NNODUM v. STATE (2020)

NNODUM v. STATE

(2020)LCN/14245(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/AW/7C/2019

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

NNAMDI NNODUM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT DENIAL OF FAIR HEARING RESULTS IN THE MISCARRIAGE OF JUSTICE

In NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) PG 481 it was held that fair hearing includes a proper consideration and determination of the issues canvassed by parties before the Court. A Court cannot consider the issues canvassed without hearing parties, so, where a Court, without hearing parties, proceeds to consider the issues in a matter and delivers Judgment, it is clear that the parties were denied fair hearing.
Section 36(1) of the 1999 Constitution (As amended) confers on every citizen with a grievance the right of access to the Court. It also makes it obligatory on the Court that will determine the rights of the person to accord him a fair Hearing. Denial of Fair hearing results in miscarriage of Justice which occurs when the Court fails or refuses to follow the rules and arrives at a decision which is prejudicial and inconsistent with the legal rights of a party. See IBHADE (NIG.) LTD. V. AKWARI (2015) 13 NWLR (PT.1477) 513. PER NWOSU-IHEME, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE ISSUES FOR PARTIES TO AN ACTION SUO MOTU

Despite the provisions of Section 272 of the Administration of Criminal Justice Law 2010, the Supreme Court has in recent cases after the enactment of the said Administration of Criminal Justice Law 2010 insisted that Courts are enjoined not to raise issues suo motu and if issues are raised suo motu by the Court, then the Court must invite parties and counsel to address it on those issues before making findings on those issues and using them in arriving at a decision or using them in writing its Judgment. See C. D. ONONUJU V. THE STATE (2014) 8 NWLR (PT. 1409) 345 – 436.
I am aware that a Court can amend a defective charge, such can either be on the Court’s initiative or with the leave of Court. See Sections 268 and 269 of the Administration of Criminal Justice Law of Anambra State 2010.
Section 268 provides thus:
“Where any person is arraigned for trial on an imperfect or erroneous change, the Court may permit or add to or otherwise alter the original charge”.
Section 269 provides:
“Any Court may permit any alteration or addition to any charge at any time before Judgment is given or verdict returned and every such alteration or addition shall be read and explained to the Defendant”. It is therefore clear that the law at every stage of trial in a criminal case, gives the trial Judge the power to make alteration, or additions but in such circumstance, the amendment or additions shall be read and explained to the accused person. See OGUDO V. STATE (2011) 18 NWLR (PT. 1278) PG 1. Failure to adhere to this procedure would render the whole proceedings a nullity. PER NWOSU-IHEME, J.C.A.

WHETHER OR NOT A BREACH OF CONSTITUTIONAL RIGHT OF FAIR HEARING IN A TRIAL NULLIFIES SUCH TRIAL

A breach of the Constitutional right of fair hearing in any trial or investigation nullifies such trial or investigation and the decision taken therein is also a nullity. The breach of the right of fair hearing in any proceeding vitiates the entire proceedings. The proper order of Court where there is a breach of the right to Fair Hearing in any trial is an order of re-trial. See UDENSI V. ODUSOTE (2003) 6 NWLR (PT. 817) PG. 545. PER NWOSU-IHEME, J.C.A.

WHETHER OR NOT A JUDGEMENT OBTAINED AGAINST THE PRINCIPLE OF FAIR HEARING IS A NULLITY

A Judgment obtained against the principle of fair hearing, no matter how well conducted, written and delivered with eloquence, is a nullity. See KOTOYE V. SARAKI (1994) 7 NWLR (PT. 357) PG. 414. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal appeal was arraigned before the Onitsha Division of the High Court of Anambra State presided over by A. O. Okuma, J, on an information of a one count charge of kidnapping contrary to Section 316 (2) (b) of the Criminal Code Cap 36 vol. 2 Revised Laws of Anambra State 1991 as amended by the Criminal Code (amendment) Law 2009.

The learned trial Judge in his judgment delivered on the 12th of June, 2017, convicted the Appellant on the one count of kidnapping and sentenced him to death. This appeal is predicated on the said Judgment.

SUMMARY OF FACTS:
The Appellant who was the 1st defendant and one Nnamdi Boniface who was the 2nd defendant at the trial Court on the 23rd of January, 2011 at No. 1 Ridge Road G.R.A. Onitsha kidnapped one Mrs. Grace Odimegwu and demanded for the sum of Three Million Naira as ransom for her release. Hearing commenced and the Respondent called two witnesses while the Appellant and his co-defendant testified in person and called no witness. Exhibits B and C were tendered by the Respondent after trial within trial.

The victim Mrs. Grace Odimegwu and mother of Pw1, Mr. Ikenna Odimegwu was kidnapped at the junction of Holy Trinity Catholic Church, Onitsha as she was returning from church. The victim was held for two days following her kidnap on 23/1/2011 and ransom to the tune of Three Million Naira was demanded and paid before she was released.

Pw1 Ikenna Odimegwu was said to have been informed by a caller who told him that it was the Appellant who masterminded the kidnap. Later on, the said Appellant was arrested. His arrest led to the arrest of his co-defendant at the trial Court. Others said to be involved in the commission of the offence of kidnapping remained at large.

In his defence, the Appellant denied taking part in the kidnapping of Mrs. Grace Odimegwu. He claimed to be a trader who trades on Engine oil and Gas at Asaba toll gate. He said he was arrested in his shop. He denied taking part in the kidnap and maintained that he did not get any share of the ransom paid by the victim.

In a considered Judgment, the learned trial Judge was unimpressed with the defence of the Appellant and was rather swayed by the version of the Respondent. He found the

Appellant guilty of the offence of kidnapping and consequently sentenced him to death by hanging. Aggrieved by that Judgment and exercising his Constitutional right of appeal, the Appellant filed his Notice of Appeal on the 17/7/2018 to challenge the said Judgment.

Learned Counsel for the Appellant J. O. Onwujekwe Esq distilled three issues for determination thus:
1. “Whether the Appellant’s right to fair hearing was not breached by the amendment effected suo motu by the trial Court without calling on Appellant’s Counsel to address the Court on same before delivering Judgment on 12/6/2017.
2. Whether the trial Court had jurisdiction, the whole trial being a nullity, fresh plea not having been extracted from the Appellant after the trial Court suo motu amended the charge/information No. 0/61c/2012.
3. Whether the prosecution successfully proved the case against the Appellant as required by law”.

Learned Counsel for the Respondent C. V. Ekwerekwu Esq on his part distilled two issues for determination as follows:
1. “Whether the conviction and sentence of the Appellant is proper in law and

not in breach of the Appellant’s Constitutional right of fair hearing.
2. Whether the prosecution successfully proved the case against the Appellant as required by Law”.

Learned Counsel for the Appellant submitted in summary, that the learned trial Judge over stepped his bounds when in delivering the Judgment, he suo motu raised the issue of the Appellant being charged under the wrong section of the law and treated the said Section 316(2) (b) of the Criminal Code as being on the pedestal of Section 315(2) (c) of the Criminal Code (amendment) Law of Anambra State 2009 suo motu on his own volition without giving the Appellant the opportunity to take a fresh plea or comment on same and thereby denying him the right to fair hearing.
Counsel submitted that a breach of fair hearing in any trial nullifies such trial and the decision taken becomes a nullity. He cited OKEDARE V. ADEBARA 1994 6 NWLR (PT. 349) 157.

He referred to Section 272 of the Administration of Criminal Justice Law 2010 (ACJ) and cited Section 248(1) of the same law which provides that every charge shall contain the written law and the section of the written law against

which the offence is said to have been committed.

He posited that where as in this case issues are raised suo motu by the Court, the Court must invite parties to address it on those issues before making findings on those issues. He cited C. D. ONONUJU V. THE STATE (2014) 8 NWLR (PT.1409) 345 – 436.

Reacting to the foregoing, learned Counsel for the Respondent cited Sections 271, 273 and 274 of the Administration of Criminal Justice Law, 2010 of Anambra State and the case of OKPA V. STATE (2017) 15 NWLR (PT.1587) at pages 17 – 20 and posited that no omission to state the offence or those particulars shall be regarded as material at any stage of the case unless the defendant was prejudiced or misled by such error or omission. He contended that it is immaterial and does not matter under which section of the law, the definition or the penal section an Appellant is convicted provided the facts support the conviction.

Counsel submitted that no miscarriage of justice was occasioned to the Appellant who understood perfectly the particulars of the charge against him and defended same without raising any objection at the trial and who has not

shown that he was prejudiced in any way whatsoever by the amendment effected by the learned trial Judge.

In dealing with this appeal, I shall make use of the issues distilled by Counsel for the Appellant for the simple reason that the issues address the bone of contention better than the issues formulated by counsel for the Respondent. Issues 1 and 2 distilled by counsel for the Appellant are similar and interwoven, I shall therefore take both issues together.

The bone of contention was the fact that the learned trial Judge amended the charge suo motu without the accused person taking a fresh plea and without both Counsel addressing the Court on the said issue. This in the opinion of Counsel for the Appellant resulted in the denial of the Appellant’s right to fair hearing and consequently miscarriage of justice. The Appellant was charged with the offence of kidnapping contrary to Section 316(2) (b) of the Criminal Code Cap 36 of the Revised Laws of Anambra State as amended by the Criminal Code (Amendment) Law, 2009. This Section 316 deals with deprivation of liberty which is a misdemeanor and punishable with two years imprisonment. It was not

amended by the criminal code (Amendment) Law 2009.
On the contrary, it was Section 315 of the Criminal Code Cap 36 Revised Laws of Anambra State 1991 which deals with kidnapping that was in fact amended by the Criminal Code (Amendment) Law 2009. It has become very crucial in this Judgment to reproduce the said Section 315 (1) and (2) of the said Criminal Code. Section 315 (1) of the aforesaid Law states as follows:
“Section 315(1) Any person who (a) unlawfully imprisons any person and takes him out of Anambra State without his consent or (b) unlawfully imprisons any person within Anambra State in such a manner as to prevent him from applying to a Court for his release or from disclosing to any other person the place where he is imprisoned or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned commits a felony and shall be liable upon conviction to life imprisonment without option of fine”.
Section 315(2):
“Where the offender mentioned in subsection (1) of this section
(a) is armed with any firearm or any offensive weapon or is in company of

any person so armed or
(b) at or immediately before or immediately after the time of kidnapping or imprisonment used or threatens to use any personal violence to any person or
(c) makes a demand for payment of ransom in order to effect the release of the person imprisoned, the offender commits a felony and shall be liable upon conviction to be sentenced to death”. Having reproduced the relevant sections of the criminal code in contention and the punishment for the offender, the question that comes to mind is if the learned trial Judge has the power under the law to amend the charge suo motu without reference to both counsel or the accused person himself?
Learned Counsel for the Respondent relied heavily on Sections 272 -274 of the Administration of Criminal Justice Law, 2010 of Anambra State. (ACJ). The learned trial Judge in amending the charge suo motu also relied on the said Section 272 of the ACJ. The much talked about Section 272 has to be reproduced for ease of reference it provides:
SECTION 272.
“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the

offence or those particulars shall be regarded at any stage of the case as material unless the defendant was in fact misled by such error or omission”.
Section 273 provides that any objection shall be taken immediately after the charge has been read over to the defendant and not later.
Having reproduced the relevant sections of the law in issue, it is time to determine whether the learned trial Judge was well within the law when he amended the charge suo motu or if he over stepped his bounds. The Appellant was charged under Section 316(2) (b) of the Criminal Code 1991 Anambra State instead of Section 315(2) (c) of the Criminal Code (Amendment) Law of Anambra State 2009.
In NYESOM V. PETERSIDE (2016) 7 NWLR (PT. 1512) PG 481 it was held that fair hearing includes a proper consideration and determination of the issues canvassed by parties before the Court. A Court cannot consider the issues canvassed without hearing parties, so, where a Court, without hearing parties, proceeds to consider the issues in a matter and delivers Judgment, it is clear that the parties were denied fair hearing.
Section 36(1) of the 1999 Constitution (As amended)

confers on every citizen with a grievance the right of access to the Court. It also makes it obligatory on the Court that will determine the rights of the person to accord him a fair Hearing. Denial of Fair hearing results in miscarriage of Justice which occurs when the Court fails or refuses to follow the rules and arrives at a decision which is prejudicial and inconsistent with the legal rights of a party. See IBHADE (NIG.) LTD. V. AKWARI (2015) 13 NWLR (PT.1477) 513.
Despite the provisions of Section 272 of the Administration of Criminal Justice Law 2010, the Supreme Court has in recent cases after the enactment of the said Administration of Criminal Justice Law 2010 insisted that Courts are enjoined not to raise issues suo motu and if issues are raised suo motu by the Court, then the Court must invite parties and counsel to address it on those issues before making findings on those issues and using them in arriving at a decision or using them in writing its Judgment. See C. D. ONONUJU V. THE STATE (2014) 8 NWLR (PT. 1409) 345 – 436.
I am aware that a Court can amend a defective charge, such can either be on the Court’s

initiative or with the leave of Court. See Sections 268 and 269 of the Administration of Criminal Justice Law of Anambra State 2010.
Section 268 provides thus:
“Where any person is arraigned for trial on an imperfect or erroneous change, the Court may permit or add to or otherwise alter the original charge”.
Section 269 provides:
“Any Court may permit any alteration or addition to any charge at any time before Judgment is given or verdict returned and every such alteration or addition shall be read and explained to the Defendant”. It is therefore clear that the law at every stage of trial in a criminal case, gives the trial Judge the power to make alteration, or additions but in such circumstance, the amendment or additions shall be read and explained to the accused person. See OGUDO V. STATE (2011) 18 NWLR (PT. 1278) PG 1. Failure to adhere to this procedure would render the whole proceedings a nullity. The Supreme Court also made it clear in JOSEPH OKOSUN V. THE STATE (1979) 2 F. N. R. PG 1, that any amendment, no matter how trifling in nature to an existing charge raises a new charge… and unless a

fresh plea is taken, the subsequent proceedings are rendered null and void. From the above, it is obvious that once a charge is amended, a host of rights inure to the accused person. Those rights are in-built safeguards with a view to ensuring that the accused person, by virtue of an amendment, is not prejudiced or misled, that no injustice is occasioned to him and that his constitutional right to fair hearing is preserved.
In effecting the amendment of the charge suo motu, the learned trial Judge had this to say:
“As found in the course of writing this Judgment, the defendants were charged under Section 316 (2) (b) of the Criminal Code Cap 36 vol. 2 Revised Laws of Anambra State 1991 as amended by the Criminal Code (amendment) Law 2009. However, it is clear that Section 316 of the Criminal Code Cap. 36 Revised Laws of Anambra State 1991 deals with deprivation of liberty which is a misdemeanor punishable with two years imprisonment and was not amended by the Criminal Code (amendment) Law 2009.
It is the Section 315 of the Criminal Code Cap 36 Revised Laws of Anambra State 1991 which deals with kidnapping that was amended by the Criminal

Code (amendment) Law 2009. To be exact, being that the charge is that of Kidnapping and demand for ransom, the appropriate section should be Section 315(2) (c) of the Criminal Code (amendment) Law of Anambra State 2009.
The implication of the above finding is that the defendants were charged under a wrong section of the law. The question to be resolved or answered is what is the effect of the error made by the prosecution in charging the defendants under the wrong section of the law. Recourse in that situation is to be had in Section 272 of the Administration of Criminal Justice Law 2010”.
The learned trial Judge proceeded to reproduce the said Section 272 to justify his amendment of the charge suo motu without asking both counsel to address him or the defendant to take a fresh plea. In doing thus, even though he had good intentions and relied on the aforementioned Section 272, he went overboard, over stepped his bounds and ended up making his beautiful Judgment a waste of time and a nullity.
Even though Section 272 in the opinion of the learned trial Judge gave him a leeway, this particular case is distinguishable and completely different

from those envisaged by the said Section 272.
I say so because Section 316(2) under which the Appellant was charged is a misdemeanor and carries a penalty of just two years.
Section 315(2) under which the learned trial Judge effected the change carries a death penalty.
It is my humble but firm view that in a charge that sends an accused to the gallows, justice must not only be done but seen to have been done. The learned trial Judge ought to have gone a step further by asking the Appellant to take a fresh plea considering the fact that the charge was at that point a brand new charge, or ask both counsel to address him on the amended charge rather than go solo. That was where in my view the learned trial Judge got it wrong. He therefore breached the constitutionally guaranteed right to fair hearing of the Appellant.
A breach of the Constitutional right of fair hearing in any trial or investigation nullifies such trial or investigation and the decision taken therein is also a nullity. The breach of the right of fair hearing in any proceeding vitiates the entire proceedings. The proper order of Court where there is a breach of the right to

Fair Hearing in any trial is an order of re-trial. See UDENSI V. ODUSOTE (2003) 6 NWLR (PT. 817) PG. 545.
Learned Counsel for the Appellant in his Reply brief filed on the 9th of April, 2019 referred to Appeal No. CA/E/33C/2012 where the Enugu Division of this Court heard and determine an appeal in respect of the Appellant’s Co-defendant at the trial Court. He neither stated the date the said Judgment was delivered nor made available to this Court the Judgment he referred to that information is therefore of no moment.
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before a decision is taken had in fact been given the opportunity of a hearing”.
See A. G. RIVERS STATE V. UDE (2006) 17 NWLR (PT. 1008) PG.436, OYEYEMI V. OWOEYE (2017) 12 NWLR (PT.1580) PG. 364.
A Judgment obtained against the principle of fair hearing, no matter how well conducted, written and delivered with eloquence, is a nullity. See KOTOYE V. SARAKI (1994) 7 NWLR (PT. 357) PG. 414.

A determination of the first and second issues formulated by counsel for the Appellant has made a consideration of the third issue unnecessary and academic. In the circumstance, the two issues are resolved against the Respondent and in favour of the Appellant. There is merit in this appeal and it is hereby allowed.

The Judgment of the Onitsha Division of the High Court of Anambra State in Charge No. 0/61c/2012 delivered on the 12th of June, 2017 by A. O. Okuma J, is hereby set aside for being a nullity. In its place I make an order for a re-trial.

Consequently, this case is remitted back to the chief Judge of Anambra State for re-assignment to another Judge of the High Court of Anambra State other than A. O. OKUMA for hearing and determination. In view of the nature of the offence and the number of years already lost, it is further ordered that this case be given accelerated hearing.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment delivered by my brother CHIOMA NWOSU-IHEME, (Ph.D) JCA.
I agree with her reasoning and conclusions.

Fair hearing is not a matter of dogma. It must be according to the circumstances of

the case. The facts must show that a party entitled to be heard before a decision is taken had been denied of that opportunity. Therefore, any judgment or semblance of any decision taken against this hallowed principle of fair hearing, is detrimental to the proceedings and will render the proceedings and the decision reached null and void, no matter how well conducted.
The Appeal succeeds and I also allow the Appeal.

This case shall be remitted to the Chief Judge of Anambra State for re-assignment to another judge for hearing and determination.
The order for accelerated hearing is hereby adopted by me.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother Nwosu-lheme J.C.A. I agree with and adopted the finding in the lead judgment that the judgment by the lower Court delivered on 12th June, 2017 is set aside for being a nullity and the case be remitted back to The Hon. The Chief Judge of Anambra State to be re-assigned to another Judge who will hear and determine same on the merit.

Appearances:

O. Onwujekwe Esq. For Appellant(s)

V. Ononye-Ekwerekwu Principal Senior Counsel, (Ministry of Justice) Anambra State For Respondent(s)