NWODO v. STATE (2021)

NWODO v. STATE

(2021)LCN/15511(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Tuesday, March 16, 2021

CA/AW/15C/2020

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

DESMOND NWODO APPELANT(S)

And

THE STATE RESPONDENT(S)

 

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The Appellant, Desmond Nwodo was arraigned and tried on a one count charge of obtaining by false pretences contrary to Section 1 (3) of the Advance Fee Fraud and other Related Offences Act, 2006. In proof of its case, the prosecution called two witnesses and tendered eight (8) exhibits which were marked Exhibits P1 – P8 respectively.

The defendant/appellant on his part testified on his own behalf and called one other witness. He tendered one exhibit, Exhibit D1.

The prosecution’s case was that the defendant/appellant had presented himself to the nominal complainant (PW1) as Pastor Johnson Ezeh Peter. Under this guise, he had received various amounts of money from the nominal complainant. This included the sum of N1, 200,000 that he collected from the nominal complainant towards procuring Chinese visa for two of the complainant’s brothers but which he never did. It was after the failure to procure the visas that the nominal complainant realized that the appellant was deceiving him. All through the interactions with the appellant, the nominal complainant never met him in person. To effect his arrest however, the nominal complainant wrote to First Bank, the bank through which he sent money to the appellant. The bank lured the appellant to its branches from where he was arrested.

At the close of evidence, parties filed and adopted their final written addresses. In a considered judgment delivered on the 14th October, 2019, Hon. Justice Arinze Akabua of the Anambra State High Court, sitting at Awka convicted and sentenced the Appellant to seven (7) years imprisonment with hard labour without an option of fine.

Aggrieved by this decision, the appellant by a Notice of Appeal dated and filed on the 18th May, 2020 appealed to this Court on two grounds. This appeal was however determined on the Amended Notice of Appeal filed on the 23rd July, 2020 and deemed on the 21st October, 2020, containing five grounds of Appeal with their particulars thus:
GROUND 1
The learned trial Judge erred when he issued a bench warrant against the Defendant and still went ahead with the trial of the defendant in the absence of the defendant on the 27th day of February, 2018.
PARTICULARS OF ERROR:
i. The Trial Judge failed to take cognizance of the principles of fair hearing by going on with the trial of the Defendant in the absence of the Defendant even after issuing a bench warrant against the defendant.
ii. It is against the principles of our legal system to try a defendant in the absence of the defendant.
iii. The Trial Judge refused the application for stand down applied for by the Defendant’s counsel.
GROUND 2
The learned trial judge erred when he made an Order of Foreclosure against the Defendant from testifying in the trial within trial on 27th day of February, 2018.
PARTICULARS OF ERROR:
i. The trial Judge failed to take cognizance of the right of fair hearing of the Defendant by foreclosing the Defendant.
ii. The trial Judge refused the application for adjournment sought by the Defendant’s counsel after the prosecution had closed its case.
GROUND 3
The learned trial judge failed to recognize the right of the Defendant to recall a witness and cross-examine him.
PARTICULARS OF ERRORS:
i. The learned trial judge failed to recognize the right of the Defendant to recall a witness and cross-examine him.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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GROUND 4
The learned trial judge erred when he held that the prosecution has proved its case and went ahead to convict the Defendant.
PARTICULARS OF ERROR:
i. There is evidence on record showing that there was communication between nominal complainant i.e. the PW1 and Justin.
ii. There is evidence on record showing that it was nominal complainant i.e. the PW1 that solicited the Defendant to be part of the transactions between the nominal complainant i.e. the PW1 and Justin.
iii. The Defendant led evidence to the effect that the Defendant acted in accordance with the instruction of Justin.
iv. The prosecution failed to prove that the Defendant had the intention to commit the offence charged.
GROUND 5
The judgment is unreasonable, unwarrantable and unsustainable having regard to the evidence adduced at the trial.

Whereof the appellant sought an order of this Court allowing the appeal, quashing the conviction and sentence and discharging and acquitting the appellant.

The appellant’s brief of argument was settled by Chief E. C. Chikaelo on the 23rd July, 2020 and deemed properly filed on the 21st October, 2020. In it, counsel distilled four issues for the determination of the Court thus:
i. Whether the learned trial Judge’s refusals of the application for a stand down to enable the Appellant get to Court and the trial of the Appellant in his absence is a breach of the fundamental right to fair hearing and trial? (drawn from ground 1)
ii. Whether foreclosing the Appellant from testifying in trial within trial and refusal of an application for adjournment by the learned trial Judge, is a breach of the fundamental right to fair hearing of the Appellant? (drawn from ground 2)
iii. Whether the learned trial Judge’s refusal of the Appellant’s Application to recall a witness for further cross-examination amounts to a breach of right to fair hearing of the Appellant?
(drawn from ground 2)
iv. Whether having regards to the circumstances of this case, the learned trial Judge was right when he held that the Respondent has proved the requisite mens rea of his case against the Appellant?
(drawn from grounds 4 and 5).

​The Respondent’s brief was settled by MR. I. O. Okenwa, PSC, Ministry of Justice, Anambra State.

In it, the Respondent adopted the four issues submitted for resolution by the Court.

In arguing the appeal, Chief E. C. Chikaelo submitted on issue (1) that the refusal of the trial Court to grant the application for a stand down and his continuing with the trial of the appellant in his absence amounts to a breach of his fundamental right to fair hearing and trial. Counsel referred to SECTION 36 (4) of the 1999 Constitution and the cases of OTAPO V SUNMONU (1987) 5 SCNJ, 57; PADAWA & 8 ORS V JATAU (2003) FWLR PT 164, 228 and ATANO V A. G. BENDEL STATE (1988) 2 NWLR, PT 75, 132. Counsel referred to the cases of ODUNLAMI V NIGERIA NAVY (2014) AFWLR PT. 720, 1206; ISIAKU MOHAMMED V KANO NATIVE AUTHORITY (1968) 1 ANLR, 42; ASTC V QUORUM CONSORTIUM LTD (2002) LPELR – CA; OGBO V FRN (2000) FWLR, PT. 106, 968 AT 979 and UNONGO V AKU (1983) 2 SCNLR, 332 to submit that the learned trial Judge did not exercise his discretion judicially and judiciously when he refused to stand down the matter to enable the appellant be present in Court for his trial. That the failure occasioned a miscarriage of justice to the appellant.
Counsel referred to SECTION 300 of the Administration of Criminal Justice Law (ACJL) of ANAMBRA STATE, 2010 which mandates that every defendant be present physically in Court during the whole of his trial subject only to the exceptions contained in SECTION 427 of the Law. Counsel referred to the cases of AGBITI V NIGERIA NAVY (2011) 4 NWLR PT 1236, 175; AMOKEODO V INSPECTOR GENERAL OF POLICE (1999) 6 NWLR PT. 607 467 and ONOCHIE V ODOGWU (2006) 2 SCNJ, 96 AT 114. Counsel argued that the learned trial Judge did not state the reason why the trial of the appellant was made in his absence or show how the appellant’s situation came within the exceptions provided under Section 427 (2) of the ACJL of Anambra State 2010. Counsel contended that the trial of the appellant in his absence on the 27th February, 2018 in the trial within trial in which two exhibits were admitted occasioned a miscarriage of justice to the appellant. Counsel referred to the case of DANIEL ADEOYE V STATE (1999) 6 NWLR PT. 605, 74. Counsel, relying on the cases of WAGBATSOMA V FRN (2018) LPELR – (CA); EZE V FRN (2017) 15 NWLR PT 1589, 433 AT 499; ASANYA V STATE (1991) 3 NWLR PT 180, 422; DALHATU V TURAKI (2004) 42 WRN, 15 AT 30; AND IKO V THE STATE (2004) CAC 73 AT 102 further submitted that the absence in Court of the appellant can be rectified by the issuance of a bench warrant, which the learned trial judge already did. But that he erred in Law when he continued with the hearing and proceeding in the absence of the appellant in total disregard to the hallowed principles of fair hearing guaranteed under the Constitution. Counsel contended that whether or not counsel objected to the trial in the absence of the appellant or accused person, the purported trial is a sham and the conviction of the appellant thereon is rendered a nullity and the Court should so hold.

On issue (2), counsel submitted that the action of the learned trial judge in foreclosing the Appellant from testifying in the trial within trial by refusing the application for adjournment was a breach of his fundamental right to fair hearing. Counsel argued that the appellant who was granted bail was always present in Court except for the fateful day of 27th February, 2018 and never breached any of the terms of the bail conditions. That when counsel to the appellant applied for a stand down to enable the appellant be in Court for his trial, the learned trial judge refused the application, commenced the trial within trial in the absence of the appellant and concluded the hearing of the prosecution’s case in the trial within trial. The appellant’s counsel then applied for an adjournment to enable the appellant testify in his defence in the trial within trial and this application was refused. Counsel submitted that the learned trial judge did not exercise his discretion judicially and judiciously in the best interest of justice in the circumstances of this case. That the refusal of the application for adjournment and foreclosing the appellant from testifying in the trial within trial to test the voluntariness of his confessional statement is a breach of the appellant’s constitutional right to fair hearing and renders the entire proceedings a nullity. Counsel referred to the cases of SALU V EGEIBON (1994) LPELR – SC; MOBIL OIL NIGERIA LTD V NABSONS LTD (1995) LPELR – SC; ILONA & ORS V DEI & ORS (1971) ALL NLR, 8; OGBO V FRN (SUPRA); CHEVRON (NIG) LTD V LOWAZ & ORS (2017) LPELR – CA; DOWELL SCHLUMBERGER NIGERIA LIMITED V ANIEKAN ​ (2012) LPELR – CA AND NEWSWATCH COMMUNICATIONS LTD V ALHAJI ALIYU IBRAHIM ATTA (2006) 26 NSQLR, 483; (2006) 4 SC, PT 11, 114. Counsel urged the Court to resolve this issue in favour of the appellant.

In arguing on issue (3), counsel submitted that the refusal by the learned trial judge of the appellant’s application to recall a witness for further cross-examination is not only contrary to Section 320 of the ACJL of Anambra State, 2010, but amounts to a denial of fair hearing pursuant to Section 36 (6) of the 1999 Constitution. Counsel referred to the cases of KAJAWA V THE STATE (2018) LPELR – 43911 (SC); ORISAKWE & SONS LTD V AFRI BANK PLC (2012) LPELR – CA; OGOLO V FUBARA (2003) 11 NWLR, PT. 831 AT 262; EZE V FRN (2017) LPELR – 42097 (SC) and AWALA V STATE (2018) LPELR – CA. Counsel urged the Court to also resolve this issue in favour of the appellant.

Issue (4) is “whether having regards in the circumstance above, whether the learned trial Judge was right when he held that the Respondent has proved the requisite mense rea of his case against the Appellant?”
In answering this issue in the negative, counsel submitted that in every criminal case, the onus remains on the prosecution to prove both the mental element (mense rea) as well as the physical element, actus rea to produce a given element of the offence or crime charged. Counsel referred to the cases of DANLADI V STATE (2017) LPELR – 43627 (CA) and BABALOLA & 9 ORS V THE STATE (1989) LPELR – 695 (SC). Counsel referred to SECTION 135 of the EVIDENCE ACT, 2011 and the cases of ANKPEGHER V STATE (2018) LPELR – 43906 (SC); IKPO V THE STATE (2016) 2 – 3 SC, PT III, 88 and OSENI V THE STATE (2012) 5 NWLR, PT. 1293, 351 AT 388, F – G. to submit that in criminal proceedings, the onus is on the prosecution throughout and does not shift. Counsel submitted that from the evidence on record, the Respondent failed to prove all the essential elements of the offence of obtaining by false pretence with which the appellant was charged as laid down in the cases of FRIDAY SMART V THE STATE (2016) LPELR – 40827 (SC); STATE V AJAYI (2016) LPELR – 40663 (SC); OMOREDE DARLINGTON V FRN (2018) LPELR – 43850 (SC) and ONWUDIWE V FRN (2006) AFWLR, PT. 319, 774 AT 779 – 780.

Counsel urged the Court to allow the appeal, set aside the conviction of the Appellant and declare the trial of the appellant null and void for failure to comply with the rule of fair hearing.

In responding on issue (1), MR. T. C. Ikena, of counsel for the Respondent, submitted that the refusal by the learned trial judge of the application to stand down the matter for the appellant to be present in the trial within trial does not amount to a breach of the Appellant’s fundamental right to fair hearing as the Appellant did not proffer any reason for his absence from Court. That the Court in the exercise of its judicial function and having given the appellant hearing notice, properly proceeded with the conduct of the trial within trial. Counsel referred to the case of MGBENWELU V OLUMBA (2017) 5 NWLR, PT. 1558 177. Counsel further submitted that the Appellant’s counsel was given the right to cross-examine the prosecution witness, the IPO, PW1 at the trial within trial and he indeed cross-examined him. Counsel contended that the Appellant’s counsel had applied to the Court to stand the matter down as the appellant was on his way to the Court. But that throughout the trial on the 27th February, 2018, the Appellant never showed up in Court. Counsel argued that the Appellant misconducted himself by absenting himself from Court in order to render the continuation of the trial impracticable. Counsel contended that this situation comes within the exceptions as provided under SECTION 427 (2) of the ACJL of Anambra State, 2010 as the Appellant willfully refused to be present to defend the charge against him and gave no reason for his absence. Counsel urged the Court to hold that the Appellant’s right to fair hearing and trial was not breached by the refusal of the trial Court to stand down the case and his proceeding with the trial within trial especially as Appellant’s counsel exercised his right to cross-examine the sole witness in the trial within trial.

On issue (2), counsel submitted that from the record, several adjournments were granted at the instance of the Appellant even without convincing reasons. That if the learned trial Judge had allowed himself to be misled by the antics of the Appellant, the criminal charge would have lasted more than three years.

Counsel submitted that there must be an end to litigation as justice delayed is justice denied. That the Appellant having been given the opportunity to be heard but refused to avail himself of such opportunity cannot be heard to complain of a breach of fair hearing. Counsel also submitted that the trial Judge exercised his discretion judiciously in refusing the application to stand down the matter as the concept of fair hearing does not entail that a party be forced to be heard, provided the opportunity to be heard has been given to him. Counsel urged the Court to hold that fair hearing and fair trial was availed to the Appellant in this case.

In responding to issue 3, counsel submitted that the application to recall a witness for further cross-examination is not to be given as a matter of right. Counsel relied on the case of ALLY V STATE (2009) LPELR – 51425 (CA) to contend that the applicant for recall of a witness for further cross-examination must justify his application. That in the instant case, the appellant had already exhaustively cross-examined the witness, PW1 by asking 34 questions with no likelihood of any further question to ask. That the affidavit in support of the application lacks any fact to support the need or desire to recall the witness. Counsel contended that the application was just a ploy by the appellant to delay the trial. That the trial judge was therefore right in refusing the application as no breach of the Appellant’s right to fair hearing was occasioned by the refusal. Counsel urged the Court to resolve this issue in favour of the “Appellant”!

On issue (4), counsel referred to the cases of FRN V AMAH (2017) 3 NWLR, PT. 1551, 146; DURU V FRN (2018) 12 NWLR PT. 1632 20; IKPA V STATE (2017) LPELR – 42590; APUGO V FRN (2017) 26 WRN, 139; OMOTOSHO V COP (1961) 25 CNLR, 376 and KAYODE V FRN (2017) 27 WRN, 111, to submit that the prosecution proved the requisite ingredients of the offence charged. Counsel reiterated that it was clearly established by evidence that the pretence was false, the money defrauded was capable of being stolen and the appellant induced the nominal complainant to transfer the money to him. Counsel urged the Court to resolve this last issue in favour of the respondent, dismiss the appeal and affirm the conviction and sentence of the Appellant.

The Appellant filed a reply brief on the 19th October, 2020 which was deemed on 21st October, 2020, which counsel also adopted. I have taken a sober look at this unpaginated but four page document. A close look shows that by this reply brief, the appellant responded to every issue raised by the Respondent. This is contrary to the purport of a reply brief within the provision of ORDER 19 (5) (1) of the Rules of Court, 2016. By this rule, an appellant is permitted to respond to any new issue that arises in the Respondent’s brief. In other words, a reply brief is not an opportunity for a second bite at the cherry! It is not a chance for the Appellant to beef or pad up his arguments in his brief. See MOZIE & ORS V MBAMALU & ORS (2006) 15 NWLR, PT. 1003, 466. The instant reply is not in line with the provision of the Rules of Court. It is therefore discountenanced.

In determining this appeal, I will consider the first three issues together. This is expected because they all deal with breach of the appellant’s fundamental rights. These seemingly similar but three pronged points are:
1. Trial of Appellant in his absence;
2. Foreclosing the Appellant from testifying in the trial within trial, and
3. Refusal of Appellant’s application to recall a witness for further cross-examination.

There is no dispute even from the Respondent that the Appellant’s trial of the 27th of March, 2018 was done in his absence. This is confirmed from the proceeding of the Court of that date as reflected at pages 115 – 119 of the printed record. The matter was for the trial within trial. On the day the matter came up for hearing, the appellant who was on bail was not in Court, so his counsel asked for the matter to be stood down to enable the appellant appear in person for his trial. This was after the prosecuting counsel had applied for the revocation of the appellant’s bail and a bench warrant for his arrest. The Court ordered a bench warrant against the appellant but directed the prosecution to proceed with the trial within trial. Although the Constitution, particularly SECTION 36 thereof dealing with fair hearing, does not directly proscribe trial in absentia, it is not part of our criminal jurisprudence for an accused person to be tried in absentia.

SECTION 300 of the ACJL, Anambra State 2010 requires a defendant to be present throughout his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. The proviso to SECTION 300 is clearly not applicable here, neither are the exceptions in SECTION 427 of the ACJL, (SUPRA) as they relate to persons of unsound mind. It is important to note that the expression ‘shall’ as used in SECTION 300 is mandatory and not directory. I am not unaware of the Supreme Court case of OKAROH V STATE (1990) 1 SCNJ, 124 AT 132, where the complaint of the appellant that his absence at his criminal trial occasioned a miscarriage of justice was rejected by the Court. That case is clearly distinguishable from the instant case. In this case, it was a trial within trial and the appellant did not take part in it to defend himself, so it was also a case of not giving him a hearing before deciding on the document, the statements of the appellant to the Police. Not only was the appellant tried in absentia, but the doctrine of audi alteram partem was also breached by the respondent against him.

The only other instance in which the presence of the accused can be dispensed with at his trial is when the punishment that the offence carries does not exceed N100 or more than six months imprisonment. See EZEZE V STATE (2004) 14 NWLR PT 894, 491.
From the clear provisions of SECTION 300 of the Administration of Criminal Justice Law of Anambra State, 2010, 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. This instant case does not come within the exceptions. See also ADEOYE V STATE (1999) 6 NWLR PT. 605, 74; ODUNEYE V FRN & ORS (2014) 13 NWLR, PT. 1425, 545 and ADAMU V STATE (2015) LPELR – 24748 (CA).

It is a notorious fact that accused persons, especially when they are on bail have a way of frustrating the prosecution of cases by refusing to go to Court or by employing all forms of unimaginable tactics to delay the hearing of a matter. As frustrating as this often is, the judge is still the umpire. He should rise above every willful frustration remembering always that the radical and primary role of the Court is to administer justice in an atmosphere of fairness and equity. A situation such as this calls for the judge to put on his thinking cap of wisdom to know the effective arsenal to use. The appellant herein jumped bail since he failed to appear in Court. The trial judge properly identified the correct arsenal to use, that of issuance of a bench warrant to arrest the appellant. Once this was done and the appellant was arrested, he would be more anxious than the Court to have the matter disposed of. A wise judge would walk the thin line between a speedy trial and a fair trial that would not result in the breach of the fundamental rights of the accused person. From the proceedings of the said date, the only reason the trial judge gave for issuing the bench warrant was that no reason was proffered for the absence of the Appellant in Court. While that may be a fair reason to revoke his bail and issue a bench warrant for his arrest, it does not excuse the trial Court for proceeding with the trial within trial in the absence of the Appellant. The trial within trial was to determine the voluntariness of the statement made to the police by the Appellants. Hearing only the side alleged to have coerced the statements from the Appellant but breaching one of the strongest pillars of fair hearing, ‘audi alterem partem’, i.e. hear the other side, makes the said hearing a nullity. The reasonable thing for the trial Judge to have done in the circumstances of this case was to have executed the bench warrant to ensure that the Appellant was arrested and detained to ensure he attended his trial.

This is in breach of the Appellant’s constitutional right as enshrined in SECTION 36 (1) of the Constitution. This is rooted in the latin maxin: “audi Alteram Partem”. It simply means hear the other side or hear from both sides. It is one of the twin pillars of justice and a canon of the principle of Natural justice. What this principle connotes is that the judge should listen to the point of view or the case of both sides before judgment. To appreciate the importance of this principle, the apex Court drew an analogy from Biblical times when it held in the case of  JSC of CROSS-RIVER STATE & ANOR V YOUNG (2013) 11 NWLR, PT. 1364, 1 thus:
“… It is the duty of anyone in control of proceedings to allow both parties to be heard and should listen to the point of view of each. Even God saw Adam eat the forbidden fruit which he warned him never to eat but the Lord still gave Adam a fair hearing when the Lord asked “Did you eat the fruit I told you not to eat”? See Genesis 3:11. It was after Adam was unable to give a satisfactory answer that punishment followed. That was the beginning of fair hearing…” See also AUDU V AGF & ANOR (2013) 8 NWLR, PT 1355, 175.

The trial judge in his ruling to continue the trial in the absence of the Appellant never gave any reason for doing so. There is nothing on record in the proceedings of the said date to show that the appellant was in the habit of absenting himself from Court for his trial. Even if there was, the reasonable course of action would still be for a bench warrant to issue for the appellant’s arrest. Indeed the trial judge in his ruling vacating the bench warrant delivered on the 22nd March, 2018 held as follows:
“…. I have looked at the records and I am satisfied that defendant had always diligently attended his trial. Prosecution has not put any materials before the Court validating their position that the defendant is a flight risk.” (underlining mine).

It is surprising that his Lordship who felt this way about the appellant refused to give him a hearing. He actually foreclosed him. See page 119 of the record of proceedings of the same date of 27th February, 2018. At the conclusion of the evidence of PW1 in cross-examination in the trial within trial, the Appellant’s counsel asked for an adjournment to enable the Appellant who was not in Court on the said date testify in the trial within trial. The prosecuting counsel opposed the application for adjournment and asked the trial judge to foreclose the Appellant from testifying in the trial within trial on the sole ground that he was absent from Court on the said date. Without hearing the Appellant who had alleged involuntariness of Exhibits P2 and P3, the trial judge went ahead to act solely on the evidence of PW1 to admit the Appellant’s statements as Exhibits P2 and P3. This is clearly a breach of the principle of natural justice and consequently the appellant’s right to fair hearing. The Law is well settled that any proceedings conducted in breach of a party’s right to fair hearing no matter how well conducted will be rendered a nullity. See LEADERS & CO LTD V BAMAIYI (2010) 18 NWLR PT 1225, 329; TSOKWA MOTORS (NIG) LTD V UBA PLC (2008) AFWLR PT. 403, 1240 AT 1255, PARAS A – B and MFA & ANOR V INONGHA (2014) AFWLR PT. 727, 628.

This principle of audi alteram partem dove tails into the action of the Court in foreclosing the Appellant from testifying in the trial within trial. In the proceedings of one single day, two rights of the Appellant were in fringed. An impartial observer in the Court room on the 27th February, 2018 would not have believed that the trial had been balanced and fair to both sides. Unarguably therefore, the proceedings of the lower Court of the said date breached the Appellant’s right to fair hearing, by trying him in absentia and for not giving him a hearing before the decision of the Court admitting in evidence Exhibits P2 and P3 which were used to convict and sentence him. These were statement whose voluntariness the Appellants had challenged. The trial within trial was to resolve the voluntariness of Exhibit P2 and P3. The Law is settled that once a right to fair hearing is breached in a judicial proceeding, it vitiates the entire proceeding. See GODWIN JOSIAH V THE STATE (1985) 1 NWLR, PT. 1 AND UDO V THE STATE (1988) 3 NWLR PT. 82, 316.

The third issue, also the last in this tripartite consolidated issue, deals with the refusal by the trial judge of Appellant’s application to recall PW1 for further cross-examination. The application dated 5th October, 2018 was filed on the 8th October, 2018. The application was brought pursuant to SECTION 320 of the Administration of Criminal Justice Law (SUPRA). The SECTION provides as follows:
“320. The Court at any stage of any trial, or other proceedings under this Law may either of its own motion or on the application of either party to the proceedings call any person as a witness or recall and re-examine any person already examined and the covert shall examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case.”

In opposing this application, counsel to the Respondent who prosecuted the Appellant at the lower Court filed a counter-affidavit and a written address in support. The main contention of counsel as I understand it is that the defence having had all the time in the world to fully cross-examine the witness, the application was a mere nuisance aimed only at delaying the conclusion of hearing of the matter. The trial judge in his ruling refusing the application delivered on the 15th January, 2019 held as follows:
“An order for recall of witness is not made as a matter of course. Before the Court can order a witness who had been examined and cross-examined to be recalled for further cross-examination, Applicant must show the Court in his affidavit the issue which has risen ex improvso which the witness will need to clarify during the recall. See OKODUWA V STATE (1988) NWLR, PT. 76, 333. Applicant (sic) for recall of parties has not satisfied this pre-condition. Consequently, application for recall is refused.”

I am not unmindful of the fact that the power to grant the said application is at the discretion of the Court which has to determine if the evidence appears to it essential to the just determination of the matter. His Lordship did not appear concerned about the nature of the evidence to be adduced. The trial judge also appears oblivious to the fact that defendants/accused persons in criminal matters are given more leeway than in civil matters. This is in tune with SECTION 36 (6) (b) of the Constitution which enjoins that every person charged with a criminal offence shall be given adequate time and facilities for his defence. In the instant case, the trial within trial took place after PW1 testified and in the absence of the Appellant. PW1 is the nominal complainant and he did not testify in the trial within trial. The Appellant may wish to clarify certain issues which may have come up in the trial within trial with PW1. Besides as an accused, there was nothing wrong with the Court granting him leave to recall PW1 especially since the prosecution did not show how they would be overreached by a grant of the application. This is more so to a defendant whom the trial had in an earlier ruling adjudged to be diligent in defending this matter. Of significance is the fact that the reason given by the trial Court for refusing the application is not borne out of SECTION 320 of Administration of Criminal Justice Law (SUPRA).
Consequently, I find that the trial judge did not exercise his discretion judiciously and judicially in refusing the application for the recall of PW1 for further cross-examination thereby breaching the Appellant’s right to fair hearing pursuant to SECTION 36(6) of the 1999 CONSTITUTION. These three issues are all hinged to the principle of fair hearing. They have been resolved in favour of the Appellant. A breach of fair hearing has implication on the whole proceedings, making it liable to be nullified.

In view of this finding, I hold that a consideration of issue 4 will amount to only an academic exercise. This certainly is not within the purview of the Court and should not be its business if the entire proceedings of the Court is a nullity as it is, having been found to be in breach of right to fair hearing, it is of no moment to consider as distilled in issue (4) whether the trial judge was right when he held that the Respondent has proved the requisite mens rea of his case against the Appellant. In other words, to do so in the words of the apex Court in OKE V MIMIKO (NO 1) (2014) 1 NWLR PT 1388, 225 AT 254 – 255 merely becomes an academic/hypothetical issue

that serves no useful purpose. See also MC INVESTMENTS LTD & ANOR V CORE INVESTMENTS & CAPITAL MARKET LTD (2012) AND IKUFORIJI V FRN (2018) LPELR – 43884 (SC).

Having found that the proceeding is a nullity under issues 1, 2 and 3 considered together, for being in breach of the Appellant’s right to fair hearing, I hold that there is no need to consider issue (4). This is more so as an order of retrial is inevitable in this case. Issue 4 is therefore discountenanced.

Issues 1, 2 and 3 having been resolved in favour of the Appellant, I find that this appeal succeeds and it is hereby allowed. The proceeding in suit no. HID/14C/2016 having been held in breach of the Appellant’s right to fair hearing is a nullity. Therefore, the judgment of Court delivered on the 14th October, 2019 is hereby struck out for being a nullity.

The Law is trite that in a trial vitiated by unfairness as in the instant case, the proper order to make is one of a retrial. See OKAFOR V STATE (1976) 5 SC, 13; FRN V AKABUEZE (2010) 17 NWLR, PT. 1223, 525 and MADUEKE V. MADUEKE (2012) 4 NWLR PT 1289, 77. This position was confirmed by the apex Court in the case of KALU V THE STATE (2017) 14 NWLR, PT. 1586, 522, where it held:
“Once there is such a denial of the said right, the only order that could be made on appeal is one for re-trial or rehearing. This is to enable the appellant to be properly heard. See OTAPO V SUNMONU (1987) 12 NWLR PT 58, 587; SALU V EGEIBON (1994) 6 NWLR, PT 348, 23; DANLADI V DANGIRI (2014) LPELR – 24020 (SC) “
This is how it should be because the effect of declaring a proceeding a nullity is as though it never took place. See YARADUA & ORS V YANDOMA & ORS (2015) 4 NWLR, PT 1448, 123; LASISI V STATE (2013) 12 NWLR, PT 1367, 133 and ODEDO V OGUEBEGO (2015) 13 NWLR, PT 1476, 229.

In the circumstances, I hereby order that this case be remitted to the Hon. Chief Judge of Anambra State for re-trial before another Judge other than Hon. Justice Arinze Akabua.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Lord P. A. MAHMOUD obliged me with the draft of the lead judgment just delivered. I agree with the reasoning and conclusion and adopt same as mine.

I agree that there is merit in this appeal and it is hereby allowed. I also agree that the case be remitted to the Chief Judge of Anambra State to be assigned to another judge other than Justice Arinze Akabua for trial on the merits.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the judgment of my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I agree that the whole proceedings is a nullity. I abide by the consequential order.

Appearances:

CHIEF E. C. CHIKAELO WITH HIM, MISS CHIOMA IKEH For Appellant(s)

MR. T. C. IKENA (Deputy Director, Ministry of Justice, Anambra State) For Respondent(s)