MR. KEHINDE ODUNEYE v. FEDERAL REPUBLIC OF NIGERIA & ORS (2014)

MR. KEHINDE ODUNEYE v. FEDERAL REPUBLIC OF NIGERIA & ORS

(2014)LCN/7256(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of June, 2014

CA/L/828/2012

RATIO

DETERMINING THE PROPRIETY OF GROUND OF APPEAL AND PARTICULARS OF GROUND OF APPEAL

The borderline in determining the propriety of ground of appeal and particulars of ground of appeal is to find out whether the grounds and particulars of the appeal are capable of misleading the adverse party and/or the court, making it difficult for the adverse party to understand and respond to them appropriately.
The fact that a ground of appeal is argumentative is not sufficient to deny the appellant his right of appeal. This is so because the modern approach in adjudication is to avoid technicality in all its ramification and concentrate on the principal duty of the court which is to do justice. Moreover, where parties to an appeal and the court are not misled by the contents of a ground of appeal, any complaint about its form, which does not occasion a miscarriage of justice becomes a technicality see Obembe v. Okele (2001) 10 NWLR (Pt. 722) 677, NRC v. Cudjoe supra @ 342. The court looks at the intent and not the form, provided that there is at least substantial compliance in the sense that the grounds of appeal and their particulars are comprehensible. The fact that the particulars in support of the grounds of appeal are inelegantly drafted does not simply make such ground of appeal liable to be struck out. See S.C.O.A. (NIG) PLC v. Mohammed (2004) 4 NWLR (Pt. 862) 20, Bida v. Abubakar (2011) ALL FWLR (Pt. 562) 1, Eleburike v. Tawa (2011) All FWLR (Pt. 591) P. 1473. per INWE EUGENIA IYIZOBA, J.C.A.

WHETHER A RESPONDENT CAN FRAME AN ISSUE NOT ARISING FROM THE APPELANT’S GROUNDS OF APPEAL.

It is trite that a respondent who has not cross-appealed or filed a respondent’s notice cannot frame an issue that does not arise from the appellant’s grounds of appeal. An issue for determination which is not supported or related to any ground of appeal is liable to be struck out or discountenanced as incompetent. See KALU v. ODILI (1992) NWLR (Pt. 340); OKOYE v. N.C.F. CO LTD (1991) 6 NWLR (Pt. 199) 501. KAJA v. OKE (2013) LPELR-19908(SC). per CHINWE EUGENIA IYIZOBA, J.C.A.

STAIRE DECISIS: WHETHER A LOWER COURT CAN DEVIATE FROM A POINT OF LAW ALREADY DECIDED BY A SUPERIOR COURT WHERE THE CIRCUMSTANCES DIFFER

It is a cardinal principle of law under the doctrine of stare decisis that an inferior court is bound by the decision of a superior court. A point of law that has been decided and settled by a superior court must be followed by inferior courts where the facts and circumstances are the same. NEPA v. EDEGBERO (2002) 18 NWLR (Pt. 798) 79; Asanya v. The State (1991) 3 NWLR (Pt. 180) 422, Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536; Dalhatu v. Turaki & Ors (2003) 15 NWLR (Pt. 843) 310. The key factor in these matters is that the facts and circumstances must be the same. Where the circumstances clearly differ, the lower court can distinguish the case and not follow it as a precedent. In Albiom Construction Ltd v. Rao Investment & Properties Ltd (1992) 1 NWLR (Pt. 219) 583 @ 598 E, Tobi JCA (as he then was) observed:
“It is a well established principle of stare decisis that the ratio of a case is embedded in the facts of the case. The ratio of a case is therefore not determined in vacuum or in vacuo outside the facts of a case. It is this very established principle of law that gives rise to the daily practice of courts of law of distinguishing two cases in a matter before them. The rules of stare decisis definitely do not allow courts of law in any common law jurisdiction ……to apply ratio decidendi of a case, across the board and with little or no regard to the facts of the case before them, That will be giving not only a wide but also a wild application to the well entrenched principles of stare decisis in the common law system of judicial precedent.”
The principle of distinguishing a case allows the court to do justice to each case based on the facts and circumstances of the case before the court. As opined by Rhodes-Vivour, JSC in Emeka v. Okadigbo (2012) LPELR-9338(SC), “Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow Courts to apply the ratio of a case across the board and with little regard to the case before them. At all times, judicial precedent and stare decisis must be applied in the light of the present features of each case.” per CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. KEHINDE ODUNEYE Appellant(s)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. JOHN FAGBEMI
3. MRS. MUBO IKOTUN
4. MRS. FUNMILAYO TEMOWO
5. MESSRS SMITH NIGERIA LTD Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of Williams J. of the High Court of Lagos in the Lagos Judicial Division in Charge No. LCD/17/2008 delivered on the 6th day of August, 2012. In the said ruling the learned trial judge held as follows:-

i. That the criminal trial proceedings held on diverse dates in the absence of the appellant and the 4th Respondent cannot be set aside or nullified because the circumstances of the case constitute exception to the mandatory provisions of section 210 of the criminal Procedure Act, Section 208 of the Administration of Criminal Justice law of Lagos State and the Supreme Court decision in ADEOYE v. STATE (1999) 4 SC (Pt. 11) page 67 that trial in absentia is not known to our criminal procedure law and rules.

ii. That the appellant through his counsel waived his right not to be tried in absentia.

iii. That the appellant and 4th Respondent have not shown injuries sustained in conducting criminal trial in their absence.

The facts: At the High Court of Lagos State, Lagos Judicial Division the 1st Respondent, Federal Republic of Nigeria as Complainant brought a 21 count charge information against the Appellant Mr. Kehinde Oduneye as the 4th Accused person alongside 2nd, 3rd, 4th, 5th Respondents as 1st, 2nd, 3rd, 5th Accused persons and the 6th Accused person later struck out on the 26th of July 2008. The information sheet was accompanied by List of witnesses and their addresses together with the Proof of Evidence. Trial in the matter commenced on the 26th of June 2008 when the plea of the Appellant and the other accused persons were taken and they all pleaded not guilty. When the Prosecution closed its case after cross-examination of the prosecution witnesses, the Appellant and the other accused persons separately filed a “no case submission” with written addresses. On the 12th of March 2010 the learned trial judge Williams J. Overruled the “no case submission” and called on all the accused persons to enter their defence to the charges. Thereafter, the 1st – 2nd Accused persons commenced and concluded their cases. The 3rd Accused Person was on the verge of concluding her defence when the Appellant as 4th Accused person filed an application dated 5th April 2012 praying for the nullification of the entire trial proceedings as well as his discharge and acquittal on the grounds that trial in the matter was conducted in his absence on the 17th of July 2008 and also in the absence of the 2nd Accused Person on the 24th February 2012, 3rd March 2011 and 20th May 2008 and the 3rd Accused Person on the 29th January 2009 and 4th March 2009.

The 3rd Accused person filed a similar application seeking similar reliefs to that of the 4th Accused Person. The Prosecution filed counter affidavits in opposition to the applications. The 3rd and 4th accused persons filed reply affidavits. On the 6th of June 2012, the two applications were moved. Learned counsel for the Complainant adopted his written addresses to the respective applications of the 3rd and 4th accused persons while the 3rd and 4th Accused persons adopted their written replies on law. In a reserved Ruling delivered on the 6th of August 2012, Williams J dismissed the two applications and adjourned the case for continuation of trial.

The 4th Accused dissatisfied with the said Ruling has now appealed to this Court by a Notice of Appeal with two (2) grounds of appeal out of which he formulated two issues for determination in his brief as follows:

1. “Whether from the clear and plain mandatory provisions of Section 210 of Criminal Procedure Act, Section 208 of the Administration of Criminal Justice Law of Lagos State 2008 and 2011 and the ratio decidendi in the case of Adeoye v. State (Supra) trial in absentia is permissible in criminal trial proceedings in Nigeria Legal system and jurisprudence (This issue covers ground one of the Notice of Appeal).

2. Whether in Civil or Criminal Proceedings, the right provided by the constitution and Statute can be waived by counsel without the consent, authority and approval of the Persons who have the inalienable right (this issue covers ground two of the Notice of Appeal).”

The 3rd Accused Person also dissatisfied with said Ruling filed a Notice of Appeal with three (3) grounds of appeal. She did not however file a Brief of Argument. Rather she filed a Notice of Intention to align herself with the Appellant’s Brief. By doing so she is deemed to have adopted the Appellant’s Brief of Argument as her own Brief of Argument in support of her Appeal.

The 1st Respondent in his Brief of Argument formulated three (3) issues for determination, namely:

1. “Whether the Learned Trial Judge fully appreciated and applied the provision of Section 208 of the Administration of Criminal Justice Law, 2011 and the Principles of Law enunciated in the appellate court decisions in the cases of Adeoye v. State (1999) 6 NWLR (Pt. 605) 74 and Osayomi v. State (2007) 1 NWLR (Pt. 1015) 352 to the peculiar facts and circumstances of the instant case whilst refusing and dismissing the Appellant’s application, regards having being had to the doctrine of stare decision.

Or Alternatively

Whether the lower Honourable Trial Court was not right when it held that the facts and circumstances upon which the decision in the case of Adeoye v. State (1999) 6 NWLR (Pt. 605) 74 were predicated upon were opposably different from the facts and circumstances of the present case so as to necessitate the same being distinguished and not being applied as had been canvassed by the Appellant in the light of the decision in Osayomi v. State (2007) 1 NWLR (Pt. 1015) 352.

2. Whether learned Trial Judge was not right in holding that the Appellant had in the light of his conduct vis-‘E0-vis his full and continued participation in the trial waived his right so as to now make a U-turn in complaining and challenging the alleged non-observance of the provisions of section 208 of the Administration of Criminal Justice Law 2011 and in the course of its proceedings.

3. What is the nature of the consequential order to be made by a court, should it find and hold that its (trial) proceedings were ab initio a nullity occasioned by its inadvertent failure to effect the observance of the rules of practice and procedure as enshrined in the provisions of Section 208 of the Administration of Criminal Justice Law, 2011 (which said assumption is not herein conceded)?”

The 1st Respondent also filed a Notice of Intention to raise a Preliminary Objection on the ground that:

“The particulars set out in the two grounds of appeal are defective and incompetent as they contain and constitute arguments rather than the prescribed particulars of the nature of the error in law allegedly being challenged and complained against in the Ruling of the lower trial court dated 6th August 2012. They are thus vague and contrary to the provisions of order 6 rules 2 (3) and 3 and the Notice of Appeal should be struck out pursuant to the provisions of order 6 rule 6 respectively of the Court of Appeal Rules 2011”.

Arguments on the Preliminary Objection were incorporated in the Respondent’s Brief of Argument. The Appellant filed a Reply Brief in which he responded to the preliminary objection.

THE PRELIMINARY OBJECTION:

RESPONDENT’S ARGUMENTS:

G. P. West Esq. Principal Legal Officer, Legal Department, the Independent Corrupt Practices and Other Related Offences Commission (ICPC) argued the preliminary objection at pages 5-8 of his brief of argument. He submitted that the Appellant’s Notice of Appeal complaining about the alleged errors of law asserted in the two Grounds of Appeal with their particulars do not conform with the provisions of Order 6 Rule 2 (3) & 3 of the Court of Appeal Rules, 2011. He complained that the two grounds of appeal are not concise and clearly stated; that they are argumentative, unnecessarily tedious and lengthy; that they are legal arguments and thus incompetent and defective in law. Mr. West argued that the use of the word ‘SHALL’ in the provisions of Order 6 rule 2 (3) of the Court of Appeal Rules, 2011 to prohibit the inclusion of legal arguments in grounds of appeal and their particulars signify the mandatory nature of the prohibition. Counsel argued that a breach renders the grounds of appeal defective and incompetent. He submitted that the two issues distilled from the incompetent grounds of appeal are duplicitous and repetitive and consequently bad for duplicity. He urged us to strike out the Notice of Appeal.

APPELLANT’S ARGUMENTS IN REPLY:

In his reply brief learned counsel for the Appellant, Vincent Ikwunne Nwana Esq. submitted that the Notice of Preliminary objection was not supported by any affidavit evidence and as such on the authority of CARNAUD METAL BOX NIG. PLC v. AGWELE (2011) ALL FWLR (Pt. 557) P. 750 all argument proffered thereto must be strictly argued on points of law and any infraction of facts will be discountenanced and liable to be struck out. He urged the court to strike out paragraphs 4.01, 4.02, 4.05, 4.08, 4.09, 4.09 and 4.11 of the 1st Respondent’s brief of Argument dated 25th February, 2013 on the ground that the arguments therein were premised and predicated on pure facts when the Notice of preliminary objection is not supported with any affidavit. Counsel submitted that the sole issue for determination in the preliminary objection is:

“Whether the Notice of Appeal, Grounds of Appeal, issues formulated from the grounds of Appeal and particulars to the two grounds of appeal are defective, incompetent and vague capable of vitiating and striking out the Notice of Appeal as prayed and argued by learned counsel for the 1st Respondent”.

Learned counsel conceded that under the rules of this court, it is permissible for a respondent to incorporate a Notice of preliminary objection into the Respondent’s brief of argument. He argued however, that for the Notice of preliminary objection incorporated into the Respondent’s brief of argument to be competent, leave of the Court is required. Counsel relied on OFORKIRE v. MADUIKE (2003) FWLR (Pt. 147) 1090 @ 1092 and ENE v. ASIKPO (2011) ALL FWLR (Pt. 553) Page 1907 at pages 1970 – 1911 Ratio 2, Learned counsel submitted that the Notice of preliminary objection dated 25-2-2013 not having been supported with affidavit evidence, argued mainly on facts and incorporated into 1st Respondent’s brief of argument without the LEAVE of this court is grossly incompetent, incurably defective and liable to be struck out in limine. Learned counsel further submitted on the authority of Dahuwa v. Adeniran (1986) 4 NWLR (Pt. 34) 264 at 271 and other cases that where leave must be obtained before the doing of an act and such leave is not obtained, the action will be incompetent. On the propriety or otherwise of the Appellant’s grounds of appeal, learned counsel submitted that even if they were not elegantly drafted, that they could not be said to have misled the learned counsel for the 1st Respondent. Relying on Bida v. Abubakar (2011) All FWLR (Pt. 562) ratio 1 of P1653 at 1655, Eleburike v. I Ama (2011) All FWLR (Pt. 591) P. 1473 pages 1477 to 1477, Orah v. Okenwa (2011) All FWLR (Pt. 565) page 357, Omoworare v. Omisore (2011) All FWLR (Pt. 561) P. 1493 pages 1496 – 1497, counsel submitted that this court should avoid upholding the technicalities in construing the Rules of Court and do substantial Justice. He urged the court to resolve the sole issue formulated by the appellant with respect to the 1st Respondent’s Notice of Preliminary Objection in favour of the Appellant and hold that the notice of appeal, grounds of Appeal are competent.

RESOLUTION OF PRELIMINARY OBJECTION:

I have considered carefully the submissions of counsel on the preliminary objection. A preliminary objection may or may not be supported by an affidavit. If the preliminary objection is on law an affidavit is not necessary. If it is on facts, then an affidavit is mandatory. In either case the grounds of the objection must be clearly stated. Order 10 Rule 1 of the Court of Appeal Rules provides:

“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”

See Amah v. Nwankwo (2007) NWLR (Pt. 1049) 552 @ 578 A – C.

The Appellant had prayed us to strike out paragraphs 4.01, 4.02, 4.05, 4.08, 4.09, 4.10 and 4.11 of the 1st Respondent’s brief of Argument on the ground that the arguments therein were premised and predicated on pure facts when the Notice of preliminary objection is not supported with any affidavit. I have looked at the said paragraphs. They are all complaints about the grounds and particulars of the appeal as set out in the Appellant’s notice of appeal. There is no basis whatever for the Appellant’s contention.

Although it is correct to say that leave is required to argue a preliminary objection incorporated in the brief of argument, where a Notice of Preliminary Objection has been filed and the objection was argued in the Respondent’s brief of argument, all that is required is for the Respondent to inform the court at the commencement of hearing of the appeal that he has a preliminary objection and that the argument is incorporated in his brief. The reason for this is that being a preliminary objection, it ought to be heard before the appeal is heard. The importance of this can be appreciated when argument of appeals were oral and not by written briefs. Where the Respondent has a preliminary objection to the hearing of the appeal, he argues it first because if it succeeds, it terminates the appeal subject of course to his having filed notice of the preliminary objection as required by Order 10 rule 1 of the Court of Appeal Rules 2011. Failure to seek leave from the Court where the preliminary objection was argued in the Respondent’s brief only and the appellant argues his appeal first will lead to the preliminary objection being regarded as abandoned. See Equity Bank of Nigeria Ltd v. Halilco (Nig) Ltd (2006) 7 NWLR (Pt. 980) 568. But where notice of the preliminary objection was duly filed as required by the Rules and the objection argued in the Respondent’s brief, failure to seek leave may not necessarily lead to the preliminary objection being regarded as abandoned. Williams v. Ibejiako (2008) 13 NWLR (Pt. 1110) 367 @ 381. In the case at hand, the Respondent filed a Notice of Preliminary objection dated 25/2/13 on 28/2/13. Furthermore, on 5/3/14 when the appeal was heard, Mr. West, Respondent’s counsel informed the court that he had preliminary objection which was argued at pages 5-8 of the Respondent’s brief of argument before the Appellant argued his appeal. This was perfectly in order as the Respondent did all that was expected of him. The objections lack merit and hereby discountenanced.

With respect to the substance of the preliminary objection, it is trite that where a ground of appeal alleges misdirection or error in law, its particulars and nature of the misdirection or error should be clearly stated. A ground of appeal should be concise, distinct and without argument or narrative. A ground of appeal should not be vague. Order 6 rule 2 (2) and rule 3 of the Court of Appeal Rules 2011 contain the relevant provisions.

Order 6 rule 2(2) provides:-

“Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”

Order 6 rule 2 (3) provides:-

“The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”

Order 6 rule 3 provides:-

“Any ground which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence and ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the Respondent.”

There is no doubt that order 6 rules 2 and 3 provide for clarity of grounds of appeal and their particulars. The Court in NRC v. Cudjoe (2008) 10 NWLR (Pt. 1095) 329 @ 341 held that:-

“A good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against can be immediately understood and digested. In other words a good ground of appeal is one its reader would not forget what the main complaint is by the time he finishes reading the particulars. Furthermore, it should also not be too argumentative.”

The court further held in NRC v. Cudjoe supra @ 341-342;

“The essence of a ground of appeal is to let the respondent know the complaint of the appellant against the judgment. While the essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained of in the ground of appeal. It is also in order to quote a portion of the Judgment as long as it is properly linked with the error complained of in the ground appeal.”

The Notice of Appeal in this case in which the grounds and particulars of appeal are set out are on pages 478 – 481 of the Record of Appeal. They may be a bit prolix and could have been more elegantly drafted. But after reading them, one cannot claim to be in doubt as to what the Appellant’s complaints are. I agree with learned counsel for the Appellant that from a critical examination of the Rules of Court as set out above, the Notice of Appeal with the two grounds of appeal and their particulars, there is no basis whatever for the complaint of the 1st Respondent. The grouse of the Appellant is clear enough. In BIDA v. ABUBAKAR (2011) ALL FWLR (Pt. 562) 1653 @ 1655, on the impropriety of court striking out grounds of appeal for being inelegantly drafted it was held inter alia:-

“Where the substantive grounds of appeal filed by an appellant contains enough information about the complaint of the appellant, the grounds would not be described as vague or liable to be struck out simply because the particulars in support of the grounds of appeal are inelegantly drafted.
(S.C.O.A. (Nig.) Plc v. Mohammed (2004) 4 NWLR (Pt. 862) 20 referred to P. 1689 D-E)”

It would be a clear case of undue adherence to technicality and absolutely unjust to declare the grounds incompetent. I hold that the appellant’s Notice of Appeal filed on 8th of August 2012 is competent; the grounds of appeal therein are not vague. They substantially show the complaint of the appellant against the decision of the lower court. The Notice of Preliminary Objection is hereby dismissed.

THE APPEAL:

The Appellants two issues are more or less the same as the Respondent’s issues 1 & 2. I shall therefore adopt the two issues in the determination of this appeal. The Appellant complained about the 1st Respondent’s issue 3. That will be dealt with later.

ISSUES 1 & 2:

1. Whether from the clear and plain mandatory provisions of Section 210 of Criminal Procedure Act, Section 208 of the Administration of Criminal Justice Law of Lagos State 2008 and 2011 and the ratio decidendi in the case of Adeoye v. State (Supra) trial in absentia is permissible in criminal trial proceedings in Nigeria Legal system and jurisprudence (This issue covers ground one of the Notice of Appeal).

APPELLANT’S ARGUMENTS

The Appellant in his brief argued the two issues together. Learned counsel’s contention in brief is that by the provisions of Section 210 of Criminal Procedure Act (CPA) and Section 208 of Administration of Criminal Justice Law (ACJL) 2007 and 2011 and on the authority of the Supreme Court case of Adeoye v. State (1999) 4 SC (Pt. 11) 67 criminal trials in Nigeria cannot be conducted in the absence of an accused person; that the criminal trial proceedings held on diverse dates in the absence of the Appellant, the 3rd and 4th Respondents are in breach of the laws and renders the proceedings a nullity. Learned counsel cited and relied on the cases of Alintan v. FRN (2008) All FWRL (Pt. 436) 1999, Chief of Air Staff v. Iyen (2005) All FWLR (Part 255) 1187. Counsel further contended that the consent and approval given by the Court, the prosecution and all Defence Counsel to conduct a joint criminal trial in the absence of some of the accused persons contrary to the mandatory provisions of the laws is a nullity and void. He argued that by virtue of the said laws, that accused persons must be present in court throughout the trial proceedings except as excused under sections 100 and 223 of the CPA and section 217 of the ACJL 2007 and 2011. Learned counsel submitted that in the case of Adeoye v. State (Supra) where the appellant was also tried in absentia, the Supreme Court discharged and acquitted the Appellant. He submitted that the case is binding on all lower courts by virtue of the doctrine of judicial precedent or stare decisis. Learned counsel submitted that from the records of proceedings of the Lower Court that it is not in contention that the trial proceedings of 24th February 2012, 3rd March 2012, 29th January 2009 and 17th July, 2008 were conducted in the absence of the 3rd and 4th Respondents and the Appellant. He submitted that the trial In absentia conducted by the Lower Court on the above said dates is not a mere irregularity but a nullity that would vitiate the entire proceedings and render the trial a nullity. Counsel further submitted that the exceptions provided in section 100 and 223 of the CPA and section 217 of the ACJL were never invoked to trigger the conduct of trial in absentia by the lower Court. Finally learned counsel urged us to resolve issues 1 and 2 in favour of the Appellant by nullifying the entire proceedings of the learned trial court, discharging and acquitting the Appellant on the authority of Adeoye v. State supra.

1st RESPONDENT’S ARGUMENT

Learned counsel also argued the issues together. He submitted that the learned trial judge fully appreciated and properly applied the principles of the Supreme Court’s decision in the case of Adeoye v. State (1999) 6 NWLR (Pt. 605) 74 to the peculiar facts and circumstances of the Appellant’s case having regard to the doctrine of stare decisis. Learned counsel highlighted the salient points in the case of Adeoye v. State supra and then went on to distinguish same from the present case. He submitted that Adeoye v. State is good law but argued that the principles therein are not applicable to the facts of the present appeal.

Counsel submitted that the principle of stare decisis, cannot be extended to an issue not decided by the superior court taking into cognizance the facts and circumstances in the earlier decision constituting the binding authority and the facts and circumstances present in the case to which the court is being invited to apply the precedent. Counsel relying on the case of Adiza v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, 117 submitted that when a Lower Court finds that the facts of the two cases are different or the principle of law to be applied are not the same, the inferior court may not follow the decision of the superior court and as necessary shall refuse to follow it. He also cited the cases of Ikharaiale v. Okoh (2009) 12 NWLR (Pt. 1154) 136, Ndidi v. State (2005) 4 QCCRI; 11-72. Counsel submitted that the facts of the case of Adeoye v. State are not on all fours with the facts of the present case. He submitted that in as much as the question in Adeoye v. State was the propriety of trial proceedings in the absence of the accused person, that the Supreme Court in Adeoye’s case looked at it in the light of the fact that the Appellant (Adeoye) was being held in “remand custody” and that no reasonable and/or lawful explanation was proffered for the absence of the accused during his trial. He submitted that unlike Adeoye’s case that the accused persons in the instant case were all on bail but chose not to appear in court on those fateful dates. That unlike Adeoye’s case, reasonable and satisfactory explanations had been offered to the Lower Court, thus necessitating the continuance of the trial in the absence of the Respondents (the Appellant inclusive). That the procedure was consensually agreed upon by Counsel to the parties and that there is no incidence of miscarriage of Justice to the detriment of any of the Respondents and the Appellant, Counsel cited and relied on the Supreme court case of Adiza v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, 117 and the case of Osayomi v. State (2007) 1 NWLR (Pt. 1015) 352 and submitted that the facts and circumstances of Adeoye v. State and similar cases cited by the Appellant are different from those of the present case and as such Adeoye v. State is an inapplicable binding precedent in this instance.

Counsel further submitted that the Appellant cannot complain of the absence of another accused person during trial. He submitted that section 208 of the ACJL did not only provide for exceptions to that section in the example of persons who misconduct themselves by interrupting proceedings but it also contemplated persons other than those mentioned in the exception by the proviso “or otherwise as to render his presence impracticable” in s.208 of the ACJL 2007 and 2011.

Relying on Okon v. Ekanem (2002) 15 NWLR (Pt. 789) 106 at 133, Counsel submitted that the learned trial Judge exercised its discretionary powers judicially and judiciously in compliance with the statutory exceptions aptly provided for in the provisions of section 208 of the Administration of Criminal Justice law 2011.
Counsel further submitted that the Appellant’s counsel did not raise any objections about the Lower Court’s purported non-compliance with the mandatory provisions of section 208 of the ACJL. He also argued that the Appellant did not show what prejudice, embarrassment or miscarriage of Justice either he or any one of the other Respondents had suffered because of the alleged non-compliance. That it is an after-thought for the Appellant to have raised same at the time he did.
Counsel contended that the Appellant consented to and enjoyed the benefits accruing from the adoption of a particular procedure and cannot now be heard to complain afterwards that the procedure was irregular. He cited the case of Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. He urged this court to so hold.

On the 1st Respondent’s issue 3, learned counsel submitted that in the unlikely event of this court resolving issues 1 & 2 in favour of the Appellant, that the appropriate consequential order to be made should be an order directing the rehearing or the retrial de novo of all the Respondents inclusive of the Appellant, but not an order of discharge and acquittal. Citing the case of Omoteloye v. State (1989) 1 CLRN 142, 157, counsel submitted that declaring the entire proceedings a nullity means that the Appellant and the Respondents were never tried and as such an order of discharge and acquittal should not follow but an order to commence proceedings de novo. Also relying on the case of Kajubo v. State (1988) 1 NWLR (Pt. 73) 721, 733-734, counsel submitted that should the court agree with the Appellant, in view of the circumstances of the case, evidence taken and in the interest of Justice, that a fresh trial should be ordered for the Appellant and the Respondents. Counsel finally submitted that the objection being raised by the Appellant on the trial in absentia conducted by the Lower Court is a technical point to defeat the purpose of justice and should not be allowed by this court. He urged the court to dismiss the Appeal.

APPELLANT’S REPLY

In reply to the 1st Respondent’s argument on the substantive appeal, learned counsel submitted that the argument of the 1st Respondent’s counsel is premised and predicated on sympathy and sentiment aimed at attacking the integrity and personality of the Appellant. He submitted that the 1st Respondent formulated three issues for determination from the two grounds of appeal without indicating from which of the 2 grounds of appeal the 3 issues were distilled from. Counsel conceded that issues 1 and 2 formulated by the 1st Respondent are related and distilled from grounds 1 and 2 of the Notice of Appeal. He contended that issue 3 is not distilled from any of the grounds of appeal filed by the Appellant. Relying on the cases of Ajayi v. Olowu (2011) All FWLR (Pt. 596) P. 558; Odunukwe v. Ofomata (2011) All FWLR (Pt. 568) P. 827; Idris v. Abubakar (2011) All FWLR (Pt. 557) P. 733; Onya v. Ogbuji (2011) All FWLR (Pt. 556) P. 493; A.P.G.A. v. Umeh (2011) All FWLR (Pt. 577) page 625 and many other cases to buttress his argument counsel urged us to strike out issue no. 3 as not arising from the grounds of appeal.

After the hearing of the appeal and the adoption of the respective briefs of argument by learned Counsel on both sides, learned Counsel for the appellant forwarded to this court additional list of authority, State v. Lawal (2013) ALL FWLR (Pt. 679) P.1024 RATIO 2 @ PAGES 1026 – 1027 SC to the effect that;

“A trial whether objected to or not in the absence of an accused person is a sham which renders the purported trial a nullity…”

This additional authority was also made available to learned counsel for all the respondents. There was no reply or joinder by any of the respondents to the additional authority.

RESOLUTION

ISSUE 1:

The starting point in the resolution of this appeal is to reproduce the provisions of the Statutes in contention. Section 210 of the CPA provides:-

“Every accused person shall subject to the provisions of section 100 and of sub-section (2) of section 223 be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”

Section 208 of ACJL provides:-

“Every defendant shall subject to section 217 be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render his presence impracticable.”

The relevant portion of the ratio decidendi in the case of Adeoye v. State is reproduced below:-

“It is not part of our criminal jurisprudence to try a defendant in absentia. Section 210 of the Criminal Procedure Act requires a defendant to be present throughout his trial except in two cases provided for in section 100 and 223 of the Act. There are similar provisions in the state laws. As this case was tried in the High Court of Lagos State, it is the Criminal Procedure law of that state that applies. Now section 210 of that law provides;
“210. Every accused person shall subject to the provisions of section 100 and of sub-section (2) of section 223 be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”

From the above provisions of the CPA, ACJL and the case of Adeoye v. State supra, the law is that every accused person shall be present in court during the whole of his trial unless his absence could be dispensed with as provided for under section 100 and 223(2) of the CPA, 217 of the ACJL and the proviso to sections 210 of the CPA and 208 of the ACJL 2007 and 2011.

The crux of issue 1 as formulated by the appellant and 1st respondent respectively and in fact the gravamen of this appeal is on the applicability of the aforementioned provisions of sections 210 of the CPA and 208 of the ACJL to the facts and circumstances of this case. Learned counsel for the appellant urged this court to follow the decision in Adeoye v. State supra and nullify the entire trial proceedings of the lower court and make an order discharging and acquitting the appellant, while the learned counsel for the 1st respondent is urging this court to uphold the judgment of the lower court distinguishing the case of Adeoye v. State supra.

“It is a well established principle of stare decisis that the ratio of a case is embedded in the facts of the case. The ratio of a case is therefore not determined in vacuum or in vacuo outside the facts of a case. It is this very established principle of law that gives rise to the daily practice of courts of law of distinguishing two cases in a matter before them. The rules of stare decisis definitely do not allow courts of law in any common law jurisdiction ……to apply ratio decidendi of a case, across the board and with little or no regard to the facts of the case before them, That will be giving not only a wide but also a wild application to the well entrenched principles of stare decisis in the common law system of judicial precedent.”
The principle of distinguishing a case allows the court to do justice to each case based on the facts and circumstances of the case before the court. As opined by Rhodes-Vivour, JSC in Emeka v. Okadigbo (2012) LPELR-9338(SC), “Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow Courts to apply the ratio of a case across the board and with little regard to the case before them. At all times, judicial precedent and stare decisis must be applied in the light of the present features of each case.”

As to whether the facts and circumstances of this case are the same with the facts of Adeoye v. State, the lower court held:

“Both applicants rely heavily on the case of Adeoye v. State for the interpretation of section 210 of the Criminal Procedure Law and section 208 of the Administration of Criminal Justice Act. But the facts of that case differ greatly from this one. In that case, the trial of the appellant had commenced on 17th February 1994 when two witnesses gave evidence for the prosecution in his presence. Further trial was adjourned to 10th march 1994. Two witnesses gave evidence that day in the absence of the appellant. In his appeal he contended that the trial offended section 210 of the Criminal Procedure Act and was consequently a nullity. He urged the Court of Appeal to declare the trial void. On further appeal to the Supreme Court it was held that it is not part of our criminal jurisprudence to try a defendant in absentia; that section 210 of the Criminal Procedure Act requires a defendant to be present throughout his trial except in two cases provided for in sections 100 and 223 of the Act and that section 210 being mandatory, a breach of it renders the trial a nullity. The Supreme Court found it worthy of note that:

“It is not suggested that the appellant misconducted himself by interrupting the proceedings or otherwise on 10/3/94; he was just not produced in court. It must be borne in mind that he was at all times relevant to the trial in prison custody.”

In Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129, the Supreme Court warned that since the radical and primary role of courts is to do justice in the atmosphere of fairness, counsel should note that justice and fairness both demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different. Unfortunately, that warning is still not being heeded by counsel so many years after. I firmly believe that the fact that the 3rd and 4th defendants are not in custody is a very pertinent one. They are both on bail and chose not to come to court on the said dates while their counsel conducted trial on their behalf. The said case must also be distinguished from this one on the basis that there are more than one defendant on trial in this suit as rightly admitted by learned counsel.
Another pertinent fact, which is fatal to this application, is that the applicants have not shown how they are prejudiced by their absence on the two days in question”

I agree with the reasoning of the trial Judge that the present case is distinguishable from Adeoye v The State. In Adeoye v. State, the accused/appellant was in “remand custody” when the trial court proceeded to hear the testimonies of two vital witnesses one of whose eye witness account was the basis upon which his conviction and sentencing to death for the heinous offence of murder was predicated, while in this case, the appellant was on bail at all material times during the trial but did not present himself in court. In Adeoye v. State, no reasonable or lawful explanation was proffered for the absence of the accused/appellant during trial, while in the present case the absence of the accused was reasonably and satisfactorily explained to the lower Court thus necessitating the continuance of the trial in the absence of the accused/appellant alongside other respondents.

In Adeoye v. State, there was no consensual agreement of parties and/or counsel that trial should proceed in the absence of the accused/appellant while in the present case, there had been a consensual agreement by the prosecution and defence counsel that trial should go on in the absence of the appellant and the other respondent. I will come back to the issue of waiver later in this judgment.

Section 210 of the CPA and section 208 of the ACJL are not automatic in their application. In other words their application is not such that once an accused is said to have been tried in absentia, then the proceedings are automatically nullities. Even the sections themselves created some exceptions and the sections must be interpreted in the light of the facts and circumstances of each case. Courts are constituted for the purpose of doing substantial justice between the parties and in so doing, rules of court must always be interpreted to achieve that purpose. For the principle of stare decisis to apply, the facts of the case have to be identical to the facts of the earlier decided case. Where the facts are not identical or similar, the lower court is not bound by the earlier judgment of the superior court. I am not unmindful of the case of State v. Lawal (2013) ALL FWLR (Pt. 679) p.1024 RATIO 2 @ PAGES 1026 – 1027 SC the authority forwarded to us by learned counsel for the Appellant after the hearing of the appeal. It is reported in Law Pavilion as RE: LAWAL (2013) LPELR-19981(SC). There, Mahmud Mohammed, JSC who delivered the lead judgment held:

“It has to be stressed that it is an essential principle of our criminal law and practice in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused and for such purpose trial means the whole of the proceedings including the judgment and sentence. The only exception is where the violent tendencies of an accused person may necessitate the keeping him out of Court in the interest of public safety for peaceful conduct of the trial.”

While I note that the above case was also a joint trial, the circumstances giving rise to the absence of the appellant in court when judgment was being delivered were not disclosed. I am sure the situation could not have been the same as the instant case. Failure of appellant’s counsel to object to continuation of trial in the absence of the appellant as happened in Re Lawal is a totally different matter from the Instant case where the appellant opted not to be present in court with the full intention as communicated to the court by his counsel that hearing should continue in his absence. It is clearly unconscionable to allow the appellant benefit from an anomaly he created. Besides, there are two exceptions to the Rule. Firstly where the accused misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. Secondly where the accused is insane. The first exception is not confined to only situations where the accused misconducts himself by interrupting the proceedings. The phrase “or otherwise” covers a situation where the accused takes any other action that renders the continuance of the proceedings in his presence impracticable. Here, the appellant wrote absenting himself from the day’s hearing. His counsel did not ask for adjournment. On the contrary he wanted the proceedings to continue. The appellant misconducted himself by asking unjustifiably to be excused from attending the day’s hearing.

The learned trial Judge was satisfied after scrutinizing the medical report that the appellant’s state of health was not such as should have stopped him from being present in court. The appellant therefore by his own action rendered the continuance of hearing in his presence impracticable. That was not the situation in Adeoye v. The State. The present appeal therefore came within the exception. Even the 1st Respondent who initially thought the case should not continue in the absence of the appellant recanted when his attention was drawn to Section 260 of the Administration of Criminal Justice Law 2007 which has now been re-enacted as section 256 of the Administration of Criminal Justice Law 2011. It provides:

“Nothing shall prevent any person in custody or awaiting trial at the opening of or during any sessions from being tried if he had been served with a copy of the information and notice of trial not less than three days before the date on which he is to be tried:

Provided that such last mentioned period of three days shall be reduced to a shorter period if such person shall express his consent and no special objection be made on the part of the State.”

The appellant was in Court on the last date preceding the hearing date of 17/7/2008 when he was absent. If an accused who is in custody or awaiting trial could be tried in accordance with S.260 of the ACJL 2007, nothing precludes the court from applying the provision to an accused person who is on bail. After all in F.R.N. Uwagba (2009) 15 NWLR (Pt. 1163) 91, the Supreme Court upheld a judgment given in the absence of the defendant by a failed bank tribunal because by virtue of the provisions of section 27(1) and (2) of the failed Banks (Recovery of debts) and Financial Malpractices in Banks Act, a person charged under the Act can be tried and convicted in absentia by the tribunal. The Supreme Court applied the express provision of the law notwithstanding earlier decisions that the accused must be present in court throughout his trial. Section 256 of the Administration of Criminal Justice Law 2011 has now made it possible for an accused to be tried in absentia. It is all well and good. Such provisions are intended to do away with unnecessary pranks and undue delay in the hearing of criminal matters. Such provisions are good for the country; particularly with the increasing effort to prosecute rich offenders. They employ every conceivable tactic to delay the hearing of a case to the point when witnesses are no longer available or change their minds about testifying to the utter frustration of the prosecution. Many good cases have been brought to nothing by this practice. From the clear and plain provisions of Section 210 of Criminal Procedure Act, Section 208 of the Administration of Criminal Justice Law of Lagos State 2008 and 2011 and the ratio decidendi in the case of Adeoye v. State (Supra) trial in absentia is permissible in criminal trials where the exceptions apply and where there is a provision of the law allowing trial in absentia. The present case come within the exception and is also covered by section 256 of the Administration of Criminal Justice Law 2011. Issue 1 is consequently answered in the affirmative and against the appellant.

ISSUE NO. 2:

“Whether in civil or criminal proceedings, the right provided by the constitution and statute can be waived by counsel without the consent, authority and approval of the persons who has the inalienable right.”

“Whether the learned trial judge was not right in holding that the appellant had in the light of his conduct vis-a-vis his full and continued participation in the trial waived his rights so as to now make a u-turn in complaining and challenging the alleged non-observance of the provisions of s.208 of the Administration of Criminal Justice Law 2011 in the course of proceedings?”
It is not in doubt that the right provided by the constitution and statute can be waived. The complaint of learned counsel for the appellant seem to be that the consent, authority and approval of the appellant must be obtained before his counsel can waive his right to be present in court during trial and that there was no such consent, approval or authority in the instant case. The law is that counsel who has been briefed and has accepted the brief and has also indicated to the court that he has instructions to conduct a case has full control of the case. The assumption is that he has the full mandate of his client to conduct the case in the manner he deems proper so far as he is not in fraud of his client. He can even compromise the case. He can submit to judgment and sometimes he could filibuster if he considers it necessary for the conduct of his case. The only option open to the client is to withdraw his instructions from the counsel or, if the counsel was negligent, sue in tort for professional negligence. See NEN LTD. v. ASIOGU (2008) 14 NWLR (Pt. 1108) 582 @ 587; M.G.M. LTD v. N.S.P. LTD (1987) 2 NWLR (Pt. 55) 110. It was also held in U.O.C.B.N Ltd v. Okonkwo (2009) 5 NWLR (Pt. 1134) 401, @ 408 that once counsel is briefed, he is clothed with some apparent authority and he can in the course of performing his professional duties commit his client. Parties are bound by the records of the court. An appellate court is bound by the record of proceedings before it or of the lower court leading to the appeal and cannot depart from it on ipsi dixit of counsel or on speculation. See Olaniyan v. Oyewole (2008) 5 NWLR (Pt. 1079) 114 @ 128. It is pertinent at this point to reproduce the trial court’s record of proceedings of what transpired in court on 17/7/08, the date trial was conducted in the absence of the appellant.

“1st, 2nd and 3rd accused persons present, 4th and 5th accused persons absent.
G. P. West appears for the FRN
Lanre Ogunlesi appears for the 1st accused person with P. Chaka-Nweze (Mrs.).
F. Adetokun Yusuf appears with Segun Bello and Miss Bidemi Yusuf for the 2nd accused person.
Sola Abiadakun appears with Theresa Ngise and Ikenga A. for the 3rd and 5th accused persons.
V. I. P. Nwana appears with D. C. Okonkwo for the 4th accused persons.
Nwana: I have been informed by the wife of the 4th accused that he has been admitted in hospital. I have a medical report to that effect and I wish to pass it to the court.
Court: Yes, I see the letter dated 16/07/08 in which it is stated that the 4th accused was taken to the casualty dept on 10th July 2008 and that he has responded remarkably to the medication he was placed on.
M. O. Abioye S.S.C. holds watching brief for the Federal Inland Revenue Service.
Court: Ruling read. The letter dated 18/07/07 is admitted in evidence and marked Exhibit P2.
Stood down; recalled at 11:30am
Same appearances.
Examination in Chief of PW1 by West continues. The witness is reminded of his oath and states in English:-
West: I believe that we cannot go on because of the absence of the 4th accused as this is a joint trial.
Nwana: we can go on in spite of the absence of the accused person.
Court: I have read the letter submitted by the counsel for the 4th accused. The 4th accused was in court yesterday. His plea has been taken and he is represented by counsel. The letter written by Isolo
General Hospital does not indicate to me that there is any emergency necessitating the absence of the accused person. In the circumstances, I firmly believed that this trial ought to continue this morning.
West: My attention has been drawn to S.206 of the Criminal Justice Administration Law 2007 and I do agree that we can go on with trial.”

I have earlier set out and dealt with the provision of S.260 of the ACJL 2007. In view of the proceeding of 17/7/2008 particularly the categorical statement of learned counsel for the appellant Mr. V. I. P. Nwana “we can go on in spite of the absence of the accused person.” I am of the view that the learned counsel who was clothed with authority to conduct the case of the appellant consented without any objection to the continuance of trial even more so after the absence of his client was satisfactorily explained to the court and the court judicially and judiciously considered same. The submission of learned counsel for the appellant in the introductory paragraph of his brief of argument that the circumstances surrounding the proceedings of 17/07/2008 in court and his fear that if he objects to the continuance of trial that the trial court may revoke the appellant’s bail is clearly an after thought and of no consequence as no such situation is reflected in the records reproduced above. The court is bound by the records. It is the duty of counsel to bring to the attention of the trial court any wrong procedure which might affect his client’s interests. See Shekse v. Plankshak (2008) 15 NWLR (Pt. 1109) 105 @ 109.A party who takes steps in the proceedings even with the knowledge of the alleged irregularity must be taken as having waived his rights. I hold that learned counsel’s consent to the trial in absentia is binding on the appellant and he has thereby waived his right to complain thereafter. Issue 2 is answered in the affirmative against the appellant.

ISSUE 3:

“What is the nature of the consequential order to be made by a court should it find and hold that its (trial) proceedings were ab initio a nullity occasioned by its inadvertent failure to effect the observance of the rules of practice and procedure as enshrined in the provisions of section 208 of the Administration of Criminal Justice Law, 2011 (which said assumption is not herein conceded)?”

Learned counsel for the appellant had argued that this issue formulated by the 1st Respondent was not distilled from the grounds of appeal filed in the Notice of Appeal and as such should be discountenanced and struck out.

The question however is whether issue no. 3 is really an issue as such. Learned counsel should have simply made the submissions at the end of his arguments on issues 1 & 2 as a consequential order that should follow the decision of the court. Having formulated and argued the point as an issue, it does not arise from any of the two grounds of appeal in the appellant’s notice of appeal. I therefore agree with learned counsel for the appellant that issue no.3 is not distilled from the grounds of appeal raised in the Notice of Appeal before this Court. The issue is hereby struck out.

In the final result, having resolved issues 1 and 2 formulated by both parties against the Appellant and in favour of the 1st respondent, I hold that this appeal lacks merit. It is hereby dismissed. The ruling of Williams J. of the High Court of Lagos in the Lagos Judicial Division in Charge No. LCD/17/2008 delivered on the 6th day of August, 2012 is hereby affirmed. I make no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: Mr. Nwana leading Mr. Okonkwo for the appellant at the court below informed the court below that in spite of the absence of his client at the trial of the case, due to his hospitalization, he was prepared to proceed with the case in the absence of his client, even when learned counsel for the respondent Mr. West, had indicated that the case should not proceed on account of the absence of the appellant.

In the instant case, although Mr. West for the respondent observed at the court below the inappropriateness of the absence of the appellant at the trial, the appellant’s learned counsel took the position that the absence of his client should not stall the proceedings, which the court below obliged him.

Quite apart from the doctrine of waiver (approbation and reprobation) catching up with the appellant in the scenario stated above, is trite that a defendant represented by counsel throughout the trial cannot be heard to complain that non-compliance with provisions of the Criminal Procedure Law inserted for the benefit of defendant and acquiesced in by counsel representing the defendant at the trial vitiated his trial.
Circumstances under which the absence of a defendant at his trial at the court of trial may or may not be necessary were stated in the Supreme Court case of Duru v. Federal Republic of Nigeria (FRN) (2013) 28 WRN (vol. 28) page 1 at page 18 or (2013) 6 NWLR (Pt. 1351) 441 at 460, per the judgment of His Lordship Ibrahim Tanko Muhammed, J.S.C., thus –

“My Lords, I think even before the commencement of the Constitution, it had been the practice in the courts, for quite long, in holding that it is not a legal requirement, and is therefore unnecessary, that a party to a matter before a court must be present in court once he is legally represented and his counsel conduct his case in his absence. However, when the matter is one in which the party will be required to give evidence or say to do something which his counsel cannot legally do (like taking plea to the charge; address and delivery of judgment (State v. Lawal (2013) All FWLR (Pt. 679) 1024); violent or uncontrollable behavior arising from lunacy) then his presence in court becomes necessary.”

At the stage the appellant was absent at the court below, the case had to do with the examination-in-chief of prosecution witness and subsequent cross-examination of the witness which was the responsibility of the appellant’s learned counsel to see to it that the examination-in-chief of the witness was done within permissible ambit of the law on practice and procedure in such matters; and, also, the appellant’s counsel was to decide on the questions to ask under cross-examination.
The presence of the appellant at the court below was therefore not mandatory at the material time as he had no role to play in the conduct of the case at the court below at that point in time. See Okaroh v. State (1990) 1 SCNJ 124 at 132 where the complaint of the appellant that his absence at his criminal trial where a witness gave evidence and tendered some Exhibits in the presence of his counsel occasioned miscarriage of justice was rejected by the Supreme Court in the lead words of Nnaemeka-Agu, J.S.C., (of blessed memory) thus –

“Moreover, the tendering of these Exhibits and the rules applicable thereto are matters which are purely technical in nature and therefore within the responsibility of counsel, who was present.

In practice, even if the appellant was present, there was scarcely any part he could have played. As his counsel was present and neither objected nor even cross-examined on the exhibits when tendered… one wonders what injustice their being tendered had occasioned to the appellant.”

Lawal v. State (supra) is thus distinguishable on the facts from the present case.
In the final result, I agree with the painstaking judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., which I had the privilege of reading in draft, that the appeal is unmeritorious. I too would dismiss the appeal and abide by the consequential order(s) contained in the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had a preview of the Lead judgment just delivered by my learned brother, C. E. Iyizoba, JCA.
I agree with the reasoning and conclusion contained therein. I also hold that the appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the Lead judgment including that of costs.

Appearances

V. I. P. Nwana Esq. with Bosede Makinde (Miss),
A. U. Onyeagwu (Mrs.) and M. Agoro (Miss) – AppellantFor Appellant

AND

G. P. West (Principal Legal Officer ICPC Abuja) – 1st Respondent
O. E. Nnamani (Ms) holding the brief of Taiwo Taiwo Esq. – 2nd Respondent
Razaq Okesiji Esq. – 3rd and 4th Respondents
Kasiemobi Ugwu (Mrs.) – 5th RespondentFor Respondent

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