THE STATE v. O.O.DUKE & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2002
DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria
SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
THE STATE Appellant(s)
2. O.O. USUN
3. E.L. EDET Respondent(s)
OLAGUNJU, J.C.A. (Delivering the Leading Judgment): This is an appeal by the prosecution from the order, discharging the three accused persons, the respondents herein, of the criminal charges for the offences for which, they were standing trial upon the plea of no case submission by the defence following the inability of the prosecution to continue the case on the date to which it was adjourned for continuation. The con in which the discharge of the accused persons arose is as follows.
The three respondents were arraigned before Itam, J., at Calabar Judicial Division of the Cross River State High Court, for the offences of conspiracy to steal, stealing and attempt to steal contrary to sections 518(6), 390(9) and 509, respectively, of the Criminal Code, Cap. 31 of the 1983, Edition of the Laws of Cross River State. On 9/12/96, the accused pleaded not guilty to the charges. The trial began on 20/1/97 and continued until after 28/7/97, when the learned trial Judge was transferred to Ogoja Judicial Division of the State High Court. By that date, 10 witnesses had testified for the prosecution and the 11th witness was about to conclude his evidence with 2 more witnesses for the prosecution to call.
It appears from pages 128-129 of the record, that after a decision by the prosecution and the defence to begin the case de novo before another judge of Calabar Judicial Division, instead of getting an assignment order to empower Itam, J., to conclude the case Ekpe, J., became seised of the matter and on 6/4/98, took a fresh plea from the three accused persons each of whom pleaded not guilty to the charges. The trial recommenced afresh and continued and by 1/12/98, 5 witnesses had testified for the prosecution when the case was adjourned to 5/1/99 for continuation. The trial could not continue on 5/1/99 and was further adjourned to 3/2/99. On 3/2/99, the prosecution asked for a further adjournment of the case because their ‘last witnesses’ were not in court. The adjournment was granted by the learned trial Judge over a stiff opposition to the application by the learned Counsel for defence, who urged the court to order the prosecution to close their case and the case was again adjourned to 25/2/99 for continuation. On 25/2/99, a junior counsel, E. Henshaw, Esq., holding the brief of the leading counsel for the prosecution appeared and asked for an adjournment of the case; he gave no reason for the application, but pledged ‘to handle the matter on the next adjourned date’. The adjournment was fiercely opposed by learned Counsel for the defence, who in unison, urged the court to order the learned state counsel to close the case for the prosecution.
There and then, the learned trial Judge without any further ado ruled, ‘case for the prosecution is hereby closed’ and entertained final addresses by the learned Counsel, who continued their addresses on 16/3/99 and in turn, urged the court to dismiss the prosecution’s case and acquit and discharge the accused on all the three counts because the prosecution had failed to prove their case. The case was adjourned to 21/6/99 for reply by the prosecution. But on 10/5/99, the prosecution addressed the court and the case was adjourned to 27/5/99, for ruling. In her ruling, the learned trial Judge reviewed the evidence by the prosecution and concluded that ‘The prosecution had not made out a prima facie case for any of the accused persons to answer’; and acting under section 286 of the Criminal Procedure Law, discharged all the 3 accused persons on all the 3 counts of the offences charged.
This appeal is against that decision. In the notice of appeal filed on 7/7/99 and signed by one E. I. Henshaw, a senior state counsel, who described himself as ‘the Attorney General of Cross River State’ and authorised himself on behalf of the State to appeal against the decision of the trial court acting under sub-section 241(1)(a) (sic); presumably, for 243 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, and sub-section 25(2) (b) of the Court of Appeal Act, 1990′. In that capacity, ‘the appellant’ within the definition of that expression in rule 2 of Order 1 of the Court of Appeal Rules, 1981, filed 3 grounds of appeal including an omnibus ground of appeal and with leave of this court, filed later one additional ground of appeal. From the four grounds of appeal, the following two issues were formulated in the appellant’s brief of argument for determination:
“(1) Whether there was a valid and proper arraignment in accordance with the provisions of section 215 Criminal Procedure Law (CPL.) Cap. 32 Vol, ii Laws of Cross River State of Nigeria, 1983, and if not whether the trial was a nullity.
(2) Whether the appellant had a fair hearing during the trial.”
The first respondent adopted the issues formulated by the appellants while the 2nd and 3rd respondents formulated five issues each for determination. A preliminary objection to the competence of the appeal was raised and argued in the brief of argument of each respondent. Since the preliminary objection impinges on the jurisdiction of this court over the appeal, I must first examine the question as a fundamental issue.
The focus of the preliminary objection by learned Counsel for the respondents are the 1st and 2nd grounds of appeal filed with the notice of appeal on 7/7/99, which in substance are complaints against the refusal by the learned trial Judge of the appellant’s application for an adjournment of the case and her closure of the case for the prosecution immediately after the refusal of an adjournment that precluded the appellant from calling their remaining witnesses.
According to the learned Counsel, the decision to which the complaints in the two grounds relate was made on 25/2/99, before the trial was concluded on 10/5/99, at the end of address by the prosecution and are, therefore, on interlocutory matters. Being interlocutory in nature an appeal against the lapses must, by virtue of sub-section 25(2)(a) of the Court of Appeal Act, Cap. 62 of the Laws of the Federation of Nigeria, 1990, be filed within 14 days of the decision, the learned Counsel submitted adding that for an appeal to be filed outside that stipulated period the appellant must obtain leave of the trial court or this court extending the time within which an appeal can be filed as provided by sub-section 25(4) of the Act.
The learned Counsel further submitted that failure of the appellant to appeal against the decision of the learned trial Judge, which is interlocutory within the 14 days stipulated for doing so by sub-section 25(2)(a) of the Court of Appeal Act or seek leave of the court below or this court for extension of the time within which to do so as provided by sub-section 25(4) thereof rendered the two grounds of appeal incompetent and that issue 2 in the appellant’s brief of argument distilled from the incompetent grounds of appeal is, ipso facto, incompetent. The learned Counsel cited in support of his contention Odunukwe v. Ofomata (1999) 6 NWLR (Pt.607) 416, 423-424; Koku V. Koku (1999) 8 NWLR (Pt.616) 672, 681-682; Ojo v. Anibere, (1999) 11 NWLR (Pt.628) 630, 639. Looking at the matter from another angle, the learned Counsel conceded that, while it is permissible for the appellant to include the interlocutory appeal in the final appeal to avoid unnecessary waste of time by filing separate appeals in order to do that, the appellant must first seek extension of time within which to appeal in respect of the interlocutory part of the unified appeal. He submitted that failure of the appellant to seek leave of the court to extend the time within which to appeal, vitiates the two grounds of appeal and the issue distilled from the incompetent grounds founding for support on Ajore v. Lemonu (1994) 20 LRCN 357, 359; and Owena Bank Plc v. Nigerian Stock Exchange Ltd., (1997) 8 NWLR (Pt.515) 1.
The extension of the argument in the three briefs of the respondents was that, since the two original grounds of appeal by the appellant are incompetent, the additional ground of appeal filed by the appellant with leave of this court is also incompetent, because with no original ground of appeal left that could sustain the additional ground of appeal it is a question of ex nihilo nihil fit, i.e. from nothing comes. Echoing the same refrain, the learned Counsel submitted in unison that with no ground of appeal to support the first issue distilled from the additional ground of appeal, the entire appeal collapsed with no ground of appeal to sustain either the notice of appeal or the issues for determination. With that the learned counsel concluded on the preliminary objection that the appeal is incompetent and this court is without jurisdiction to entertain it supporting that proposition with the Supreme Court’s decision in Enitan v. The State (1986) 3 NWLR (pt.30) 604, 605; Baridam v. The State (1994) 1 NWLR (Pt.320) 250, 259; and Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179. The learned Counsel urged this court to dismiss the appeal.
The last arm of the preliminary objection can be quickly disposed of as one of gambit of misadventure engendered by a mindless oversight. Three grounds of appeal were filed with the notice of appeal, which each of the three learned Counsel for the respondents misread for two and on that misrepresentation of facts each counsel grafted a suave thread of sophistical argument with gusto. Learned Counsel for the appellant has put this arm of the preliminary objection to rout in their reply brief and I agree with their submission that whatever may ultimately be the finding on the competence of the 1st and 2nd original grounds of appeal, the existence of an omnibus ground as the third original ground was enough in law to sustain the validity of the appeal to which the additional ground is a valid enlargement. Equally, apposite to the argument of learned Counsel for the appellant on the vitality of the omnibus ground of appeal to sustain the validity of the appeal irrespective of the two other original grounds are the decisions in NNSC Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt.164) 526, 548; Ebay v. Irek (1990) 7 NWLR (Pt.160) 83, 91; Lucas Pharmaceutical Chemist Ltd. v. Roche (Nig.) Ltd., (1995) 1 NWLR (pt.369) 28, 37; and Yarkwa v. Shallangwa (1996) 4 NWLR (Pt.443) 489,497-498, relied upon by the learned Counsel. Thus, the last arm of the preliminary objection has fallen apart at the seam under a dim grasp of the material facts by a trio of learned Counsel for the respondents.
That brings me to the reply to the question of competence of the original grounds of appeal 1 & 2 which learned Counsel for the appellant contended are not invalid contrary to the argument of learned Counsel for the respondents because (a) the present appeal is not essentially interlocutory as the grounds of appeal in question traverse the whole plenitude of the trial, (b) sub-section 25(2)(a) of the Court of Appeal Act on which the preliminary objection is predicated as stipulating a lesser period for filing an appeal from an interlocutory decision does not apply to criminal matters and (c) a party incorporating into an appeal from the final decision of a court complaints about interlocutory decisions made, during the trial does not as a rule require leave of the court as a condition precedent to the filing of an appeal. Because of its far-reaching effect on the scope of interlocutory appeals that must be filed within 14 days of the decision being appealed against I will first take the second question on the application of sub-section 25(2) of the Court of Appeal Act which provides as follows:
“The periods for the giving of notice of appeal or notice of application for leave to appeal are:
(a) in an appeal, in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal, in a criminal cause or matter, ninety days from the date of the decision appealed against.”
It is obvious from the above provisions that there is a clear separation between the ‘civil and ‘criminal’ matters and that while sub-section (a) in respect of civil matters draw a line between ‘interlocutory’ and ‘final’ decisions sub-section (b) regulating the period of appeal in criminal matters does not draw a distinction between interlocutory and final decisions.
I take it that the appeal under review, being against the decision of the trial court in criminal matter for the purpose of computation of time for filing an appeal, it should come under the provision of sub-section (b) above and not under sub-section (a) dealing with civil matters. That being the position, can one read into the period of appeal stipulated for criminal matters the division between interlocutory and final decision which is provided in respect of civil matters only? The difference between the provisions of the two sub-sections is purposeful and not accidental. To begin with, in relation to the period in which appeals in final decisions can be filed the words ‘three months’ in sub-section 25(2)(a) is in contrast with the words ‘ninety days’ in sub-section 25(2)(b). The use of different expressions is not fanciful, but it denotes some historical development to underscore the fact that the provisions for civil and criminal matters were designed to be kept separate.
Originally, the period within which to appeal from the decision of the High Court in civil matters was three months, while in criminal matters, it was fixed at thirty days before it was eventually raised to ninety days. It is significant that during the period when the dichotomy in appellate periods between civil and criminal matters prevailed there was no effort on the part of the appellate courts to harmonize the two which continued until the period was eventually rectified by legislation. The historical development is recalled to strengthen the view that the provisions of sub-sections 25(2)(a) and 25(2)(b), which are formulated by the lawmakers according to the traditional classification of the subject matters into civil and criminal actions are meant to be kept separate. The separation is in consonance with canons of the interpretation of statutes well enunciated in Awolowo v. Shagari, reported, lately, as (2001) FWLR (Pt.73) 53, 104, (1979) 6-9 SC 51 inter alia, as follows:
“The rule of construction of Acts of Parliament is that they should be construed according to the intent of the parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the lawgiver.”In 1976, when the Court of Appeal Act was decreed the Supreme Military Council was the body of lawmakers, who graciously followed the model of the Supreme Court Act enacted on 2/6/60 by the Nigerian Parliament and lifted section 27 of the Act and enacted it almost verbatim as section 25 of the Court of Appeal Act, 1976. A comparative examination of the two legislations, shows a division between the civil and criminal actions as regards the period within which an appeal may be filed against the decision from the courts where appeals lie to either court. I find the provisions of sub-section 25(2) of the Act to be distinct, intelligible and unclouded. From the reading of sub-section 25(2)(b) of the Court of Appeal Act, I am satisfied that the period within which appeal from a decision in criminal matter must be filed is one uncompounded time-frame of 90 days from the date of the decision.
The idea of appeal on interlocutory matter on which argument of learned Counsel for the respondents was based, does not represent the Correct interpretation of sub-section 25(2)(b) of the Court of Appeal Act upon which no glossary can be put. Therefore, the view of learned Counsel for the appellant is correct that original grounds of appeal 1 & 2 are not imperilled by the fact that they touch on a decision that was rendered on an interlocutory matter.
In sum, the argument of learned Counsel for the respondents is out of focus for applying the condition which is expressly laid down for civil matters to a criminal action. To make the matter clearer since, unlike sub-section 25(2)(a) of the Court of Appeal Act that governs civil matters sub-section 25(2)(b) thereof dealing with appeal in criminal matters, draws no distinction between appeals on interlocutory and final matters the period within which an appeal can be filed in criminal matters remains the same whether the decision on appeal is interlocutory or final and, therefore, the question of seeking leave of the court before filing an appeal does not arise as long as an appeal is filed within 90 days stipulated by sub-section 25(2)(b) for filing an appeal against a decision in criminal matter.
That answers the first two questions framed by learned Counsel for the appellant, in his reply to the first arm of the preliminary objection and that will be enough to dispose of the preliminary objection by the respondents.
The third question posed by learned Counsel for the appellant, on whether leave is required before filing an appeal where a party incorporates into an appeal on a final decision complaints on an interlocutory decision made during the trial does not fall to be decided here. This is because of the conclusion which I have reached that the division into interlocutory and final decision is not part of computation of appeal period under sub-section 25(2)(b) of the Act dealing with criminal matters. Thus, the conflict between the decisions of the Supreme Court in Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179, 195, and Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt.668) 197,218 – 219, canvassed by learned Counsel for the appellant will have to await a more auspicious occasion, when a cross interpretation of sub-section 25(2)(a) of the Court of Appeal Act and rule 22 of Order 3 of the Court of Appeal Rules, 1981, on which the alleged conflict is pitched comes up for resolution. However that may be, the preliminary objection of learned Counsel for the respondents wrapped up in a web of misconception fails and it is overruled.
Before I proceed to examine issues for determination, let me observe that the formulation by the 2nd and 3rd respondents of five issues each in their respective briefs of argument where the appellant framed two issues from the four grounds of appeal filed by them is irregular as it offends against two mutually complementary principles, viz, that (a) a party cannot formulate more issue than one from a ground of appeal and (b) a respondent who does not cross appeal or file a respondent’s notice, cannot frame issue outside the grounds of appeal filed by the appellant. See Idika v. Erisi (1988) 2 NWLR (Pt.78) 563, 579-580; and Atanda v. Ajani (1989) 3 NWLR D (Pt.111) 511, 543-544. Therefore, I will adopt the issues formulated in the appellant’s brief of argument which are also adopted by the 1st respondent and I will only consider any reply as may be relevant to the appellant’s arguments from the 2nd and 3rd respondents’ carnival of issues.
On issue One, learned Counsel for the appellant contested the regularity of the arraignment of the respondents by the learned trial Judge, which he argued contravenes the provisions of section 215 of the Criminal Procedure Law of Cross River State and sub-section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999, which is a carbon copy of sub-section 33(6)(a) of the 1979 Constitution. On non-compliance with section 215 of the Criminal Procedure Law, the learned Counsel enumerated the five requirements that must be satisfied by a trial Judge, notably, that the accused must appear in court unfettered; that the charge must be read and explained to him in non-technical language after which the accused’s plea will be taken. He referred to Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 following the Supreme Court’s earlier decision in Kajubo v. The State (1988) 1 NWLR (Pt.73) 721, where those requirements are laid down and referred to five other criminal cases in each of which the same question of proper arraignment was examined by the court. On the breach of sub-section 36(6)(a) of the Constitution, the learned Counsel submitted that there is nothing in the record of proceedings of the court below to show that the charges were read and explained to the respondents by the learned trial Judge. Because of these lapses, he urged the court to quash the whole trial, because it is a nullity, set aside the order of discharge of the respondents and order a retrial on the precedent of Oyediran v. The Republic (1967) NMLR 122, 125 and Sanmabo v. The State (1967) NMLR 314, 317.
The replies by learned Counsel for the respondents which were argued severally raised three questions. Firstly, that there was a substantial compliance with section 215 of the criminal procedure law and, therefore, there was no violation of sub-section 36(6)(a) of the Constitution. Secondly, that it is for the respondents, who are purported to be injured who should complain that they were not properly arraigned and not the prosecution who cannot claim that they were injured by any non-compliance. Thirdly, that the appellant did not raise the issue of improper arraignment of the respondents at the trial and must, therefore, be deemed to have waived the right to do so or are precluded from doing so on appeal. I will examine the three points taking the last point first because of its effect on the competence of issue one.
On page 13 of the 2nd respondent’s brief of argument, the learned Counsel contended that if the appellant who was aware of the alleged irregularities about the arraignment of the respondent refused to raise the matter at the trial the prosecution had by their ‘outrageous acquiescence’ waived the irregularities given the exposition of the concept of waiver in Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) 195 at pages 196-197 (sic; see (1985) 2 SC 260 instead) and urged this court to hold that the appellant having acquiesced in whatever may be alleged to be irregularities in the respondent’s arraignment by not raising the matter at the trial court the prosecution can no longer raise the irregularities on appeal as they are deemed to have waived them. In a similar vein, the same point was canvassed at page 9 of the 3rd respondent’s brief of argument, where on the authority of the self-same Ezomo v. Oyakhire, supra, learned Counsel for the 3rd respondent urged this court to discountenance the objection of learned Counsel for the appellant which, in law, is required to be raised at the earliest opportunity at the trial, but was not raised by the prosecution. The objection is belated, the learned Counsel submitted, and it cannot be made the subject of complaint on appeal.
Whether the principle of waiver is, in law, applicable to excuse non-compliance with the statutory provisions regulating a criminal trial, where such failure impinges upon the constitutional right calls for detailed analysis that can be short circuited by the more direct question arising from the same facts of the failure by the appellant to raise the issue of non-compliance with the provision of section 215 of the Criminal Procedure Law that bounced back on the provision of sub-section 36(6)(a) of the Constitution. If the question of irregularity in the arraignment of the respondents at the court below was not raised at the trial court that is a straight issue of whether the same question can be allowed to be raised for the first time on appeal and if yes under what conditions.
The general principle is that an appellant will not be allowed to argue on appeal a matter which was not raised at the trial. Being a matter which was not canvassed at the trial court, it is a fresh issue for which leave of the appellate court is required before it can be allowed to be argued on appeal for which see a full exposition in Attorney-General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt.92) 1. See also Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147 and Okobia v. Ajanya (1998) 5 SCNJ 95. (1998) 6 NWLR (Pt. 554) 348. The prosecution who after the plea of the respondents was taken, led five witnesses did not raise the point nor was the point raised in the final address of the learned senior state Counsel, after the close of the case for the prosecution. True enough, on the application of the learned Deputy Director of Public Prosecutions, filed on 2/8/2000 leave was granted to the Prosecution on 21/11/2000, to file an additional ground of appeal from which the first issue, which competence is being challenged was framed yet the application did not include leave to raise a fresh issue on appeal.
This point is made clear from paragraph 2 of the affidavit of the self-same Deputy Director of Public Prosecutions supporting the motion which defines the scope of the relief sought. It reads:
“That having gone through the records of appeal, I found it necessary to obtain leave of this Honourable Court to include the additional ground of appeal herein attached and marked Exhibit ‘A’ in order to effectively conduct the appeal of the appellant.”
It becomes abundantly clear that what was asked for and granted to the appellant was leave to file additional ground of appeal, No.4 in the sequence, and that nowhere in the record was leave asked for to raise a fresh issue on appeal. That being the case, the additional ground of appeal is a complaint based on the matter that was not canvassed at the trial and doing so without leave of this court, to raise the new matter on appeal it is incompetent. In consequence the first issue for determination formulated from that ground is also incompetent. The additional ground of appeal and the issue formulated from it are unholy afterthoughts and in the words of Mohammed, J.S.C., in Okobia v. Ajanya, supra, at page 102, it is raising a new issue ‘through the back door’. Accordingly, I strike out issue one, in the appellant’s brief of argument and the additional ground of appeal from which it was distilled. They are a disingenuous ploy calculated to overreach the respondents and, therefore, unconscionable.
However, if on a further review my conclusion on the additional ground of appeal and issue one distilled from it is considered to be erroneous it behoves me, as a precaution, to examine, in the alternative, the merit of Issue One by considering the two other questions raised in the respondent’s reply to the appellant’s submission on non-compliance with the arraignment procedure by the learned trial judge that rubs on the respondents’ right of fair hearing under sub-section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999.
Rebutting the argument of the appellant learned Counsel for the respondents each contended that it was not the argument of learned Counsel for the appellant, that there was not a reading and explanation of the charges to the respondents; rather, that the appellant’s contention is that the record does not show that the charges were read and explained to the respondents, an argument which the learned Counsel quickly pointed out is contradicted by page 129 of the record showing that the plea of each respondent was recorded.
Learned Counsel for the 2nd respondent submitted that the purpose of taking a plea being to ensure that the accused understood the charges against him that purpose is satisfied by the accused’s understanding of the charges that is betrayed by the facts recorded and urged this court to hold that the arraignment was a judicial act that was executed in substantial compliance with the law raising the presumption of regularity under section 150 of the Evidence Act. Support is lent to that submission by learned Counsel for the 3rd respondent, who cited Ogunye v. The State (1999) 5 NWLR (Pt.604) 548, that expounded the scope of the principles governing arraignment which he submitted that the plea taken by Ekpe, J., on 6/4/98 when she began hearing the case de novo satisfied adding that the procedural steps taken satisfied the requirements of section 215 of the Criminal Procedure Law of Cross Rover State and raised the presumption of regularity of judicial act under section 150 of the Evidence Act.
On the second question learned counsel for the 1st respondent agitated that the essence of the provisions of section 215 of the Criminal Procedure Law is to ensure the protection of the right of an accused person in criminal trial and submitted that since the 1st respondent who is alleged by the appellant to have been injured by the infraction of the procedural rule did not complain of any breach of his right it is wrong for the prosecution to make it an issue. Putting it more direct and pungently learned Counsel for the 2nd respondent queried as to ‘who can invoke the breach of the statutory and constitutional protection for proper arraignment of an accused person’, a poser which learned counsel for the 3rd respondent echoed and answered in chorus with the 2nd respondent’s counsel that ‘it is only the accused person (who) can properly do so for it was he that the law contemplated and sought to protect’. The learned Counsel likened the protection offered an accused person by section 215 of the Criminal Procedure Law to the one offered to ‘an illiterate’ under the Illiterates Protection Act the breach of which can only be invoked by an illiterate person and the interpretation given to that right in Wilson v. Oshin (2000) 79 LRCN 2077, (2000) 9 NWLR (Pt. 673) 442 that the protection of an illiterate is offered for his benefit but can never be used against his interest. Learned Counsel for the 2nd and 3rd respondents submitted that the provision of the law made for the proper arraignment of an accused person is an appellate sword, meant exclusively for the accused person and that it is only the accused person, who can unseath it against the prosecution but not the other way round. They concluded that it will be an absurdity in the extreme, if the prosecution who were a party to the breach of the rule on proper arraignment and abuse of the accused’s rights which section 215 of the Criminal Procedure Law is out to prevent should turn round to appeal on the violation of the rights to which they were instrumental. On that note, learned Counsel for the respondents unanimously urged this court to hold that there was a substantial compliance by the learned trial Judge with section 215 of the Criminal Procedure Law with due observance of sub-section 36(6)(a) of the Constitution and that, at any rate, there is no cause of complaint for the prosecution who were a party to any breach of the arraignment procedure to turn round to use any shortcoming in the process as a ground for upsetting the decision of the trial court. Finally, the learned counsel urged the court to resolve issue one in favour of the respondents.
In order to improve upon the arguments in the appellant’s brief which had been dented or punctured in some material parts by the respondents’ brief of argument learned Counsel for the appellant in the appellant’s reply brief bent over backwards to embellish a number of points in the appellant’s brief. This is not in consonance with rule 5 of Order 6 of the Court of Appeal Rules, 1981, in which the description of the object of a reply brief portrays it as a medium for dealing with ‘all new points arising from the respondent’s brief’. But notwithstanding the fire-fighting embellishment by the reply brief learned Counsel for the appellant could not mend the cracks in the logical structure of the argument as they were unable to provide answers to the three points raised by learned counsel for the respondents.
Firstly, the argument of the appellant is based on noncompliance by the learned trial Judge with section 215 of the Criminal Procedure Law on the recording of plea which involves freedom of the accused from physical constraints and reading and explaining the charges to the accused before taking their plea. There is no allegation that the respondents were in shackles thus, the irregularities being peddled by the appellant are confined to reading and interpreting the charges to the respondents and recording their plea.
Since for the purpose of ascertaining the scope of duty imposed upon a trial Judge in recording the plea of an accused sections 217 and 218 of the Criminal Procedure Law are material it is necessary to reproduce the two sections as well as section 215. They read:
“215. The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith,”
“217. Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial.”
“218. If the accused pleads guilty to any offence with which he is charged, the court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty the court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”
It is clear from the reading of the three sections that it is only where an accused person pleads guilty to the charge read and explained to him that the duty is imposed (by section 218) on the trial judge to ‘record his plea as nearly as possible in the words used by him’. No such obligation arises where the accused pleads not guilty to the charge as by operation of section 217 by pleading not guilty the accused is deemed to have ‘put himself upon his trial’. A comparison of the charges to which the respondents pleaded (vide pages 3-4 and 129 of the record) reveals lapses in recording the plea of the respondents, especially as regards the combination of the respondents, who pleaded to counts 3 and 4. But whatever irregularities that might be created by the lapses have been excused by section 168 of the Criminal Procedure Law, which provides in material part as follows:
“No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the court…”
A number of other lapses that cannot be made subject of reversible errors are enumerated in the four other sub-paragraphs. But for the purpose in hand, the above passage is a sufficient answer to the question posed that the appellant as a Public Prosecutor ought to know that in criminal proceedings under the Criminal Procedure Law of Cross River State, there are certain lapses either on the part of a trial Judge or a prosecutor against which objections are deemed to have been cured by the verdict and which, in criminal law, can no longer be made the subject of complaint on appeal. One such is the appellant’s complaint about non-compliance by the trial Judge with section 215 of the Criminal Procedural Law. The prosecution who complained that the plea is irregular had a duty to raise the objection promptly to enable the learned trial Judge to correct the error. Not having done so the error was ultimately cured by the learned trial judge’s ruling of 27/5/99, which concluded the trial and that clinches the argument against learned Counsel for the appellant whose strategy betrays a hawkish approach to justice based on unreasoning faultfinding calculated to secure a retrial of the respondents.
That also settles the respondents’ third question about the consequence of the appellant’s failure to raise the objection timeously. On the related question of whether the appellant can be deemed to have waived his right to complain over the non-compliance with the rule on arraignment of an accused the answer will depend on the respondents’ second question, namely, whether there is any right vested in the appellant which entitles him to complain about the violation of the respondents’ right. In any case, section 168 of the Criminal Procedure Law having been shown to be consistent with the waiver of a right relating to irregular taking of an accused’s plea the dilatory conduct of the prosecution may amount to a waiver if, indeed, the prosecution have the right to challenge on appeal an irregular arraignment.
The answers to the 1st and 3rd questions posed by the respondents having settled issue one, I must go over quickly to the 2nd complementary question whether the appellant as the prosecutor can complain about the trial of the respondents being invalid because their plea was not properly taken. Replying to the poser by the respondents about the party in whom it is vested the right to challenge violation of the statutory or constitutional safeguards designed for the protection of an accused person learned Counsel for the appellant in the appellant’s reply brief argued that because it is the State which suffered the miscarriage of justice occasioned by an improper application of the erroneous plea to the discharge of the respondents, it is the prosecution in whom the right to challenge the violation of the law is vested. The fallacy underlying that argument is failure to show the connection between the error in taking the respondents’ plea and any miscarriage of justice when the reason for discharging the accused is stated to be due to the prosecution’s failure to prove their allegations against the respondents. The argument of learned Counsel for the appellant is based on presumption and, therefore, a false premise. Moreover, that facile argument fails to meet the more compelling reasoning whether the law designed for the protection of an accused person can be used against his interest implied by the prosecution’s appeal against the respondents’ discharge on the ground that taking the respondents’ plea was vitiated by irregularities. I find rather persuasive argument of learned Counsel for the respondents that the provision of the law made for the proper arraignment of an accused person is an appellate sword meant exclusively for the accused person who can unseath it against the prosecution but not the other way round. I will qualify that proposition with the rider that regard must be had to the provisions of section 168 of the Criminal Procedure Law. Equally apposite is the absurdity of the position of the prosecution who are under a duty to call the attention of the court to any error in taking an accused’s plea but failed to do so only to turn round to capitalize on the error to upset the court’s final decision. In the arid sphere of chicanery that may appear to be a masterstroke. But that illusion has been shattered by the provisions of section 168 of the Criminal Procedure Law that settled any misgivings on the point and that, ineluctably, leads to the conclusion that breach of the provisions of the law designed for the protection of an accused cannot be invoked by the prosecution against the interest of the accused. Consequently, it is erroneous for the Prosecution qua the appellant to arrogate to themselves, as State personified the power to challenge violation of the accused’s right in direct opposite to the interest of the accused. That will be the very antithesis of justice which the office of the Public Prosecutor is set up to uphold.
With all the matters bearing on Issue One considered, I find that the additional ground of appeal from which that issue is formulated was a complaint about a matter which was not canvassed at the trial court. Being a fresh matter for which leave of this court is required before it can be raised, but for which no leave was sought by the appellant the ground is incompetent and, eo ipso, the issue distilled from that ground is also incompetent. Considering in the alternative, by examining the issues formulated on the merits, the prosecution having failed to raise expeditiously objection to the plea taken irregularly to enable the court to correct the error they are by operation of section 168 of the Criminal Procedure Law, precluded from raising the matter on appeal against the final decision on the trial as any irregularity in the plea is deemed to have been cured by the verdict. Allied to these is the basic principle against which the appellant is arguing with the obduracy of a zealot that the prosecution cannot in law, raise a breach of the rights designed for the prosecution of the respondents as a ground of complaint against the decision given in favour of the respondents. The appellant having failed to sustain all the points raised in support of issue one the issue is resolved against the appellant.
The thrust of attack of the judgment of the court below in issue two is denial of the appellant of the right of fair hearing in which refusal by the trial court to grant the appellant an adjournment and closing the Prosecution’s case by the learned trial Judge became the centre-piece. Learned Counsel for the appellant linked inexplicably the breach of the right of fair healing to the refusal on 25/2/99, to grant the prosecution an adjournment of the case at a point in time when the prosecution still had a number of witnesses to call whose testimonies are very important to the Prosecution’s case. According to the learned Counsel, the aftermath of the refusal of an adjournment and the precipitate closure of the case for the prosecution by the learned trial Judge was the shutting out of the evidence of the remaining witnesses for the prosecution. The learned Counsel argued that the period between the time when the trial commenced, i.e. 6/4/98, and 25/2/98 when adjournment was refused did not amount to an unreasonable delay under sub-section 36(4) of the Constitution to justify the refusal of an adjournment in the light of the guide provided by Asakitikpi v. The State (1993) 5 NWLR (Pt.296) 641, 652, for gauging a culpable delay.
The learned Counsel contended that granting adjournment of a case is discretionary but that the discretion must be exercised judicially and judiciously and submitted that where there is a change of counsel during a trial and the new counsel asks for a short adjournment, it will be injudicious to refuse the prayer citing in support Nabsons Ltd v. Mobil Oil Ltd. (1995) 7 KLR 1470, 1481. He submitted that the learned trial Judge was in error to have refused the application of the new counsel for an adjournment, when ‘more witnesses’ (for the prosecution) ‘were being expected’ and that it amounted to exercising discretion arbitrarily and a denial of fair hearing for the learned trial Judge to have closed the case for the prosecution. He commended the definition of ‘fair hearing’ in Salu v. Egeibon (1994) 18B LRCN 241, 254, (1994) 6 NWLR (Pt. 348) 23 as ‘trial of a case or conduct of proceedings according to all relevant rules for ensuring justice’. He further contended that ‘a fair healing must involve affair trial of a case and a fair trial of a case consists of the whole hearing’ in support of which he cited the Supreme Court’s decision in Mohammed v. Kano N.A. (1968) 1 All NLR 424, 426. The learned Counsel concluded that because of the strong evidence against the respondents at the trial court, the appeal should be allowed by this court setting aside the order of discharge of the respondents by the trial court and ordering their retrial for the same offences.
Learned Counsel for the respondents whose arguments were ranged in relays to contradict the appellant’s submission that he was denied a fair hearing argued that the appellant received a fair hearing given the fact that contrary to the slanted facts presented by the appellant there were two applications for adjournment in succession; the first was granted inspite of opposition by learned Counsel for the respondents while the second that gave rise to the events culminating in this appeal was refused. While learned Counsel for the respondents agreed with the appellant that adjournment is at the discretion of the court, which would grant it according to the circumstances of a particular case they argued that while the leaned Deputy Director of Public Prosecutions who asked for an adjournment on 3/2/99, gave as his reason for seeking the adjournment the time necessary for the prosecution to call an undisclosed number of their ‘last witnesses’ coming from Ibadan and Lagos his sun-ogate, a younger counsel, who appeared on 25/2/99, did not allude to what happened to the proposed witnesses from Ibadan and Lagos. He is shown on page 142 of the record as announcing that he was holding the brief of Mr. Ebuta, the Deputy Director of Public Prosecutions, after which he asked ‘for a short adjournment and pledges to handle the matter on the next adjourned date’. The peremptory style of asking for an adjournment with no reason adduced by the young counsel who appeared on 25/2/99 learned Counsel for the respondents argued is incompatible with a sober mode of prayer based on reasons that lend themselves to rational scrutiny in which a legal supplication is usually made. In particular, learned Counsel for the 1st respondent argued that with no reason given for the prayer for a further postponement of a trial that was set down on 25/2/99, for continuation the appellant has no reason to complain about the exercise of discretion by the court which refused to grant an adjournment for the asking relying on Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22, 29.
Complementing that view learned Counsel for the 3rd respondent submitted that adjournments are not granted as a matter of course, but must be based on reason contending that the power to grant an adjournment is discretionary though the discretion must be exercised judicially and judiciously, a proposition in support of which he cited the decision in Solanke v. Ajibola (1968) 1 All NLR 46; Tsaku v. The State (1986) 1 NWLR (Pt.17) 516; and Odogwu v. Odogwu (1992) 7 NWLR (Pt.253) 344. Rounding off the argument for the respondents learned Counsel for the 2nd respondent relying on the same set of authorities submitted that the judicial and judicious exercise of discretion was played out by the court below on 3/2/99, when it granted an adjournment to the appellant to enable it ‘to call its last witnesses’. But that the situation is different on the next adjourned date, 25/2/99, when a junior counsel appeared and asked for an adjournment without giving any reason than a feeble pledge to handle the matter on the next adjourned date which the learned counsel submitted is ‘cloudy and shrouded in secrecy’ as it failed to intimate the court on why the adjournment was being sought or explain the absence from the court of its last witnesses which was the excuse given on 3/2/99, when the principal counsel was granted an adjournment. The learned Counsel recalled the opinion of the Supreme Court in Solanke v. Ajibola, supra, at page 46, that ‘the mere fact that a counsel asked for adjournment does not mean that it ought to be granted’ to emphasise the aspect that there must be cogent reason for the prayer which must also accommodate the interest of both the other party and the courts. He concluded that the prayer for an adjournment on 25/2/99 is self-centred as it paid no regard to the interest of the respondents and the court and urged this court to hold that the trial court was justified in refusing the appellant’s application for an adjournment.
On the appellant’s prayer that this court should order a retrial of the case, learned Counsel for the 1st respondent submitted that it is not the practice of the court to grant such an order where, as in this case, the object of seeking the relief is to afford the prosecution the opportunity to remedy the defect in their case so as to secure a conviction of the respondents. He referred to Offor v. The State (1999) 12NWLR (Pt.632) 608, 617, in which such a ruse was decried as manifesting the stand of the law on the matter. Allied to this is the appellant’s complaint about the learned trial Judge closing the case for the prosecution on which learned Counsel for the 3rd respondent submitted that the learned trial Judge had acted properly by closing the case for the prosecution at the prompting of the defence in order to protect the interest of the respondents, who had been standing trial since 9/12/96 as much as to vindicate the integrity and detachment of the court when it became obvious that the prosecution had got to their wits’ end from where they could no longer advance to conclude the trial. Chorusing the parting-shot learned Counsel for the respondents submitted that the prosecution were not denied a fair hearing; rather, they did riot avail themselves of the right of hearing as laid down by the principles of law.
Let me begin the examination of the pros and cons of the arguments of the learned counsel with some material clarifications. The misrepresentation of material facts and their outright slanting on which the learned Deputy Director of Public Prosecutions presented his argument on pages 5 and 6 of the appellant’s brief of argument are a regrettable fabrication that is apt to colour the application of the relevant legal principles which, in a way, is likely to diminish the merits of the learned counsel’s argument. The submission that ‘the prosecution had only asked for one adjournment on 28/5/98′ is not borne out by the proceedings of 3/2/99 and 25/2/99, on pages 141 and 142 of the record, any more than the contention that Mr. E. Henshaw, who appeared before the trial court on 25/2/99 was a new counsel, who took over the prosecution of the case from Mr. Ebuta which is contradicted by the express announcement to the court on 25/2/99 by Mr. Henshaw (vide page 142 of the record) that he was holding the brief of Mr. Ebuta for the state. In consequence, the legal propositions based on those distorted facts are like an elaborate state of the art structure erected on a quicksand which is bound to collapse like a pack of ill-assorted cards.
Against this background, the whole debate about whether the prosecution had a fair hearing is a straight issue on whether the refusal of the prosecution’s application for an adjournment and the closure of their case by the learned trial Judge in the sequel amounted to a breach of the prosecution’s right of fair hearing to warrant setting aside the decision of the learned trial Judge.
The principle on which the court will grant an adjournment was stated by this court in Odogwu v. Odogwu, supra where the court, per Kolawole, J.C.A., expounded, at pages 353-354 inter alia, as follows:
“The question whether or not to grant an adjournment is a matter within the discretion of the court. The guiding principle is that the discretion being judicial, must be exercised at all times, not only judicially, but also judiciously on the materials before the court and the peculiar circumstances of the particular case. The court must thus, balance its discretionary power to grant or refuse an adjournment bearing in mind the rights of the parties. University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796.
I adopt with respect, the views of Olatawura, J.S.C. that:
“No encouragement should be given to counsel who are not ready to prosecute their cases. Unnecessary and prolonged adjournment lead to frustration on the part of litigants, and sometimes, they may lead to a miscarriage of justice… we must reduce to the barest minimum application for adjournment. Adjournments which are designed to delay or defeat justice should be refused.” (See Akpan v. The State (1991) 3 NWLR (Pt.182) page 646 at 661 H-662A).”
On the bearings of the facts of this case on the principle enunciated above, on 3/2/99 the learned Deputy Director of Public Prosecutions handling the matter from the inception asked for an adjournment to enable him to lead evidence of an undisclosed number of prosecution witnesses living in Ibadan and Lagos. The adjournment was granted over the objection of learned Counsel for the defence. On 25/2/99, to which the case was adjourned a senior state Counsel, appeared in court holding the brief of the learned Deputy Director of Public Prosecutions. Without telling the court about the supposed witnesses coming from Ibadan and Lagos, he asked for a further adjournment of the case and without breathing a word about why a further adjournment became necessary. With the carriage of a state legal mandarin, he gave the hollow pledge that he would handle the matter on the next adjourned date. With a barrage of opposition to a further adjournment of the case by learned defence Counsel, who insisted that the learned senior state counsel should be asked to close the case for the Prosecution the learned trial Judge took the bull by the horns, acceded to the defence’s importuning and closed the case for the prosecution.
In the face of the apparent thoughtlessness of the prosecution to the plight of the respondents who were facing criminal charges I do not consider to be warranted the fulmination by learned counsel for the appellant over the refusal of a further adjournment by the learned trial Judge. Whether adjournment of a case should be granted or not is discretionary and I cannot see the basis for exercising a discretion in favour of a supplicant who offered no reason in support of the indulgence which he is seeking from the court. The learned Deputy Director of Public Prosecutions who on 25/2/99 sent to court his subordinate to secure an adjournment of the case without giving any reason cannot be said to have acted with the concern for the plight of the hapless respondents in mind. Besides, he acted in total oblivion of the admonition by this court in Madu v. Okeke (1998) 5 NWLR (Pt.548) 159, 164, against the senior counsel sending a junior one to court to obtain an adjournment. I do not find any substance in the grouse of learned Counsel for the appellant about refusal of an adjournment by the learned trial Judge, when no reason was given for seeking the adjournment. The application, in my view, was based on ill-conceived privilege of petty officialdom which has no basis in law or justice and which a court of law is entitled to spurn as did the learned trial Judge, who called the prosecution’s bluff, when the respondents’ constitutional right to fair hearing was at stake.
Capitalizing upon the refusal of an adjournment by the learned trial Judge, the appellant contended that the prosecution were denied a right of fair hearing by the trial court which stalled their bid to call their remaining witnesses, when the prosecution’s case was closed off-handedly by the court. The conclusion which I have reached on the refusal of the trial court to grant an adjournment to the prosecution has also settled any argument about the violation of the prosecution’s right of fair hearing that stemmed from the inability of the prosecution to continue the case. But it is necessary to add for amplification of the prosecution’s short-comings that their idea of calling more witnesses is hazy and illusory inasmuch as no certainty about the number or particulars of the professed witnesses is discernible from the record. In this regard, I agree with learned Counsel for the respondents that the prosecution, qua the appellant were not denied a fair hearing; on the contrary, they did not avail themselves of the right of fair hearing by taking steps which are consistent with the principles laid down by the law for reaping the benefit of any claim to the right.
In the peculiar circumstances of this case, one important adjunct of the rule of fair hearing is its reciprocal nature in the sense that doubt is cast on whether the prosecution who bemoaned being denied the right of fair hearing took practical steps to ensure that the respondents on their part had a fair hearing at the crucial juncture marking the outset of the right before its swing. That makes one to wonder why the prosecution who are now in the vanguard of the right of fair hearing did not consider it necessary to press for an ‘assignment order’ being issued to enable the trial to be concluded before Itam, J., either at Calabar or Ogoja, at a time when the case was coasting to conclusion after almost 11 witnesses had testified for the prosecution. That mocks the prosecution’s lament over the right of fair hearing in the proceedings in this appeal as nothing but shedding crocodile tears when the self-same prosecution had compromised the chances of concluding the respondents’ trial within a reasonable time by being a party to the agreement to stm1 the trial de novo before another Judge.
The indiscretion about starting the trial de novo also militates against the prosecution’s frantic plea that this court should order a retrial of the respondents based on the assumption that the trial at the court below is a nullity. Whatever may be the reason for the faux pas, which prolonged the trial no system of justice that pays regard to the concept of fair trial would indulge the prosecution’s subtle attempt to have another bite at the cherry by ordering a retrial, even if the appellant had succeeded in establishing that the prosecution’s right of fair hearing was technically breached by closing of the prosecution’s case by the learned trial Judge. Against any wrong that may be occasioned by the closure of the prosecution’s case as a reaction by the learned trial Judge who was incensed by the prosecution’s foot-dragging, must be set the danger to the respondents of a protracted trial for reasons which are not of their own making.
Sub-section 33(9) & (10) of the Constitution of the Federal Republic of Nigeria, 1979, which was enacted ipsissima verba as sub-section 36(9) & (10) of the 1999 Constitution, has been identified as a safeguard against the concept of a retrial for criminal offences comparable to what is known in American jurisprudence as ‘double jeopardy’, a doctrine which is derived from the Fifth Amendment to the American Constitution and which provides that no person shall be put in jeopardy of life or limb twice for the same offence. At page 445 of his book, ‘The Constitution of Nigeria’, 1982 Edition, the renowned constitutional lawyer, Professor Nwabueze, SAN., described the elements of jeopardy as ‘the hazards of a criminal trial – the ordeal, anxiety, embarrassment and expense of prosecution together with the fear of possible conviction’. In Green v. United States (1957) 355 US 184, 187-188, the doctrine came for interpretation by the United States’ Supreme Court in which the constraints imposed on the retrial of an accused person for the same offence were articulated as follows:
“The underlying idea is that the state with all its resources and power should not allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
Whether as Prof. Nwabueze canvassed in his book the principle evolved from the doctrine of double jeopardy ought not to be limited to the verdict of conviction or acquittal at the end of a trial because premium ought to be put on the hazards of a trial rather than the outcome of the trial, in this country susceptibility of an accused to danger which the doctrine is set out to check has, as far as practicable, been assimilated into the principles governing making an order of retrial by the appellate courts enunciated by the Supreme Court in Abodundu (sic) v. The Queen (1959) SCNLR 162; (1959) 4 FSC. 70,73. It laid down that a retrial is to be ordered only where, among four other constraints enumerated, ‘there are no such special circumstances as would render it oppressive to put the appellant on trial a second time’. That principle has become a locus classicus on F the rule governing making an order of retrial in criminal matters in this country for a few instances of application of which see Aigbe v. The State (1976) 1 NMLR 184, 193; Eyorokoromo v. The State, (1979) 2 FNR. 32, 39-40 (1979) 6-9 SC 3; Gulma v. The State (1981) 2 NCR 297, 326-327; Erekanure v. The State(1993) 5 NWLR (Pt.294) G 385, 398; Adeoye v. The State (1999) 6 NWLR (Pt.605) 74, 88 & 94; and Ajile v. The State (1999) 9 NWLR (Pt.619) 503, 510-511.
Applying that principle to the instant appeal to subject the respondents to another round of trial, some five and a half years after their first arraignment on 9/12/96 would, from the point of view of the effect on the respondents, be oppressive. From the standpoint of judicial policy that puts a premium on trial within a reasonable time in keeping with the constitutional imperative granting a retrial would be an indulgence of the prosecution’s penchant for trial and error and an indirect way of nurturing their rapture for a pedestrian attitude to performance of a serious legal duty. But more significantly an order of re-trial will afford the prosecution the opportunity to fill every lacuna in the evidence during the two previous proceedings as a way of clearing every hurdle that stood in the way of securing the respondents’ conviction on the earlier attempts.
The refusal of a further adjournment of the case used as a springboard by the appellant to reach out for the complaint about breach of the right of fair hearing to which is fastened the relief for a retrial of the respondents is one maze of illusion that is spiced up with misrepresentation of facts for effect. The prayer has not a scintilla of merit and that resolves issue two against the appellant.
Let me pause here to make an observation on one strange, but disturbing point even though it is not raised as an issue in this appeal and the conclusion reached on the appeal does not reflect the point.
In the notice of appeal filed on 7/7/99 – see pages 161 – 162 of the record with a signed copy elsewhere in the Case File – the learned senior state counsel, who signed the notice introduced himself as the State Attorney-General and at the same time conferred upon himself, the authority to prosecute the appeal on behalf of the State.
The circumstances under which the learned senior state Counsel is arrogating to himself the powers of the State Attorney-General to vest himself with the authority to file and prosecute the appeal amount to impersonation of the learned Attorney-General and usurpation of his functions under section 211 of the Constitution of the Federal Republic of Nigeria, 1999. It is immaterial that under sub-section (2) thereof the powers conferred on the Attorney-General ‘may be exercised by him in person or through officers of his department’.
The authority to delegate the powers is that of the Attorney-General and it does not seem on the face of the provision of that sub-section that any delegation of authority can be satisfied by any officer of his department delegating the powers to himself.
By the ambitious gaffe by Mr. E.I. Henshaw doubling as the Attorney-General and a senior state counsel, the process originating the appeal, i.e. the notice of appeal, has been reduced to a travesty which would have terminated the appeal in limine given a perceptive defence team who are agile at the scrutiny of facts with the grasp of the applicable law. The episode is a sorry development that should be nipped in the bud before it becomes part of the legal culture of the Cross River State Ministry of Justice, which cannot evolve its own interpretation of the Constitution of the Federal Republic of Nigeria, as regards the limitations on the powers of the officers of the Attorney-General vis-‘E0-vis the constitutional powers of the incumbent of that office.
Be that as it may, let me say in conclusion that after everything has been considered including the antics of the prosecutors who handled this case at the trial court, I must on a calm view of the matter, reiterate the view I expressed earlier in this judgment that the prosecution/appellant’s style of handling this case both at the court below and in this court is indicative of a hawkish approach to justice based on unreasoning fault-finding to secure a retrial of the respondents as a stratagem to get them convicted at all cost. Getting even with an accused is a barren showmanship. It is a negative approach to criminal prosecution in a reversal of role in which the ‘Public Prosecutor’ adopted the posture of a ‘Public Avenger’. It is a disservice which is injurious to the fabric of justice. It calls to mind the Supreme Court’s warning over overzealousness of a comparable nature in Atanda v. Attorney General of Western Nigeria (1965) NMLR 225, 232, where the court admonished that:
“We have to remind prosecuting counsel that they ought to look on themselves not as advocates but as ministers of justice, and their task is not to secure convictions but to help in the administration of justice: see R. v. Banks.” (1916) 2 K.B. 621.
In the final analysis, I come to the conclusion that the conduct of the trial at the court below is a botch-up the shabby performance which the prosecution cannot hope to mend on appeal. In the result I affirm, the decision of the learned trial Judge, discharging the four accused persons at the trial court, but respondents before us of the various criminal charges against them. The appeal fails and it is dismissed.
EDOZIE, J.C.A.: I had read before now, the lead judgment of my learned brother, Olagunju, J.C.A. and I subscribe to it.
The respondents, who were standing trial for the offences of conspiracy to steal, stealing and attempt to steal under various sections of the Criminal Code, Laws of the Cross River State, were discharged by the court below in a ruling on a “no case submission” made by their counsel following the refusal of that court to grant an application for adjournment to the prosecution to continue its case on a subsequent date. It is against that ruling on the ‘no case submission’ that the prosecution has lodged the instant appeal.
It is settled law that a ‘submission of no case’ means that there is no evidence on which the court could convict even if it believes all that the prosecution’s witnesses have said: See The Queen v. Ogucha (1959) FSC. 58, (1959) SCNLR 154; Ibeziako v. C.O.P (1963) 1 SCNLR 99. Where in its ruling the court upholds that submission and the prosecution appeals against it, assuming it is appealable (for which see the views of Ademola, Awogu JJCA and Babalaki, JCA, as he then was in the case of Nwosu v. State (1990) 7 NWLR (Pt.162) 322, the appeal naturally should be expected to center on whether or not the prosecution had made a prima facie case against any of the accused persons and in respect of any of the offences charged. Regrettably, that is not so in the instant appeal.
The appeal by the prosecution turns on the regularity or otherwise of the respondents’ arraignment and lack of fair hearing arising from refusal to grant adjournment.
With respect to the plea of the respondents, it is manifest from the printed record of appeal, that no issue about it was raised in the court below. It therefore, constitutes a fresh issue on appeal for which leave to appeal against is required: see Attorney-General Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt.92) 1. The mere leave granted to file an amended ground of appeal does not meet the requirement of the law: Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271.
In the instant appeal, no leave to raise the fresh issue under consideration was ever sought, let alone being granted. The issue is therefore, incompetent and does not properly arise for determination in this appeal. Even if it were to be considered, it is difficult to see how it avails the appellant. The main contention of the appellant was that the pleas of the respondents to the charges were not properly recorded and were therefore in contravention of section 215 of the Criminal Procedure Law. A careful reading of that section reproduced in the lead judgment, shows clearly that it is made for the protection of the accused person. It is not open to the prosecution to argue that a breach of it renders the trial a nullity entitling it to an order of retrial. In my humble view the section enures for the benefit of the accused. Appellant’s argument on the issue is groundless.
Equally groundless is the complaint on lack of fair hearing due to the refusal of the court below to grant an adjournment to the prosecution. It is strange that the prosecution which had subjected the respondent to a rigorous trial from 9/12/96, when plea was taken to 25/2/99, when further adjournment was refused, a period of over three years, can be heard to complain that it was denied a fair hearing in the presentation of its case.
Unarguably, the prosecution had more than ample opportunity to present its case before its tardiness was put to an end by the refusal of a further adjournment. The grant or refusal of an adjournment is an exercise of judicial discretion; it must not be exercised arbitrarily but like every other exercise of discretion, judicially and judiciously and upon the material placed before the court: Udo v. The State (1988) 3 NWLR (Pt.82) 316; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148. In the case of Odusote v. Odusote (1971) NMLR D 228 at 231 Udo Udoma JSC had this to say:
“The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For in matters of discretion, no one case can be authority for another and the Court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect putting an end to the discretion per Kay L.J. in Jenkins v. Bushby (1891) 1 Ch. 484 p. 495”.
In consideration of an application for adjournment the court is faced with two competing interests; the interest to dispose of the case speedily and the interest of the applicant to be heard on the matter.
In determination of these competing interests, the court must be guided by the need to do substantial justice: See I.I.G. (Nig.) Ltd. v. Alao (1990) 3 NWLR (Pt.141) 773; Ononuju v. Ononuju (1991) 5 NWLR (Pt.192) 479. In the case in hand, and guided by the principles of law enunciated above, I am of the view that in the face of the paucity of the materials before the court for the request of further adjournment, the refusal of the court to do so cannot be faulted.
For these reasons, in addition to those admirably set out in the lead judgment, I think this appeal is abysmally groundless and must be dismissed, and I do so and affirm the decision of the learned trial Judge discharging the respondents.
EKPE, J.C.A.: I had the advantage of reading in advance, the leading judgment just delivered by my learned brother, Olagunju, J.C.A. I entirely agree with his reasoning and conclusions for dismissing the appeal. The facts of the case are articulated in the lead judgment.
The appeal in this case by the prosecution turns on two pronged grounds of attack against the ruling of Ekpe, J. of Cross River State High Court, Calabar Judicial Division, dated 27th May, 1999. The prosecution qua appellant has attacked the propriety of the plea of the accused persons qua respondents taken by the trial court as not being in compliance with section 215 of the Criminal Procedure Law of Cross River State of Nigeria and the refusal by the learned trial Judge to grant them adjournment to call the two last witnesses for the prosecution.
While agreeing with the leading judgment, I wish however, to make a few comments as a matter of emphasis on the two issues raised in the appellant’s brief of argument.
The first ground of attack is whether the plea of the respondents taken upon their arraignment and trial at the court below was not a nullity by reasons of non-compliance with section 215 of the Criminal Procedure Law. Section 215 aforesaid provides thus:
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon, to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”
It is the contention of the appellant that the record of appeal does not show that the charges were read and explained to the respondents. I have read page 129 of the record where the learned trial Judge recorded the plea of the respondent. Admittedly, the learned trial Judge did not record expressly and specifically that the charge was read over and explained to each of the accused persons to the satisfaction of the court before the plea of not guilty was entered in respect of each count. It is not the law that unless the trial court so expressly records, such arraignment automatically becomes invalid and null and void. In Ogunye v. The State (1999) 5 NWLR (Pt.604) 548, the Supreme Court held that although, it is good practice and indeed desirable that a trial court specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto, it is not the law that unless, the court so expressly records, such an arraignment automatically becomes invalid and null and void. The apex court also held that the law which enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto is subjective and not objective and that an appellate court is entitled to assume that the correct procedure was adopted by the trial court on the issue of interpretation of the charge to an accused person until the contrary is proved. See Lockman & Anor v. The State (1972) 5 S.C. 22; Edun & Ors. v. I.G.P. (1966) 1All NLR 17 at 21. In the instant case, it has to be assumed that the learned trial Judge adopted the right procedure of interpretation or explanation of the charge to the respondents, even though she did not record such expressly, before entering the plea of not guilty in respect of each count of the charge. The maxim of “Omnia praesumuntur rite esse acta” applies. Even if it is accepted that the record of the learned trial Judge is not as comprehensive as it ought to be and thereby exhibiting some irregularity in recording the plea there was no objection by the prosecuting counsel as to the course adopted by the learned trial Judge and, therefore in my view, it is too late for him to complain.
Moreover, section 215 of the Criminal Procedure Law should be for the protection and benefit of accused person, who should raise its non-compliance on appeal and not for the prosecution to raise it against the accused person.
The second ground of attack is the refusal by the learned trial Judge to grant adjournment to the appellant to call their remaining witnesses before closing their case. It is trite that the grant or refusal to grant adjournment is at the discretion of the court seised with the matter or case, provided the discretion is exercised judicially and judiciously in the interest of justice to all concerned. The question of interest of justice was considered by the Supreme Court in the case of Nigeria Ports Authority v. C.G.F.C. (1974) 12 S.C 8 at page 91. There the Supreme Court was considering the question of grant of adjournment and observed thus:
“We think there are occasions when we think it will not be in the interest of justice to grant an adjournment. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the court. In other words, the adjournment being sought should of a strict sense be in the interest of all concerned.”
In Q v. Onyedire (1961) 1 All NLR 642, (1961) 2 SCNLR 292, it was held that the refusal of a trial Judge to grant a late adjournment will not be disturbed on appeal, unless it is shown that the lateness of the application to the trial Judge was due to a mistake or other justified reason. The refusal to grant adjournment is discretionary and in order to succeed on appeal against such refusal it must be shown that the Judge exercised his discretion wrongly. See Nwokenta v. The State (1967) NMLR 178. It seems to me elementary that in a criminal case, that if the prosecution intends to call witnesses in proof of their case they must take timely steps to have them at the trial ready to give evidence before their case is closed and they cannot complain if the court refuses to adjourn the case. In Ndu v. The State (1990) 7 NWLR (Pt.164) 550, it was held that the court will refuse an application to adjourn a hearing if it is of the opinion that the application is made only for the purpose of delaying the proceedings. In my view, in the instant case, the learned trial Judge exercised her discretion properly to refuse the application by the appellant for adjournment and this court should not disturb her exercise of discretion.
Before I conclude, I must say that this appeal by the prosecution should not have been embarked upon as it is unnecessary and unwarranted waste of time and resources. Under our criminal legal system a prosecutor should never appear to be a prosecutor. For the above views and the detailed views of my learned brother, Olagunju, J.C.A. in the lead judgment, this appeal lacks merit and it is hereby, dismissed. I affirm the decision of the learned trial Judge in upholding the no-case submission and discharging the respondents.
B.I. Ebuta, Deputy Director of Public Prosecutions, Cross River State (with him, E.I. Henshaw, Senior State Counsel)For Appellant
F.O. Onyebueke, Esq.
G Chief N.O. Nsefik
S.A. Mgbe, Esq.For Respondent