ANY COURT’S DECISION THAT OCCASIONS MISCARRIAGE
OF JUSTICE IS PERVERSE
UGBOJI V. STATE (2017) LPELR-43427(SC)
INTRODUCTION
It is trite that the Supreme Court will hardly
interfere with concurrent findings of the lower courts. This
position was reiterated by EKO, J.S.C, in his own contribution in
this judgment recently delivered by the Supreme Court, when he said
“This Court, as a policy, is loathe to intervene and interfere with
the concurrent findings of fact made by the trial and intermediate
Courts. The exception is, inter alia, when the concurrent findings
are perverse.”
SANUSI, J.S.C. in his leading judgment held that
“The learned Justices of the lower Court in my view are/were wrong
in affirming the decision of the trial Court when it held that the
latter was right in applying the provisions of Section 216 and
Section 217 of CPC to convict the appellant without a formal charge
framed against him. Such finding is, in my considered view,
perverse and erroneous.”
In shedding light on where the decision of court
would be regarded as perverse, EKO, J.S.C said “The decision is
perverse, if among other things, the Court took into consideration
matters extraneous to the facts in issue, or matters which it ought
not to have taken into consideration.” He went further to say that
“When a Court goes out of the proceedings to import and rely on
extraneous matters to predicate its decision on, the natural
consequence of this cloister justice is a miscarriage of justice. A
decision that occasions a miscarriage of justice is also
perverse”.
BRIEF FACTS OF THE
CASE
In summary, the facts of the case are that the
appellant herein and five others were charged before the trial High
Court sitting in Otukpo and tried on five counts recapitulated as
follows:
A. Offences allegedly committed on 18th October,
2001 at Achigili Street, Otukpo-
1. Conspiracy to commit robbery;
2. Robbing Salisu Mohammed (Pw.3) of the sum of
N10,000.00;
3. shooting and injuring Salisu Mohammed (PW.3)
in the course of robbing him.
B. Offences allegedly committed on 9th
September, 2001 at Otia F, Igbanonmaje, Otukpo
4. Robbing Adakole Ogale (PW. 1) of N3,500.00 at
gun point; and
5. Robbing Stephen Ichakpa (Pw.2) of N6,000.00
at gunpoint.
All the accused persons pleaded not guilty to
each of the five counts. In the course of the trial, three of the
accused were discharged on a no-case submission, leaving Olarewaju
Akogwu, Mathias Garuba Idoko and the appellant who was the 3rd
accused. They were eventually discharged and acquitted in respect
of counts 1, 2 and 3. The trial Court, relying on the accused
persons’ extra judicial statement, ruled that the appellant and two
other co-accused had a case to answer, as prima facie case was made
against them on counts 4 and 5. At the conclusion of the trial, the
trial judge, while delivering his judgment, invoked the provisions
of Section 216 and 217 of the Criminal Procedure Code (CPC) to the
effect that a trial Court has the power to convict an accused for
any offence disclosed by evidence even though not specifically
charged with it. The appellant was subsequently found guilty,
convicted and sentenced for conspiracy to commit armed robbery, an
offence for which they were not charged.
Riled by the decision of the trial Court, the
appellant herein, appealed to the Court of Appeal, Makurdi Division
but his appeal was dismissed by the Court. Still dissatisfied, the
appellant has now appealed to the Supreme Court.
ISSUE(S) FOR
DETERMINATION
The issues for determination as distilled by the
Court for the just determination of the appeal are:
1. Whether in the circumstances of this case it
was proper to convict the appellant to conspiracy (sic) to commit
armed robbery proffered against the appellant.
2. Whether the prosecution proved the guilt of
the appellant beyond reasonable doubt as required by
law?
HELD
The Court unanimously held the appeal to be
meritorious and accordingly, same was allowed. As a corollary, the
conviction and sentence passed on the appellant by the trial Court
which was affirmed by the lower Court was set aside. Appellant was
consequently discharged and acquitted.
RATIO DECIDENDI
- CONSTITUTIONAL LAW – SUPREMACY OF THE CONSTITUTION:
Effect of any Law or Act that is inconsistent with the
Constitution
“My lords, permit me to reiterate that the
Constitution of the Federal Republic of Nigeria of 1999, as
amended, had by Section one, made provision to emphasize or assert
its supremacy. By that provision, any law/statute or provisions
thereof that runs riot and violent to the provisions of the
Constitution or is in conflict with the constitutional provision is
null and void to the extent of inconsistency. See A.G. Ondo State
vs AG of the Federation and Ors (2002)9 NWLR (pt 772) 226.”Per
SANUSI, J.S.C. (P. 23, Paras. B-D
- CONSTITUTIONAL LAW – RIGHT OF AN ACCUSED PERSON: Right of
an accused person to be informed of the nature of the offence with
which he is charged
“By the provisions of Section 36 (6) (a) of the
1999 Constitution as amended, reproduced supra, any person charged
with a criminal offence must be informed promptly and in detail,
the nature of the offence he is charged with or accused of
committing in the language he understands. It seems to me that by
the provisions of Section 36 (6) (a), the Constitution has decreed
that a formal charge has to be framed which also must be read to
the accused person in the language he understands, as well as the
details of the nature of the offence. The trial Court must also be
certain that the accused has not been misled in his defence. The
invocation of the provisions of Section 216 and Section 217 of
Criminal Procedure Code to convict the present appellant of the
offence of criminal conspiracy to commit armed robbery by the
learned trial Judge without a formal charge framed in the
circumstance, is a total breach of the constitutional provisions
mentioned above.” Per SANUSI, J.S.C. (Pp. 23-24, Paras.
E-C)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY:
Circumstance that would make a party guilty of the offence of
conspiracy
“Conspiracy to commit an offence is a separate
and distinct offence independent of the actual offence to which the
conspiracy is related. The actual commission of the offence is not
necessary to secure a conviction for conspiracy. The bare agreement
to commit the offence is sufficient. See: Okemefune Ndozie Vs The
State (2016) LPELR- 26067 (SC) @ 14-15 D-A; Sule Vs The State
(2009) 17 NWLR (Pt. 1169) 33; Ikemson Vs The State (1989) 3 NWLR
(Pt. 110) 455 @ 467-468.”Per KEKERE-EKUN, J.S.C. (Pp. 46-47, Paras.
F-B)
- CRIMINAL LAW AND PROCEDURE – DOUBT: Whether doubt in a
criminal trial must be resolved in favour of the
accused
“The elementary rule in our adversarial
jurisprudence or in the administration of criminal justice is;
where there exists any doubt in the case of the prosecution, such
doubt must be resolved in favour of the accused person. See IGABELE
v. THE STATE (2006) 6 NWLR (PT.975) 100 at 127.” Per EKO, J.S.C.
(Pp. 54-55, Paras. E-A)
- EVIDENCE – PROOF: Ways of proving the commission of a
crime
“It is settled law; that there are three methods
for proving an offence by the prosecution in order to obtain
conviction. These three methods of proof are as follows:- (a) By
the testimony or testimonies of eye witness or witnesses. (b)
Through voluntary confessional statement of an accused Person (c)
Through circumstantial evidence.
- EVIDENCE – CONFESSIONAL STATEMENT: Conditions to be
satisfied before a confession can be used in convicting an accused
person
“For a confessional statement to ground a
conviction, it must be voluntarily made, positive and unequivocal.
It must state or suggest the inference that he committed the crime.
See: Section 28 of the Evidence Act 2011; Ikemson Vs The State
(supra); Agboola vs The State (2013) LPELR- 20652 (SC) @ 50 E-F;
Nwachukwu Vs The State (2007) 17 NWLR (Pt. 1062) 31 @ 70.”Per
KEKEREEKUN, J.S.C. (P. 48, Paras. A-C)
- JUDGMENT AND ORDER – PERVERSE DECISION: Instances where
the decision of court would be regarded as perverse
“The decision is perverse, if among other
things, the Court took into consideration matters extraneous to the
facts in issue, or matters which it ought not to have taken into
consideration. See ATOLAGBE v. SHORUN (1985) NWLR (pt.2)360. When a
Court goes out of the proceedings to import and rely on extraneous
matters to predicate its decision on, the natural consequence of
this cloister justice is a miscarriage of justice. A decision that
occasions a miscarriage of justice is also perverse. See MISR v.
IBRAHIM (1975) 5 SC 55; IROLO v. UKA (2002) 14 NWLR (pt.786) 195
(sc); FBN v. OZOKWERE (2013) LPELR – 21897 (SC).” Per EKO, J.S.C.
(P. 57, Paras. C-F)
OTHER NOTABLE JUDGMENTS FROM THE
COURT
ANIYANGHAN & ORS v. SEIYABAKORU & ORS
(2017) LPELR-43383(CA)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Proper order
the Court will make where there is a denial of fair
hearing
“The law, as settled by many decisions of the
Supreme Court, is that where there is a denial of a party’s right
to fair hearing, the appropriate order to make, on appeal, is an
order for re-hearing or retrial. See Otapo v. Sumonu (1987) 12 NWLR
(Pt. 58) 587; Rasaki Salu v. Madam Towuro Egeibon (1994) 6 NWLR
(Pt. 348) 23; Alhaji Sani Abubakar Danladi v. Barr. Nasiru Audu
Dangiri & 6 Ors. (2015) 2 NWLR (Pt. 1442) 124 and Onuwa Kalu v.
State (2017) 14 NWLR (Pt. 1586) 523 at 547, per Nweze, JSC.”Per
ADUMEIN, J.C.A. (P. 22, Paras. B-D)
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Whether a
preliminary objection raised on appeal must be resolved before
hearing the substantive appeal
“It is settled law that where there is a
preliminary objection to an appeal, the objection must first be
heard and resolved. Even where, for the sake of convenience, the
preliminary objection is heard or taken along the appeal, the
practice, as recognised by law, is that the preliminary objection
should be first determined to enable the Court to know the next
course of action to take in the matter. See G.E.N. Onyekwuluje v.
G. B. Animashaun & Anor. (1996) 3 NWLR (Pt. 439) 637; Godwin v.
C.A.C (1998) 14 NWLR (Pt. 584) 162 and The Shell Petroleum
Development Co. of Nig. Ltd. & 2 Ors. v. Chief Isaac Osaro
Agbara & 4 Ors. (2016) 2 NWLR (Pt. 1496) 353.”Per ADUMEIN,
J.C.A. (Pp. 6-7, Paras. E-B)
- PRACTICE AND PROCEDURE – SERVICE OF COURT PROCESS(ES):
Effect of failure to serve Court process(es)
“It is now settled law that failure to effect
service, where service is required, is an issue which permeates the
jurisdictional competence of the Court to hear the action or case.
See New Nigerian Newspapers v. Oteh (1992) 4 NWLR (Pt. 273) 626;
Julius Berger (Nig.) Ltd. v. Friday
Femi (1993) 5 NWLR (Pt.295) 612; Okoroafor Mbadinuju & 3
Ors. v. Chukwunyere Ezuka & 5 Ors. (1994) 8 NWLR (Pt. 364) 5
and Mohammed Mari Kida v. A.D. Ogunmola (2006) 13 NWLR (Pt. 997)
377 at 396, per Katsina-Alu, JSC (as he then was).”Per ADUMEIN,
J.C.A. (P. 8, Paras. B-E)
- PRACTICE AND PROCEDURE – HEARING NOTICE: Effect of
failure to serve hearing notice where same is required
“This issue here is not whether the appellants
were persistently absent from Court but whether they were served
with a hearing notice. In the case of Augustine Bassey Ene v. Chief
Asuquo & Anor. (2011) All FWLR (Pt. 553) 1907 at 1939 this
Court per Orji-Abadna, JCA stated, inter alia, as
follows:
“…….where parties are repeatedly absent in
Court, the only procedure to take is to issue a hearing
notice.”
I have read the ruling of the trial Ughelli
North Area Customary Court refusing to set aside its default
judgment. I have also read the judgment of the lower Court
upholding the decision of the trial Area Customary Court. In both
decisions, that is those of the Area Customary Court and the High
Court of Delta State sitting in its appellate jurisdiction, it was
no where stated that the appellants were served with any hearing
notice before the trial Area Customary Court heard the respondents
on their claims, in the absence of the appellants and delivered
judgment against them.
All that both lower Courts relied on in refusing
to set aside the default judgment was that, it was “not shown that
the Warri Crisis extended to when the judgment was entered on
12/10/98. This application was filed on 26/1/99” and that the
appellants did not act “timeously” by “waiting for almost 4 months
after judgment before applying to set same aside”. See page 124 of
the record of appeal and pages 9-10 of the judgment of the lower
Court.
I think that having regard to the facts of the
case, as ably demonstrated by the learned counsel for the
respondents, the trial Area Customary Court ought to have fulfilled
all procedural legal requirements by issuing and serving on the
appellants a hearing notice, informing them that the respondents’
case or claim would be heard on the date(s) specified in the
hearing notice.
By failing to issue and serve a hearing notice
on the appellants, the trial Court was in breach of the appellants’
right to fair hearing, as enshrined and guaranteed in Section 36(1)
of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended). It is an indispensable requirement of justice that for a
Court to be fair and just, the Court must hear both sides to a
cause or matter by giving them ample opportunity to present their
cases. See Godwin Ekiyor & Anor. v. Chief Frukama Bomor (1997)
9 NWLR (Pt. 519) 1 and Simon Ezechukwu & Anor. v. I.O.C. Onwuka
(2006) 2 NWLR (Pt. 963) 151.
As stated earlier, the appellants were entitled
to be served with a hearing notice, but there is nothing on record
that they were indeed served. The failure by the trial Court to
issue and serve a hearing notice on the appellants is not a trivial
matter of mere irregularity but a fundamental flaw which renders
the proceedings of the trial Area Customary Court a nullity. See
Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) 1
at 15, per Uwais, JSC (as he then was).
I agree with the submission of learned counsel
for the respondents that a Court of law ought not to over indulge a
party before it. I wish to add, also, that it is settled law that a
party who indulges in delays cannot complain of denial of right to
fair hearing. See Mohammed v. Kano Native Authority (1968) 1 All
NLR 424; Nathaniel Kotoye v. Central Bank of Nigeria (1989) 1 NWLR
(Pt. 98) 419; Sunday Okoduwa
v. The State (1988) 2 NWLR (Pt. 76) 333; and Effiong Asuquo Otu
& 3 Ors. v. Okokon Effiong Udonwa (2000) 13 NWLR (Pt. 683) 157.
Recently, the Supreme Court in the case of Darlington Eze v.
Federal Republic of Nigeria (2017) 15 NWLR (Pt. 1589) 433 at 478,
per I.T.
Muhammad, JSC; stated that:
“It is the law that if a party (a counsel in
this case) is embarking on dilatory or delay tactics, the Court can
lawfully stop him in his tracks and take action against his
interest without flouting the provisions of Section 36(1) of the
Constitution. Also, any person who unduly and deliberately delays
the proceedings of the Court will have himself to blame if the
Court takes any adverse decision against him based on such
unnecessary delay.”
In this case, therefore, if the appellants had
been given a hearing notice, informing them that the case would be
heard on 28/05/1998, then no Court would have listened to them
complaining that their right to fair hearing had been breached
because in such circumstance the appellants would be guilty of
indulging in deliberate and undue delays. While the saying is true
that “Justice delayed is justice denied”; it is also true that
“Justice rushed is justice crushed” – per Lord Hope (Accra, Ghana,
2005). In this case, the trial Area Customary Court crushed justice
by rushing to hear only the respondents, without issuing an
ordinary but fundamental hearing notice to the appellants.”Per
ADUMEIN, J.C.A. (Pp. 18-22, Paras. A-A)
OHANUGO v. SOUTH AFRICAN AIRWAYS(2017)
LPELR-43432(CA)
- APPEAL – ISSUE(S) FOR DETERMINATION: Effect of an issue
for determination not arising or relating to any ground of
appeal
“It is a trite principle of law that all issues
for determination raised by the parties to an appeal must arise
from the Grounds of Appeal ensconced in the Notice of Appeal and
that failure in this regard could lead to the striking out of the
defaulting issue(s). See: IWUOHA & ANOR V. NIPOST LTD. &
ANOR (2003) LPELR-1569(SC) GWEDE V. INEC & ORS (2014)
LPELR-23763(SC); and FAFIYEBI & ANOR V. ADEBISI & ANOR
(2014) LPELR-23787(CA).”Per TUKUR, J.C.A. (P. 7, Paras.
C-E)
- CONTRACT – BREACH OF CONTRACT: Duty on a plaintiff to
prove actual loss in an action for breach of contract
“It is settled beyond controversy that a
properly formed contract is a legally binding agreement, having
terms that the Court is willing and able to enforce against the
parties. One of the ways in which the Court seeks to protect the
sanity of contracts is vide the award of damages in deserving
circumstances for breach of a term contained in a legally binding
agreement. See: BEST NIGERIA LTD. v. BLACKWOOD HODGE NIGERIA LTD.
(2011) LPELR-776(SC); ENWELU v. GIUMEX INVESTMENT LTD (2017)
LPELR-42777(CA); and EMESPO J. CONTINENTAL LTD & ANOR v.
AUTOMOTOR FRANCE S.A (2016) LPELR-42232(CA).
Notwithstanding the above general principle of
law, it must be clearly stated that it is not in every
circumstances where breach of a term contract occurs that it can be
said that damage necessitating the award of damages has occurred.
The above was what this Court was driving at in the case of MALIK
v. KADURA FURNITURE & CARPETS CO. LTD (2016) LPELR-41308(CA)
per ABIRU JCA (Pp. 22-23, Paras. F-B), where he held
thus:
“Now, a breach of contract is said to be
committed when a party, without lawful excuse fails, neglects or
refuses to perform an obligation he undertook in the contract or
performs the obligation defectively or incapacitates himself from
performing the contract or by wrongful repudiating the
contract.”
See: BEST NIGERIA LTD. V. BLACKWOOD HODGE
NIGERIA LTD. (2011) LPELR-776(SC); AFOLABI V. GOV OF OYO STATE
& ORS (2016) LPELR-41945(CA).
An application of the above definition to the
facts of this appeal, would reveal that there has been no breach of
terms necessitating the award of damages by the Respondent. The
crucial term of the contract between the parties in this appeal, is
that the Appellant be taken to South Africa by flight, which was
done by the Respondent, albeit a day late. It then behoves on the
Appellant to establish by cogent evidence that he suffered real and
actual damage by the actions of the Respondent, which entitles him
to the award of damages. The trial Court was not convinced of this
alleged fact, neither is this Court. The rule of evidence remains:
He who asserts must prove. See: DIAMOND BANK LTD v. PAMOB
WEST-AFRICA (2014) LPELR-24337(CA); INTERCONTINENTAL BANK LTD v.
BRIFINA LTD (2012) LPELR-9717(SC); ONOSIGHO v. GLO & ANOR
(2016) LPELR-40496(CA).”Per TUKUR, J.C.A. (Pp. 16-18, Paras.
B-B)
- CONTRACT – TERMS OF CONTRACT: Whether parties are free to
negotiate the terms of their relationship in a contract
“Parties to a contract, are at times, at liberty
and free to alter, review, amend or change the terms of their
agreement and once the new terms are freely accepted and performed
by them, to conclusion, the issue breach would clearly be an
afterthought. Oneh v. Obi (1999) 7 NWLR (611) 487; Nwobi v. Anukam
(2001) 14 NWLR, 38.”Per GARBA, J.C.A. (P. 19, Paras.
D-E)
- COURT – DUTY OF COURT: Whether a Court must consider all
the issues framed
“In any event I am mindful of the fact that the
Court is not bound to consider all the issues formulated by the
Appellant or indeed all the parties in the Appeal once a single
issue can dispose of the Appeal completely. See Postmaster General
& Ors vs. Maccajetan Agbaji 2006 LPELR 11926 CA.”Per TUKUR,
J.C.A. (P. 8, Paras. C-D)
EHI (NIG.) LTD & ANOR v. MOMODU(2017)
LPELR-43387(CA)
- APPEAL- UNAPPEALED FINDING(S)/DECISION(S): Effect of
unappealed finding(s)/decision(s) of court
“In its sixty-two (62) page judgment, the trial
Court, while dismissing most of the respondent’s monetary claims,
found and held that the respondent “appeared at least 16 times on
behalf of the 1st defendant at the Federal High Court”. See page
149 of the record of appeal. The appellants did not appeal against
this finding of fact and, in the eyes of the law, they are deemed
to have accepted this finding to be true and correct. See Obasi v.
Onwuka (1987) 3 NWLR (Pt. 61) 364; Ndiwe v. Okocha (1992) 7 NWLR
(Pt. 252) 129; Standard (Nigeria) Engineering Co. Ltd. v. Nigerian
Bank for Commerce and Industry (2006) 43 WRN 47; Madam Adunola
Adejumo v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt.1421) 252 and
Wike Ezenkwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors.
(2016) 1 NWLR (Pt. 1492) 71.”Per ADUMEIN, J.C.A. (P. 7, Paras.
B-F)
- APPEAL- ISSUE(S) FOR DETERMINATION: Whether issues must
be formulated from grounds of appeal
“…As can be seen from the appellants’ grounds of
appeal, reproduced above, the appellants’ subsidiary issue and the
sole issue identified by the respondent do not arise from the
grounds of appeal. The subsidiary issue framed by the appellants
and the respondent’s solitary issue are incompetent and they are
hereby struck out. The law is trite that an issue for determination
must flow from the grounds of appeal. See Attorney-General, Bendel
State & 2 Ors. v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646
and Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4
NWLR (Pt. 1236) 175.”Per ADUMEIN, J.C.A. (Pp. 4-5, Paras.
E-A)
Culled: Nairalaw.com>
ANY
COURT’S DECISION THAT OCCASIONS MISCARRIAGE OF
JUSTICE IS PERVERSE
UGBOJI V. STATE (2017) LPELR-43427(SC)
PRACTICE AREA: PRACTICE AND PROCEDURE
INTRODUCTION
It is trite that the Supreme Court will hardly interfere with
concurrent findings of the lower courts. This position was
reiterated by EKO, J.S.C, in his own contribution in this judgment
recently delivered by the Supreme Court, when he said “This Court,
as a policy, is loathe to intervene and interfere with the
concurrent findings of fact made by the trial and intermediate
Courts. The exception is, inter alia, when the concurrent findings
are perverse.”
SANUSI, J.S.C. in his leading judgment held that
“The learned Justices of the lower Court in my view are/were wrong
in affirming the decision of the trial Court when it held that the
latter was right in applying the provisions of Section 216 and
Section 217 of CPC to convict the appellant without a formal charge
framed against him. Such finding is, in my considered view,
perverse and erroneous.”
In shedding light on where the decision of court
would be regarded as perverse, EKO, J.S.C said “The decision is
perverse, if among other things, the Court took into consideration
matters extraneous to the facts in issue, or matters which it ought
not to have taken into consideration.” He went further to say that
“When a Court goes out of the proceedings to import and rely on
extraneous matters to predicate its decision on, the natural
consequence of this cloister justice is a miscarriage of justice. A
decision that occasions a miscarriage of justice is also
perverse”.
BRIEF FACTS OF THE
CASE
In summary, the facts of the case are that the
appellant herein and five others were charged before the trial High
Court sitting in Otukpo and tried on five counts recapitulated as
follows:
A. Offences allegedly committed on 18th October,
2001 at Achigili Street, Otukpo-
1. Conspiracy to commit robbery;
2. Robbing Salisu Mohammed (Pw.3) of the sum of
N10,000.00;
3. shooting and injuring Salisu Mohammed (PW.3)
in the course of robbing him.
B. Offences allegedly committed on 9th
September, 2001 at Otia F, Igbanonmaje, Otukpo
4. Robbing Adakole Ogale (PW. 1) of N3,500.00 at
gun point; and
5. Robbing Stephen Ichakpa (Pw.2) of N6,000.00
at gunpoint.
All the accused persons pleaded not guilty to
each of the five counts. In the course of the trial, three of the
accused were discharged on a no-case submission, leaving Olarewaju
Akogwu, Mathias Garuba Idoko and the appellant who was the 3rd
accused. They were eventually discharged and acquitted in respect
of counts 1, 2 and 3. The trial Court, relying on the accused
persons’ extra judicial statement, ruled that the appellant and two
other co-accused had a case to answer, as prima facie case was made
against them on counts 4 and 5. At the conclusion of the trial, the
trial judge, while delivering his judgment, invoked the provisions
of Section 216 and 217 of the Criminal Procedure Code (CPC) to the
effect that a trial Court has the power to convict an accused for
any offence disclosed by evidence even though not specifically
charged with it. The appellant was subsequently found guilty,
convicted and sentenced for conspiracy to commit armed robbery, an
offence for which they were not charged.
Riled by the decision of the trial Court, the
appellant herein, appealed to the Court of Appeal, Makurdi Division
but his appeal was dismissed by the Court. Still dissatisfied, the
appellant has now appealed to the Supreme Court.
ISSUE(S) FOR
DETERMINATION
The issues for determination as distilled by the
Court for the just determination of the appeal are:
1. Whether in the circumstances of this case it
was proper to convict the appellant to conspiracy (sic) to commit
armed robbery proffered against the appellant.
2. Whether the prosecution proved the guilt of
the appellant beyond reasonable doubt as required by
law?
HELD
The Court unanimously held the appeal to be
meritorious and accordingly, same was allowed. As a corollary, the
conviction and sentence passed on the appellant by the trial Court
which was affirmed by the lower Court was set aside. Appellant was
consequently discharged and acquitted.
RATIO DECIDENDI
- CONSTITUTIONAL LAW – SUPREMACY OF THE CONSTITUTION:
Effect of any Law or Act that is inconsistent with the
Constitution
“My lords, permit me to reiterate that the
Constitution of the Federal Republic of Nigeria of 1999, as
amended, had by Section one, made provision to emphasize or assert
its supremacy. By that provision, any law/statute or provisions
thereof that runs riot and violent to the provisions of the
Constitution or is in conflict with the constitutional provision is
null and void to the extent of inconsistency. See A.G. Ondo State
vs AG of the Federation and Ors (2002)9 NWLR (pt 772) 226.”Per
SANUSI, J.S.C. (P. 23, Paras. B-D
- CONSTITUTIONAL LAW – RIGHT OF AN ACCUSED PERSON: Right of
an accused person to be informed of the nature of the offence with
which he is charged
“By the provisions of Section 36 (6) (a) of the
1999 Constitution as amended, reproduced supra, any person charged
with a criminal offence must be informed promptly and in detail,
the nature of the offence he is charged with or accused of
committing in the language he understands. It seems to me that by
the provisions of Section 36 (6) (a), the Constitution has decreed
that a formal charge has to be framed which also must be read to
the accused person in the language he understands, as well as the
details of the nature of the offence. The trial Court must also be
certain that the accused has not been misled in his defence. The
invocation of the provisions of Section 216 and Section 217 of
Criminal Procedure Code to convict the present appellant of the
offence of criminal conspiracy to commit armed robbery by the
learned trial Judge without a formal charge framed in the
circumstance, is a total breach of the constitutional provisions
mentioned above.” Per SANUSI, J.S.C. (Pp. 23-24, Paras.
E-C)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY:
Circumstance that would make a party guilty of the offence of
conspiracy
“Conspiracy to commit an offence is a separate
and distinct offence independent of the actual offence to which the
conspiracy is related. The actual commission of the offence is not
necessary to secure a conviction for conspiracy. The bare agreement
to commit the offence is sufficient. See: Okemefune Ndozie Vs The
State (2016) LPELR- 26067 (SC) @ 14-15 D-A; Sule Vs The State
(2009) 17 NWLR (Pt. 1169) 33; Ikemson Vs The State (1989) 3 NWLR
(Pt. 110) 455 @ 467-468.”Per KEKERE-EKUN, J.S.C. (Pp. 46-47, Paras.
F-B)
- CRIMINAL LAW AND PROCEDURE – DOUBT: Whether doubt in a
criminal trial must be resolved in favour of the
accused
“The elementary rule in our adversarial
jurisprudence or in the administration of criminal justice is;
where there exists any doubt in the case of the prosecution, such
doubt must be resolved in favour of the accused person. See IGABELE
v. THE STATE (2006) 6 NWLR (PT.975) 100 at 127.” Per EKO, J.S.C.
(Pp. 54-55, Paras. E-A)
- EVIDENCE – PROOF: Ways of proving the commission of a
crime
“It is settled law; that there are three methods
for proving an offence by the prosecution in order to obtain
conviction. These three methods of proof are as follows:- (a) By
the testimony or testimonies of eye witness or witnesses. (b)
Through voluntary confessional statement of an accused Person (c)
Through circumstantial evidence.
- EVIDENCE – CONFESSIONAL STATEMENT: Conditions to be
satisfied before a confession can be used in convicting an accused
person
“For a confessional statement to ground a
conviction, it must be voluntarily made, positive and unequivocal.
It must state or suggest the inference that he committed the crime.
See: Section 28 of the Evidence Act 2011; Ikemson Vs The State
(supra); Agboola vs The State (2013) LPELR- 20652 (SC) @ 50 E-F;
Nwachukwu Vs The State (2007) 17 NWLR (Pt. 1062) 31 @ 70.”Per
KEKEREEKUN, J.S.C. (P. 48, Paras. A-C)
- JUDGMENT AND ORDER – PERVERSE DECISION: Instances where
the decision of court would be regarded as perverse
“The decision is perverse, if among other
things, the Court took into consideration matters extraneous to the
facts in issue, or matters which it ought not to have taken into
consideration. See ATOLAGBE v. SHORUN (1985) NWLR (pt.2)360. When a
Court goes out of the proceedings to import and rely on extraneous
matters to predicate its decision on, the natural consequence of
this cloister justice is a miscarriage of justice. A decision that
occasions a miscarriage of justice is also perverse. See MISR v.
IBRAHIM (1975) 5 SC 55; IROLO v. UKA (2002) 14 NWLR (pt.786) 195
(sc); FBN v. OZOKWERE (2013) LPELR – 21897 (SC).” Per EKO, J.S.C.
(P. 57, Paras. C-F)
OTHER NOTABLE JUDGMENTS FROM THE
COURT
ANIYANGHAN & ORS v. SEIYABAKORU & ORS
(2017) LPELR-43383(CA)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Proper order
the Court will make where there is a denial of fair
hearing
“The law, as settled by many decisions of the
Supreme Court, is that where there is a denial of a party’s right
to fair hearing, the appropriate order to make, on appeal, is an
order for re-hearing or retrial. See Otapo v. Sumonu (1987) 12 NWLR
(Pt. 58) 587; Rasaki Salu v. Madam Towuro Egeibon (1994) 6 NWLR
(Pt. 348) 23; Alhaji Sani Abubakar Danladi v. Barr. Nasiru Audu
Dangiri & 6 Ors. (2015) 2 NWLR (Pt. 1442) 124 and Onuwa Kalu v.
State (2017) 14 NWLR (Pt. 1586) 523 at 547, per Nweze, JSC.”Per
ADUMEIN, J.C.A. (P. 22, Paras. B-D)
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Whether a
preliminary objection raised on appeal must be resolved before
hearing the substantive appeal
“It is settled law that where there is a
preliminary objection to an appeal, the objection must first be
heard and resolved. Even where, for the sake of convenience, the
preliminary objection is heard or taken along the appeal, the
practice, as recognised by law, is that the preliminary objection
should be first determined to enable the Court to know the next
course of action to take in the matter. See G.E.N. Onyekwuluje v.
G. B. Animashaun & Anor. (1996) 3 NWLR (Pt. 439) 637; Godwin v.
C.A.C (1998) 14 NWLR (Pt. 584) 162 and The Shell Petroleum
Development Co. of Nig. Ltd. & 2 Ors. v. Chief Isaac Osaro
Agbara & 4 Ors. (2016) 2 NWLR (Pt. 1496) 353.”Per ADUMEIN,
J.C.A. (Pp. 6-7, Paras. E-B)
- PRACTICE AND PROCEDURE – SERVICE OF COURT PROCESS(ES):
Effect of failure to serve Court process(es)
“It is now settled law that failure to effect
service, where service is required, is an issue which permeates the
jurisdictional competence of the Court to hear the action or case.
See New Nigerian Newspapers v. Oteh (1992) 4 NWLR (Pt. 273) 626;
Julius Berger (Nig.) Ltd. v. Friday
Femi (1993) 5 NWLR (Pt.295) 612; Okoroafor Mbadinuju & 3
Ors. v. Chukwunyere Ezuka & 5 Ors. (1994) 8 NWLR (Pt. 364) 5
and Mohammed Mari Kida v. A.D. Ogunmola (2006) 13 NWLR (Pt. 997)
377 at 396, per Katsina-Alu, JSC (as he then was).”Per ADUMEIN,
J.C.A. (P. 8, Paras. B-E)
- PRACTICE AND PROCEDURE – HEARING NOTICE: Effect of
failure to serve hearing notice where same is required
“This issue here is not whether the appellants
were persistently absent from Court but whether they were served
with a hearing notice. In the case of Augustine Bassey Ene v. Chief
Asuquo & Anor. (2011) All FWLR (Pt. 553) 1907 at 1939 this
Court per Orji-Abadna, JCA stated, inter alia, as
follows:
“…….where parties are repeatedly absent in
Court, the only procedure to take is to issue a hearing
notice.”
I have read the ruling of the trial Ughelli
North Area Customary Court refusing to set aside its default
judgment. I have also read the judgment of the lower Court
upholding the decision of the trial Area Customary Court. In both
decisions, that is those of the Area Customary Court and the High
Court of Delta State sitting in its appellate jurisdiction, it was
no where stated that the appellants were served with any hearing
notice before the trial Area Customary Court heard the respondents
on their claims, in the absence of the appellants and delivered
judgment against them.
All that both lower Courts relied on in refusing
to set aside the default judgment was that, it was “not shown that
the Warri Crisis extended to when the judgment was entered on
12/10/98. This application was filed on 26/1/99” and that the
appellants did not act “timeously” by “waiting for almost 4 months
after judgment before applying to set same aside”. See page 124 of
the record of appeal and pages 9-10 of the judgment of the lower
Court.
I think that having regard to the facts of the
case, as ably demonstrated by the learned counsel for the
respondents, the trial Area Customary Court ought to have fulfilled
all procedural legal requirements by issuing and serving on the
appellants a hearing notice, informing them that the respondents’
case or claim would be heard on the date(s) specified in the
hearing notice.
By failing to issue and serve a hearing notice
on the appellants, the trial Court was in breach of the appellants’
right to fair hearing, as enshrined and guaranteed in Section 36(1)
of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended). It is an indispensable requirement of justice that for a
Court to be fair and just, the Court must hear both sides to a
cause or matter by giving them ample opportunity to present their
cases. See Godwin Ekiyor & Anor. v. Chief Frukama Bomor (1997)
9 NWLR (Pt. 519) 1 and Simon Ezechukwu & Anor. v. I.O.C. Onwuka
(2006) 2 NWLR (Pt. 963) 151.
As stated earlier, the appellants were entitled
to be served with a hearing notice, but there is nothing on record
that they were indeed served. The failure by the trial Court to
issue and serve a hearing notice on the appellants is not a trivial
matter of mere irregularity but a fundamental flaw which renders
the proceedings of the trial Area Customary Court a nullity. See
Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) 1
at 15, per Uwais, JSC (as he then was).
I agree with the submission of learned counsel
for the respondents that a Court of law ought not to over indulge a
party before it. I wish to add, also, that it is settled law that a
party who indulges in delays cannot complain of denial of right to
fair hearing. See Mohammed v. Kano Native Authority (1968) 1 All
NLR 424; Nathaniel Kotoye v. Central Bank of Nigeria (1989) 1 NWLR
(Pt. 98) 419; Sunday Okoduwa
v. The State (1988) 2 NWLR (Pt. 76) 333; and Effiong Asuquo Otu
& 3 Ors. v. Okokon Effiong Udonwa (2000) 13 NWLR (Pt. 683) 157.
Recently, the Supreme Court in the case of Darlington Eze v.
Federal Republic of Nigeria (2017) 15 NWLR (Pt. 1589) 433 at 478,
per I.T.
Muhammad, JSC; stated that:
“It is the law that if a party (a counsel in
this case) is embarking on dilatory or delay tactics, the Court can
lawfully stop him in his tracks and take action against his
interest without flouting the provisions of Section 36(1) of the
Constitution. Also, any person who unduly and deliberately delays
the proceedings of the Court will have himself to blame if the
Court takes any adverse decision against him based on such
unnecessary delay.”
In this case, therefore, if the appellants had
been given a hearing notice, informing them that the case would be
heard on 28/05/1998, then no Court would have listened to them
complaining that their right to fair hearing had been breached
because in such circumstance the appellants would be guilty of
indulging in deliberate and undue delays. While the saying is true
that “Justice delayed is justice denied”; it is also true that
“Justice rushed is justice crushed” – per Lord Hope (Accra, Ghana,
2005). In this case, the trial Area Customary Court crushed justice
by rushing to hear only the respondents, without issuing an
ordinary but fundamental hearing notice to the appellants.”Per
ADUMEIN, J.C.A. (Pp. 18-22, Paras. A-A)
OHANUGO v. SOUTH AFRICAN AIRWAYS(2017)
LPELR-43432(CA)
- APPEAL – ISSUE(S) FOR DETERMINATION: Effect of an issue
for determination not arising or relating to any ground of
appeal
“It is a trite principle of law that all issues
for determination raised by the parties to an appeal must arise
from the Grounds of Appeal ensconced in the Notice of Appeal and
that failure in this regard could lead to the striking out of the
defaulting issue(s). See: IWUOHA & ANOR V. NIPOST LTD. &
ANOR (2003) LPELR-1569(SC) GWEDE V. INEC & ORS (2014)
LPELR-23763(SC); and FAFIYEBI & ANOR V. ADEBISI & ANOR
(2014) LPELR-23787(CA).”Per TUKUR, J.C.A. (P. 7, Paras.
C-E)
- CONTRACT – BREACH OF CONTRACT: Duty on a plaintiff to
prove actual loss in an action for breach of contract
“It is settled beyond controversy that a
properly formed contract is a legally binding agreement, having
terms that the Court is willing and able to enforce against the
parties. One of the ways in which the Court seeks to protect the
sanity of contracts is vide the award of damages in deserving
circumstances for breach of a term contained in a legally binding
agreement. See: BEST NIGERIA LTD. v. BLACKWOOD HODGE NIGERIA LTD.
(2011) LPELR-776(SC); ENWELU v. GIUMEX INVESTMENT LTD (2017)
LPELR-42777(CA); and EMESPO J. CONTINENTAL LTD & ANOR v.
AUTOMOTOR FRANCE S.A (2016) LPELR-42232(CA).
Notwithstanding the above general principle of
law, it must be clearly stated that it is not in every
circumstances where breach of a term contract occurs that it can be
said that damage necessitating the award of damages has occurred.
The above was what this Court was driving at in the case of MALIK
v. KADURA FURNITURE & CARPETS CO. LTD (2016) LPELR-41308(CA)
per ABIRU JCA (Pp. 22-23, Paras. F-B), where he held
thus:
“Now, a breach of contract is said to be
committed when a party, without lawful excuse fails, neglects or
refuses to perform an obligation he undertook in the contract or
performs the obligation defectively or incapacitates himself from
performing the contract or by wrongful repudiating the
contract.”
See: BEST NIGERIA LTD. V. BLACKWOOD HODGE
NIGERIA LTD. (2011) LPELR-776(SC); AFOLABI V. GOV OF OYO STATE
& ORS (2016) LPELR-41945(CA).
An application of the above definition to the
facts of this appeal, would reveal that there has been no breach of
terms necessitating the award of damages by the Respondent. The
crucial term of the contract between the parties in this appeal, is
that the Appellant be taken to South Africa by flight, which was
done by the Respondent, albeit a day late. It then behoves on the
Appellant to establish by cogent evidence that he suffered real and
actual damage by the actions of the Respondent, which entitles him
to the award of damages. The trial Court was not convinced of this
alleged fact, neither is this Court. The rule of evidence remains:
He who asserts must prove. See: DIAMOND BANK LTD v. PAMOB
WEST-AFRICA (2014) LPELR-24337(CA); INTERCONTINENTAL BANK LTD v.
BRIFINA LTD (2012) LPELR-9717(SC); ONOSIGHO v. GLO & ANOR
(2016) LPELR-40496(CA).”Per TUKUR, J.C.A. (Pp. 16-18, Paras.
B-B)
- CONTRACT – TERMS OF CONTRACT: Whether parties are free to
negotiate the terms of their relationship in a contract
“Parties to a contract, are at times, at liberty
and free to alter, review, amend or change the terms of their
agreement and once the new terms are freely accepted and performed
by them, to conclusion, the issue breach would clearly be an
afterthought. Oneh v. Obi (1999) 7 NWLR (611) 487; Nwobi v. Anukam
(2001) 14 NWLR, 38.”Per GARBA, J.C.A. (P. 19, Paras.
D-E)
- COURT – DUTY OF COURT: Whether a Court must consider all
the issues framed
“In any event I am mindful of the fact that the
Court is not bound to consider all the issues formulated by the
Appellant or indeed all the parties in the Appeal once a single
issue can dispose of the Appeal completely. See Postmaster General
& Ors vs. Maccajetan Agbaji 2006 LPELR 11926 CA.”Per TUKUR,
J.C.A. (P. 8, Paras. C-D)
EHI (NIG.) LTD & ANOR v. MOMODU(2017)
LPELR-43387(CA)
- APPEAL- UNAPPEALED FINDING(S)/DECISION(S): Effect of
unappealed finding(s)/decision(s) of court
“In its sixty-two (62) page judgment, the trial
Court, while dismissing most of the respondent’s monetary claims,
found and held that the respondent “appeared at least 16 times on
behalf of the 1st defendant at the Federal High Court”. See page
149 of the record of appeal. The appellants did not appeal against
this finding of fact and, in the eyes of the law, they are deemed
to have accepted this finding to be true and correct. See Obasi v.
Onwuka (1987) 3 NWLR (Pt. 61) 364; Ndiwe v. Okocha (1992) 7 NWLR
(Pt. 252) 129; Standard (Nigeria) Engineering Co. Ltd. v. Nigerian
Bank for Commerce and Industry (2006) 43 WRN 47; Madam Adunola
Adejumo v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt.1421) 252 and
Wike Ezenkwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors.
(2016) 1 NWLR (Pt. 1492) 71.”Per ADUMEIN, J.C.A. (P. 7, Paras.
B-F)
- APPEAL- ISSUE(S) FOR DETERMINATION: Whether issues must
be formulated from grounds of appeal
“…As can be seen from the appellants’ grounds of
appeal, reproduced above, the appellants’ subsidiary issue and the
sole issue identified by the respondent do not arise from the
grounds of appeal. The subsidiary issue framed by the appellants
and the respondent’s solitary issue are incompetent and they are
hereby struck out. The law is trite that an issue for determination
must flow from the grounds of appeal. See Attorney-General, Bendel
State & 2 Ors. v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646
and Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4
NWLR (Pt. 1236) 175.”Per ADUMEIN, J.C.A. (Pp. 4-5, Paras.
E-A)
Culled: Nairalaw.com>