failure to comply with Section 20(C) of the Magistrates Courts Law and Section 304 of the Criminal Procedure Laws of Delta State by informing the Appellant of his right to elect whether he should be tried Summarily in the Magistrate Court or by information in the High Court.
The charge against the Appellant is an indictable offence, in which case, upon such amendment or substitution on the new charge, the Appellant must of necessity be asked if he elects summary trial in accordance with Section 304 and this is so, even if he has elected Summary trial on the original Charge No MSH/41C/2004. Thus, having not been given the right to an election in Charge No. MSH/75C/2004, it also renders same a nullity. See JONES VS POLICE (1960) 5 FSC 38.
The judgment of the High Court of Delta State delivered on 17/5/12 which flows from the judgment of the Magistrates Court now declared null and void is accordingly set aside.
Now, having so declared the proceedings a nullity, the issue that comes up for consideration is what proper order to make in the circumstance. The issue of a retrial of an accused person where the case has been declared a nullity was the subject of discourse in the case of ABODUNDU VS THE QUEEN (1959) SCNLR 162. Five principles were laid down in the said case by the Federal Supreme Court. To wit:-
a. Whether there has been an error of law in the earlier trial;
b. Or an irregularity in the procedure that rendered the trial a nullity.
c. That besides the error, the evidence discloses a substantial case against the accused person;
d. There was no special circumstance that should render a retrial oppressive.
e. That to refuse a retrial would occasion a greater miscarriage of justice.
Their Lordships of the Apex Court also held that all the factors must co-exist, so that a case may be sent for a retrial. See also ABU ANKWA VS THE STATE (1969) 1 ALL NLR 133.
In the instant case, the irregularities in the procedure and error in complying with the law renders the trial a nullity. It is also evident that special circumstances exist to render a retrial oppressive and unjustifiable. The Appellant upon conviction was sentenced to six months imprisonment or to pay a fine of N50, 000.00. the Appellant had since paid the fine though dissatisfied with the judgment of the trial Magistrate Court, hence the appeal, first to the Appellate High Court and then to this Court.
Therefore as earlier stated, to order a retrial will to my mind be oppressive and unjustifiable. Judgment in the trial Magistrate Court was delivered since 3/8/2011 and in the High Court sitting in its appellate jurisdiction on 17/5/2012.
In the circumstance, I hold that this appeal succeeds and it is hereby allowed.
The judgment of the High Court of Delta State sitting in its Appellate jurisdiction and delivered on 17/5/2012 and affirming the conviction and sentence of the Appellant by the Magistrate Court Ashaka is hereby set aside.
Accordingly, the Appellant is hereby discharged and acquitted.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI JCA. I completely agree with the reasoning and conclusion therein that the appeal has merit and should be allowed.
I will add a few words on the issue of right to appeal. There is always a lot of confusion on this point which arises for determination in this appeal. S. 241 of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:
(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court;
(i) where the liberty of a person or the custody of an infant is concerned;
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this section shall confer any of appeal –
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of Appeal, from a decision of the Federal High Court High Court made with the consent of the parties or as to costs only.
What S. 241(1)(a) means is that any person who is aggrieved with the final decision of the Federal High Court or a High Court as a Court of first instance can appeal as of right to the Court of appeal without much ado, provided he appeals within the statutory period allowed. If he appeals outside time, he would need to ask for extension of time to appeal at the Appellate Court. What S. 241(1)(b) means is that a party can only appeal as of right in an interlocutory appeal if the ground of appeal involves question of law alone. This subsection also means that appeal can only be as of right to the Court of Appeal where the ground is of ground of law alone where the High Court sat as an appellate Court. This means that where the ground of appeal is on fact or of mixed facts and law, and the High Court sat as an appellate Court, that ground cannot be brought as of right. See Aqua Ltd v. Ondo State Sport Council (1988) 10-11 SC 31; Global West Vessel v. Nigerian Liquefied Natural Gas (2017) LPELR 41987 (SC).
S. 241 (2)(c) and S. 242(1) makes provision for how leave is to be sought and obtained. However, S. 242 makes special provisions for certain situations. S. 242(2) provides as follows:
“The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing Of the application.” (Underlining mine)
What that means is that when the Court of Appeal receives a motion for leave to Appeal, that is in an interlocutory appeal on grounds of facts or on final appeal on grounds of facts from the decision of the High Court in its appellate jurisdiction, the Court may after reading the Record dispose of the application without listing it for oral hearing if the Court is of the opinion that the interest of justice do not require an oral hearing.
The phrase “dispose of” may mean “to deal with conclusively” or “settle. In fact, the Oxford Dictionary, 8th Edition defines it to mean “to deal with a problem, question or threat successfully.” Therefore, this Court may grant or refuse to grant the trinity prayers in chambers (without hearing) where the interest of justice permits it to do so. The same thing may occur in instances when leave alone is sought.
I therefore agree with my learned brother that the Appellant should have sought for and obtained leave to file ground one being one of mixed facts and law and consequently should be struck out as incompetent. My learned brother exhaustively dealt with the substantive issues in controversy. I have nothing useful to add except to allow the appeal.
PHILOMENA MBUA EKPE, J.C.A.: I had a preview of the lead Judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
My Lord in his lead Judgment has painstakingly ploughed through all the salient issues involving both the grounds of appeal and the appeal proper. I agree entirely with the reasoning and final conclusions that this appeal is meritorious and ought to be allowed.
l too allow the appeal and set aside the Judgment of the lower Court sitting in its Appellate Jurisdiction and delivered on the 17th day of May 2012 affirming the conviction and sentence of the Appellant by the Magistrate Court Ashaka.
I throw my weight behind the view that the proceedings of the Magistrate Court are a nullity having failed to give the Appellant the opportunity to make a fresh plea to a new charge.
This Appeal is however allowed and the Appellant is hereby discharged and acquitted accordingly.
Appeal allowed.
Appearances:
J.O. OWEIBOFor Appellant(s)
O.F. ENENMO (Director Appeals, Ministry of Justice, Delta State) with him, C.O. AGBAGWU (Deputy Director) and E.E. EREBE (Assistant Director)For Respondent(s)
